Missouri ordered to reissue 'ARYAN-1' license plate
By The Associated Press
ST. LOUIS The state of Missouri failed to show a constitutional justification for its decision not to reissue a license plate reading "ARYAN-1," and should issue the plate, the 8th U.S. Circuit Court of Appeals ordered yesterday.
A three-judge panel of the appeals court directed the case back to U.S. District Court, with instructions to issue an injunction requiring that the state Department of Revenue give Mary Lewis the license plate and pay her attorneys' fees.
The court rejected an additional reasoning, put forth by the state during oral arguments in March, that Lewis' license plate would incite road rage because of its racially charged message.
Saying it also failed to meet the constitutional test, the court wrote, "We reject its attempt to censor Ms. Lewis' speech because of the potential responses of its recipients. The First Amendment knows no heckler's veto."
"I think it was obviously correct," Lewis' attorney, Robert Herman, said. "It should have been obvious to the state from the very beginning that they can't restrict people's speech on the basis of viewpoint. It should be obvious to everyone."
Missouri Attorney General Jay Nixon, however, had argued that because it is a state license plate issued by a state agency, the state is partly responsible for the speech.
"A message of hate should not come from the state," Nixon said in an interview. "Clearly a license plate is not a bumper sticker. ... I don't think it's the job of the state to speak in divisive, hateful terms, whether it's on license plates, teachers, police officers or whatever. I don't think tax dollars should be spent in that way."
Nixon said he hadn't decided whether to appeal the ruling to the U.S. Supreme Court. He suggested that the Missouri Legislature might be able to fix the problem with a tighter statute.
Last year, the district court called the state statute cited by the department when it refused to reissue the plate "unconstitutionally overbroad," referring to a provision banning plates that are "contrary to public policy." But the district court didn't order the department to give Lewis the plate, suggesting that another constitutional justification could exist.
That was a mistake, according to the 8th Circuit.
"Ms. Lewis is not required to prove the absence of a constitutional basis for the DOR's action; she is simply required to make the initial showing that her speech has been restricted," Judge Morris S. Arnold wrote for the court. "Once Ms. Lewis made that showing, the burden fell on the DOR to advance a constitutional justification for its action, which it has failed to do."
A spokesman for Nixon said the state was still studying the opinion yesterday and declined to make an immediate comment.
Lewis first requested a license plate reading "ARYAN-1" in 1983, a request the department denied. She then sued, claiming state law at the time only prohibited plates with profane or obscene messages and that hers was neither. A state appeals court agreed, and in 1990 the department gave Lewis the plate.
But the law was changed two years later, adding plates that are "inflammatory or contrary to public policy" to the list of those banned. Following that change, the Department of Revenue notified Lewis it had decided not to reissue the plate because it had "determined that the configuration 'ARYAN-1' is contrary to public policy in accordance with the specifications set forth in the statutes."
That argument was rejected by both the district court and the 8th Circuit.
The decision is another setback for the state, which has seen various courts strike down its effort to prevent Lewis from displaying the license plate.
Herman said he wouldn't be surprised if the state appeals the 8th Circuit's decision to the U.S. Supreme Court "They've been fighting it tooth and nail" but said he didn't feel the case was covering any new ground.
Many consider the word Aryan to be inflammatory because Adolf Hitler used it to describe a "superior race."
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Missouri officials say tag's racially charged message would provoke road rage, but resident says it's First Amendment-protected speech.
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Similar battles seen across U.S. as states grapple with where to draw the line between free expression and words that might offend.