James J. Kilpatrick

Suppose, to be supposing, that you live and own a car in Memphis or Nashville or Chattanooga.

Suppose, further, that you believe passionately in a pregnant woman's right to an abortion.

Suppose, once more, that the state of Tennessee issues specialty automobile license plates bearing the anti-abortion legend "Choose Life." Suppose, finally, that Tennessee legislators refuse to issue licenses that say, as an alternative, "Pro-Choice."

Put these hypotheticals all together, and you have American Civil Liberties Union v. Philip Bredesen, Governor. The case is now pending in the U.S. Supreme Court on a petition for appeal from the 6th Circuit. The high court probably will take the case for argument next year. Some important issues of free speech, states' rights and equal rights are at stake, and federal courts are sharply divided on the answers.

There was a time when automobile license plates were models of simplicity. In plain black-and-white, they provided a state name and a license number. Then it occurred to a few astute highway commissioners that there was advertising gold in those tin plates. New Hampshire figured in a major Supreme Court case that turned on its state motto, "Live Free or Die." Now every state offers specialty license plates. Maryland issues 600 of them.

Over the years, Tennessee's legislature has authorized roughly 150 specialty plates, including plates to honor Boy Scouts, Sons of Confederate Veterans, and even the smallmouth bass. Any reasonably reputable organization that can find a legislative sponsor and round up a thousand pledged purchasers may apply. Typically, the state collects an additional $35 per plate for the privilege.

In the case at hand, an anti-abortion organization, New Life Resources, met the statutory requirements. It also had the political clout. As a natural consequence, in 2003 Tennessee adopted a law authorizing the sale of "Choose Life" plates and directing how the proceeds should be spent. New Life would control half of the net proceeds. The other half would go to the Tennessee Art Commission (40 percent) and the state highway fund (10 percent).

On the other side, members of Planned Parenthood of Middle and East Tennessee lobbied hard for a "Pro-Choice" alternative plate. They had a thousand prospective buyers in line, but they lacked a majority in the Tennessee legislature. Their bill twice failed. Then the ACLU went to court on their behalf. Pro-Choice won in U.S. District Court but lost 2-1 before a panel of the 6th U.S. Circuit. From that defeat, the ACLU now seeks Supreme Court review.

James J. Kilpatrick

James J. Kilpatrick has been reporter, editor, columnist, commentator, and briefly an adjunct professor of journalism.

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