quarta-feira, 29 de abril de 2009

A Corte Suprema e as placas de carro: liberdade de expressão

Prof Farlei Martins da Ucam e doutorando de direito da puc envia a seguinte notícia:

The New York Times
April 28, 2009
Is That Plate Speaking for the Driver or the State?

The last time the Supreme Court considered what the First Amendment has to
say about license plates was in 1977, when it ruled that New Hampshire could
not force George Maynard to drive around with plates bearing the state’s
motto, “Live Free or Die.”

Mr. Maynard said he was not satisfied with those options. He would, he said,
choose life, “even if it meant living in bondage.”

The justices probably thought their decision settled things as far as free
speech and license plates were concerned, and for more than 30 years they
have turned their attention to other matters. But now the flipside of Mr.
Maynard’s case, involving license plates that say “Choose Life,” is heading
toward the court.

No one is forced to use the plates, which are available in 19 states and
seem intended to appeal to those who oppose abortion rights. They are
so-called specialty plates, which are available for an extra fee to people
who want to express themselves through their license plates.

Florida started the trend in 1987, when it sold a specialty plate to honor
the astronauts who had died in the Challenger space shuttle disaster the
year before. It raised millions of dollars for a memorial, and these days
the Web site of the Florida Department of Highway Safety and Motor Vehicles
offers many other options, including license plates celebrating Nascar,
various sports (“Play Tennis!”) and parents who “make a difference.”

It also sells, for $20 extra, a bright yellow plate with the cartoonish
faces of two smiling children and the words “Choose Life.” The state says it
raised more than $33 million from specialty plates in the 2007 fiscal year
and turned most of the money over to private groups.

The “Choose Life” plate generated about $800,000 that year. A state law
requires that the money raised from those plates, after administrative
expenses are deducted, be given to adoption agencies. The law forbids
sharing the money with groups offering “counseling for or referrals to
abortion clinics.”

Illinois, on the other hand, has refused to issue a “Choose Life” plate, a
decision that was challenged by a group called Choose Life Illinois, which
promotes adoption. The federal appeals court in Chicago upheld Illinois’
refusal in November, and this month the losing side asked the Supreme Court
to return to the question of what the Constitution has to say about speech
on license plates.

The Supreme Court has turned back at least four requests to hear cases
concerning “Choose Life” license plates in recent years. But the volume of
litigation on this question and the doctrinal free-for-all it has given rise
to in the lower courts have convinced many legal scholars that the court
must soon step in.

There have been lawsuits in Arizona, California, Missouri, New Jersey and
New York challenging denials of “Choose Life” plates. And there have been a
similar number of suits on the other side, challenging approvals of such
plates, in Florida, Louisiana, Ohio, Oklahoma, South Carolina and Tennessee.

There are apparently only two states with specialty plates sympathetic to
abortion rights. Montana has a plate that says “Pro-Family, Pro-Choice,” and
Hawaii has an official decal that says “Respect Choice.”

Though Illinois refused to approve a “Choose Life” plate, it does have some
60 other specialty plates , including ones for the alumni of 18 colleges,
for people who support youth golf, and for those who wish to assure you that
they are “pet friendly.” Five plates put hunters to the choice of declaring
whether they like to shoot deer, ducks, geese, pheasants or turkeys.

The state also recently sold a “special event” license plate, good for only
two months, saying “Illinois Salutes President Barack Obama.”

Illinois says it should be allowed to decide what goes on its license plates
because they convey government rather than private speech. If that is right,
the First Amendment drops out of the equation, as the government is free to
say what it likes.

But most of the appeals courts to consider “Choose Life” license plates have
ruled that specialty plates convey the positions of the motorists involved.
The appeals court in Chicago, the United States Court of Appeals for the
Seventh Circuit, ruled against Illinois on this point. Specialty plates, the
court said, are “mobile billboards” for “organizations and like-minded
vehicle owners.”

But a Supreme Court decision in February, Pleasant Grove City v. Summum, may
have complicated matters. The court ruled that a Utah city did not have to
allow a minor religion to erect a monument to its Seven Aphorisms near a Ten
Commandments monument in a public park, which for many purposes is a classic
public forum open to all sorts of viewpoints.

The court acknowledged that the government could not discriminate among
speakers in the park and among people handing out leaflets there. But
permanent monuments, whether donated by private groups or commissioned by
the government, are different, the court said. They are government speech.

The Seventh Circuit issued its ruling in the Illinois case before the Summum
decision came down. Last month, the federal appeals court in St. Louis said
the decision did not affect its conclusion that specialty plates are private
speech. It ordered Missouri to issue a “Choose Life” plate.

The Seventh Circuit went in the opposite direction. While conceding that
specialty plates were private speech, the court said Illinois was
nonetheless allowed to reject “Choose Life” plates because it had “excluded
the entire subject of abortion from its specialty plate program” and so did
not discriminate among perspectives on the subject.

It has been a long trip from “Live Free or Die” to “Choose Life.” The old
case involved the question of what the government may force people to say.
The new one asks what it must allow people to say.

Had the states not decided to make license plates a forum for a sometimes
comical array of messages, the “Choose Life” cases would be easy. But many
states have turned their motor vehicle departments into a kind of souvenir
shop. They may also have given up the right to decide what gets sold in

The next great First Amendment battleground, it turns out, is on the back of
your car.

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