By The Raving Atheist
The cure for speech you don't like, the ACLU is fond of saying, is more speech. But when the message is "choose life," the organization may well believe that less is more. It's appealing to the Supreme Court to make sure those frightening words don't deface Tennessee license plates. Ostensibly, the complaint is that the state has violated the First Amendment by discriminating against the vehicular expression of pro-choice views -- but it’s clear from the way the group is pursuing the case that its stance has more to do with a love of abortion than a love of expression.
Some background first: The problem the pro-choice lobby has with the various license plate cases that have cropped up is that it doesn't have a palatable counter-message to screw on to the bumper. "Choose Abortion" and "Choose Death" are non-starters. "Choose Choice" is meaninglessly redundant and "Pro-choice, Pro-Family" is risibly oxymoronic. So the strategy is to keep things quiet. Rather than trumpeting your own message, shut up your opponent.
This creates a dilemma for the ACLU, which has traditionally defended free speech as the supreme American value. It has supported the Nazis' right to march and the Ku Klux Klan's sponsorship of roadside beautification billboards. It may not agree with their objectives, but believes that Constitutional guarantees are absolutes. It champions the speech rights of its client rather than attacking the adversary's position.
Unless abortion is the topic. A pro-choice insurgency is gaining influence within the group and causing it to take some uncharacteristic positions. Last month, for example, the organization announced its support for a cynical bill selectively targeting allegedly "deceptive" advertising by crisis pregnancy clinics -- unconcerned, apparently, with the nation's largest abortion provider's use of the word "parenthood" in its name.
Outcry from civil libertarians within and without the ACLU brought about a quiet retreat. But its pro-choice colors have resurfaced in the Tennessee license plate controversy. Although the issue is allegedly just free speech, the organization's press release reveals that the litigation is being pursued by the group"s "Reproductive Freedom Project." The title of the release attacks the state's initiative as an "anti-choice License Plate Program." The text of the document several times characterizes the plates as anti-choice and claims that the proceeds from plate sales will go to "a private anti-choice organization called New Life Resources."
The ACLU knows better. New Life Resources does not engage in "anti-choice" activism over the legality of abortion, but provides financial assistance for pregnant women. The phrase "choose life" expresses Tennessee's moral preference for encouraging childbirth over abortion, a preference that the Supreme Court has repeatedly held a state may indulge through funding and other activities. Notably, despite the motives so clearly revealed in its media statements, the ACLU carefully avoided the disingenuous "anti-choice" characterization in its Supreme Court brief.
All this being said, it is entirely possible that Tennessee's program will be invalidated in its present form. The narrow issue in the case is whether the license plate expresses solely governmental speech -- which would be Constitutionally permissible -- or whether the participation of private groups in the program created a public forum. If the latter is the case the state would be required to choose between allowing pro-choice plates or shutting down its custom plate program completely.
I suspect the ACLU is hoping for the "no speech" outcome. When the issue arose in New York, identical except for the fact that it was the pro-life side seeking equal space on license plates, the organization did not jump in to raise its discrimination concerns. Not a word, even though the governor and the attorney general (who has in the past persecuted CPCs) opposed the suit on pure speech grounds -- arguing that words "choose life" were "patently offensive" and ridiculously insisting that road rage would result. Perhaps Judge Jacobs' suggestion at oral argument that ruling for the pro-life side would require the issuance of white supremacist and Klu Klux Klan plates might yet draw them in to that case. To represent the Klan and the supremacists, if nobody else.