Puzzling case

[Dellinger, Walter]

 Mark -- The state law denying personalized license plates messages that are
'inflammatory or contrary to public policy' seems clearly unconstitutional.
I don't see how the First Amendment can permit state officials to censor
what is undoubtedly private speech, much of it protected by the core of the
first amendment.  Here, of course the State has provided a generalized
subsidy, but it has not remotely attempted to limit the subject matter of
this 'forum' in any way, nor has it in any way sought to propound its own
message.
  Here's why I think you are unsympathetic to the claim that the law is
unconstitutional.  It is very understandably that one is uncomfortable when
state itself to actually stamps out and provide the plates for messages that
are deeply offensive [Ethnic Group X Stinks] or religious [Jesus is Lord] or
anti-religious [God is Dead].  But if one is uncomfortable with the
Government's role in actually producing such messages, the option should not
be censorship, but withdrawal of the government from the business of
stamping out messages.
   I think that we are generally too reluctant to see that the right answer,
considering both constitutional law and good policy, is to conclude that
because government can't censor private messages it funds, it simply ought
to get out of the business of funding private massages. I love much about
NPR, but the whole area of government funding of speech makes me
uncomfortable.  Censorship of [governmentally funded] private speech cannot
be the answer. Maybe less government is.

-----Original Message-----
From: Mark Tushnet
To: CONLAWPROF at listserv.ucla.edu
Sent: 8/9/01 12:49 PM
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].)
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