Higgins v. DMV

• Decision Date: 25 October 2000
• Parties: In the Matter of Denial of the Application for the Custom Plates "Wine" "Invino" "Vino" of Michael Paul HIGGINS, Petitioner, v. DRIVER AND MOTOR VEHICLE SERVICES BRANCH (DMV), Respondent.
• Court: Oregon Court of Appeals

13 P.3d 531

170 Or. App. 542

In the Matter of Denial of the Application for the Custom Plates "Wine" "Invino" "Vino" of Michael Paul HIGGINS, Petitioner, v. DRIVER AND MOTOR VEHICLE SERVICES BRANCH (DMV), Respondent.

(60486; CA A96871)

Court of Appeals of Oregon, En banc.

Argued and Submitted September 9, 1998.

Resubmitted September 20, 2000.

Decided October 25, 2000.

Edmund J. Spinney, Springfield, argued the cause for petitioner. With him on the briefs was the American Civil Liberties Foundation of Oregon, Inc.

David Schuman, Deputy Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before DEITS, Chief Judge, and EDMONDS, De MUNIZ, LANDAU, HASELTON, ARMSTRONG, WOLLHEIM, and BREWER, Judges.

Resubmitted En Banc September 20, 2000.

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, 803.305(4), 803.520-.535, 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(1)(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 P.2d 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, 803.210, 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 contentbased 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...