Mitchell v. MVA: The Court of Appeals’ Reluctant Engagement with the Public Forum Doctrine
Braving to step into the “Stygian swamp that envelops the public forum doctrine,” Slip Op. at 19, the Court of Appeals in Mitchell v. Maryland Motor Vehicle Admin., 450 Md. 282, 148 A.3d 319 (2016) (“Mitchell”), successfully emerges from the swamp but leaves its way out as murky as the swamp it dared to enter. The Court affirmed the decision of the Court of Special Appeals, which, in turn, affirmed the Circuit Court’s judicial review of an Administrative Law Judge’s determination to uphold an action of the Maryland Motor Vehicle Administration (“MVA”). That action revoked vehicle license plates issued to the Appellant and bearing the Spanish word “MIERDA,” whose primary English meaning is the expletive “shit.” Heeding public forum analysis, though not without periodic pause, the Court’s opinion adopts essentially the reasoning of the Court of Special Appeals and holds that state-issued license plates are a nonpublic forum. Slip Op. at 2, 22. Consequently, MVA’s action passed muster under the standard discussed below and applicable to determining the constitutionality of government limitations on speech and expression in nonpublic forums.
A December 29, 2015 post on this blog about the Court of Special Appeal’s decision below in Mitchell suggested that courts confronting public forum challenges to government action swim, instead, in the clear waters of fundamental First Amendment analysis, rather than the property rights polluted waters of public forum analysis. As discussed in that Blog, the public forum construct often and unnecessarily obscures and misweighs the government interests and First Amendment interests that should be balanced in any First Amendment challenge to government action restricting speech and expression. In particular, in Mitchell, the Court finds that vanity license plates are a nonpublic forum, even though the energy that Maryland intentionally taps for the success of that program is the very desire of citizens to engage in speech and expression. The Court ultimately reaches an arguably correct result in this particular case, but not before endorsing, albeit half-heartedly, a mode of analysis with the proclivity for unduly constraining First Amendment interests.
Under public forum analysis, the protections against restrictions on speech on government property vary, depending on — and as the matter first and foremost for a court’s determination — the character of the forum involved. Government restrictions on speech in “traditional” public forums (e.g., public parks and squares, open, by tradition, to speech) and “designated” public forums (places reserved for speech by government action) are subject to strict scrutiny. In these forums, a restriction on speech must serve some compelling public interest entrusted to government and be implemented only so far as necessary to protect or further that compelling interest. See Pleasant Grove City v. Summum, 555 U.S. 460, 469 (2009); Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788, 800 (1985). In “limited” public forums (places reserved for expression on certain subjects) and in “nonpublic” forums (e.g., government owned communications facilities), a government restriction on speech will pass First Amendment muster merely if it is reasonable in light of the purpose served by the forum and content neutral. See Good News Club v. Milford Cent. School, 533 U.S. 98, 106-07 (2001); Rosenberger v. Rector & Visitors, 515 U.S. 819, 829 (1995).
Hamstrung by its fealty to public forum analysis, the Court in Mitchell blesses giving different weight to the same First Amendment interests, depending on the forum in which they are exercised. In particular, according to Mitchell, the weight to be given the same protected speech varies, depending, perversely, on whether the expression at issue results from the government’s objective to use its property to facilitate the interest of citizens in expression, as in designated public forums, or on whether its objective is, as with vanity license plates, to raise money, by exploiting and, indeed, encouraging, the same interest of citizens in expression. In one case, the exercise of expression is stringently protected, but in the other, even though the interest of citizens in the exercise of expression is the same, that exercise may be compromised in the name of some lawful objective or purpose the government property serves, however substantial or insubstantial the objective or purpose or of the effect of the speech at issue on the objective or purpose. As perversely, in order to gain access to one platform made available for public expression, license plates (nevertheless deemed to be a nonpublic forum), citizens are required to accept less protection for First Amendment interests than they would have for the same interests involving other government-owned platforms made available for public expression.
More troubling than the potentially perverse results of the public forum construct, however, is its potential for permitting access to be exercised in discriminatorily undetected ways. Suppose, for example, that in the name of raising revenue, the legislature decided on, instead of the current $50 fee, a fee of $75, $100 or $200. At some point, the amount of the fee for access to this so-called “non-public” forum begins to put it beyond the economic reach of a broad section of the citizenry, notwithstanding their interest in the forum as an outlet for expression. Yet, under the public forum doctrine and the applicable First Amendment test (reasonable and content neutral), it is hard to see any limit on the fee, particularly given that the very purpose of the vanity plate program is raising revenue. It is no answer to try to diminish the speech exclusion by trivializing the content of expression available through license plates, as the Court does in Mitchell, even though the State may have intended or expected only trivial content. It is hardly disputable that personal initials on the license plate of someone who can afford the $200 fee are not more important in expressive value than messages such as “RNC YES,” “TRUMP NO,” “DNC YES,” “DUMP HER,” “TRUMP NO,” “NO GUNS,” “GUNS ALL,” “NUKE-EM” or “NUKES NO,” all of which could go unexpressed on a license plate for want of a buck or more.
Nor is it an answer to say, like Justice Stewart’s famed distinction between pornography and protected speech, that, within some range of governmental discretion, the amount of the fee set for vanity plates is acceptable but that, at some level, the fee will be palpably unreasonable, because of the potential speech effectively precluded, thereby failing the laxer constitutionality test applicable to nonpublic forums. This answer would really be bringing in through the backdoor and through some obscure standard of reasonableness the very consideration of First Amendment interests compared to government interests that applies in contexts outside the public forum context. Which is to say, again, that public forum analysis actually obscures rather than aids analysis.
Much of the Court of Appeals’ Mitchell decision indulges other forum analysis reasoning that is similarly obfuscating. The Court, for example, maintains that although Maryland intended to capitalize on speech and expression, “[t]his does not mean . . . that the State intended vanity plates to serve as a public forum, but rather, that they happen to afford a limited space for speech as an incentive to lure vehicle owners into paying for vanity plates, thereby achieving the MVA’s purpose of raising revenue.” Slip Op. at 23 (emphasis added). Lost, however, in this view tunneled just to state intent is the plain fact that, regardless of the government’s intent to protect or facilitate speech, it is constitutionally protected speech that is at stake and that for, any given message, its value does not vary depending on where it may seek to potentially be given voice.
Even the test applicable to determining the constitutionality of government restrictions on speech in limited and nonpublic forums – reasonableness of the restriction with respect to the purpose of the forum and viewpoint neutrality – does not explain the result in Mitchell. First, MVA’s ban on profane language is hardly content neutral. The First Amendment protects both profane and non-profane language. Second, a ban on profanity is no more reasonable with respect to the revenue raising purpose of vanity plates than banning plates that end in a number. Indeed, if anything, banning profanity is more unreasonable with respect to the purpose of raising revenue than banning plates ending in a number, for one could fairly surmise that citizens would pay more to be able to use profanity than to use a number. In short, it must be something other than reasonableness and viewpoint neutrality that constitutionally allows the banning of profanity on vehicle license plates.
As also observed in this Blog a year ago about the decision below of Court of Special Appeals, the Court of Appeals had a much more direct and less perilous route to its result than a trek through the swamp of public forum analysis, an opportunity, moreover, to reach that result without any collateral damage to constitutional principle and interests. The Supreme Court has held that the First Amendment does tolerate some level of testing the appropriateness of speech or expression and, in turn, commensurately limiting speech or expression with respect to the context in which the speech or expression is proposed. 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 the complaint into account in considering formal sanctions if broadcasts of that nature, even though not obscene and, therefore, constitutionally protected, should continue.
There is hardly any leap in analogizing vanity plates, one platform for speech or expression, to broadcast radio and television, another such platform, 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. Likewise, as with broadcast radio and television, the inability to control the pedestrian and vehicular audiences that receive a license plate display would allow considerations of context appropriateness to inform the decision of the MVA whether or not to issue a vanity plate. Indeed, in the light of Pacifica, public forum analysis is just a special, albeit cumbersome, case of the context appropriate analysis that the Supreme Court approved in Pacifica for testing constitutional limitations on speech and expression. The difficulty with public forum analysis, however, is its tendency to give government control or ownership of property more weight than it is due in evaluating such limitations.
Writing for the Court of Appeals in Mitchell, Judge Harrell, in fact, acknowledges that, with its decision, the Court “risk [s] being haunted by the spirit of the late comedian and social commentator George Carlin.” Slip Op. at 2. In addition, the Court’s Mitchell opinion repeatedly recognizes the deficiencies of public form analysis. Not only does it “[b]rav[e] the Stygian swamp that envelops the public forum doctrine” (Slip Op. at 19) but also it repeatedly notes the inconsistencies in Supreme Court cases on the subject (see Slip Op. at 12 n.7, 13 n. 8, 15 n.10, 18) and, indeed, the numerous lower court cases and legal commentators that have criticized the public forum doctrine. Slip Op. at text & n.13. No little wonder is it, therefore, why the Court, recognizing these doctrinal frailties, ultimately bails from the controversy by simply stating that “[i]t is not within a Maryland court’s purview to ignore or change” the public forum doctrine. Slip Op. at 27 n.18. At a minimum, the Court, explaining the inconsistent and sometimes obscure directions given by the Supreme Court, instead could have proceeded on a more coherent route laid out by the commentators it cites, while still also affirming under public forum analysis the decision below.
 In some significant measure, because the public forum doctrine places property interests at the foreground of determining the applicable level of First Amendment protection, it tends to blind the decisionmaker to a more penetrating ascertainment of the interests at stake. Mitchell is a good example. Maryland license plates do not have a singular function. They have two distinct functions, which the Court of Appeals’ analysis conflates. One function is to provide unique identification for motor vehicles titled in the state. The second is to raise revenue, by allowing residents, for a relatively nominal fee, to engage in private/personal expression on license plates. Making this forum available, in fact, encourages such expression. So viewed, the latter function is not different, if at all, from public parks, squares or streets (all traditional public forums) and designated public forums, particularly such venues where an admission fee is charged or even a license is required to demonstrate.
 Slip Op. at 22-23 (“This purpose [to raise money] does not evidence a State intent to facilitate the ‘full and free expression of ideas,’ but rather ‘to tap into the egocentricities of vehicle owners, to the State’s financial benefit.’”); Slip Op. at 27 (“vanity plates’ nature and incompatibility with expressive activity”).
 A similar problem of under-appreciated discrimination presented itself in Perry Education Ass’n v. Perry Local Education Ass’n, 460 U.S. 37 (1983). Perry involved an incumbent teachers’ union’s exclusive use 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, ruled that the communications facilities were a nonpublic forum and that exclusion of the competing union from the mail system was constitutional. According to the Court, exclusion of the competing union was “wholly consistent with the [School] District’s legitimate interest in [preserving] the property . . . for the use to which it is lawfully dedicated,” communications regarding school-related business. Id. at 51 (internal quotations omitted).
The rub in Perry, however, is the nevertheless discriminatory advantage the incumbent had by having exclusive access to the mail system for communications indirectly expressing to teachers the advantages and need for preserving the incumbent as its agent. To be sure, the incumbent bargaining unit’s communications with teachers on matters of employment terms and conditions, and their enforcement and administration, were school-related business, but communications regarding which of two potential bargaining units should represent teachers are, in practice, likely to be difficult to separate from the former, particularly where strict scrutiny is not the First Amendment test.
 Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring) (“I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [‘hard-core pornography’], and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.”).
 Bearing in mind that the MVA’s regulations allow, but do not require, the MVA to refuse not just a plate that “[c]ontains profanities, epithets, or obscenities” but also a plate that “[c]ontains any other combination [of letters, numbers or symbols] that the [MVA] finds unacceptable within the law,” COMAR 11.15.29.02(D), (G), the potential for overreaching or discriminatory speech restrictions in MVA’s administration of vanity plates is considerable in the face of anything less than subjecting that administration to strict scrutiny First Amendment review. With regard to the types of examples given in the text, for instance, could the MVA, operating under Mitchell’s deferential approach, issue a plate reading “DNC YES” but decline, as “unacceptable,” a plate reading “HEIL DON”? Is it inconceivable that many, if not most, Maryland citizens would pay more for the latter than the former?
 Even more difficult to fathom than the difference in value placed on speech in the public square and the value of the same speech exploited to encourage citizens to pay for the privilege of expression is the Court’s distinction here between “[t]his does not mean, however, that the State intended vanity plates to serve as a public forum” (Slip Op. at 23; emphasis added) and that vanity plates “happen to afford a limited space for speech.” Id.; emphasis added. Making this distinction, crediting intent but not practical effect, moreover, flies in the teeth of the Supreme Court’s caveat in the Perry case, discussed, supra, n. 3, 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.” 450 U.S. at 47 (emphasis added).
 See Cohen v. California, 403 U.S. 15 (1971). In Mitchell itself, the Court of Appeals approvingly explained Cohen as recognizing that the emotive function of conveying the intensity of a speaker’s viewpoint “may often be the more important element of the overall message sought to be communicated.” Slip Op. at 26 n.17, quoting Cohen, 403 U.S. at 26
 This propensity is illustrated by the Court’s statement in Mitchell that banning profanity from license plates “is well-within Maryland’s limited discretion to restrict the use of terms with which it wishes reasonably not to associate.” Slip Op. at 31. This consideration related to property ownership would apply equally to traditional, designated and limited public forums, as well as nonpublic forums. It must be something other than government’s dubious sensibilities about its reputation, therefore, that warrants the government’s banning of profanity in nonpublic forums, particularly given the constitutionally protected importance of the emotive function that profanity serves in speech. See discussion, supra, n.7.
 See also Perry, 460 U.S. at 57 (Brennan, J., dissenting). Criticizing the Supreme Court’s invocation of the public forum doctrine in Perry, Justice Brennan argued that that “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.” Making much the same point as the commentary here, Justice Brennan also wrote in Perry:
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, 460 U.S. at 62 n.6.
 State courts have, now and then, ventured to depart from Supreme Court precedent, even in circumstances less warranted than those in Mitchell. See Roofing Wholesale Co. v. Palmer, 108 Ariz. 508, 502 P.2d 1327 (1972); Hunter v. Martin, 18 Va. (4 Munf.) 1 (1814), rev’d, Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816), reviewed at Sternstein, “The Precedential Authority of United States Supreme Court Minority Decisions,” 15 Ariz. L. Rev. 621 (1973). For a study of the problems presented by the effects of precedent under challenge by other authorities, see Kelman, “The Force of Precedent in the Lower Courts,” 14 Wayne L. Rev. 3 (1967).