Indiana officials continue to struggle with court definitions of “government speech” and “private speech” and what they mean for people who want so say controversial things in public spaces.
Personalized license plates are government speech and not a person's speech protected by the First Amendment, the Indiana Supreme Court has ruled. So the Bureau of Motor Vehicles can permit some license plates and prohibit others as inappropriate or in bad taste.
But courthouse grounds are a public forum in which people have First Amendment rights, says a three-judge panel of the 7th Circuit Court of Appeals, so the Tippecanoe County Commissioners do not have the right to approve some rallies and deny others based on how appropriate they feel a group's message is.
The license plate ruling, from 2015, followed a U.S. Supreme Court ruling that said essentially the same thing, so government control of license plates is likely to be the law for some time. But the courthouse rally ruling, issued just last week, isn't based on such a strong and obvious precedent, so it is likely to be under adjudication for some time.
People are of course perfectly free to say whatever they want in private spaces. But they choose public spaces because they want to make a point and want people to notice it. The police officer who wanted to put “OINK” on his license plates wanted to humorously embrace a term uttered by the sort of people who used to call cops pigs. The pro-marijuana group that wanted to rally on the Tippecanoe County courthouse lawn wanted county officials to give them as much respect as they did to any other group.
But when government permits controversial messages, can it be seen by some that it is giving its imprimatur, signalling to people that it approves of the message?
Yes, said the Supreme Court, which is why the BMV can approve or deny certain personalized plates. No, said the appeals court, which is why the county commissioners must have an “all or none” policy when it comes to approving rallies.
If you think you can find that find line that separates public speech from private, and determine for all time what government may regulate and what it may not, more power to you. You're smarter than the entire judicial system of the United States combined.
In the meantime, if you have something sassy to say, put it on a sign and march on the courthouse lawn. Don't even think about putting it on your license plate.