Wednesday, August 05, 2015

10th Circuit: Oklahoma's License Plate Design Survives Compelled Speech Challenge

In Cressman v. Thompson, (10th Cir., Aug. 4, 2015), the U.S. 10th Circuit Court of Appeals rejected a compelled speech challenge to Oklahoma's standard vehicle license plates that depict a Native American shooting an arrow towards the sky. Plaintiff claims that the depiction is based on a sculpture derived from a Native American legend, and that, in violation of his Christian beliefs, it teaches there are multiple gods and the arrow is an intermediary for prayer.

Judge Holmes' majority opinion held that even though the U.S. Supreme Court's recent Walker decision held that license plates are government speech, that does not settle the question of whether plaintiff has been compelled to appear to endorse the government's message. He went on:
at bottom, Mr. Cressman’s claim fails because he cannot demonstrate that the Native American image is, in fact, speech to which he objects. At least in the context of its mass reproduction on Oklahoma’s standard vehicle license plate, the Native American image is not an exercise of self-expression entitled to pure-speech protection. The image may constitute symbolic speech, but the only conceivable message a reasonable observer would glean from the license plate is one to which Mr. Cressman emphatically does not object—namely, a message that communicates Oklahoma’s Native American culture and heritage.
Judge McHugh concurring objected to the majority's focus on whether the depiction involved pure speech or symbolic expression. She said in part:
[O]nce it is determined the license plate is speech, the restrictions on the Oklahoma government’s right to compel a private individual to carry its message apply equally, irrespective of whether the individual is compelled to speak through words, actions, symbols, or gestures....
As the majority has explained in detail, Mr. Cressman does not disagree with the message Oklahoma intended to convey with its standard license plate.... And he has directed us to no evidence supporting his assertion that third parties would interpret the graphic as a message promoting pantheism, the message with which he disagrees.
AP reports on the decision.