With Mitchell v. Maryland Motor Vehicle Admin., Hard Cases Still Make Bad Law
The aged judicial adage, that hard cases make bad law — or, at least, not so good law — continues to hold true after the decision of the Court of Special Appeals in Mitchell v. Maryland Motor Vehicle Administration, Sept. Term 2014, No. 713 (Nov. 25, 2015).[i] Mitchell concerned a vehicular license plate displaying the Spanish word “mierda,” which translates as “shit” or, in Yiddish, “kakn” (as in “that’s a kakn bull story”), all terms that are often a useful expletive or noun in circumstances on the road and off. As vital or valuable to expression as those words may be generally (and regardless of the domestic dialect or foreign language in which they are spoken), there is, no doubt, something troublesome about their being displayed in traffic. In grappling with the matter in Mitchell, the Court of Special Appeals at least arguably reached the right result but for reasons that unduly and impermissibly compromise First Amendment protections in other contexts.
The Maryland Motor Vehicle Administration (“MVA”), at appellant Mitchell’s request, issued a so-called “vanity license plate” bearing the word “mierda,” the English translation of which was unknown to some of the MVA’s personnel. Another motorist complained to the MVA, starting a process whereby the MVA revoked the plate. (It is not hard to imagine that, upon learning the meaning of the Spanish word, the discovering MVA employee blurted an expletive as well.) The Prince George’s County Circuit Court reviewed and upheld the MVA’s action, which the Court of Special Appeals considered de novo and affirmed.
With respect to the First Amendment aspects of the case[ii], the Court first addressed whether the subject plate was government speech or, instead, private speech on government property and concluded that it was the latter. That aspect of the Court’s decision is beyond the scope of this post.[iii] Because private, not government, speech was at issue, the First Amendment applied to the actions of the MVA in regulating and limiting that speech.
The Court analyzed the scope of government authority to regulate the content of speech in this context under the “public forum doctrine.” Under that doctrine, the scope of the government’s authority to regulate the content of speech is a function of certain characteristics of the forum in which it occurs. According to the Supreme Court in Perry Education Ass’n v. Perry Local Education Ass’n, 460 U.S. 37 , 44 (1983), “The existence of a right of access to public property and the standard by which limitations upon such a right must be evaluated differ depending on the character of the property at issue.”
In Perry, the Supreme Court recognized three categories of forums for communication. First is the “traditional public forum,” such as public parks or squares, where long tradition, memorialized in the dry ink of case law, has placed content control of protected speech (that is, speech other than, for example, obscenity, fraudulent misrepresentation, and dangerous incitement) beyond governmental reach. See id. at 45. Second is the “designated public forum,” which depends on government imprimatur for its creation and is beholden to government for its continuation but in which government may no more control the content of speech than in a public forum. See id. at 45-46 (Government “is not required to indefinitely retain the open character of the facility,” but “as long as it does so it is bound by the same standards as apply in a traditional public forum.”).
Finally, there is the nonpublic forum, government property and facilities that have not been traditionally used and have not been designated for open access to protected expression. As the Supreme Court explained in Perry, “We have recognized that the ‘First Amendment does not guarantee access to property simply because it is owned or controlled by the government.’ . . . [T]he State may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.” Id. at 46. The facts in Perry are instructive for evaluating the Court of Special Appeals’ decision in Mitchell.
Perry involved an incumbent teachers’ union’s exclusive use, pursuant to a collective-bargaining agreement with the school board, of a school system’s interschool mail system and teacher mailboxes. At the same time, the school board denied access to those communications facilities by a union competing to be the teachers’ exclusive collective-bargaining agent. The competing union sued for access, and the Supreme Court, in a 5-to-4 decision[iv], ruled that the communications facilities were a nonpublic forum.
The Court noted, however, that “[i]f by policy or by practice the Perry School District has opened its mail system for indiscriminate use by the general public, then [the competing union] could justifiably argue a public forum has been created.” Id. at 47. And it also noted that exclusion of the competing union was “wholly consistent with the District’s legitimate interest in [preserving] the property . . . for the use to which it is lawfully dedicated.” Id. at 51 (internal quotations omitted). Similarly, the Court stated, “[O]n government property that has not been made a public forum, not all speech is equally situated, and the State may draw distinctions which relate to the special purpose for which the property is used.” Id. at 55.
Although the distinction between traditional public forums and designated forums may be readily ascertainable, not so is the distinction between designated public and nonpublic forums.[v] The latter two categories involve places or facilities that often appear, in use or operation, indistinct from the other. Their existence and relevant legal distinction depend merely on the intentions and practices of government, which can be mixed and ambiguous.
Even if a forum were intended to be nonpublic, it nevertheless may have been allowed, in practice, to be used as a designated public forum. As the Supreme Court noted in Perry, a designated public form may be created “[i]f by policy or by practice the [government] has opened [a forum] for indiscriminate use by the general public.” Id. at 47 (emphasis added). Perry, therefore, required that restrictions on protected speech in a nonpublic forum be grounded in the purpose or reason for which the government created it. Such is the problem with vanity-license-plate programs, including Maryland’s, which the Court of Special Appeals in Mitchell deemed a nonpublic forum.
Although it is true, as the Court emphasized in Mitchell, that the MVA has always controlled the content of what appears on the plates it issues, that merely restates the problem in this instance[vi] — for, unlike other lawfully managed nonpublic forums, there is no relationship between the communications that the MVA controls on vanity license plates and the functions for which they were created: vain automobile identification and revenue generation. In Perry, by contrast, the school system’s internal mail system was, at least arguably, used “for school-related business.” Id. at 48. The incumbent bargaining unit’s communications with teachers on matters of employment terms and conditions, and their enforcement and administration, were school-related business; issues regarding which of two potential bargaining units should represent teachers were not. Regulation of the vanity content of license plates, however, has nothing to do with the function or purpose “to which [a license plate] is lawfully dedicated,” id. at 51, nor “relate[s] to the special purpose for which the [license plate] is used,” id. at 54, specifically, identifying motor vehicles.[vii]
One, therefore, cannot point to some legitimate government interest or purpose as grounds for limiting speech. Nor is the want of a legitimate government purpose satisfied if one characterizes the governmental purpose or function of vanity plates as revenue generation (as the Court of Special Appeals infers in Mitchell, Slip Op. at 46-47), for the control of vanity content is 180-degrees out-of-sync with that purpose or function. Indeed, it is likely a better assumption that the public’s unfettered expression on such plates would generate more revenue than under the content-discriminating program that the MVA in fact operates.
Ultimately, the decision in Mitchell rests on the Court’s view that the MVA simply did not intend to create an unrestricted forum for expression. As the Supreme Court noted in Perry, however, a designated public forum may be created “by policy or by practice.” 460 U.S. at 47. In practice, the MVA has created a designated public forum.
As the Mitchell Court fully recognized with respect to vanity plates:
The combination of characters the vehicle owner selects creates a personalized message with intrinsic meaning (sometimes clear, sometimes abstruse) that is independent of mere identification and specific to the owner. . . . Indeed, vanity plate messages are more “one-of-a-kind” than bumper stickers.
Slip Op. at 31. That one must pay for a vanity plate and that only owners of automobiles may have access to vanity plates hardly evidence the MVA’s intention to, as the Court reasons, restrict access to vanity plates or limit speech on such plates — at least, not in any meaningful sense or sense relevant to the vehicle-identification and revenue-producing purposes of the plates. The cost of a vanity plate, currently $50 annually, is no more restrictive than what one may be required to pay for an access pass to many public parks and other public venues. Such passes are not intended to control or restrict access but to raise revenue, just like vanity plates.
The vanity-plate fee is not intended to be restrictive but only to raise revenue. Were it intended to be restrictive, it would hardly be the revenue-raising device that the Court of Special Appeals inferred it to be.[viii] When all is said and done, therefore, the Court’s decision in Mitchell leaves us with no satisfactory justification for the result.
A focus on forum analysis obscures more fundamental and direct factors long recognized in assessing government limitation of protected forms of speech: the nature of the government interest, if any, intended to be protected by the limitation and whether the limitation is a reasonable regulation of time, place, and manner of speech. These fundamental factors are actually subsumed by forum analysis, albeit indirectly and imperfectly, and with an unjustified tendency for bias in favor of control by the forum owner, in this case, government. Such bias is prone to be introduced into the analysis when notions of ownership and use of property tend to draw the focus away from the fact that it is a communications forum, not property per se, that is at issue.
Forum analysis ultimately concerns itself with the nature of the interest government has in the use of a communications forum qua communications forum. In circumstances when consideration of the government’s interest is precluded as a matter of law (the traditional public forum) or the government has waived its interest (the designated public forum), there is no government interest to consider, and any limitation on the content of protected speech is subject to the strict-scrutiny standard (though protected speech continues to be subject to reasonable time, place, and manner regulation).[ix] When government interest in the forum has been reserved (the nonpublic forum), then the content of protected speech may be regulated, if the limitations imposed by the regulation are — in addition to reasonable restrictions on the time, place, and manner of the speech — related to serving the purpose (that is, government interest) for which the forum was created, not discriminatory with respect to its content, not an effort to suppress expression, and otherwise reasonable.[x]
The benefit of not focusing on categories of forums is avoiding decisions, such as Mitchell, illusorily anchored in the Constitution. Because it is one step removed from the more fundamental and direct factors for assessing government limitation of protected forms of speech, forum analysis risks improperly infringing protected speech. Speech may be compromised when designated public forums are squeezed into the mold of nonpublic forums or when government is permitted to run roughshod over protected speech because it occurs in a nonpublic forum.
Because of its distracted reliance on forum analysis, the question that Mitchell never really answers is — whether the forum is traditionally public, designated public, or nonpublic — what justifies the discrimination between indecent speech, such as use of the word “shit” (which is, nevertheless, protected speech[xi]), and other protected speech.[xii]
There is, in fact, a ready answer to the question, one that the Supreme Court has already recognized. In FCC v. Pacifica Foundation, 438 U.S. 726 (1978), the Court held that “the constitutional protection accorded to communications containing . . . patently offensive sexual and excretory language need not be the same in every context.” Id. at 747. Further, the Court stated that it has “long recognized that each medium of expression presents special First Amendment problems.” Id. at 748.
Pacifica, also known as the “Seven Dirty Words Case,” involved government regulation of a George Carlin monologue titled “Filthy Words,” broadcast in the afternoon on a New York radio station. The monologue, hardly without value as entertainment and even social commentary, ridiculed the hypocrisy in our everyday use of profane and indecent, but not obscene, words, including “shit,” and the prohibition of their use on broadcast radio and television. Requiring “consideration of a host of variables” going to the appropriateness of context, id. at 750, the Supreme Court allowed that the FCC could associate with the radio station’s license file a complaint by a listener about the Carlin broadcast and take it into account in considering formal sanctions if broadcasts of that nature, even though not obscene and constitutionally unprotected, should continue.
There is hardly any leap in analogizing vanity plates to broadcast radio and television and the teachings of Pacifica. Indeed, in the case of vanity plates, the government’s risk of, and therefore interest in avoiding, being perceived as associated with offending speech would seem greater than the same risk and interest implicated by the government’s licensing of broadcast communications. The takeaway here is quite straightforward. The preoccupation of First Amendment doctrine and courts with communication forums is, upon analysis, a well-intentioned but, still, kakn bull concept.
[i] “Great cases, like hard cases, make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment.” Northern Sec. Co. v. United States, 193 U.S. 197, 364 (1904) (Holmes, J., dissenting), quoted in Wagner v. Maryland, Md. Ct. App., Sept. Term 2015, No. 11 (Battaglia, J., dissenting), Slip Op. at 1 (Dec. 17, 2015).
[ii] The Court also addressed whether the MVA violated its own regulations when it rescinded the Appellant’s vanity plates.
[iii] For a discussion of the nature of government speech, see “Montgomery County v. Fraternal Order of Police – Government’s Role at the Ballot Box: Round II,” an August 11 post on the Blog about Montgomery County v. Fraternal Order of Police, Md. Ct. Spec. App., No. 175 (Apr. 3, 2015), cert. granted, ___ Md. ___ , Case No. 45, Sept. Term, 2015 (Aug. 21, 2015).
[iv] Expressing the view that the exclusive-access provision in the collective-bargaining agreement amounted to viewpoint discrimination, Justice Brennan wrote a dissenting opinion joined by Justices Marshall, Powell, and Stevens.
[v] See Pritchard v. Carlton, 821 F. Supp. 671, 675 n.8 (S.D. Fla. 1993); 5 R. Rotunda & J. Nowak, Treatise on Constitutional Law § 20.47(c)(ii), at 507 (5th ed. 2013) (citing id.).
[vi] The mere fact that government has historically and always unconstitutionally limited speech in a given context should not, ipse dixit, immunize that conduct from challenge.
[vii] “The history makes clear that the purpose of the statutory mandate for license plates on vehicles registered in Maryland is identification of vehicles on the road.” Mitchell, Slip. Op. at 46.
[viii] It also bears noting that, in Perry, the Supreme Court’s upholding the school system’s restriction of its internal mail system to its teachers’ elected bargaining unit did not at all depend on any practice per se by the school system to limit access, that is, limiting access just for the sake of limiting access. Although the Mitchell Court’s analysis suggests that the practice per se of restricting speech is an appropriate consideration in determining whether a communications forum is nonpublic, the Supreme Court never identified in Perry as relevant the mere existence of restrictions on speech as opposed to the reasons or purposes for restrictions. For example, government may restrict access to, and therefore speech in, buildings paid for by the public not merely because it is the government’s practice to do so but because there are a whole host of reasons for the government’s doing so. Nevertheless, these reasons do not extend so absolutely far as to preclude open and often vitriolic protests in front of government buildings, including the Supreme Court building.
[ix] “The State may also enforce regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.” Perry, 460 U.S. at 45.
[x] It is the government’s substantial interest in preserving or protecting certain forums for the governmental function or purpose for which they were created. That interest, arguably, permits the assessment of speech limitations in those forums pursuant to, instead of the strict-scrutiny standard, the laxer standards of reasonableness, viewpoint neutrality, and ensuring the limitations are “not an effort to suppress expression merely because public officials oppose the speaker’s view,” 460 U.S. at 46. Mitchell, Slip Op. at 16-17 (quoting Perry v. McDonald, 280 F.3d 159, 166 (2d Cir. 2001)).
[xi] See FCC v. Pacifica Foundation, 438 U.S. 726, 746 (1978) (holding that, with respect to offensive and indecent speech, “[a]lthough these words ordinarily lack literary, political or scientific value, they are not entirely outside the protection of the First Amendment”).
[xii] The majority’s opinion in Perry suffers from the same distraction. Because the Supreme Court majority analyzed the controversy using the forum rubric, it framed the question presented as one of access to a communications forum, when, in fact, what was at issue was not access per se but discriminatory treatment of speech — that is, why the protected speech of one labor union was permitted access to the Perry school system’s internal mail while another was not. As Justice Brennan’s Perry’s dissent for four justices insightfully observed:
This case does not involve an “absolute access” claim. It involves an “equal access” claim. As such it does not turn on whether the internal school mail system is a “public forum.” In focusing on the public forum issue, the Court disregards the First Amendment’s central proscription against censorship, in the form of viewpoint discrimination, in any forum, public or nonpublic.
460 U.S. at 57 (Brennan, J., dissenting). Making much the same point as the commentary here, Justice Brennan also wrote:
In Greer v. Spock, [424 U.S. 828 (1976)], I suggested that an undue focus on public forum issues can blind the Court to proper regard for First Amendment interests. After noting that “the notion of ‘public forum’ has never been the touchstone of public expression,” id., at 859 (dissenting opinion), I stated: “Those cases permitting public expression without characterizing the locale involved as a public forum, together with those cases recognizing the existence of a public forum, albeit qualifiedly, evidence the desirability of a flexible approach to determining whether public expression should be protected. Realizing that the permissibility of a certain form of public expression at a given locale may differ depending on whether it is asked if the locale is a public forum or if the form of expression is compatible with the activities occurring at the locale, it becomes apparent that there is need for a flexible approach. Otherwise, with the rigid characterization of a given locale as not a public forum, there is the danger that certain forms of public speech at the locale may be suppressed, even though they are basically compatible with the activities otherwise occurring at the locale.” Id., at 859-860.
Perry, id. at 62 n.6.