Lewis v. Wilson

• Decision Date: 14 March 2001
• Docket Number: CROSS-APPELLANT,00-2181,CROSS-APPELLEE,Nos. 00-2149,s. 00-2149
• Citation: 253 F.3d 1077
• Parties: (8th Cir. 2001) MARY E. LEWIS, APPELLANT/, v. QUENTIN WILSON, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF REVENUE OF THE STATE OF MISSOURI, APPELLEE/ Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1077

253 F.3d 1077 (8th Cir. 2001)

MARY E. LEWIS, APPELLANT/CROSS-APPELLEE, v. QUENTIN WILSON, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF REVENUE OF THE STATE OF MISSOURI, APPELLEE/CROSS-APPELLANT.

Nos. 00-2149, 00-2181

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: March 14, 2001

Filed: June 12, 2001

Appeals from the United States District Court for the Eastern District of Missouri.

Before Morris Sheppard Arnold and Heaney, Circuit Judges, and Battey, ¹ District Judge.

Morris Sheppard Arnold, Circuit Judge.

When Mary Lewis requested a Missouri license plate with the letters "ARYAN-1" in 1983, the Missouri Department of Revenue (DOR) rejected her application. Because the relevant state law in effect at the time permitted the DOR to reject only those requests that were for plates that were obscene or profane, Ms. Lewis sued the DOR, contending that the plate that she requested was neither. Ms. Lewis prevailed, see Carr v. Director of Revenue, 799 S.W.2d 124 (Mo. Ct. App. 1990), and the DOR issued her the "ARYAN-1" plate in 1990.

Two years after the Carr decision, and evidently in response to it, the Missouri legislature amended the law to state that "[n]o personalized license plates shall be issued ... which are obscene, profane, inflammatory or contrary to public policy" (emphasis supplied), see Mo. Rev. Stat. 301.144.2. Two years later still, the DOR received an anonymous letter complaining about Ms. Lewis's plate, and the director of the DOR subsequently decided not to reissue it because, as the DOR's letter to Ms. Lewis put it, the DOR had "determined that the configuration 'ARYAN-1' is contrary to public policy in accordance with the specifications set forth in the statutes."

Ms. Lewis appealed to the Missouri Administrative Hearing Commission, see Mo. Rev. Stat. 621.050.1, which affirmed the DOR's decision. Ms. Lewis then sued the DOR in federal court, contending that the statute authorizing the DOR to refuse to reissue her plate violates the first amendment because it is vague or overbroad, or permits the state to engage in viewpoint discrimination.

On cross-motions for summary judgment, the district court concluded that the DOR's refusal to renew Ms. Lewis's license plate on the ground that it was "contrary to public policy" was unconstitutional. See Lewis v. Wilson, 89 F. Supp. 2d 1082, 1089-91 (E.D. Mo. 2000). The district court refused, however, to grant an injunction requiring the DOR to issue the plate, see id. at 1091, and also refused to grant Ms. Lewis attorney's fees pursuant to 42 U.S.C. 1988(b), see id. This appeal followed. We affirm the district court's finding of unconstitutionality, but remand the case for the entry of an injunction requiring the DOR to reissue the "ARYAN-1" plate to Ms. Lewis and for an order granting Ms. Lewis attorney's fees.

I.

Although the district court agreed with Ms. Lewis that the Missouri statute allowing the DOR to refuse to issue license plates that are "contrary to public policy" was unconstitutionally overbroad, see Lewis, 89 F. Supp. 2d at 1090, the court refused to grant Ms. Lewis an injunction, believing that the DOR might have other, constitutional, reasons for rejecting the plate, see id. at 1091. We review de novo the district court's legal conclusions, see United States v. McMasters, 90 F.3d 1394, 1397 (8th Cir. 1996), cert. denied, 519 U.S. 1071, 1099 (1997), but review the denial of an injunction for an abuse of discretion, see International Association of Machinists and Aerospace Workers v. Soo Line Railroad Co., 850 F.2d 368, 374 (8th Cir. 1988) (en banc), cert. denied, 489 U.S. 1010 (1989).

We ask first whether the DOR's refusal to renew the license plate violated Ms. Lewis's first amendment rights. Because the state of Missouri technically owns the physical metal plate on which Ms. Lewis's message is displayed, the DOR maintains that the plate is a nonpublic forum which gives the state at least a limited right to control the message that the plate contains. See Perry Education Association v. Perry Local Educators' Association, 460 U.S. 37, 46-47 (1983). We express some initial skepticism about characterizing a license plate as a nonpublic forum, because it occurs to us that a personalized plate is not so very different from a bumper sticker that expresses a social or political message. The evident purpose of such a "forum," moreover, if it is one, is to give vent to the personality, and to reveal the character or views, of the plate's holder. In any case, we need not determine precisely what kind of forum, if any, a personalized license plate is because the statute at issue is unconstitutional whatever kind of forum a license plate might be.

A restriction on speech is constitutional only if certain principles are adhered to. Among these principles is a requirement that the restriction be specific enough that it does not delegate unbridled discretion to the government officials entrusted to enforce the regulation. See City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 764 (1988). This case resembles cases like Cox v. State of Louisiana, 379 U.S. 536 (1965), that involve statutes requiring a speaker to obtain official permission to engage in a particular type of speech: In Cox, 379 U.S. at 556, permission was required to have a parade, and here permission is required to display a message on a license plate. In both Cox and this case the relevant statute gave little guidance to the officer entrusted to grant this permission.

These types of laws have generally been held to violate the first amendment. "It is clearly unconstitutional to enable a public official to determine which expressions of view will be permitted and which will not ... by use of a statute providing a system of broad discretionary licensing power," id. at 557. Where a regulation requires that a speaker receive permission to engage in speech, the official charged with granting the permission must be provided specific standards on which to base his or her decisions. See Forsyth County, Georgia v. Nationalist Movement, 505 U.S. 123, 131 (1992). Without such standards, every application of the regulation "creates an impermissible risk of suppression of ideas," id. at 129. Contrary to the DOR's assertion, this principle applies with as much force to civil statutes as it does to criminal laws. See, e.g., Plain Dealer, 486 U.S. at 764.

For Ms. Lewis to succeed in her challenge to the provision of the statute allowing the rejection of a message because it is "contrary to public policy," she need not show that she was denied the "ARYAN-1" plate because of her viewpoint. "[T]he success of a facial challenge on the grounds that an ordinance delegates overly broad discretion to the decisionmaker rests not on whether the administrator has exercised his discretion in a content-based manner, but whether there is anything in the ordinance preventing him from doing so," Nationalist Movement, 505 U.S. at 133 n.10. Ms. Lewis, therefore, need show only that there was nothing in the ordinance to prevent the DOR from denying her the plate because of her viewpoint.

We see nothing in 301.144.2 that prevents the DOR from denying Ms. Lewis the "ARYAN-1" plate because of her viewpoint. The Missouri statute simply authorizes the DOR to reject license plates bearing messages that are "contrary to public policy," language that gives the DOR nearly unfettered discretion in choosing what license plates should be rejected and in deciding what alleged "public policy" supports its decision. As the district court noted, this phrase "is so nebulous and malleable [that it could mean] anything presently politically expedient," Lewis, 89 F. Supp. 2d at 1090.

The DOR's actions have themselves supplied proof that the phrase is unconstitutionally broad. The DOR first maintained that the word "Aryan" was itself contrary to public policy because of the message of racial superiority that the DOR asserts that the use of the word "Aryan" implies. See id. at 1086 n.3, 1089. As the controversy with Ms. Lewis progressed, however, the DOR changed its "public policy" basis to the present one, namely, that of promoting highway safety by rejecting license plates that could incite so-called road rage, see id. at 1086 n.3, 1089-90.

The very fact that the DOR could so readily switch justifications for its rejection of the plate illustrates the constitutional difficulty with the statute. The DOR's first justification was one that, if not blatant viewpoint discrimination, certainly could reasonably appear to have been based on the viewpoint of the speaker. A public official with even marginal creative ability could frequently invent a "public policy" basis for rejecting a plate containing a message with which he or she disagrees. This language thus "creates an impermissible risk of suppression of ideas," Nationalist Movement, 505 U.S. at 129, and we therefore affirm the district court's conclusion that the section of 301.144.2 allowing license plates to be rejected as "contrary to public policy" violates the first amendment.

II.

We also conclude that the application of the statutory language to Ms. Lewis's case violated the first amendment. The DOR contends that it rejected Ms. Lewis's plate to prevent the occurrence of road rage, a contention that we assume for purposes of this opinion is subjectively sincere. According to the DOR, drivers who are exposed to the "ARYAN-1" plate may become angry, resulting in road rage and thus creating a traffic hazard. See Lewis, 89 F. Supp. 2d at...