Oklahoma Plate Not Objectionable Compelled Speech

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By Nicholas Datlowe

Aug. 7 — Oklahoma won't need to modify its default license plate after an Aug. 4 ruling of the U.S. Court of Appeals for the Tenth Circuit.

In what constitutional law scholar Mark Graber called “a funny kind of case,” the Tenth Circuit decided that a depiction of Allan Houser's sculpture Sacred Rain Arrow on Oklahoma's default plates passed constitutional muster.

Keith Cressman, a Christian, objected to the plate design, arguing that the image—an Apache warrior firing an arrow into the sky as a prayer for rain—carried a polytheistic message where an arrow could stand in for prayer.

But “neither the particularized nor the general message Mr. Cressman divines from the image is one that a reasonable observer would perceive,” Judge Jerome A. Holmes wrote for the court.

This resolution, however, “makes me think I'm missing something,” Graber, a professor at University of Maryland School of Law, Baltimore, told Bloomberg BNA in an Aug. 6 phone call.

“The Supreme Court might want to correct this one,” he said.

Thomas C. Berg, a professor at St. Thomas School of Law, Minneapolis, disagreed, however.

“The result” here “seems very sensible,” he told Bloomberg BNA in an Aug. 7 e-mail.

Compelled Speech 

Cressman argued that being forced to carry the image of the sculpture on his license plate—or else pay more for a specialty plate—was compelled speech to which he objected.

Oklahoma argued, based on the U.S. Supreme Court's recent decision in Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 83 U.S.L.W. 4453, 2015 BL 194034 (U.S. June 18, 2015) (83 U.S.L.W. 1949, 6/23/15), that the image was actually government speech, over which the state had control.

But that argument “misses the mark,” the court said. The issue in Walker was whether the state had to offer an image to which it objected; the issue here was whether Oklahoma could force someone to carry an image to which they objected.

Because Cressman would appear to endorse the government's message if he were forced to carry it, the issue here was one of compelled speech, the court ruled.

Thus, to win, Cressman needed to show that the image was speech, to which he objected, compelled by the government.

Symbolic Speech 

In examining whether the image was speech, the court first determined that the image was not “pure speech”—that is, speech which is itself an exercise of self-expression.

Although the court acknowledged that art can constitute pure speech, the reproduction of the image on thousands of license plates lessened concerns about self-expression here. Its placement on the license plates was not “an act of creativity on the part of legislators or other state officials,” the court said.

That the image here was not “pure speech” distinguished it from Wooley v. Maynard, 430 U.S. 705 (1977), which held that New Hampshire couldn't compel its citizens to carry the textual message “Live Free or Die” on their license plates.

Instead, the image here was symbolic speech—speech with underlying communicative or expressive qualities, the court said.

No Objection 

But that it was speech “does not avail Mr. Cressman's compelled-speech claim,” the court said. “That is because the image's message is one Mr. Cressman has explicitly indicated is not objectionable to him—that is, a message conveying Oklahoma's Native American culture and heritage.”

The court relied on the “reasonable observer” test, borrowed from Establishment Clause jurisprudence, as the yardstick to determine whether the display conveyed an image identifiable by reasonable persons.

Berg called this a “sensible analogy.”

In this case, “a reasonable observer would not conclude that the image, chosen by a legislative task force, with input from the public and various government agencies, was meant to generally advance pantheism or ritualistic prayer,” the court said.

Instead, “the image does convey one identifiable message to a reasonable observer—namely that Oklahoma's history and culture has been strongly influenced by Native Americans,” the court said.

Since this was a message to which Cressman did not object, “we hold that he has not been compelled to speak in violation of his First Amendment rights,” the court said.

Berg agreed with the holding. “If someone claims that having to display the license plate forces him to communicate a message to others to which he objects, the court has to decide what message the plate actually communicates to others. It can't just rubber-stamp the objector's interpretation of the message,” he said.

Waste of Time?

Graber suggested that this holding was a waste of time.

“The court said that the state can't compel a person to deliver a message that the person disagrees with,” he said. But “if Cressman had said that he objected” to the message of Native American history, then the state couldn't compel him to make it.

“The plaintiff is being punished for being too honest,” Graber said. “If so, we've just wasted time, because the plaintiff just has to plead the case differently to win.”

This is especially so because courts generally don't look to the sincerity of the belief professed by the plaintiff, he said.

In his view, “an individual gets to make the choice of what speech he makes,” and that the appropriate test here would be a subjective, not objective one.

SCOTUS Review?

Graber suggested that a religious advocacy organization or the American Civil Liberties Union might want to “push this one” for Supreme Court review. If so, “it could be unanimous” in reversing the court here, he said.

Berg disagreed. “[I]t seems unlikely that the justices would grant review,” he said. For one thing, the ruling here was “quite case-specific,” with little effect on other disputes.

Despite the ruling in Walker “that an individual can object to having to display a particular message,” Berg expected that “before accepting another license-plate case, they'll want to see how the lower courts are handling the issue.”

Judges Robert E. Bacharach joined the opinion in full.

Judge Carolyn B. McHugh concurred in the result, but wrote separately. In her view, following the U.S. Supreme Court's recent decision in Walker, the image on the license plate was compelled government speech, and it did not matter whether the speech was “pure” or “symbolic.”

She agreed, however, that because Cressman did not disagree with the government's message, he could be compelled to carry it.

The Center for Religious Expression and Sturgill, Turner, Barker & Maloney PLLC represented Cressman. Attorneys from the Office of the Attorney General represented the state.

To contact the reporter on this story: Nicholas Datlowe in Washington at ndatlowe@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

Full text at http://www.bloomberglaw.com/public/document/Cressman_v_Thompson_No_146020_2015_BL_248918_10th_Cir_Aug_04_2015.