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Constitutional Problems with California's Specialty License Plate Program

by
Professor Leslie Gielow Jacobs
Professor J. Clark Kelso
Mr. Ryan W. Marcroft

I. Introduction

This brief report arises out of a program of research being undertaken by one of us (Professor Leslie Gielow Jacobs) dealing with the application of the free speech clause to situations where the government and private individuals speak together. A thorough review and explanation of the relevant constitutional principles as they apply to special interest license plate programs appears in Leslie Gielow Jacobs' Free Speech and the Limits of Legislative Discretion: The Example of Specialty License Plates, 53 Florida Law Review 419 (July 2001).

Our focus here is on California's specialty license plate program. We conclude that the program as currently structured raises serious constitutional concerns. These concerns can be substantially eliminated by restructuring the program to remove the Legislature's role in approving or rejecting particular license plates.

II. Description of California's Special Interest License Plate Program

Like most other states, California has a special interest license plate program. Under this program, private, non-profit organizations can seek to have special designs or messages printed on license plates that are then sold to the public at higher prices than ordinary license plates. There are currently some 44 special license plates available in California. [1]

The primary purpose of the special interest license plate program is to produce additional revenue for the state by making special license plates available for purchase at higher prices than regular license plates. In fiscal year 2000-01, for example, the special interest license plate program produced more than $30 million in revenues.[2] A consumer is willing to pay higher prices for a special license plate presumably because the consumer wishes to be associated with the message or design displayed on the plate. For those license plates which are privately sponsored, the organization providing sponsorship benefits by sharing in the State's profits from the sale and by the advertising and marketing exposure generated by the appearance on the plate of recognizable logos or messages.

Generally, a non-profit organization interested in creating a special license plate must get a California legislator to sponsor legislation authorizing the issuance of the special plate.[3] If enacted, the legislation authorizes the Department of Motor Vehicles ("DMV") to issue special license plates bearing the unique design of the special interest group.[4]

California Vehicle Code § 5060 sets forth the prerequisite criteria for applicant organizations, the physical parameters of special license plates, and other procedural requirements.[5] For example, letter and number spacing or configuration requirements can be found in that section of the Vehicle Code.[6] Moreover, the section requires the group wishing to sponsor a special license plate to obtain 7,500 fee paid applications for the plate prior to their issuance.[7] Consumers typically pay between $20 and $50 to obtain one of the special plates from the DMV.[8] Depending on the specific authorizing legislation, revenues from the sale of special license plates are divided up among the DMV, the State of California, and the special interest.[9]

III. Constitutional Analysis

There is a significant risk that the process by which special license plates are approved in California violates the free speech clause of the United States Constitution (and, possibly, the California Constitution as well). A federal district court in Louisiana has granted a preliminary injunction barring further sales of special license plates pursuant to a program that appears in many respects to be similar to California's program.[10]

The "freedom of speech" guarantee in the First Amendment[11] protects private speakers from government actions that suppress their points of view.[12] As a general matter, the government is restrained by the First Amendment from censoring private speech "based on hostility-or favoritism-towards the underlying message."[13]These protections extend to instances where the government permits private speech on government property, such as streets,[14] parks,[15] or license plates.[16]

When the government permits private speech on government property, the government may not discriminate against private speakers based on the content or viewpoint of the message. Generally, the only time the government may limit such speech is when its reasons for doing so are neutral as to the viewpoints expressed in the message.[17]

As noted above, the decision in California of whether to accept or reject a proposed special license plate is vested in the Legislature. It is usually not possible for a court to determine the reasons why the Legislature chose to adopt or to reject a certain license plate. The Legislature has not adopted any objective criteria to guide its decision-making, and it is doubtful that any such criteria would actually bind the Legislature in any event. Thus, the Legislature's discretion in deciding which plates to approve and which to reject appears to be unbounded. Without clear and objective guidelines, legislators are free to inject viewpoint considerations into the decision whether to approve or reject a special license plate.[18] Indeed, in light of the constitutional role of a legislative body to reflect the will of the people, it would be surprising if the viewpoints of a majority of the people were not reflected in these decisions. Moreover, the knowledge that legislators approve and reject license plate proposals based on viewpoint undoubtedly deters some groups from even applying, a form of induced self-censorship.[19]

Because of the Legislature's broad discretion to approve or reject special license plates, a discretion that plainly encompasses viewpoint discrimination, there is a significant risk that California's special license plate program is unconstitutional and would be subject to a judicial challenge.

IV. Possible Solutions

The Legislature can respond to the constitutional risk described above in three ways: First, the Legislature can ignore the constitutional risk and continue considering proposed special license plates on an ad hoc basis. The existing program in California has not been challenged in court, and absent such a challenge and an injunction barring its future implementation, DMV's constitutional obligation is to enforce the statutes as written. Cal. Const., Art. III, § 3.5.

Second, the Legislature could decide that it should no longer approve any special license plates for private organizations and that its power to do so under the existing program should be eliminated. The Legislature could do this by repealing the statutes that authorize applications from private organizations for special license plates. These statutes could be repealed without affecting any of the previously authorized special license plates. While theoretically the Legislature could consider private applications in the future, the repeal of the authorizing statutes would undoubtedly deter any new applications for special license plates and would reduce or eliminate future legislative involvement.

Third, the Legislature could replace the existing system with a special license plate program that has a better constitutional foundation than our current system. There are three critical changes that would place the system on a better foundation:

  • Remove from the Legislature the responsibility for approving or rejecting individual applications and vest that responsibility in an administrative agency, such as the DMV.
  • Establish clear, non-viewpoint discriminatory standards for considering individual applications.
  • Administer the program consistently.

Under this revised system, the special license plate program would be administered exclusively by the DMV pursuant to neutral statutory standards in which individual decisions by DMV would be explained in writing in light of those standards subject to appropriate judicial review. Over the course of the next several months, the Capital Center will develop specific legislation to implement this revised program.

As noted above, there are a substantial number of special license plates that have already been approved. We believe that these existing plates could continue to be sold even after implementation of a revised program without requiring reapplication so long as each of the plates actually satisfies the new statutory standards. Although we have not completed our analysis on this issue, it appears that all of the existing plates are likely to satisfy neutral standards. The legislation we are drafting will directly address this issue.

Governor Gray Davis and Assemblymembers Herb Wesson and Dave Cox have announced their intention to seek a special commemorative plate to provide funds for, among other things, the survivors of the terrorist attacks on September 11. We believe that this special license plate will also pass constitutional muster. First, it is likely that this license plate will satisfy the legislative standards we are drafting. Second, the constitutional analysis above applies only when government limits private speech (e.g., by approving some private applications for special license plates but rejecting other applications). Government has much greater freedom when it speaks for itself. We understand that the commemorative license plate is not being privately sponsored and that revenue from the sale of the license plate will be deposited in government-controlled accounts. Thus, the bill authorizing a commemorative plate is more properly characterized as government speech, and not speech by a private organization. Accordingly, we believe the bill authorizing the commemorative license plate is likely to be constitutional.


Notes

[1] Of the 44 currently issued special license plates, the following 21 are sponsored by a special interest group and part of the money derived from the plates goes to support their causes:
(1) License plates for the Arts, Cal. Vehicle Code §5074 (West 2000);
(2) Breast Cancer Treatment License Plates, Cal. Vehicle Code §5070 (West Supp. 2001);
(3) Bill of Rights Bicentennial plates, Cal. Vehicle Code §5101.9 (West 2000);
(4) Blue Sky License Plates, Cal. Vehicle Code §5062 (West 2000);
(5) Firefighter License Plate, Cal. Vehicle Code §5101.2 (West 2000);
(6) California Coastal Commission License Plate, Cal. Vehicle Code §5067 (West 2000);
(7) Commemorative Collegiate License Plates, Cal. Vehicle Code §5024 (West 2000);
(8) Commemorative Olympic License Plates, Cal. Vehicle Code §5023 (West 2000);
(9) Girls Scouts of America License Plates, Cal. Vehicle Code §5071.1 (West Supp. 2001);
(10) Have a Heart, Be a Star, Help Our Kids License Plate, Cal. Vehicle Code §5072 (West 2000);
(11) Lake Tahoe Conservancy License Plate, Cal. Vehicle Code §5075 (West 2000);
(12) Legion of Valor License Plates, Cal. Vehicle Code §5101.4 (West 2000);
(13) Congressional Medal of Honor License Plates, Cal. Vehicle Code §5101.6 (West 2000);
(14) Pearl Harbor Survivor License Plate, Cal. Vehicle Code §5101.3 (West 2000);
(15) Former Prisoners of War License Plate, Cal. Vehicle Code §5101.5 (West 2000);
(16) Purple Heart Recipients License Plate, Cal. Vehicle Code §5101.8 (West 2000);
(17) AIDS Research License Plate, Cal. Vehicle Code §5071 (West 2000);
(18) Ronald Reagan Presidential Library License Plate, Cal. Vehicle Code §5073 (West 2000);
(19) Rotary International License Plates; fees, Cal. Vehicle Code §5080 (West Supp. 2001);
(20) Veterans License Plates, Cal. Vehicle Code §5068 (West 2000);
(21) Yosemite License Plate, Cal. Vehicle Code §5064 (West 2000)
The following 23 license plates are not sponsored by an interest group, and all fees go to the DMV and the State:
(1) 1984 Olympic License Plates, Cal. Vehicle Code §5022 (West 2000);
(2) Amateur Radio Station License Plates, Cal. Vehicle Code §5005 (West 2000);
(3) Class D Radio Station License Plate, Cal. Vehicle Code §§5020-5021 (West 2000);
(4) 1984 Olympic License Plates, Cal. Vehicle Code §5101.7 (West 2000);
(5) Disabled Person or Disabled Veterans License Plates, Cal. Vehicle Code §5007 (West Supp. 2001).
(6) Personalized License Plate, Cal. Vehicle Code §5101 (West Supp. 2001);
(7) Foreign Organizations License Plates, Cal. Vehicle Code §5006.5 (West 2000);
(8) Honorary Consular Officer License Plate, Cal. Vehicle Code §5006 (West 2000);
(9) Identification Plates for Construction Vehicles, Cal. Vehicle Code §5011(West Supp. 2001);
(10) Legislative or Congressional Members License Plates, Cal. Vehicle Code §5002.8 (West 2000);
(11) Press Photographers License Plate, Cal. Vehicle Code §5008 (West 2000);
(12) Limousines and Charter Vehicle Identification License Plates, Cal. Vehicle Code §5011.5 (West 2000);
(13) Street Rod Vehicle License Plates, Cal. Vehicle Code §5004.6 (West 2000);
(14) Special License Plates for Trailers, Motorcycles, and Dollies, Cal. Vehicle Code §5000 (West Supp. 2001);
(15) Historic Vehicles License Plates, Cal. Vehicle Code §5004 (West 2000);
(16) License Plates Corresponding to Model Year Date of Historic Vehicle, Cal. Vehicle Code §5004.1 (West 2000);
(17) Pre-1943 Motorcycles License Plate, Cal. Vehicle Code §5004.5 (West 2000);
(18) Charter Vehicle License Plates, Cal. Vehicle Code §5011.9 (West 2000);
(19) Permanent Trailer Identification License Plate, Cal. Vehicle Code §5014.1 (West Supp. 2001);
(20) Identification License Plates for Equipment, Trailer, and Semitrailer, Cal. Vehicle Code §5016 (West Supp. 2001);
(21) Manufacturer or Dealer Identification License Plate, Cal. Vehicle Code §5016.5 (West 2000);
(22) Motorized Bicycle License Plate, Cal. Vehicle Code §5033 (West 2000);
(23) Manufacturers or Dealers Motorcycle License Plates, Cal. Vehicle Code §5034 (West 2000);[2] Cal. Dept. of Fin., 2001-2002 Governor's Budget, (July 26, 2001).
[3] The commemorative Collegiate License Plate is the one exception to this procedure. Cal. Vehicle Code § 5024 (West 2000).
[4]See id.
[5] Cal. Vehicle Code § 5060 (West Supp. 2001).
[6]Id.
[7]Id.
[8]E.g., Cal. Vehicle Code § 5064 (West 2000).
[9]See e.g. id.
[10]Henderson v. Stalder, 112 F. Supp. 2d 589, 595-600 (E.D.La. 2000) (finding that the Constitution does not permit states to issue "Choose Life" specialty plate). By contrast, a Florida court rejected a similar challenge to that state's program on ripeness grounds, but suggested that the First Amendment challenge was probably meritless. Hildreth v. Dickinson, 1999 U.S. Dist. LEXIS 22503, at *2-3 (M.D.Fla. Dec. 22, 1999).
[11] U.S. Const. amend. I
[12] The guarantee of free speech applies to state through the Due Process Clause of the Fourteenth Amendment. Gitlow v. New York, 268 U.S. 652, 666 (1925).
[13]R.A.V. v. City of St. Paul, 505 U.S. 377, 386 (1992).
[14]Intl. Socy. for Krishna Consciousness, Inc. v. Lee, 505 U.S. 679 (1992); Frisby v. Shultz, 487 U.S. 474, 481 (1988); Perry Educ. Assn. v. Perry Local Educator's Assn., 460 U.S. 37, 45 (1983).
[15]Perry Educ. Assn., 460 U.S. at 45; Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 761 (1995).
[16]Sons of Confederate Veterans, Inc. v. Holcomb, 129 F.Supp.2d 941 (W.D. Va. 2001); Henderson v. Stalder, 112 F. Supp. 2d 589, 596 (E.D. La. 2000); Sons of Confederate Veterans, Inc. v. Glendening, 954 F. Supp. 1099, 1102 (D. Md. 1997).
[17]See e.g. Ark. Educ. Television Commn. v. Forbes, 523 U.S. 666 (1998) ; Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995); Perry Educ. Assn. v. Perry Local Educator's Assn., 460 U.S. 37, 45 (1983).
[18]See Sante Fe Indep. Sch. Dist. v. Doe, 120 S. Ct. 2266, 2276 (2000).
[19]See Hildreth v. Dickinson, 112 F. Supp. 2d 589 (E.D. La. 2000).