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Volume 19, Number 12
License Tags and Free Speech
Timothy D. Terrell
This past September, the state government of South Carolina came under fire for issuing a special license plate bearing the slogan "Choose Life." Affronted abortion-rights groups quickly filed suit, claiming that the state was violating the first and fourteenth amendments by failing to offer a "Choose Choice" or similar specialty plate. Florida's and Louisiana's "Choose Life" plates faced similar court challenges.
South Carolina Attorney General Charlie Condon and Lieutenant Governor Bob Peeler, both of whom are running for governor, have defended the plates' message. "Sending a message that life is something that should be valued and celebrated is something I thought everyone else would agree with," Peeler said.
Obviously not everyone agrees on the value of an unborn human life, or abortion would not be a controversial issue. Both "Choose Life" and "Choose Choice" are in fact loaded statements with unstated assumptions about what kinds of life people should value, and closely associated views about how the state should react to abortion. However, allowing the argument over these license plates to digress into the usual (and worthwhile) debate over the state's position on abortion is to forget an important underlying issue: What is the state doing sending any message on license plates?
To have license plates at all is a sign that the state has made an unjustified intrusion into travel by road. Walter Block has written extensively on the privatization of roads, arguing that a free-market economy would leave road transportation to entrepreneurs, not bureaucrats. If private road owners want to require identifying plates, the market test will determine whether consumers will put up with them, or plates bearing various messages.
It seems reasonable to expect that private road owners would require some kind of visible identification, but in principle it is a decision that should not be left to the state. However, if we are to have a state-run road network, with accompanying license plates, why compound the error with specialty plates? Why should a government make a license plate a forum for any statement whatsoever?
This goes for relatively innocuous college loyalty plates, tags advocating wildlife preservation, and tags advertising the Sons of Confederate Veterans or the CSS Hunley restoration. Advertising of any private-sector good or service (which, for classical liberals, means almost all advertising) should be carried out in the private sector. Allowing the license plate to become a soapbox for statements on political or ethical issues is at least foolhardy, and at most a dangerous precedent.
Any time the state provides a forum for any speech, advertising or otherwise, the state invites controversy. The specious presumption that everyone would regard "Choose Life" as an uncontroversial slogan is of a kind with the idea that prayer or reading of the Bible in government schools would be universally acceptable. One of my favorite theologians, J. Gresham Machen, asserted that he was "just about as strongly opposed to the reading of the Bible in state-controlled schools as any atheist could be."
Machen's goal was to protect Christianity from the garbled interpretation that the state was bound to attach to such a reading. He recognized that a state cannot maintain its supposed neutrality with respect to the Bible, when even the choice of selections or the context in which it is read would introduce misperceptions about its veracity or meaning. Better that the state not get into the business of providing platforms for any speech.
If the state provides some interest groups with a forum on license plates, it will find that thousands of groups will line up outside the legislature's doors demanding their own specialty plates. The fact that such plates are used to raise revenue for interest groups (crisis pregnancy centers receive a portion of the $70 fee for "Choose Life" plates) will simply increase the demand. Any criteria the state uses to limit the creation of specialty plates will bring accusations of special privilege.
Any scarce resource used for expressing views, such as speaking time in front of a microphone, printed space in a newspaper, or space on a license plate, has to be allocated by a "chairman." If the resource has a price of zero, then a shortage will quickly develop, and contention over the "right to free speech" may result. This is what the French political theorist Bertrand de Jouvenel called the "chairman's problem," which he believed required a restriction on the right of free speech.
Murray Rothbard pointed out that the "chairman's problem" can be solved by resorting to the right of private property. The chairman, who owns the forum, might decide to charge a price for access to the podium, or use other criteria to allocate the resource. Debate could ensue over the criteria, but the chairman_owner is ultimately entitled to make the decision based on his own preferences.
To some extent, South Carolina does use price to allocate specialty tags. Specialty tags cost about $50-$70, with a portion of the revenues from the "Choose Life" plates going to crisis pregnancy centers. However, no amount of fee-setting will solve the problem of deciding which interest groups will be favored with recognition on a specialty plate.
Unlike the private owner of a forum, the state's forum has to maintain at least a veneer of inoffensive neutrality. Inevitably, as the latest controversy shows, what a bureaucrat thinks is a universally acceptable message will turn out to be an offense to some people. Of course, there is also the inherent statism of bureaucrats that leads them to favor plates trumpeting the alleged virtues of state services. The most preposterous plate in South Carolina may be the one bearing an apple and a ruler that reads "Public Education: A Great Investment."
Some libertarian-minded individuals may be tempted to think that when a state starts selling goods and services (like advertising) to raise funds, it is a sign of a movement toward voluntarism and freedom. I admit a level of sympathy with this view, and perhaps it could be a temporary middle ground. Yet the hazards are too great. Inevitably, the state sells in the context of a coerced monopoly. No one else can deliver first-class mail. No one else can issue a license plate with a message, or sell advertising space on blue signs alongside interstate highways. Without a market process to inform us of success or failure, a government's monopoly on any product would result in wasted resources and, often, subsidies that harm competing private-sector businesses.
Existing advertisers are harmed by the presence of state-operated competition on specialty license plates (and other media such as the lodging-food-gas signs alongside highways). Perhaps it is a small harm now, but once the principle is conceded, the way is free to more significant and intrusive interventions.
A specific danger to anti-abortion groups is this: in using a state-provided forum for the broadcast of a message promoting their goals, they are establishing a precedent that might well be used by their ideological opponents in years to come. Though the effort to have a "Choose Choice" plate has failed so far, a future state government might well decide that this or some similar slogan advocating abortion might be justified
As for me, I'm waiting for a "Cut Taxes and Spending" specialty plate. But I'm not holding my breath.
Timothy D. Terrell teaches economics at Wofford College (email@example.com)