Tennessee must choose how to limit license plates

? License plates proclaiming “Choose Life” are causing Tennessee and a dozen other states to rethink very popular — and very profitable — programs that let drivers promote just about anything from the Girl Scouts to the preservation of wild turkeys.

In more than half the states, backlash to the anti-abortion message was swift and instantaneous, as abortion rights activists usually made their case in court. The opinions have generally been in their favor, with the latest ruling handed down last month by a federal judge in Tennessee.

U.S. District Judge Todd Campbell decided Tennessee’s “Choose Life” license plate was unconstitutional because it promotes only one side of the abortion debate. He deemed it “viewpoint discrimination” and said his ruling would have been the same if the Volunteer State had approved a “Pro-Choice” plate.

“These issues are genuinely hard because there seem to be slippery slopes in both directions,” said legal scholar Michael C. Dorf, who teaches law at Columbia University in New York.

Campbell didn’t rule on the specialty plate law itself, though he was asked to. Had he decided it too was unconstitutional, getting rid of all the plates would have been a simple solution.

But it wouldn’t have been a popular one. Drivers love the specialty plates, especially ones supporting their college, and they raise money for causes, such as the “Animal Friendly” plate for the Humane Society.

Another remedy would be to allow opposing or differing views. That was the suggestion made by Tennessee New Life Resources, an anti-abortion group that would have gotten much of the money from the “Choose Life” plates.

Dorf, however, contends government should be able to use some discretion. “The fact that Tennessee produces license plates that urge the public to ‘Preserve and Protect’ Great Smoky Mountains National Park without also producing plates urging the destruction of this natural haven should not count as a violation of the First Amendment,” Dorf wrote, defending Tennessee’s law in FindLaw’s legal commentary.

Suzanna Sherry, a law professor at Vanderbilt University, said the distinctions a state has to draw “are a hard call to make.”

“Since the states are not allowed to discriminate on the basis of political viewpoint, they’re faced with the choice of letting everybody, including the KKK and Nazi party, get them, or you don’t let anybody get them,” she said. “What you can’t do is say, ‘We don’t like the Nazis, but we do like the pro-choice view.’ They just can’t do that. That’s the price of our First Amendment.”

Where states can draw the line, Sherry said, is between unconstitutional “viewpoint discrimination” and “content discrimination.” The state could decide to allow only nonpolitical viewpoints on its license plates — a distinction that would almost certainly wind up in the courts, she said.

“Limiting it to nonpolitical content is both a hard line and a hard legal position, but I think ultimately it could work,” she said.