| Wooley v. Maynard
(No. 75-1453)
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| Syllabus
| Opinion
[ Burger ] | Dissent
[ White ] | Dissent
[ Rehnquist ] |
| HTML version
PDF version | HTML version
PDF version | HTML version
PDF version | HTML version
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Wooley v. Maynard
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
MR. JUSTICE REHNQUIST, with whom MR. JUSTICE BLACKMUN joins, dissenting.
The Court holds that a State is barred by the Federal Constitution from requiring that the state motto be displayed on a state license plate. The path that the Court travels to reach this result demonstrates the difficulty in supporting it. The Court holds that the required display of the motto is an unconstitutional "required affirmation of belief." The District Court, however, expressly refused to consider this contention, and noted that, in an analogous case, a decision of the Supreme Court of New Hampshire had reached precisely the opposite result. See State v. Noskin, 112 N.H. 332, 295 [p720] A.2d 454 (1972). The District Court found for appellees on the ground that the obscuring of the motto was protected "symbolic speech." This Court, in relying upon a ground expressly avoided by the District Court, appears to disagree with the ground adopted by the District Court; indeed it points out that appellees' claim of symbolic expression has been "substantially undermined" by their very complaint in this action. Ante at 713 n. 10.
I not only agree with the Court's implicit recognition that there is no protected "symbolic speech" in this case, but I think that that conclusion goes far to undermine the Court's ultimate holding that there is an element of protected expression here. The State has not forced appellees to "say" anything, and it has not forced them to communicate ideas with nonverbal actions reasonably likened to "speech," such as wearing a lapel button promoting a political candidate or waving a flag as a symbolic gesture. The State has simply required that all [*] noncommercial automobiles bear license tags with the state motto, "Live Free or Die." Appellees have not been forced to affirm or reject that motto; they are simply required by the State, under its police power, to carry a state auto license tag for identification and registration purposes.
In Part 4-A, the Court relies almost solely on Board of Education v. Barnette, 319 U.S. 624 (1943). The Court cites Barnette for the proposition that there is a constitutional right, in some cases, to "refrain from speaking." Ante at 714. What the Court does not demonstrate is that there is any "speech" or "speaking" in the context of this case. The Court also relies upon the "right to decline to foster [religious, political, and ideological] concepts," ibid., and treats the state law in this case as if it were forcing appellees to proselytize, or to advocate an ideological point of view. But this begs the question. The issue, unconfronted by the Court, is [p721] whether appellees, in displaying, as they are required to do, state license tags, the format of which is known to all as having been prescribed by the State, would be considered to be advocating political or ideological views.
The Court recognizes, as it must, that this case substantially differs from Barnette, in which school children were forced to recite the pledge of allegiance while giving the flag salute. Ante at 714-715. However, the Court states "the difference is essentially one of degree." Ante at 715. But having recognized the rather obvious differences between these two cases, the Court does not explain why the same result should obtain. The Court suggests that the test is whether the individual is forced "to be an instrument for fostering public adherence to an ideological point of view he finds unacceptable." Ibid. But, once again, these are merely conclusory words, barren of analysis. For example, were New Hampshire to erect a multitude of billboards, each proclaiming "Live Free or Die," and tax all citizens for the cost of erection and maintenance, clearly the message would be "fostered" by the individual citizen-taxpayers, and, just as clearly, those individuals would be "instruments" in that communication. Certainly, however, that case would not fall within the ambit of Barnette. In that case, as in this case, there is no affirmation of belief. For First Amendment principles to be implicated, the State must place the citizen in the position of either apparently or actually "asserting as true" the message. This was the focus of Barnette, and clearly distinguishes this case from that one.
In holding that the New Hampshire statute does not run afoul of our holding in Barnette, the New Hampshire Supreme Court, in Hoskin, supra at 336, 295 A.2d at 457, aptly articulated why there is no required affirmation of belief in this case:
The defendants' membership in a class of persons required to display plates bearing the State motto carries [p722] no implication, and is subject to no requirement, that they endorse that motto or profess to adopt it as matter of belief.
As found by the New Hampshire Supreme Court in Hoskin, there is nothing in state law which precludes appellees from displaying their disagreement with the state motto as long as the methods used do not obscure the license plates. Thus appellees could place on their bumper a conspicuous bumper sticker explaining in no uncertain terms that they do not profess the motto "Live Free or Die," and that they violently disagree with the connotations of that motto. Since any implication that they affirm the motto can be so easily displaced, I cannot agree that the state statutory system for motor vehicle identification and tourist promotion may be invalidated under the fiction that appellees are unconstitutionally forced to affirm, or profess belief in, the state motto.
The logic of the Court's opinion leads to startling, and, I believe, totally unacceptable, results. For example, the mottoes "In God We Trust" and "E Pluribus Unum" appear on the coin and currency of the United States. I cannot imagine that the statutes, see 18 U.S.C. §§ 331 and 333, proscribing defacement of United States currency impinge upon the First Amendment rights of an atheist. The fact that an atheist carries and uses United States currency does not, in any meaningful sense, convey any affirmation of belief on his part in the motto "In God We Trust." Similarly, there is no affirmation of belief involved in the display of state license tags upon the private automobiles involved here.
I would reverse the judgment of the District Court.
* See ante at 707 n. 1 for de minimis exceptions.