Higgins v. Driver & Motor Vehicle Services Branch

13 P.3d 531, 170 Or. App. 542, 2000 Ore. App. LEXIS 1751

• Court: Court of Appeals of Oregon
• Decided: October 25, 2000
• Docket: 60486; CA A96871
• Status: Published

Opinions

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, ORS 803.305(4), ORS 803.520-.535, ORS 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(l)(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 choosing 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, ORS 803.210, ORS 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 character combinations 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.

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(7X1995):

“(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 over his objection to communicate a state motto on the license plate for his car. 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 170 Or App at 546 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, 170 Or App at 549, 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 it. 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 OAR 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 ORS 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).