Puzzling case

[John Noble]

At 6:05 PM -0400 8/9/01, Mark Tushnet wrote:
> That is, if the existence of a sufficient degree of
>government endorsement of a privately generated message allows the
>government to impose restrictions on the government's own actions --
>producing the license plates --, why shouldn't the judgments of the
>people's elected representatives on this contestable question of social
>fact prevail over the seat-of-the-pants judgments of scholars or
>life-tenured judges?

The problem is that the judgment is not made by those elected
representatives, nor by scholars or judges, but by faceless bureaucrats
overlaying their own notions of social meaning on a vague standard --
"inflammatory or contrary to public policy." Some clerk in the DMV office
is supposed to decide what is contrary to public policy? The government can
say what it wants to say when it is paying for the speech, but when it
charges a fee for access to a public forum it cannot regulate content. I
think the legislature can probably delegate authority to approve or
disapprove personalized plates on more particular grounds -- Carlin's seven
dirty words, or even something as broad as sexual innuendo, for example.
But the discretion to decide what is "inflammatory or contrary to public
policy" is as arbitrary as a law that let's anyone use the soapbox in the
town square as long as "the cop on the beat agrees with what you have to
say."

John Noble