En banc
Before Deits, Chief Judge, and Edmonds, De Muniz, Landau, Haselton,
Armstrong, Wollheim and Brewer, Judges.
ARMSTRONG, J.
Affirmed.
Edmonds, J., concurring.
Wollheim, J., concurring.
Landau, J., dissenting.
ARMSTRONG, J.
Petitioner seeks judicial review of a final order of the Driver
and Motor Vehicle Services Branch (DMV) that denied him his requested
choices for custom license plates for his state-registered passenger
vehicles. He argues that the DMV rules that bar his requested
messages on his custom license plates violate Article I, section
8, of the Oregon Constitution and the First Amendment to the
United States Constitution. We affirm.
Most Oregon motor vehicles must be registered with the state
and must have state-created license plates affixed to them when
they are driven on public highways. See ORS 803.300, 803.305(4),
803.520-.535, 803.540. (1) The license plates serve to identify
the vehicles as registered vehicles. They also serve to distinguish
each registered vehicle from every other registered vehicle,
because the license plate for each vehicle has a different combination
of characters from that of every other registered vehicle. See
ORS 803.535(1)(b), (d).
The state established its custom license plate system for motor
vehicles in 1971. (2) Before then, the state provided no formal
mechanism by which people registering vehicles could play a role
in selecting the characters that appeared on the license plates
for their vehicles. The state simply assigned them license plates
with character combinations that it selected.
The custom plate system gives vehicle owners the opportunity
to propose to DMV the combination of characters that DMV will
use on license plates to identify their vehicles as registered
vehicles. DMV has adopted rules to implement that system. Those
rules establish the criteria by which DMV will approve a proposed
combination of characters for a custom plate for a registered
vehicle. Those criteria focus, in turn, on the content of the
message that proposed combinations could communicate to people
viewing them. See OAR 735-46-010(7) (1995). (3)
The combinations that petitioner proposed for his custom license
plates were variations of words associated with wine. DMV concluded,
and petitioner does not dispute, that his proposed combinations
conflict with a provision in the DMV rules that bars approval
of drug-related words, which include words that "refer to any
intoxicating liquor." OAR 735-46-000(8) (1995). (4) Petitioner
contends, however, that the rules that impose that prohibition
violate Article I, section 8, and the First Amendment because
they impose an impermissible content-based restriction on his
speech.
Article I, section 8, provides that
"[n]o law shall be passed restraining the free expression of
opinion, or restricting the right to speak, write, or print freely
on any subject whatever; but every person shall be responsible
for the abuse of this right."
The provision limits the power of the state to control what others
communicate. Except in circumstances not presented here, the
provision does not impose a limit on the power of the state to
determine what it communicates. (5) The problem presented by
this case is that the communication at issue is a communication
by both petitioner and the state. The resolution of that problem
ultimately turns on how the communication is to be viewed: as
petitioner's, as the state's, or as both.
In petitioner's view, the fact that he wishes to use the custom
plate system to communicate means that any restriction imposed
by the state on his ability to do that must be analyzed in the
same way that other state-imposed restrictions on speech are
analyzed. Under that approach, the restrictions would be evaluated
under the familiar analytical model established by State v. Robertson,
293 Or 402, 649 P2d 569 (1982), to determine whether they violate
Article I, section 8. Petitioner's proposed approach necessarily
ignores the fact that the state uses license plates to communicate
state information for a state purpose, because the proposed approach
does not modify the Robertson analysis in any way to reflect
that fact. In other words, petitioner views the communication
that occurs through the use of custom plates as that of the people
who purchase them, and analyzes the state restrictions imposed
on that communication accordingly.
Conversely, if the communication is viewed as the state's, then
the decision embodied in the state rules on what the state will
communicate on license plates is not subject to the Robertson
analysis, because Article I, section 8, generally does not restrict
the state's choices about what it will communicate. (6) Of course,
that approach ignores the fact that the people who purchase custom
plates do so to communicate as well, because the approach does
not reflect that fact in any way.
Treating the communication on custom plates as that of both the
state and the plate holders does not resolve the problem, because
there is no way to blend the competing perspectives on the nature
of the communication. State choices about what it communicates
on state license plates cannot both be subject to Article I,
section 8, and not subject to it. Consequently, if the communication
is considered in any respect to be that of the plate holders,
it makes Article I, section 8, applicable to the state's choice
about what it communicates, and essentially denies the communication
its status as a state communication, because state decisions
about its communication generally do not implicate Article I,
section 8. (7)
We believe that the proper course is to view the communication
that occurs on state license plates, including custom plates,
as state communication rather than as communication by the plate
holders or a combination of both. Although the custom plate statutes
and implementing rules give people the opportunity to suggest
to the state what, if any, message it will convey on the license
plates for their vehicles, the opportunity to propose a message
does not change the fact that the plates constitute a state communication
for a state purpose, and, under the circumstances of this case,
the state gets to decide what it will communicate in doing that.
(8)
The state's role in that process is not different, in principle,
from its role in deciding the symbols that it uses for the background
for state license plates. The state established a contest in
1987 by which people could propose a new design for the state
license plate, based on criteria chosen by the state. See Or
Laws 1987, ch 572. The current plate design featuring mountains
and coniferous trees is the product of that contest. (9) The
contest gave people the opportunity to propose symbols that the
state would use to communicate through its license plates, but
the decision about the symbols was the state's to make.
Similarly, there are several plate designs that the state has
made available to people to choose for their vehicles, including
the plate with mountains and trees, a plate featuring a salmon
and a plate featuring a Conestoga wagon. See, e.g., ORS 805.205,
803.210, 803.255. Giving people a choice of designs allows them
to choose the message that they wish to convey from among the
available choices, but, again, it is the state that gets to choose
the designs that it will use for its plates.
The range of characters that the state has made available to
be used to identify registered vehicles under its custom plate
rules is much broader than the range of plate designs that it
has made available for that purpose, but that does not alter
the fact that the plates constitute a state communication for
a state purpose, and the state gets to choose what it communicates
for that purpose. Although its decision to restrict the combination of characters
that it will use on license plates to identify registered vehicles
restricts the ability of people to communicate freely through
their choice of characters for their license plates, that restriction
does not violate Article I, section 8.
A contrary conclusion would present a fundamental analytical
problem under Article I, section 8. Except for laws that come
within a recognized historical exception to the protection afforded
free expression by Article I, section 8, laws restricting expression
are required to focus on the effects of the expression, because
Article I, section 8, bars the state from choosing to restrict
expression based on its content rather than its effects. But
state decisions about what it will communicate necessarily are
content-based decisions. Article I, section 8, supplies no means
by which to reconcile the competing interests of the state to
determine the content of its communication and of the people
to be free from state restrictions on the content of their communication.
The interests cannot be balanced against each other, because
Article I, section 8, provides no principled standard by which
to determine how the balance is to be struck between them. For
example, restrictions imposed as part of a state choice about
what it communicates cannot be evaluated to determine whether
the restrictions are necessary to achieve the state's communicative
objectives, because the objectives, themselves, are subject to
state choice, and there is no constitutional standard by which
to measure the necessity of choosing the particular objectives.
Moreover, an essential feature of Oregon's free speech analysis
is the principle that Article I, section 8, bars the state from
balancing the people's right of free expression against the state's
competing policy objectives, see, e.g., State v. Stoneman, 323
Or 536, 542-43, 920 P2d 535 (1996), but any attempt to reconcile
the competing interests of the people and the state with regard
to state communication would lead to precisely that kind of balancing.
Consequently, we believe that the correct course requires us
to treat the communication that occurs on custom license plates
as state communication, and to analyze state decisions about
that communication accordingly.
That approach fits with one of the principles that underlies
the concept of a public forum. Assuming, for these purposes,
that Oregon's free speech analysis encompasses the concept of
a public forum, the use of state vehicle licenses to communicate
a state message is what would distinguish the licensing system
from such a forum. A public forum for these purposes is one in
which people have an historically recognized right to use state
property to communicate without the state exercising control
over the content of the communication or one in which the state
has made its property available for that purpose. (10) Those
who speak in those forums speak for themselves and not for the
state. Because the speech that occurs there is that of the speakers
and not the state, Article I, section 8, presumably would apply
to state restrictions on that speech in the same way that it
applies to state restrictions on speech in private forums. (11)
Where, however, the speech that occurs in a forum is the state's
speech, the state's decision to allow people to make recommendations
about that speech would not convert the forum to a public one.
That principle may maintain symmetry between the state's and
the people's ability to compel the other to speak. If the speech
that occurs in a forum is state speech, but the constitution
treats the forum as a public forum, then people would generally
be free to make the state say whatever they chose, because Article
I, section 8, would constrain the state's authority to restrict
what was said in the forum. If, instead, such a forum is not
a public forum, then people cannot use the forum to compel the
state to speak. Similarly, the free speech rights that people
enjoy may prevent the state from requiring them to say things
that they do not want to say. See Wooley v. Maynard, 430 US 705,
713-17, 97 S Ct 1428, 51 L Ed 2d 752 (1977) (under First Amendment,
state could not require license plate holder to communicate message
"Live Free or Die" over plate holder's objection to the message).
(12)
The following hypothetical illustrates the principle: Assume
that the state solicits the submission of communicative material
to be placed in display cases at the State Capitol, with detailed
standards for the content of the submissions and a commission
to screen the submissions for compliance with the standards.
The selection of the topics and standards for the material would
deny people the right to display whatever they might choose to
display, but the restrictions on the freedom of people to communicate
in that forum would not be scrutinized under Article I, section
8, to determine whether the restrictions came within a recognized
historical exception to the protection afforded free expression
or whether they were written in terms of the harmful effects
of the expression. Cf., e.g., Robertson, 293 Or at 412-18 (describes
analysis used under Article I, section 8, to determine the validity
of state-imposed restrictions on speech by others). The communication
in the display cases at the Capitol would be analyzed under Article
I, section 8, as state communication, even though people would
be given the opportunity to communicate through the material
submitted by them for the display cases.
The same analysis would apply to a state-published magazine or
newsletter that solicited or accepted manuscripts for publication.
Moreover, the analysis would apply whether the state wants to
communicate a message or only to avoid communicating one. Under
each circumstance, a determinative issue would be whether the
communication is state communication. If it is, restrictions
imposed by the state on the ability of people to communicate
by affecting the content of the state communication would be
analyzed differently under Article I, section 8, from other state-imposed
restrictions on expression. (13)
The DMV rules also do not violate the First Amendment. (14) In
Arkansas Ed. Television Comm'n v. Forbes, 523 US 666, 118 S Ct
1633, 140 L Ed 2d 875 (1998), the Supreme Court highlighted the
differences between public and nonpublic forums by examining
how each is created. The Court wrote:
"On one hand, the government creates a designated public forum
when it makes its property generally available to a certain class
of speakers * * *. On the other hand, the government does not
create a designated public forum when it does no more than reserve
eligibility for access to the forum to a particular class of
speakers whose members must then, as individuals, 'obtain permission'
to use it."
Id. at 679 (citation omitted). Here, the state has reserved eligibility for license plate registration
to those who meet its statutory qualifications. (15) Those who
qualify must then "obtain permission" from DMV in order to obtain
the custom license plate of their choice, which appears to make
the custom plate system a nonpublic forum under the First Amendment.
The state does not violate the First Amendment by controlling
the content of communication in a nonpublic forum if the restrictions
imposed on content are reasonable in light of the purposes of
the forum and are viewpoint neutral. See, e.g., id. at 682. Petitioner does not dispute that the DMV
rules meet that standard, and we conclude that they do.
Petitioner argues, however, that DMV's function in approving
plates is "ministerial" in nature--decision making without an
official exercise of discretion--and therefore incapable of creating
a nonpublic forum. (16) In deciding whether a license plate message
falls within the expression prohibited by DMV's rules, DMV is
directed to consider the message "to be the most objectionable
denotation or connotation that reasonably may be ascribed to
it." OAR 735-46-010(8) (1995). Even within those guidelines,
our language is complex enough to require the exercise of judgment
when deciding the reasonable meaning of many messages. The word
"scatt," for example, means tax or tribute. Webster's Third New
International Dictionary, 2027 (unabridged ed 1993). Is it reasonable
to accord that term the same meaning as "scat," a sudden rain
shower; "scat," to scatter, smash, or beat; "scat," to go away
quickly; "scat," to improvise meaningless syllables in a melody;
or, finally, the "scat" that is animal feces? (17) Whatever the
outcome, we see nothing ministerial in resolving that question.
Regardless of whether the "reasonable" decision is easy or hard
to make, it still requires an element of judgment that places
the process beyond a purely ministerial function. Because state
license plates are not a public forum, the DMV rules that petitioner
challenges do not violate the First Amendment.
Affirmed.
EDMONDS, J., concurring.
I agree with the lead opinion's result, but not with all of the
statements in its opinion. The lead opinion concludes that the
information that is displayed on state license plates on vehicles
that are being driven on state highways is communication by the
state rather than communication by motorists, or is a combination
of communication by the state and the motorists. In my view,
the breadth of that conclusion ignores the reality of the underlying
facts.
There are three stages of expression involved when a motorist
makes an application for a personalized license plate. First,
the applicant requests that DMV adopt the applicant's proposed
language on the license plate that will be issued to the applicant.
That expression is only the applicant's. Second, DMV issues the
license plate and delivers it to the applicant. Whether the license
contains the proposed language of the applicant or not, it is
only the expression of the agency until the expression is adopted
by the applicant by the placement of the plate on the vehicle.
Third, by placing the license on his vehicle, the applicant makes
it part of his own expression. At the third stage, there is truly
a combined expression by the state and the applicant.
The restraint on expression arising out of the application of
the rule occurs when Department of Motor Vehicles refuses, pursuant
to the rule, to adopt the expression of the motorist contained
in the application for the personalized license plate. At that
point, the state is only concerned with a restraint on its own
expression: whether it will adopt the applicant's proposed expression
as its own. The state is free to prescribe the content of its
own communications on license plates. Once the license is issued,
then the motorist must decide whether to adopt it as his own
expression. If the state has issued the plate with the proposed
language, then the motorist is free to use the state's expression
and combine it with his. If the state has not accepted his proposal,
the motorist is at liberty to adopt the state's communication
of numerals and letters as his own in exchange for the privilege
of driving on the public highways of the state, or he may eschew
the privilege, believing that the state's restriction on its
own communication is offensive. In either instance, his right
to express his message is not infringed. He may still display
his expression on his vehicle. The only impediment arising from
the rule is that he may not compel the state to combine his expression
with its expression on the license plate. Thus, a motorist's
freedom of expression would be violated only if the constitutions
vested motorists with the unfettered right to have official state
of Oregon license plates express content of their own choosing.
Of course, such rights do not exist under any statute or the
constitutions.
Brewer, J., joins in this concurrence.
WOLLHEIM, J., concurring.
I concur with the lead opinion's decision, but not with its analysis.
The problem with its analysis is that it refuses to apply the
methodology announced in State v. Robertson, 293 Or 402, 649
P2d 569 (1982). Because the Robertson methodology applies to
any statute or regulation, this court cannot simply ignore Robertson
because it is convenient to do so. However, I would hold that
the challenged regulations do not violate petitioner's rights
under Article I, section 8, of the Oregon Constitution and, thus,
I concur. (18)
Article I, section 8, prohibits any law "restricting the right
to speak, write or print freely on any subject whatever." That
provision means what it says. Restrictions aimed at the content
of speech itself are normally impermissible. Oregon State Police
Assn. v. State of Oregon, 308 Or 531, 783 P2d 7 (1989), cert
den 498 US 810 (1990). "The nature of the prohibition, either
civil or criminal, is immaterial to the first sentence of Article
I, section 8, which directs that 'no law' shall restrict or restrain
speech, writing and printing." City of Hillsboro v. Purcell,
306 Or 547, 553, 761 P2d 510 (1988).
There is no dispute that the rules in question facially concern
expression and thus implicate Article I, section 8. In Robertson,
the Supreme Court established a framework for evaluating whether
a law violates Article I, section 8. Its analysis distilled Oregon
laws implicating expression into three types:
"The first Robertson category consists of laws that focus on
the content of speech or writing or are written in terms directed
to the substance of any opinion or any subject of communication.
Laws within that category violate Article I, section 8, unless
the scope of the restraint is wholly confined within some historical
exception that was well established when the first American guarantees
of freedom of expression were adopted and that the guarantees
then or in 1859 demonstrably were not intended to reach. The
second Robertson category consists of laws that focus on forbidden
effects, but expressly prohibit expression used to achieve those
effects. Laws in that category are analyzed for overbreadth.
Finally, the third Robertson category consists of laws that focus
on forbidden effects, but without referring to expression at
all. Laws within the third category are analyzed to determine
whether they violate Article I, section 8, as applied." City
of Eugene v. Miller, 318 Or 480, 488, 871 P2d 454 (1994) (internal
quotes and brackets omitted; citations omitted; emphasis in original).
The Robertson framework assumes that all statutes regulating
speech fall into one of only three possible categories. This
court has previously noted that some applications may appear
awkward in certain cases, particularly where licensing or regulatory
schemes are involved. Oregon State Bar v. Smith, 149 Or App 171,
942 P2d 793 (1997). Nevertheless, I acknowledge that the Robertson
methodology "purports to describe the applicable universe." Id.
at 184. Here we must ascertain in what analytical category DMV's
custom license plate rules belong and how they are impacted by
this state's jurisprudence of free expression.
Robertson's second category is not implicated because neither
the text nor context of the rules reveals a focus on proscribable
harms regulated through incidental, albeit express, restraints
on expression. (19) And because OAR 735-046-0010(7) (1995) proscribed
the use of specific words, the rule does not fit into the third
Robertson category. The only possible conclusion is that the
rules before us proscribe "words" without reference, implied
or otherwise, to specific harmful effects. Thus, the DMV rules
focus on the content of the written communication. Robertson,
293 Or at 412. The Supreme Court has repeatedly held that, while
certain harmful effects of speech may be forbidden, restrictions
aimed at the content of speech and not its resulting harm are
normally impermissible. In re Fadeley, 310 Or 548, 559, 802 P2d
31 (1990). At the same time, however, the court has stated that
the sweep of Article I, section 8, is not absolute; exceptions
exist. Id.
The first Robertson exception is for "historical" limitations
on speech. This exception recognizes content-based restraints
on expression that were already established when the Bill of
Rights was adopted and to which neither the guarantees of that
document nor those of the Oregon Constitution of 1859 was intended
to reach. Robertson, 293 Or at 412. As petitioner correctly notes,
the elements around which DMV rules revolve--license plates,
automobiles, etc.--are part of a forum too contemporary to allow
the regulations that control them to find sanctuary as a historical
exception.
A second exception is the "incompatibility exception" articulated
in In re Lasswell, 296 Or 121, 125-26, 673 P2d 855 (1983). That
exception acknowledges that some limitations on speech are valid
when a speaker's message is incompatible with the speaker's public
function. Id. The issue in Lasswell stemmed from statements that
a district attorney had made in newspaper and television interviews
regarding facts behind a major drug investigation and the arrests
that followed it. Id. at 123. As a result of his statements,
the district attorney was charged by the Oregon State Bar (the
Bar) with violating DR 7-107 (B), a disciplinary rule that forbade
prosecutors from making certain extra-judicial comments in public
regarding the prosecution or defense of a criminal matter prior
to trial. Id. On appeal, the district attorney raised an Article
I, section 8, challenge to the rule, arguing that as interpreted
by the Bar, the rule violated his right to free speech. In upholding
the rule's constitutionality, the Supreme Court found that DR
7-107 (B) was not an outright prohibition on discussion generally,
but was, rather, an enactment that focused on the incompatibility
between an "official function" and speech that, though privileged,
nevertheless vitiated the proper performance of that function.
Id. at 125. In effect, the court "recognized that there are some
activities that lawmakers could not forbid citizens generally
from doing, but that they may declare to be incompatible with
the role and work of a public official." Meltebeke v. Bureau
of Labor and Industries, 322 Or 132, 156 n 4, 903 P2d 351 (1995)
(Unis, J., specially concurring) (emphasis added).
The paradigm of that exception has, up until now, concerned expression
by an individual working in an official public capacity, e.g.,
elected officials, public employees, and state licensed professionals,
that was incompatible with the individual's official role in
the public forum. (20) The gravamen of the exception, however,
was the character of the speech as official public speech, not
necessarily that the speaker was an individual working in an
official public role. For example, the speech at issue in Lasswell
carried both private and public expressive content, like the
situation here. Both types of comments were made by one individual.
However, because the district attorney spoke as part of his official
public role, the speech was considered to represent that official
public role. Thus, Article I, section 8, tolerated the Bar's
curtailment of the district attorney's incompatible private expression
because the overriding nature of the speech pertained to an official
public role. Here, the distinctions are that the speech contained
in the license plate is made by an agency and an individual,
and that the license plate expresses the agency's official public
identification of the vehicle and a private individual's message.
However, those distinctions are without a difference where the
principle of the exception rests on the overriding nature of
the speech as pertaining to an official public role. I believe
that the incompatibility exception is applicable where license
plates are partially speech pertaining to the official public
role of DMV.
The entire process of assigning automobile license plates is
undoubtedly an official function of the state. The very content
of a license plate operates to officially identify a vehicle.
The legislature has mandated that "the Department of Transportation
shall select registration plates it issues." ORS 803.535 (emphasis
added). As components of this selection process, the legislature
has made the department responsible for determining the size,
form, arrangement and material of the plates. ORS 803.535(1).
It has also required that if plates are issued, the department
is responsible for providing the means of vehicle identification
by way of characters on the plates. ORS 803.535(l)(b). Those
statutes underscore the fact that ultimately, the burden of who
gets what license plate falls on the state. Under ORS 805.240,
the Department of Transportation is authorized to issue customized
registration plates on request, but only if the plates meet the
requirements of ORS 803.535. I assume that that includes the
requirements mentioned above, placing the onus of plate selection
squarely on the department. The menu of choices available to
the general public for custom plates may be large or it may be
small, but ultimately, for the state to comply with ORS 803.535,
it must stamp that choice with its imprimatur of approval. (21)
OAR 735-046-0010 (1995) merely prohibits messages that are incompatible
with an official state function. The context of the rule reveals
an intent to spare the public from expression that a reasonable
person could find objectionable. See OAR 735-046-0010(8) (1995)
(In determining whether a plate choice is prohibited under the
rule, "[t]he plate choice shall be considered to be the most
objectionable denotation or connotation that reasonably may be
ascribed to it.") Obviously, that type of communication is not
the sort that lawmakers could generally forbid citizens in this
state to engage in. It is, however, the kind of communication
that could be declared incompatible with an official role and
that lawmakers could, therefore, generally prohibit the state
from engaging in.
In In re Fadeley, the Supreme Court articulated the test for
determining incompatibility. The court first noted that in making
such a determination, the interests juxtaposed against Article
I, section 8, expression need not be constitutional in magnitude
in order for the expression in question to be incompatible with
an official function. 310 Or at 564. Rather, the court declared
that the question that must be asked is whether the offsetting
societal interest--to which we would subjugate the right to speak
freely in that narrow circumstance--is of the same degree of
fundamental importance as concerns expressed in the constitution.
In In re Fadeley, the court found that the appearance of judicial
integrity was important enough to trump a Supreme Court justice's
right to make direct requests for contributions to his re-election
campaign. Id.
Here, the manner in which state government may be perceived by
those it serves is once again implicitly at issue. DMV's only
fault here has been to anticipate as much and respond by attempting
to be as inoffensive as possible. Article I, section 1, provides
that "all power is inherent in the people, and all free governments
are founded on their authority, and instituted for their peace,
safety, and happiness." (Emphasis added.) In a small but important
way, the state has acknowledged that authority by placing a bar
on its own mouth. It has determined that in serving the people
of Oregon, DMV will, to the best of its ability, refrain from
issuing license plate messages that reasonable women and men
could find objectionable. By discharging that official function
with concern for the sensibilities of the public, DMV does not
act as an arbiter of public discourse.
I also note that DMV's role in selecting and assigning license
plates is part of Oregon's Vehicle Code, ORS chapters 801 to
826. The policy of that code includes providing for the "maximum
safety for all persons who travel or otherwise use the public
highways of this state." ORS 801.020 (11)(a). To that end, the
state has developed rules of the road that prohibit, for example,
the operation of a vehicle by a person while that person is under
the influence of intoxicants. In this instance, if the court
requires the state to issue these license plates, the state could
appear to condone conduct--driving under the influence of intoxicants
(DUII)--which it otherwise clearly prohibits. Such an order would
be incompatible with DMV's official state function to promote
traffic safety.
It is easy to conceive of another situation where limiting DMV's
role in approving license plate requests would lead to an inconsistent
approach to promoting traffic safety. For example, I can envision
a derogatory racial, ethnic, national origin, or gender message
on a license plate that would enrage another person and cause
that person to drive in a dangerous fashion--perhaps speeding
to catch up to that vehicle or following too closely behind it--to
communicate that person's displeasure to the driver of the vehicle.
Following too closely behind another car and driving over the
speed limit are prohibited under the vehicle code, as are many
other actions that an enraged driver might commit. By allowing
DMV to prohibit offensive content on state-issued vehicle license
plates, the court allows DMV to eliminate some conditions that
might incite enraged and dangerous driving and lessen traffic
safety. Requiring DMV and, in effect, the state itself to utter
offensive speech through the form of state issued license plates
would be incompatible with the state's function of promoting
safe driving.
Obviously, I believe that the incompatibility analysis is appropriate
in this setting. I must, however, acknowledge that to date the
exception so far has been applied only where a single individual
acting in the public sector formulates the content of the speech.
Here, in this situation, the actual content of the speech is
formed by a state agency and a private individual. The conclusion
that the focus of the exception turns more on the essential nature
of the speech rather than on the utterer of the speech is frankly
an issue of first impression for this state. However, a decision
to apply the incompatibility exception in this instance would
not be formed in a vacuum. Federal case law provides an instructive
template that is helpful in light of the paucity of Oregon law
directly on point. The United States Supreme Court has recognized
that "when the State is the speaker, it may make content-based
choices." Rosenberger v. Rector and Visitors of Univ. of Va.,
515 US 819, 833, 115 S Ct 2510, ___, 132 L Ed 2d 700 (1995).
That notion is derived, in part, from an earlier decision by
the Court in which it concluded that "when the Government appropriates
public funds to establish a program it is entitled to define
the limits of that program." Rust v. Sullivan, 500 US 173, 194,
111 S Ct 759, 114 L Ed 2d 233 (1991). In this case, the essence
of the speech fulfills one of DMV's official public roles--identifying
vehicles. DMV has, in turn, established legitimate limits in
accomplishing that goal. (22) Employing the incompatibility exception,
as I suggest here, would allow the court to acknowledge that
self-limiting aspect of governance while remaining true to this
state's jurisprudence of free expression. The trial court did
not err in finding that DMV rules did not violate Article I,
section 8.
Accordingly, I concur with the lead opinion's decision to affirm.
LANDAU, J., dissenting.
Were we writing on a clean slate, I would agree that the state
has the authority to limit what an individual may select for
the identifying characters of a custom license plate. A license
plate is, after all, at least in part, state "speech," and it
makes no sense to me that, merely because it is also to some
extent the individual's speech, the state's authority suddenly
becomes irrelevant. In my view, just as the state cannot force
an unwilling individual to be associated with a particular message,
neither should the individual be able to force the state to be
associated with a particular message.
The problem is that we do not write on a clean slate. It must
be acknowledged that the foregoing cannot be reconciled with
the doctrine of State v. Robertson, 293 Or 402, 649 P2d 569 (1982),
and its progeny, which provides that, unless a law directed at
the content of an individual's speech is wholly contained within
a historical exception, it is unconstitutional. There can be
no question but that the state is regulating the communicative
content of the requested license plate. Likewise, there can be
no question but that the regulation of license plates does not
fall within a historical exception. The answer, ineluctably,
is that the state cannot regulate the content of custom license
plates.
A majority of this court attempts to have its proverbial cake
and eat it, by offering various ways of avoiding what the Robertson
analysis seems so plainly to require. I find none of those avoidance
rationales to be persuasive.
In the lead opinion, Judge Armstrong argues that Robertson simply
does not apply. The lead opinion cites no authority for that
remarkable assertion-that Robertson does not apply to a state
regulation of the content of an individual's speech. It simply
declares that, although the regulation of the content of custom
license plates is the regulation of an individual's speech, the
concomitant state interest in the subject allows us to treat
the regulation as if it did not regulate the content of an individual's
speech.
In my view, what is clearly a regulation of an individual's speech
does not become something else merely because of the state's
interest. Regardless of whether the state's interest is legitimate,
the individual's speech remains what it is. And under Robertson,
the state's regulation of that speech is unconstitutional unless
wholly contained within a historical exception.
In a concurring opinion, Judge Edmonds similarly concludes that
Robertson does not apply, because, at the precise temporal point
of state regulation, the license plate reflects only state speech.
In my view, his reasoning fails to recognize that the practical
effect remains the state regulation of individual speech, to
which Robertson applies.
Finally, in another concurring opinion, Judge Wollheim argues
that Robertson does apply, but the state's regulation nevertheless
is authorized under the "incompatibility exception." I agree
with the lead opinion that what Judge Wollheim proposes is an
unprecedented extension of the exception.
Perhaps more plainly stated, what each of the other opinions
in this case proposes is a significant rewriting of Robertson.
That is a fairly ambitious move for this court, one that I would
have thought more properly rested with the judgment of the Supreme
Court. To be sure, I have no objection to suggesting to that
court a particular approach, one that might require some modification
of current law. But it strikes me as another thing altogether
simply to assume the task of rewriting Oregon constitutional
law ourselves.
I respectfully dissent.
Haselton, J., joins in this dissent.
------------------------------------------------------------------------
1. Not all Oregon motor vehicles must be registered in order
to be driven on public highways. For example, farm tractors are
exempt from the registration requirement. ORS 803.305(1).
------------------------------------------------------------------------
2. See Or Laws 1971, ch 211.
------------------------------------------------------------------------
3. The rules at issue are those that were in effect when petitioner
applied for his custom plates. At that time, OAR 735-46-010(7)
(1995) provided that
"DMV shall deny custom plate choices that are:
"(a) Words of a vulgar nature;
"(b) Sex-related words;
"(c) Excretory-related words;
"(d) Words related to intimate body parts;
"(e) Drug-related words; or
"(f) Ethnic words."
------------------------------------------------------------------------
4. The following definitions apply to the restrictions imposed
by OAR 735-46-010(7) (1995):
"(4) 'Words of a Vulgar Nature' shall be those words labeled
as 'vulgar' or 'vulgar slang' in the current edition of the New
College Edition, American Heritage Dictionary.
"(5) 'Sex-Related Words' shall be those words which by denotation
or connotation refer to the sex organs, to activities involving
the sex organs (for example sexual intercourse), or to a purveyor
of sex.
"(6) 'Excretory-Related Words' shall be those words which by
denotation or connotation refer to the external elimination of
urine, feces or related matter.
"(7) 'Words related to intimate body parts' shall be those words
which by denotation or connotation refer to the breasts, genitalia,
pubic area or the buttocks.
"(8) 'Drug-Related Words' shall be those words which by denotation
or connotation refer to any intoxicating liquor or controlled
substance or their use.
"(9) 'Ethnic Words' shall be those words which by denotation
or connotation refer to a definable class of persons (such as
on the basis of sex, sexual preference, race, nationality, creed,
religious preference or place of historical origin) and that
ridicule or support superiority of that class."
OAR 735-46-000(4)-(9) (1995).
------------------------------------------------------------------------
5. Leaving aside the issue of access to governmental information,
state decisions about what it will communicate generally do not
restrain or restrict what others communicate, so state decisions
about its communication generally do not implicate Article I,
section 8. There may be circumstances, however, in which a state
decision about its communication could restrict communication
by others. For example, the United States Supreme Court held
in Wooley v. Maynard, 430 US 705, 713-17, 97 S Ct 1428, 51 L
Ed 2d 752 (1977), that a person had a right under the First Amendment
not to be required to communicate a state motto on the license
plate for his car over his objection. The same principle might
apply under Article I, section 8, because state compulsion to
communicate an opinion restricts the compelled person's freedom
to choose the opinions to communicate.
------------------------------------------------------------------------
6. But see ___ Or App at ___ n 5 (slip op at 4 n 5).
------------------------------------------------------------------------
7. Of course, the state still could exercise control over individual
choices about the content of custom plates to the extent necessary
to achieve the state's communicative objectives. For example,
the state could deny everyone other than petitioner the right
to put the word "WINE" on a license plate in order to preserve
the use of license plates as a means of reliably distinguishing
among vehicles. As we explain below, ___ Or App at ___ (slip
op at 7-9), an approach that subjects state choices about what
it communicates to an evaluation of whether the particular choices
are necessary to achieve the state's communicative objectives
presents an insurmountable analytical problem under Article I,
section 8.
------------------------------------------------------------------------
8. The dissent appears to agree that our resolution of the questions
presented by this case makes sense, but it concludes that Robertson
requires a different result. Robertson and its progeny do not
require that. No Oregon case of which we are aware has involved
the application of the Robertson analysis to state speech. Every
case has involved state restrictions imposed on communication
by others without any state participation in the communication.
See, e.g., State v. Stoneman, 323 Or 536, 920 P2d 535 (1996);
Moser v. Frohnmayer, 315 Or 372, 845 P2d 1284 (1993); City of
Portland v. Tidyman, 306 Or 174, 759 P2d 242 (1988); State v.
Moyle, 299 Or 691, 705 P2d 740 (1985); Robertson. This case requires
us to consider, for the first time, how to analyze state restrictions
on the ability of others to affect what the state communicates
in performing its functions. Contrary to the dissent's suggestion,
no Oregon case, including Robertson, tells us how to do that,
so we necessarily have had to analyze the issue in a way that
we believe to be faithful to Article I, section 8, and the Oregon
cases that have interpreted that provision. We have done that.
------------------------------------------------------------------------
9. To be precise, the 1989 Legislature modified the approved
design by changing the color of the sky in it. See Or Laws 1989,
ch 742, § 4 (codified at ORS 803.538).
------------------------------------------------------------------------
10. Cf., e.g., Perry Ed. Assn. v. Perry Local Educators' Assn.,
460 US 37, 44-46, 103 S Ct 948, 74 L Ed 2d 794 (1983) (notes
the existence of both types of forums under the First Amendment).
------------------------------------------------------------------------
11. Cf., e.g., City of Eugene v. Miller, 318 Or 480, 871 P2d
454 (1994) (restriction on sale of expressive material on city
sidewalks analyzed under Robertson).
------------------------------------------------------------------------
12. Judge Wollheim's concurrence takes a different tack. It contends
that all state restrictions on speech must be analyzed under
the Robertson analysis, but concludes that the DMV rules come
within an incompatibility exception to that analysis. We see
several problems with that approach. First, we and the concurrence
agree that the existing analytical framework does not directly
address the issue presented by this case. Consequently, it is
necessary to adapt that analysis. The concurrence does that by
modifying the incompatibility exception and then using the modified
exception to support its conclusion that the state's choices
about its communication on petitioner's license plates prevail
over petitioner's choices. We believe that it is simpler, and
correct, to recognize that it is the nature of the communication,
itself, that determines why the state's choices prevail over
petitioner's. Hence, we see no reason to adapt the incompatibility
exception for use in this case.
Second, we do not believe that the concurrence's modification
of the exception is faithful to it. As the concurrence recognizes,
the exception has been uniformly applied to uphold restrictions
on communication by public officials that is incompatible with
their official functions. It is a significant, and we believe
unwarranted, extension of the exception to use it to uphold a
restriction on communication by private individuals whose speech
is said to be incompatible with a governmental function.
Finally, we do not believe that the DMV rules can be understood
to restrict expression that is incompatible with DMV's functions.
The concurrence equates the use of words that identify drugs
or intoxicating liquor on license plates with the message that
it is acceptable to ingest them and drive. If the words, alone,
conveyed that message, their use on license plates would perhaps
be incompatible with the effort by DMV and related state agencies
to prevent people from driving while under the influence of intoxicants.
But the words, standing alone, do not convey that message. The
words WINE, INVINO, and VINO that petitioner sought for his license
plates cannot be understood to communicate the idea that people
should drink and drive, so their presence on license plates cannot
be understood to be incompatible with any function performed
by DMV. (If the words were incompatible, it would be difficult
to explain why state-approved signs to identify the location
of Oregon wineries have been installed on the rights-of-way of
Oregon highways so that people driving on the highways will visit
the wineries. See OAR 733-30-0085 to 733-30-0140 (rules governing
approval of tourist-oriented directional signs on state highways).)
Furthermore, the DMV rules prohibit the use of the word "wine"
on a license plate, which presumably means that the license plate
NO WINE would violate the rule. While the statement NO WINE would
be incompatible with the efforts of the Oregon Wine Advisory
Board to promote the Oregon wine industry, see ORS 576.755, it
is difficult to see how that message would be incompatible with
DMV's functions, yet the rules prohibit it. Contrary to the concurrence's
view, the incompatibility exception cannot be used to uphold
DMV's rules if, as the concurrence contends, they otherwise are
invalid under Robertson.
------------------------------------------------------------------------
13. To forestall any misunderstanding, we emphasize that our
decision addresses only the narrow situation presented in this
case in which private individuals or entities are given the opportunity
to recommend to the state what it will communicate or to select
among messages chosen by the state for its communication. Our
resolution of that issue does not necessarily control the result
in all situations in which the state and others are jointly involved
in communication.
------------------------------------------------------------------------
14. The First Amendment to the United States Constitution provides
that
"Congress shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof; or abridging the freedom
of speech, or of the press; or the right of the people peaceably
to assemble, and to petition the Government for a redress of
grievances."
The First Amendment is applicable to the states through the Fourteenth
Amendment. E.g., City of Ladue v. Gilleo, 512 US 43, 45 n 1,
114 S Ct 2038, 129 L Ed 2d 36 (1994).
------------------------------------------------------------------------
15. Those qualifications are enumerated in ORS 803.350 to 803.360.
------------------------------------------------------------------------
16. Petitioner's argument assumes that the permission to be granted
must involve an exercise of discretion in order for the forum
that is subject to that permission to be a nonpublic forum. We
do not decide whether that assumption is correct in resolving
whether the custom plate system constitutes a nonpublic forum.
------------------------------------------------------------------------
17. See OAR 735-46-010(7) (1995) (bars approval of excretory-related
words on custom license plates); OAR 735-46-000(6) (1995) (defines
excretory-related words to include words that refer to the external
elimination of feces).
------------------------------------------------------------------------
18. I also concur with the lead opinion's First Amendment analysis.
------------------------------------------------------------------------
19. In State v. Stoneman, 323 Or 536, 920 P2d 535 (1996), the
Supreme Court wrote:
"If the enactment's restraint on speech or communication lies
outside an historical exception, then a further inquiry is made--whether
the actual focus of the enactment is on an effect or harm that
may be proscribed, rather than on the substance of the communication
itself. If the actual focus of the enactment is on such a harm,
the legislation may survive scrutiny under Article I, section
8." Id. at 543 (emphasis in original).
The court went on to note that such a focus could be communicated
either expressly within the text of a statute in terms of the
harmful effects to be countered or implied through a statute's
context. Id. at 544-45. In this case, the text of the 1995 administrative
rules do not specifically describe the prohibited license plate
choices in terms of harmful effects. A contextual analysis allows
me to infer only that the prohibition against certain words on
license plates is meant to spare the public from that which a
reasonable person could find objectionable. See OAR 735-046-0010(8)
(1995) (In determining whether a plate choice is prohibited under
the rule, "[t]he plate choice shall be considered to be the most
objectionable denotation or connotation that reasonably may be
ascribed to it.") (emphasis added). As Stoneman states, however,
the harm or effect at issue must be one that "may be proscribed"
in the first place. Given the premium that our state constitution
places on freedom of expression, the fact that some communication
may be deemed "objectionable" is not an effect warranting state
efforts to scour it from the discourse of the general public.
That same communication, however, when it emanates from a state
speaker, may be incompatible with an official office or function
and therefore receives less deferential treatment, as I shall
discuss shortly.
------------------------------------------------------------------------
20. See, e.g., In re conduct of Schenck, 318 Or 402, 870 P2d
185 (1994) (circuit court judge); In re Fadeley, 310 Or 548,
802 P2d 31 (1990) (state Supreme Court justice); Oregon State
Police Officers Ass'n. v. State of Oregon, 308 Or 531, 783 P2d
7 (1989) (state police officers); Cooper v. Eugene School Dist.
No.4J, 301Or 358, 723 P2d 298 (1986) (public school teacher);
In re Lasswell, 296 Or 121, 673 P2d 855 (1983) (district attorney);
Miller v. Board of Nursing, 115 Or App 84, 836 P2d 749, rev den
314 Or 727 (1992) (state-licensed nurse); Koch v. City of Portland,
94 Or App 484, 766 P2d 405 (1988), rev den 308 Or 79 (1989) (municipal
police officer).
------------------------------------------------------------------------
21. The reason why an individual wants a vanity license plate
is that the license plate bears the imprimatur of the state.
Petitioner wants the state's endorsement of his message. Petitioner
could put any bumper sticker on his vehicle that he desires,
including one that looked like an Oregon license plate but displayed
the words WINE, VINO, or INVINO. However, such a bumper sticker
would not satisfy petitioner's desire to have the state endorse
the words he chooses to display.
------------------------------------------------------------------------
22. A government's ability to determine the content and scope
of its own speech is, of course, not without limits. As the Oregon
Supreme Court has noted, "assuming governments may engage in
some forms of speech, they are still prohibited from advocacy
intended to perpetuate themselves in power." Burt v. Blumenauer,
299 Or 55, 67, 699 P2d 168 (1985). At the federal level, the
United States Supreme Court has recognized that government cannot
choose to refrain from subsidizing some speech because it expresses
politically dangerous ideas. Reagan v. Taxation With Representation
of Wash., 461 US 540, 548, 103 S Ct 1997, 76 L Ed 2d 129 (1983).
It has also stated that government cannot "invidiously discriminate"
in its choice of what speech to sponsor. Cammarano v. United
States, 358 US 498, 513, 79 S Ct 524, 3 L Ed 2d 462 (1959).
------------------------------------------------------------------------
School of Journalism and Communication
