Florida ACLU Calls on Gov. Jeb Bush to Veto Two Unconstitutional Bills

FOR IMMEDIATE RELEASE
Friday, May 7, 1999

MIAMI–In two separate letters sent to Gov. Jeb Bush today, the American Civil Liberties Union of Florida urged the Governor to veto two controversial bills awaiting his signature or veto.

The first bill allows state sponsorship of an anti-choice license plate message, while the second bill mandates student participation in “patriotic programs.”

The “Choose Life” License Plate bill, H.B. 509, was passed in last year’s legislative session but was vetoed by the late Gov. Lawton Chiles. In urging another veto, the ACLU said that the bill would do nothing to reduce abortions but would instead exacerbate the sometimes angry and violent divisions amongst Floridians.

“Everyone currently has the ability to convey political messages on his or her vehicle,” the letter said. “The issue is whether any particular political message should be on state-sponsored license plates.”

The ACLU also expressed concern about the meager legislative guidelines governing the funds raised by the sale of the “Choose Life” license plates that may permit funds to go not only to adoption agencies, but may subsidize anti-abortion activist groups as well.

In urging a veto of the bill mandating participation in “patriotic programs,.” the ACLU warned the Governor that requiring student participation (with their only “opt-out” the written permission of a parent or guardian) may be well-intentioned, but it is unconstitutional coerced speech.

The ACLU noted that, decades ago, the U.S. Supreme Court in West Virginia State Board of Education v. Barnette upheld an individual right of conscience for everyone, including students, to sit silently during the pledge of allegiance.

As the ACLU said in its letter to Gov. Bush, “It is not for the parent or the guardian to grant permission to decline to participate. The Constitution prohibits government censorship and prohibits government coerced speech, including the need for parental permission.”

The ACLU letter to Gov. Bush concluded: “Instilling patriotic ideals in our youth is a noble objective. Nonetheless, it is counterproductive if, seeking to accomplish that noble objective, we ignore the fundamental principles in the Constitution.”

The text of the ACLU of Florida’s letters follow.

May 6, 1999

The Honorable Jeb Bush
Executive Office of the Governor
PL-01, The Capitol
Tallahassee, Florida 32399-0001

Re: CS/CS/HB 9 (Patriotic Programs)

Dear Governor Bush:

The American Civil Liberties Union of Florida urges you to veto CS/CS/HB 9, a bill which ostensibly authorizes school boards to adopt specific rules to mandate participation in patriotic programs in order to encourage greater respect for the United States Government, the national anthem, and the flag. Unfortunately, we believe that this well-intentioned bill is unconstitutional as enacted by the Florida Legislature.

Our primary objection to the enrolled bill is the language in section 1, page 2, lines 5-7 which provides, in applicable part: “Upon written request by his or her parent or guardian, the student must be excused from reciting the pledge.”

More than 40 years ago, the United States Supreme Court held that the government cannot coerce students “by word or act” to affirm their loyalty to the United States. Speaking with great eloquence, the Court held that: “National unity as an end which officials may foster by persuasion and example is not in question. The problem is whether under our Constitution compulsion…is a permissible means for its achievement” West Virginia State Board of Education v. Barnette. The court recognized an individual right of conscience for everyone, including students, to sit silently during the pledge of allegiance. It is not for the parent or the guardian to grant permission to decline to participate.

The Constitution permits limited government censorship of free expression. The government can prohibit speech only when the expression presents a clear and present danger that the state is empowered to prevent and punish. West Virginia State Board of Education v. Barnette. During the pledge of allegiance, there is no clear and present danger if a student decides not to participate in the ceremony. Therefore, the Constitution prohibits government censorship and prohibits government coerced speech of a student’s free expression Ð including the need for parental permission.

Laws and court precedents aside, the First Amendment gives all Americans a right to express whatever legitimate public policy opinion they wish. That implies also a right not to express opinions that they do not believe. As this nation’s highest court has said:

…Freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein….
West Virginia State Board of Education v. Barnette

The ACLU hopes that all young people will develop a respect for this country. But it is not an act of respect if they are coerced into saying a pledge they do not embrace.

The House Judiciary Committee Staff had a better solution. Staff suggested that the Legislature adopt language similar to 36 U.S.C. sec 171 and sec 172 which describe the patriotic customs associated with the playing of the national anthem and the manner of delivery of the pledge, but do not require any individual to observe the custom. These code provisions are in conformity with the Supreme Court’s holding in West Virginia State Board of Education v. Barnette.

Instilling patriotic ideals in our youth is a noble objective. Nonetheless, it is counterproductive if, seeking to accomplish that noble objective, we ignore the fundamental principles in the Constitution.

The ACLU urges you to veto CS/CS/HB 9 and to encourage the Legislature to enact similar legislation in 2000 that is more in line with America’s constitutional values.

Thank you for your consideration.

Sincerely,

Howard Simon
Executive Director Larry Spalding
Legislative Counsel

May 7, 1999

The Honorable Jeb Bush
Executive Office of the Governor
PL-01, The Capitol
Tallahassee, Florida 32399-0001

RE: HB 509 (The “Choose Life” License Plate)

Dear Governor Bush:

As an organization that is committed to both the defense of freedom of speech and women’s reproductive rights, the American Civil Liberties Union (ACLU) of Florida opposed the passage of HB 509, legislation to create a “Choose Life” license plate. We urge you to veto this legislation.

We opposed the bill because, in approving HB 509, the Legislature has effectively designated Florida’s specialty tags as a public forum to convey any political message. The ACLU believes this is an unwise public policy decision fraught with potential constitutional problems.

This new Florida license plate would be quite different from traditional specialty tags which support projects such as universities, the environment, the arts, endangered species and education.

Abortion is the most divisive public issue in our state today, producing the most passionate debate, the least compromise, the greatest lack of civility — and even violence. That is why we were disappointed when the Florida Legislature voted to exacerbate that division amongst Floridians by endorsing one side of the abortion debate with a new specialty tag containing the phrase “Choose Life,” the recognized slogan of narrow interests in the anti-abortion movement.

The State can elect whether or not to permit political slogans on license plates. But once the decision has been made to permit one political slogan, constitutionally other competing ideas must be afforded the opportunity to utilize the same state-sponsored forum. In other words, while there is no right to place a political slogan on a state-sponsored license plate, once that is done the Constitutional does not permit the State to discriminate in the future on the basis of viewpoint.

The bill also distributes funds raised from sale of the “Choose Life” license plates to counties for distribution to private agencies. Given the meager legislative guidelines, one can only wonder whether, in some counties, these funds will end up in the hands of not only adoption agencies, but anti-abortion activist groups as well.

We hope you will consider the wisdom of transferring political slogans from bumper stickers to the state-sanctioned license plate.

Everyone currently has the ability to convey political messages on his or her vehicle. The issue is whether any particular political message should be on state-sponsored license plates. A decision in the affirmative may not raise a constitutional issue today, but it almost certainly will in future legislative sessions when proponents of political views less in favor with the Legislature than “Choose Life” seek similar treatment, but are denied.

As you know, similar legislation was passed by the 1998 Florida Legislature, and Governor Chiles made the decision to veto the bill. His primary concern, one which we know you share, was always to build consensus among the diverse population of our state. He understood that this bill divides, not heals. Governor Chiles framed the issue as follows in his veto message:

The divisive issue of reproductive rights is widely debated day-to-day in the news media, in public forums, in churches, in legislative hearings, and in judicial proceedings. It is proper and right that these venues provide the opportunities for this important public dialogue, no matter how volatile the issue. But I cannot fail to recognize that there are few issues that polarize people more than the issue of reproductive rights. Simply because a particular political message is able to garner a majority of votes in the Florida Legislature does not mean that an official State of Florida license plate is the proper forum for debate on this — or any other — political issue.

Though the proponents of HB 509 may assert otherwise, the “Choose Life” message on an official Florida license plate will do nothing to reduce the number of abortions in Florida and will not build consensus amongst our citizens on this divisive issue. Instead, it will further divide Floridians. We urge you to follow the example of Governor Chiles and to veto HB 509.

Thank you for your consideration.

Sincerely,

Howard Simon
Executive Director Larry Spalding
Legislative Counsel