Puzzling case

[Volokh, Eugene]

        I think this is indeed the Rosenberger / Rust distinction.  When the
government has a policy of providing a certain speech opportunity to
everyone, in order to promote a diversity of views, it has limited power to
exclude a small subset of views from this opportunity.  This is treated as
private speech, even if the government does the printing of the stamps or
the production of the plates, or for that matter if the government prints
student newspapers on its own printing faciltiy.

        And this treatment makes sense, I think, because given the existence
of the policy listeners will assume that the views expressed are the private
person's, not the government's.  When people see a personalized plate, they
generally think "this is the driver's view" and not "this is the
government's view."  The "Highway Adopted By Group X" signs that were at
issue in those recent KKK cases are actually a bit harder, because those
signs do seem to convey some degree of government endorsement -- the subtext
is "Thanks to Group X, which we think is a good group because they're
adopting this highway."

        When, however, the government tries to express its own views, or to
support a particular set of views that it favors, then the government quite
properly must have the right to choose which views it wants to convey as its
own or as endorsed by it.  There the government is entitled to engage in
viewpoint discrimination and discretionary decisionmaking.

        Eugene

> -----Original Message-----
> From: Mark Tushnet [SMTP:tushnet at LAW.GEORGETOWN.EDU]
> Sent: Thursday, August 09, 2001 12:50 PM
> To:   CONLAWPROF at listserv.ucla.edu
> Subject:      Puzzling case
>
> I'm genuinely puzzled about how to think about Lewis v. Wilson, 253 F.3d
> 1077 (8th Cir. 2001), which holds unconstitutional a state policy of
> denying personalized license plates  that are "inflammatory or contrary
> to public policy."  The Court of Appeals invoked the principle that
> speech restrictions are unconstitutional when they are so general that
> government officials have unbridled discretion.  Assume that there's no
> state action question about the U.S. Postal Service, and that the Postal
> Service adopts a policy of issuing personalized stamps to anyone who
> pays a special fee, but refuses to issue stamps that are inflammatory or
> contrary to public policy.  Assume that a state university's press
> decides to promote literacy by issuing pamphlets submitted to it by
> anyone (with a special fee), but refuses to publish pamphlets that are
> inflammatory or contrary to public policy.
>
> I confess to being unsympathetic to the claim that these policies are
> unconstitutional, but I'm not sure why.  Does it matter that everybody's
> got to have a license plate (though not a personalized one -- and we
> know that the government can't prohibit bumper stickers that are
> inflammatory, etc.), and that every letter has to have a stamp?  Or are
> all the cases ones of government speech, including the personalized
> license plate, in which case I would think that the "unbridled
> discretion" principle couldn't possibly apply?  Or are they (or some of
> them) cases of "individual speech channeled through the government," in
> which case -- well, what *are* the relevant principles?  (The Supreme
> Court cases don't seem to acknowledge the possibility of an intermediate
> category; Rosenberger is conceptualized a case of pure individual
> speech, and I think that's true of all the relevant cases [some of
> which, of course, say that the speech is pure government speech].) <<
> File: Card for Mark Tushnet >>
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