WOOLEY v. MAYNARD

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Argument of Robert V. Johnson Ii

Chief Justice Warren E. Burger: We’ll hear arguments next in 75-1453, Wooley against Maynard.

Mr. Johnson, you may proceed whenever you’re ready.

Mr. Johnson: Mr. Chief Justice and may it please the Court.

I appear on behalf of the Chief of Police of Lebanon, New Hampshire, the Director of the New Hampshire State Police and the Commissioner of the New Hampshire Department of Motor Vehicles, all three of whom are the appellants herein.

This case presents to this Court two general issues.

The first, dealing with symbolic speech.

The issue being whether consistent with the First and Fourteenth Amendments, the State of New Hampshire may prohibit by criminal sanction the knowing obscuration of the State motto, “Live Free or Die” on the license plates of registrants of motor vehicles in New Hampshire.

The second issue is whether or not the appellees herein prior to the utilization of the United States District Court for the Federal District of New Hampshire were obligated or should have exhausted their State appellate remedies.

In 1809, General John Stark of New Hampshire wrote a letter to his Vermont comrades declining for reasons of health to attend the 32nd reunion of the 1777 Battle of Bennington, Vermont in which General Stark had commanded the Continental troops against a decisive victory against the British and Germans.

At the conclusion of his letter, General Stark wrote to his comrades a proposed toast for the reunion.

The proposed toast was “Live Free or Die, death is not the worst of evils.”

The toast obviously was reminiscent of the words of Patrick Henry back in 1775, “But as for me, give me liberty, or give me death.”

168 years after the Battle of Bennington, Vermont, the New Hampshire General Court or legislature adapted the words, “Life Free or Die” as the official State motto of the State of New Hampshire, 168 years after those words were said.

In 1969, our legislature directed the Director of the Division of Motor Vehicles to place on all passenger vehicles registered in New Hampshire the State motto, “Live Free or Die.”

Justice William H. Rehnquist: If you had kept it just seen at New Hampshire, you would have avoided this litigation, wouldn’t you?

Mr. Johnson: I’m not so sure Justice Rehnquist.

Those environmental purists may be here sitting on my right saying that since New Hampshire is no longer pure, we’re evading their First Amendment Rights.

Chief Justice Warren E. Burger: You might also have some copyright problems with the words of Patrick Henry on Virginia on --

Mr. Johnson: I’m not sure [Laughter].

Justice Harry A. Blackmun: General Johnson, why did it take the General Court 160 and some years to arrive at this conclusion?

Usually, they’re more traditional than that of New Hampshire, aren’t they?

Mr. Johnson: [Laughter] We adapted in New Hampshire a State song, a State seal, a State flower and a State tree as well as a State motto in accordance with the format of most states.

And while New Hampshire was one of the original signatories of the decoration of independence, I don’t know the reason for the delay in the adoption of these State symbols but I think that they were adopted at a simultaneous period of time with the adoption by other states of State symbols.

Whether our conservative nature had anything to do with it or not, I don’t know.

Chief Justice Warren E. Burger: Does your case depend upon this having been declared the motto of the State officially by the legislature?

Mr. Johnson: I think, Mr. Chief Justice, that it does have some bearing because by the legislatures having so declared this to be the official State motto, the legislature has in effect said that the motto is of importance to the State of New Hampshire, which brings me to the interests of the State of New Hampshire in having the motto on its license plates.

The motto not only symbolizes the heritage of New Hampshire, it fosters an appreciation of --

Justice John Paul Stevens: General Johnson, could I interrupt before you get to the State interest?

Do you challenge the District Court’s finding that the appellees’ motivation was based on a fundamental religious belief?

Mr. Johnson: Yes, Mr. Justice.

Justice John Paul Stevens: You challenge that it is clearly erroneous and you ask us to set this aside to you?

Mr. Johnson: Yes, Mr. Justice.

Justice John Paul Stevens: Did you write that in your brief?

Mr. Johnson: We, in our brief questioned the sincerity of the appellees and you will find in the transcript of the hearing evidence that Mr. Maynard, while he purports to be a Jehovah’s Witness has been dis-fellowshipped from the Jehovah ’s Witnesses And in fact, one of the Jehovah’s Witnesses’ churches had at one time one or more criminal prosecutions against him.

So, (a) we question Mr. Maynard’s sincerity and --

Justice Thurgood Marshall: On a sincerity, he went jailed, didn’t he?

Mr. Johnson: That is correct.

Justice Thurgood Marshall: Well, do you -- usually, non-sincere people, they go up to closing of the door but they usually change, don’t they?

Mr. Johnson: Well, the matter of sincerity, I think is two-barreled.

The first is the question which a moment ago was placed to me, we have some doubts as to his sincerity.

But even accepting his sincerity, we then get to the next issue which was what he communicated.

A particularized statement capable of being understood as this Court held it must be in Spence versus Washington.

Justice Thurgood Marshall: That’s a different question.(Inaudible)

Justice John Paul Stevens: I would think so.

I just want to be sure you’d disagree and there is evidence which you point out that may cast doubt on the District Court’s finding.

But, is there not some evidence in the record which would require us to accept the finding as not being clearly erroneous?

Didn’t he testify that it was a religious belief and so forth that’s illegal behind the District Court’s findings?

Mr. Johnson: There is evidence both ways.

The State --

Justice John Paul Stevens: Well, if you concede that, don’t we have to accept the finding?

Mr. Johnson: I do not concede the matter of sincerity.

In Spence versus -- well again, I think the two questions are intertwined.

The sincerity of Mr. Maynard at the time he undertook this act, I think there is evidence both ways as to whether or not he was undertaking this act on a religious, conscientious basis or whether it was a mere act of whimsy or bizarre activity.

And I think there’s evidence in both ways.

Chief Justice Warren E. Burger: As Justice Marshall suggested in one of his questions, do people ordinarily go along and spend five days at a time in jail just to pamper a whimsy?

That’s some evidence of a sincere belief, however, a misguided one might think it is and do you rest on the fact that he is departed from a particular faith that as a dissident as undermining his sincerity?

Mr. Johnson: No, I don’t believe and I don’t want to make this particular issue greater than it is necessary to the appellant’s case.

While we question the sincerity of Mr. Maynard, I would submit that his sincerity is not going to resolve the issues before this Court.

And while I say that there is evidence both ways, assuming arguendo the sincerity of Mr. Maynard, I would then argue that his conduct is not in fact symbolic speech.

Chief Justice Warren E. Burger: Do you think the State of New Hampshire could require citizens to carry signs, picket signs, to support the United Nations in a sincere belief by the legislature of the State that it was very important to support the efforts and work of the United Nations?

Mr. Johnson: My answer to that is no and for a variety of reasons.

The first is that your hypothetical is a more poignant message in my mind than the motto, “Live Free or Die.”

Secondly, the motto “Live Free or Die” and its requirement that it’d be placed upon motor vehicle license plates has to do with the registration of motor vehicles, the use of the highways, and efficient registration system of motor vehicles and other recognizable interests of the State of New Hampshire which I think are more important than those that I could enunciate to support your question, Mr. Chief Justice.

Chief Justice Warren E. Burger: Could the State just as well offer its citizens, its automobile owners, an option, but if they did not want that motto on the license, they could be omitted?

Mr. Johnson: This matter was raised at the District Court and the Commissioner of the Department of Motor Vehicles testified in effect that it would raise havoc with the printing of the motor vehicle registration plates, which is one of the --

Justice Potter Stewart: Where are these plates made, in the State prisons?

Mr. Johnson: That is correct, Mr. Justice.

Justice Potter Stewart: Kind of an IRA, isn’t it?[Laughter]

Mr. Johnson: It is.[Laughter]

On the other hand, if the death penalty for violation of our statute relative to the obscuration of the motor vehicle license plates were to be the death penalty perhaps sincerity of persons would be more questionable.

Justice Thurgood Marshall: Do you mean that if we rule in favor of the appellees, then everybody would take it over and (Inaudible)?

Mr. Johnson: This is another matter, Mr. Justice Marshall.

Justice Thurgood Marshall: If everybody’s in favor of getting rid of it, you ought to get rid of it.

Mr. Johnson: This is not a burning issue within the State of New Hampshire and this is one of the basis on which I would distinguish this case from the flag cases.

Mr. Chief Justice Burger has remarked this past summer, I believe, at the commencement address at one of our national universities --

Chief Justice Warren E. Burger: I was speaking all alone there.

I didn’t have a college talking about my decision?[Laughter]

Justice John Paul Stevens: And it was burning enough for you to appeal, I think, wasn’t it?(Inaudible)

Mr. Johnson: I believe that that was at the University of Pennsylvania in which you drew the distinction between the strong dissent of the 1960’s and the World Peace of Today.

This is not a burning issue, Mr. Justice Marshall, in New Hampshire.

Prior to this particular case, there were two combined cases before the New Hampshire Supreme Court cited in the State’s brief, the State versus Hoskin and Eli in which the defendants therein had taped over the State motto.

This --

Justice Thurgood Marshall: Then I understand that the Attorney General’s offer doesn’t have anything else to do that’s why they brought it up here?

Mr. Johnson: We have sufficient work in New Hampshire --

Justice Thurgood Marshall: Well, is it important in the State of New Hampshire or not?

Mr. Johnson: It is very important, Mr. Justice Marshall.

Justice Thurgood Marshall: But it’s not a burning issue?

Mr. Johnson: It’s not a burning issue from the standpoint that when one goes to New Hampshire, one sees the motto taped over.

If I may introduce a piece of evidence not before the Court in my travels around the State of New Hampshire since this case first was instituted, I personally have yet to see within the State of New Hampshire a license plate with the State motto either cut out or taped over.

Justice Thurgood Marshall: Since you speak as an individual, the first time I noticed the motto was after this case was filed.

I have never paid any attention to it.

I mean, New Hampshire license, (Inaudible) New Hampshire, but I didn’t live or die about it.[Laughter]

Mr. Johnson: Well, most people in New Hampshire don’t either.

They accept it as the fact that it is required to be placed on their license plates by the legislature in New Hampshire which is one of the fundamental basis upon which the State, the appellants herein say that by no stretch of the imagination can the appellees be said to agree with the State motto merely because it’s required to be placed on their license plates.

Every --

Chief Justice Warren E. Burger: Well, what if the legislature had required them to take a choice or to put on the license plate on van or bussing, do you regard that as somewhat controversial, wouldn’t you?

Mr. Johnson: Certainly.

Chief Justice Warren E. Burger: Suppose on the other hand, it was -- bussing is beautiful.

Would you think that was controversial?

Mr. Johnson: There certainly would be people who would be here before this Court holding that it was controversial.

It’s a --

Chief Justice Warren E. Burger: What difference does it make if the particular person finds that obnoxious and objectionable or whether it’s approved by a majority and disapproved by only a small minority?

Mr. Johnson: Well, I think then, we get down to a balancing issue, balancing the interest of the State versus the eccentric feelings of a very small minority.

Justice William H. Rehnquist: Do you think it’s likely that either the hypotheticals put to you by the Chief Justice would be adopted by the New Hampshire legislature of the State motto or --

Mr. Johnson: No, Mr. Justice Rehnquist.

We have adopted our motto and I don’t believe it would be changed.

Justice Thurgood Marshall: Mr. Attorney General, a minute ago, you said that it would be very troublesome to issue license plates without the sign.

I saw a license plate in New Hampshire a week ago that had letters “ER” on it, or “AB” or something, with two letters, that was pretty special, wasn’t it?

Mr. Johnson: Our motor vehicle registration --

Justice Thurgood Marshall: Doesn’t that stand special?

Mr. Johnson: Each plate has its own numbers and each plate has its own letters.

Justice Thurgood Marshall: What I mean, they go from 1 to 9000, that’s a machine job, but the letters “ER” is not a machine job?

Mr. Johnson: I believe --

Justice Thurgood Marshall: And no computer runs on ER?

Mr. Johnson: In a sense -- I believe that it does because the letters in New Hampshire stand generally for our nine counties, and so the counties do have significance.

Justice Thurgood Marshall: Well, this didn't have any numbers behind it, it just had letters.

Mr. Johnson: Well then, that is what is called in New Hampshire a Vanity Plate.

Justice Thurgood Marshall: Yes.

Mr. Johnson: And that --

Justice Thurgood Marshall: Well, couldn't you make a vanity plate for this man, if he’d pay for it and leave --

Mr. Johnson: Unfortunately, all vanity plates in New Hampshire have the State motto on it, but your question is, could we --

Justice Thurgood Marshall: Yes, but couldn’t you make a vanity plate without the motto?

Mr. Johnson: Well then, we come to the issue of whether the State of New Hampshire is obligated to do so, the legislature having authorized the motto to appear on all passenger vehicles.

Justice Thurgood Marshall: All I’m saying is it wouldn’t be any harder than just set the vanity plates.

I’m not arguing the law about it.

I’m arguing the (Voice Overlap).

Mr. Johnson: The State has conceded, Mr. Justice Marshall, in its brief that the State of New Hampshire can undertake a workable system of motor vehicle registration without having the motto on its plates.

We concede that, but we are here on the more fundamental constitutional issue as to whether or not in day and age, in the 1970’s, the State motto may not be required to be placed on motor vehicle license plates.

On the front of this particular building is a slogan, is a motto “Equal Justice Under Law” and I would submit to this Court with my utmost respect that the work of this Court may go on without that motto being on the front of this building.

In the same way as I concur with Mr. Justice Marshall that the State of New Hampshire may undertake a workable motor vehicle registration system without having the motto on our license plates.

Justice John Paul Stevens: General Johnson, just to give you a question somewhat like the one that the Chief Justice asked.

Supposing the State of Utah adopted a motto, “The Mormon State” and then tried to put that on its license plates, would that be permissible?

And if not, why not?

Mr. Johnson: I think that it would be a closer issue.

The reason being that I would submit the words “Live Free or Die” do not have the significant meaning that the words “The Mormon State” has.

Justice John Paul Stevens: Well, I suppose, if one was a Christian scientist and didn’t believe in death, it might have (Voice Overlap).

Mr. Johnson: That is correct and I would point out that almost every State in the union has mottos or slogans on its license plates and --

Justice John Paul Stevens: Are there any other states that have mottos that profess the belief in death?

And why a belief in death any different from a belief in the Mormon religion?

Mr. Johnson: With respect to the first portion of your question, no.

There is no other license plate professing a belief in death.

With respect to the second aspect of your question, I think that the more particularized the message becomes then perhaps the more weight has to be given to the State interests.

Justice Thurgood Marshall: Well, what if you do it like we do it in Virginia?

We don’t have it on our license plates, but we have stickers I see a lot of people paste it on the bumper “Virginia is for Lovers”.

Mr. Johnson: [Laughters]

Justice Thurgood Marshall: But, they didn’t put it on the license plate?

Mr. Johnson: Well, this --

Justice Thurgood Marshall: You could buy the sticker and say what you want.

Mr. Johnson: This is exactly another fundamental case.

Justice Thurgood Marshall: And in that case, the appellee here wouldn’t have any trouble, would he?

Mr. Johnson: Well, the appellate herein is a printer by trade and one of the arguments of the State of New Hampshire herein is that the statute under which he is being prosecuted does not penalize him for any disparagement of the motto of the State of New Hampshire other than a physical act upon a license plate which is in a sense still a property of the State of New Hampshire.

There is nothing in our statute which precludes Mr. Maynard from verbalizing either by the spoken or written word his objections and dissent to the State motto.

There is nothing whatsoever to prohibit him from doing anything other than merely taping over or cutting out the State motto on our license plates.

And with respect to other statements on license plates, I could run through the variety of them as up here on the license plates of various states.

Nebraska, “The Cornhusker State,” does everyone seen a vehicle from Nebraska reasonably believe that the registrant of that vehicle necessarily himself believes that Nebraska is a cornhusker state or that everyone in Nebraska is a cornhusker?

Justice William J. Brennan: What about the New Jersey license “The Garden State”?

Do you think any resident of New Jersey believes it is?[Laughter]

Mr. Johnson: I certainly would be hesitant having driven through New Jersey with all due respect to New Jersey.

A license plate hangs out at the end of the vehicle and nobody can reasonably say that this is an affirmation of faith, a required affirmation of belief on the part of the registrant of a motor vehicle.

It’s different than a flag burning case.

It’s different than other symbols and mottos.

It doesn’t have the emotional charge of a flag or even the emotional charge of a draft card and the appellants herein would ask this Court to draw an analogy between the burning of a draft card in the O’Brien case and the destruction of a duly issued motor vehicle registration by the State of New Hampshire in the instant case.

Justice William H. Rehnquist: The flags and the flag burning cases were all the property of the person who burned them, were they not?

Mr. Johnson: That is correct, Mr. Justice Rehnquist.

Justice Harry A. Blackmun: General Johnson, there are some New Hampshire plates that don’t carry the motto, aren’t there?

Mr. Johnson: There are.

Justice Harry A. Blackmun: And what is the explanation for that?

Mr. Johnson: By supplementary statement in --

Justice Harry A. Blackmun: There are sets (Voice Overlap) exhibit eight on the page 66 of the record.

Mr. Johnson: That is correct.

Justice Harry A. Blackmun: Is it because they have to designate commercial or tractor or junk or whatever it is they want?

Mr. Johnson: There are general rules, motor vehicle regulations relating to different types of vehicles, and that is one of the basic reasons why some plates are designated commercial or some plates are designated tractor.

A commercial vehicle or an agricultural vehicle for instance may travel only 15 miles from its usual place of resting.

Justice Harry A. Blackmun: Yes, but a commercial vehicle, a big truck van might go to California?

Mr. Johnson: That is correct, but it’s designated as commercial and has to pay highway usage taxes and so forth which a passenger vehicle does not.

In other words, the various designations are in response to various motor vehicle laws relative to those particular types of vehicles.

Justice Lewis F. Powell: Mr. Johnson, you’ve devoted your argument up to this time to the constitutional issue.

Are you going to address the Younger-Huffman issue that you raise in your brief?

Mr. Johnson: Thank you, Mr. Justice Powell.

The State relies primarily on Younger versus Harris and Huffman versus Pursue.

In this particular case, we do not believe that there is any necessity for the Federal District Court having become involved.

The appellee, Mr. Maynard, in each of the three cases in which he appeared before the lowest of our courts in New Hampshire, had the alternative of having an appeal by trial de novo before jury in the Superior Court of asking that questions of law be transferred to the New Hampshire Supreme Court and he undertook none of those available remedies.

In Huffman versus Pursue, this Court held that even where a criminal action has been commenced and has terminated, federal intervention carries with it all those disadvantages that it would if a criminal proceeding were still ongoing.

Federal intervention in this particular case, for example, is an aspersion upon the abilities of the Courts of New Hampshire to resolve constitutional issues and Mr. Justice Brennan in May before the New Jersey Bar Association pointed out that in this day and age, the State Courts are protecting the rights of citizens to even a greater State extent than the Federal Courts.

And I would submit to Your Honors that these Courts of the State of New Hampshire are just as capable of interpreting the Federal Constitution and our own constitution as the United States District Court for the District of New Hampshire.

Justice William H. Rehnquist: You would have to --

Chief Justice Warren E. Burger: Jurisdictional issue, are not the husband and the wife here in somewhat different positions?

The husband has already been prosecuted and that case is closed.

All appeals are no longer available, but the wife has never been prosecuted, has she?

Mr. Johnson: The wife has never been prosecuted.

I would point out that --

Chief Justice Warren E. Burger: Would it not be reasonable for her to assume that she may be subject to the same kind of prosecution as her husband?

Mr. Johnson: I would submit that under Doran versus Salem Inn, Inc., and under Ellis versus Dyson that there is no controversy pending and that the parties are so closely related that they should be treated as one entity.

I would respectfully request that my remaining minute or two be reserved.

Chief Justice Warren E. Burger: Very well.

Mr. Kohn.

Argument of Richard S. Kohn

Mr. Kohn: Mr. Chief Justice and may it please the Court.

I would like to address the Younger abstention issue first.

The purpose behind the Younger v. Harris and the other cases that the Court has decided, expanding Younger, has been to permit the State Courts to try cases free from the interference of the Federal Courts.

In this case, there was no interference with any state litigation.

At the time the suit was filed in Federal Court, there were no pending prosecutions.

This was not a collateral attack on any of Mr. Maynard’s prior convictions and it was not an attempt to use the Federal Courts --

Justice Byron R. White: Although the latest proceeding hadn’t terminated yet, had it?

Mr. Kohn: That’s correct, Your Honor and I should say --

Justice Byron R. White: Was the suit to aimed that latest proceeding or not?

Mr. Kohn: No, sir.

As a matter of fact, at the time I filed the federal suit, I did not know about the third conviction for which Mr. Maynard had received a disposition of continued first sentence.

I didn’t find out about that and so --

Justice Byron R. White: And that still stands now?

Mr. Kohn: Yes, sir.

But at the hearing before the three-judge court, the State stipulated that under New Hampshire practice, that is a final disposition.

Justice Byron R. White: So your assertion is that this suit was wholly prospective.

It wasn’t aimed at any criminal proceeding and didn’t attempt to upset any possible acts.

Mr. Kohn: That’s absolutely correct, Your Honor.

Justice Potter Stewart: It certainly didn’t purport to try to enjoin any State proceeding?

Mr. Kohn: No, only we asked for prospect of injunctive relief.

Justice Potter Stewart: Yes, but is there’s a joint injunctive relief?

Mr. Kohn: That’s correct, Your Honor.

Justice Potter Stewart: Why was this a case of controversy in the Federal Court under the -- what was under companion case of Younger from the Seventh Circuit?

Mr. Kohn: Samuels v. Mackell, Your Honor.

Justice Potter Stewart: Yes, Samuels against Mackell.

Mr. Kohn: Well, Samuels v. Mackell, Your Honor, was a case where the Federal plaintiffs were seeking a declaratory judgment that the statute was unconstitutional at the same time that there was an ongoing State prosecution.

Justice Potter Stewart: I’m thinking of the case where there was no prosecution ongoing?

Justice William H. Rehnquist: Boyle against Landry.

Justice Potter Stewart: Boyle against Landry, was that it?

Mr. Kohn: I believe so, Your Honor.

And the Court --

Justice Potter Stewart: (Voice Overlap)

Mr. Kohn: Yes, Your Honor.

The Court did address the question of standing in that case.

But in Boyle, the Court characterized the plaintiff’s standing as a search through the statute books to try to find the statute to attack, if I remember the case correctly.

In this case, Mr. Maynard had been prosecuted.

At the time I filed the federal action, I knew at least two times that there was no question that he was not going to alter his religious beliefs and that unless we filed the suit and got an injunction, he would either not be able to use his car or be subject to more criminal prosecutions.

Mr. Maynard was in a situation where because of his religious beliefs, he was going to be subject to a series of repeated prosecutions unless the Court intervened and stopped it.

Justice Potter Stewart: You alleged that in your complaint, didn’t you?

Mr. Kohn: Yes, Your Honor.

I believe I did.

Justice Lewis F. Powell: Mr. Kohn, in Dyson, there was an attempt in the prayer as I recall to expunge a prior conviction?

Mr. Kohn: Yes, sir.

Justice Lewis F. Powell: You didn’t seek that relief in this case?

Mr. Kohn: No, Your Honor.

Dyson in effect looked backwards.

They were seeking an expungement of arrest records.

They asked for an injunction to accomplish that.

They also asked for declaratory judgment which looked to the future.

Our case looked only to the future and that’s the distinction between ours and Dyson v. Ellis.

The exhaustion requirement that the state would have the Court engraft onto 1983 action under these circumstances in effect would bring the exhaustion requirement that’s presently applied in habeas corpus actions into the 1983 area.

Our response to that is to say that in the habeas corpus area, it makes sense to require a litigant to exhaust his state remedies because he’s seeking release from confinement and this Court has recognized that the State Court should have the first crack at resolving any constitutional difficulties along the way.

But again, that is not the situation in our case.

We are no way attacking or impugning the ability of the State Courts to resolve these issues and we are not seeking any relief with respect to prior convictions.

Justice Thurgood Marshall: But, why didn’t you take the first case out?

Mr. Kohn: Well, Your Honor, I did not represent Mr. Maynard in the State Court proceedings since he had a lawyer.

Justice Thurgood Marshall: But why didn’t Maynard take it out?

Mr. Kohn: After his first conviction on December 6, the sentence was suspended.

There was no reason to appeal that.

His second conviction occurred on January 31 and he was again ordered to pay a fine.

The Judge then walked out of the Courtroom.

Mr. Maynard explained that -- and at that point, the Judge advised Mr. Maynard that he had a right to appeal.

The Judge then left the Courtroom.

Mr. Maynard explained to the clerk that he could not pay the fines out of conscience.

Justice Thurgood Marshall: No, he did not intend to pay it.

Mr. Kohn: That’s correct, Your Honor, and at that point, the Judge returned and sentenced him to 15 days in prison and he was immediately taken to jail, so even if --

Justice Thurgood Marshall: Couldn’t he appeal that?

Mr. Kohn: Your Honor, under New Hampshire law, notice of an appeal to the Superior Court for trial de novo must be filed at the time sentence is declared.

There is a provision for a late appeal which may be filed within three days after sentence is declared, and there is a further provision that you can petition the Superior Court for permission within 30 days after sentence is declared.

Justice Thurgood Marshall: Well, the answer is they could have gone through all of the Courts --

Mr. Kohn: He didn’t have a lawyer -- he could’ve, Your Honor.

But for one thing, he didn’t have a lawyer and he --

Justice Thurgood Marshall: Well, because he couldn’t afford a lawyer with two automobiles?

Mr. Kohn: Well, Mr. Maynard told the Judge that he wanted to represent himself.

He did not say he could not pay for a lawyer.

Justice Thurgood Marshall: Well, he still had them all available to him and eventually, when he decided to abandon the New Hampshire Courts, he found a lawyer to get him into the Federal Court.

Mr. Kohn: I don’t think that’s accurate at all, Your Honor.

The fact of the matter is that when Mr. Maynard got out of jail, he made attempts to contact the American Civil Liberties Union.

I think up until that point, he believed --

Justice Thurgood Marshall: What’s that got to do with this case?

The point was when he needed a lawyer, he got one.

Mr. Kohn: Well, he had made attempts to contact the Civil Liberty Union (Voice Overlap)

Justice Thurgood Marshall: Well, I couldn’t see how we could take all of these into effect.

What I’m merely asking you, he had remedies available in the State Courts.

Rather than to use those, he used the Federal Court and I’m not asking you a question.

I’m telling you that’s what he did.

Mr. Kohn: I think that I would agree with, Your Honor, that once I was retained, we chose the Federal Courts as our forum.

Justice Thurgood Marshall: I don’t care on anything about you being retained.

I’m talking about what the records show.

Mr. Kohn: Well, there’s nothing in the record that suggest that Mr. Maynard with his ninth grade education would’ve known how to take an appeal up through the New Hampshire State Court.

Justice Thurgood Marshall: There is something in the record that the Judge did advise him and that statutes do provide for it.

Mr. Kohn: That is correct, Your Honor.

Justice Thurgood Marshall: So, he had available to him a direct appeal in the machinery of the State.

Mr. Kohn: Well, that may be true.

The statutes are on the books.

Justice Thurgood Marshall: Maybe?

Is it or not true?

Mr. Kohn: The statutes that were on the books that there was an appeal mechanism.

Justice Thurgood Marshall: And the Judge advised it?

Mr. Kohn: Yes, sir.

Justice Thurgood Marshall: Now, what else was the State require to do?

Mr. Kohn: Well, Your Honor, for one thing, taking his appeal up through the State Courts would not have solved Mr. Maynard’s problem.

His problem was to obtain injunctive relief so he could drive his automobile.

The New Hampshire system of appeals is a two-tier system which this Court is thoroughly familiar with where after your conviction in District Court, you can appeal for trial de novo in Superior Court.

From the Superior Court, then you can go to the State Supreme Court.

I’ve never heard of the case where a lower court in a criminal prosecution has issued an injunction against the State to prevent them from enforcing the statute which is at issue.

Justice Potter Stewart: Was there also a transfer proceeding in New Hampshire?

Mr. Kohn: Yes, sir.

There is.

Justice William H. Rehnquist: And the Supreme Court of New Hampshire said the statute was unconstitutional.

Surely, the New Hampshire prosecutor wouldn’t continue to enforce it?

Mr. Kohn: That’s correct, Your Honor, but that would’ve been after a substantial period of time.

But when Mr. Maynard got out of jail on February 28, 1975, he didn’t use his car until the Federal Court action was filed and he would not have used his car until the constitutional issue was resolved in some Court.

That could’ve been a matter of many months.

And there is testimony in the transcript on our motion for temporary restraining order that this nonsense affected his ability to earn a livelihood and that was the critical thing for Mr. Maynard.(Voice Overlap)

Justice Thurgood Marshall: When you say nonsense, what were you talking about?

Mr. Kohn: That these repeated arrests of Mr. Maynard for taping over his license plate.

Justice Thurgood Marshall: Well, how about his repeated violation of the law?

Mr. Kohn: Yes, that’s correct.

Justice Thurgood Marshall: Well, that could be nonsense too, couldn’t it?

Mr. Kohn: Yes, Your Honor.

I’d like to respond to Mr. Justice Stewart’s question about the transfer.

There is a transfer procedure in New Hampshire and if the Justice of the District Court so permits, you can transfer a case direct to the State Supreme Court.

Justice Potter Stewart: To determine a constitutional issue?

Mr. Kohn: That’s correct, Your Honor.

But District Courts in New Hampshire are not courts of record.

You would have to go to the State Supreme Court without a record which in view of the State’s consistent attacks on Mr. Maynard’s sincerity in the Federal Courts I think would’ve been a very poor mistake.

And this Court many times, has stated in its opinions that constitutional issues take on color from the factual surroundings in which they arise.

Justice Lewis F. Powell: Mr. Kohn.

Mr. Kohn: Yes, sir.

Justice Lewis F. Powell: The Attorney General’s brief states that the constitutional issue was raised at the initial trial and was resolved in favor of the validity of the statute against this appellant, is that correct?

Mr. Kohn: I believe it’s incorrect, Your Honor, and the Three-judge Court said that it was incorrect.

Justice Lewis F. Powell: If it were correct, would you be out in Court here?

Mr. Kohn: Not on Younger principles, Your Honor.

I think then the --

Justice Lewis F. Powell: Then on res judicata --

Mr. Kohn: Res judicata which is what I think the State is really arguing in this case.

Their whole Younger argument is really addressed at this res judicata.

But our answer to that is that it was waived.

Res judicata and collateral estoppel are affirmative defenses that have to be raised by the State and they did not do so in this case.

Justice William H. Rehnquist: What if the State doesn’t raise them, but the District Court nonetheless passes on it as the District Court did here?

Mr. Kohn: Well, the rules provide that -- first of all, Your Honor, the District Court did not pass on them.

The District Court --

Justice William H. Rehnquist: I would have read its opinion to pass on it.

Mr. Kohn: I read its opinion as being strictly over the dictum that if the State had raised that argument, they would’ve rejected it, but I think that the burden is on the State or the defending party to raise its affirmative defenses in conformity to the Federal rules.

So --

Justice William H. Rehnquist: But we have lots of cases that under our rules, you must have raised a point, at the earliest possible point in State proceedings, but nonetheless, we’ve also held that if a State’s Supreme Court passes on the point even though it didn’t have to then the issue is open for --

Mr. Kohn: Yes, sir.

Well, not in my position but I would ask that if the Court feels that you want that the issue of whether res judicata and collateral estoppel apply to 1983 actions, then you direct the parties to brief that because the State hasn’t briefed it and we haven’t responded to it and it’s a question of infinite complexity that should receive full briefing.

Justice John Paul Stevens: I’m a little puzzled about the res judicata argument because I don’t understand you to be attacking the judgments or any of those judgments that have been entering?

Mr. Kohn: That’s correct, Your Honor.

Res judicata wouldn’t apply in any event and they did waive that.

They did raise collaterals --

Justice John Paul Stevens: They didn’t waive it.

You’re not attacking those judgments.

Mr. Kohn: That’s correct.

They did raise the collateral estoppel argument in a motion to dismiss in the District Court when we began the case and Judge Bownes --

Justice John Paul Stevens: Well, does collateral estoppel apply to issues of law?

Mr. Kohn: Well, I have assumed that in my brief, Your Honor.

Although, I know that some Courts say it only applies to issues of fact.

There are Federal Courts that have applied it to questions of law.

But in any event, the State has not pursued that issue.

They raised that before Judge Bownes.

He decided against them.

They did not raise it again before the three-judge court.

As I note in my brief, there’s a question as to whether Judge Bownes should have denied that particular motion the way he did, but the fact of the matter is that the State abandoned it and the only time they’ve mentioned it since is in its brief and not as jurisdictional statement that was filed to this Court.

And I would again ask that if the Court feels that that issue should be reached in this case that we should be able to brief it.

There’s an additional question which the State sort of combined with its Younger argument, but which we feel is a separate question and that goes to the permanent injunctive relief that the District Court entered.

Again, this is an issue we feel the State has waived and the District Court said that the State did not dispute it, that the Federal Court could issue an injunctive relief against threatened arrest and prosecutions and that’s what they did in this case.

I would want to point out that there were no prosecutors or judges as defendants in this case.

The reason we asked for an injunction against arrest and prosecution is in New Hampshire, frequently, police officers initiate prosecutions in District Court and the injunction that the Court issued only runs to those individuals.

This was an extremely narrow injunction.

It was nothing like the injunction that was issued in Rickshaw v. Good which involved the internal workings of a police department.

All this injunction directed was that Maynards not to be arrested or prosecuted for the offense of taping over the motto on their license plates.

The State has briefed another issue with respect to Mrs. Maynard and they’ve argued that her action be dismissed based on some language in Doran v. Salem Inn that she and her husband were so closely intertwined that if he is barred by Younger then she must be.

The common law, a husband and wife are one and the husband was the one, but that is no longer the case.

Mrs. Maynard’s action was not a subterfuge to circumvent Younger considerations.

She had standing on her own.

She was threatened with prosecution.

She shares her husband’s religious beliefs and there’s no question but that she had Article 3 standing and we would argue that irrespective of whether Younger governs Mr. Maynard’s case, Mrs. Maynard must proceed to the merits.

Central question in this case is whether the action of the Maynards in placing reflective tape over the State motto on their license plates is protected by the First Amendment as symbolic expression and whether the State’s interests are substantial enough to override that expression.

Unknown Speaker: Are there two rather separate First Amendment issues here?

First, the one that you summarized, whether or not this was affirmative symbolic expression on the part of your clients?

Mr. Kohn: Yes sir.

Unknown Speaker: And isn’t the second issue, whether the person can be compelled to advertise a relief in which she does not believe.

Mr. Kohn: That’s correct, Your Honor.

As a matter of fact, --

Unknown Speaker: Are they not rather separable?

Mr. Kohn: Definitely and I would argue that there is a third separate issue which involves the free exercise clause because Mr. Maynard’s belief and Mrs. Maynard’s belief is religiously-based.

And I would see those as three separate arguments.

Unknown Speaker: What’s the third?

I want to be sure about it.

Mr. Kohn: The free exercise clause, Your Honor.

Unknown Speaker: And why?

Mr. Kohn: Because Mr. Maynard’s beliefs are religiously-based and that the imposition by the State of this motto upon him which is offensive to those beliefs violates his freedom of exercise.

Justice Potter Stewart: Well, that’s really the same as the second except one is involved on the free expression and the other free exercise clause.

Mr. Kohn: That’s correct, Your Honor.

Justice Potter Stewart: It’s compelling somebody to advertise a belief in which he doesn’t believe either because -- to which he doesn’t subscribe either because of religious reasons or political or philosophical reasons?

Mr. Kohn: That’s correct.

Yes, sir.

Chief Justice Warren E. Burger: Could the State compel a person to advertise a neutral concept that did not offend the religion clauses?

Mr. Kohn: Well, I think that would fall within -- most of the mottos that appear on State license plates.

If a State wants to advertise it --

Chief Justice Warren E. Burger: You’re not conceding that they’re all valid, are you?

Mr. Kohn: No.

Absolutely not.

North Carolina is first in freedom and I know there had been problems with respect to that.

But nevertheless, most of the slogans that appear on license plates advertise a State as a vacation land or a sportsman’s paradise or it’s a tourist attraction or something that is neutral and --

Justice William H. Rehnquist: What if Nevada said “Gambler’s Paradise” and Nevada citizen said, “I am just that I’m very fundamentally opposed to gambling.”

Mr. Kohn: I think that’s right.

I think that if he taped over the gambling, that would be an exercise of symbolic expression and I think before the issue of the environmentalist came up, if a State advertises itself as a “Garden State” or a scenic state and someone is deeply offended by that, I think that is symbolic expression.

Our case is much stronger because Mr. Maynard’s beliefs are religiously-based.

Justice Thurgood Marshall: Mr. Kohn, then you don’t agree that the license plates belong to the State?

Mr. Kohn: That is correct, Your Honor.

Justice Thurgood Marshall: I assumed so.

Mr. Kohn: That is correct.

As a matter of fact, seven States; North Dakota, South Dakota, Vermont, Delaware, Puerto Rico and North Carolina specifically say in their statutes that the State retains title to a license plate while it’s in the possession of the individual.

In New Hampshire it does not.

Chief Justice Warren E. Burger: That still wouldn’t avoid the problem under the power of the State to compel a citizen to carry picket signs?

Mr. Kohn: No.

And I wouldn’t want to suggest that if someone came into this Court next week with a North Carolina license plate that the case should turn on whether the State asserts title or not.

Needless that --

Justice John Paul Stevens: Mt. Kohn, do you think an atheist could cross out the words or tape over the words “In God We Trust” on an American currency?

Mr. Kohn: Well, Your Honor, I think that --

Justice John Paul Stevens: You have constitutional right to do that as well?

Mr. Kohn: There are at least two answers to that, Your Honor.

First of all, the statute which makes that a crime require a fraudulent intent, so I don’t think there would be a violation of law at least under the present statute that we’re dealing.

Justice John Paul Stevens: Let’s assume the statute is revised.

Mr. Kohn: Secondly, if someone chose to really object to the motto “In God We Trust” and put tape over it, the way Mr. Maynard does to his license plates, I do not think that he could be criminally punished for that.

Justice Thurgood Marshall: But the statute was mutilated?

Mr. Kohn: This is not mutilation, Your Honor.

This is exactly what the Court was talking about in Spence.

Justice Thurgood Marshall: I’ll put cut out words with a razor blade “In God We Trust,” would that be mutilation?

Mr. Kohn: I think it might, Your Honor.

Well, I know it would be mutilation and I think that the State could probably make that a criminal offense.

Justice John Paul Stevens: (Voice Overlap) prosecutions, didn’t he deface the plate?

Mr. Kohn: In the beginning, yes Your Honor.

He has to tape the motto over and neighborhood children would cut out the words “or dies,” or neighborhood children would pull the tape off.

So eventually, he cut out the words “or die” and then put the tape over the whole thing.

But when we filed our suit, he have just been issued a new plates for 1975 and we have never suggested that he’d be able to cut out or actually physically mutilate the license plates.

That is not an issue.

Justice Harry A. Blackmun: There’s one other thing that I’m little confused in the record because it seems to me that it’s inconsistent.

Were the Maynards willing or unwilling to purchase a vanity plate?

Mr. Kohn: They stated that they were willing to purchase a license plate that did not contain the motto “Live Free or Die.”

Justice Harry A. Blackmun: But they did not?

Mr. Kohn: They were not offered that opportunity by the State, Your Honor.

Justice Harry A. Blackmun: Well, wasn’t anyone privileged to do that?

Mr. Kohn: Well, the vanity plates in New Hampshire is they’re currently printed up all contain the motto “Live Free or Die” and it would’ve required removing the “die” that says “Live Free or Die” and there is testimony in the transcript that that could be done without a lot of difficulty but the State never said that that could be done.

As matter of fact, I think they said it couldn’t be done.

I believe I’m accurately stating the State’s position.

The first issue under the symbolic speech question is whether there was an intent to convey a particularized message and whether that message is likely to be understood.

Contrary to what the State has represented here, this issue of “Live Free or Die” on the license plates is a very hot issue in New Hampshire.

It has been to the New Hampshire Supreme Court.

This very case was delayed for eight months while the legislature considered a bill that would’ve made inclusion of the State motto optional.

People are well aware in New Hampshire about the controversy around the motto and there’s testimony in the record on page 29, for example, by Mr. Maynard that people would stop him when they saw the tape over his license plate and that would give him an opportunity to talk to them about his beliefs.

I don’t think there’s any question but that this was a -- that he had a particularized intent and the people would understand the message.

The State interests that have been advanced by New Hampshire prior to individualism, history and tourism as the District Court held are not unrelated to the suppression of expression.

For the obvious reason that it’s only by conveying the message that the State gets the point across, whatever the point may be.

Orthodoxy of thought can be fostered not only by penalizing those who are deviant in their expressions, but also by granting special privilege and special status to messages that meet the State’s approval and this is very much like the Schacht case where there was a statute that permitted the American uniform to be worn in theatrical productions that glorified or appraised the military but not otherwise and that is what the State has done here.

They’ve selected a message which they want to project, they select a billboard as it will appear on all non-commercial license plates in State and then they make it a criminal offense to cover that over.

So, it’s not unrelated to the suppression of expression and unless the State can come up with some compelling need or unless they can show a clear and present danger that their interest cannot be served otherwise then that is not a valid justification.

The other interest they advanced is that it helps their system of motor vehicle registration, but the motto is nonfunctional.

It does not serve any purpose on the license plate unlike the numbers or the name of the State or the date.

And it’s our position that the State lacks the power to require its citizens to bear this sort of motto.

And as the Chief Justice was asking before, I think that if the Court were to uphold this sort of thing, then the State could require all citizens to wear a pin or an armband or they could require you to have a plat on your door next your address saying “Live Free or Die.”

I’m sorry.

Do you have a question Your Honor?

And beyond that, there’s evidence in the record that, at least with regard to the Maynard’s plate, there’s no duplicate plate in the State of New Hampshire, so it would not present any problem of identification.

This is not an O’Brien case as my brother counsel said before.

O’Brien involved the war power, one of the most pervasive powers that you could imagine under our system of government.

Also, O’Brien destroyed and mutilated his draft card.

That was the whole point of the exercise.

Mr. Maynard is not destroying the plate.

The war power is not involved here.

Justice William H. Rehnquist: You say that the State is more limited on the exercise of its residual powers than Congress is when it’s exercising the war power each one confronted by the same constitutional guarantee?

Mr. Kohn: Well, Your Honor, I just think that the interest of the State is advanced in this particular case come no where near the war power.

It may be that the State has other powers under its police power or powers dealing with the welfare of its citizens that could be equatable with the war powers compared with National Government, but certainly, in terms of the interest that the State has advanced in this case, there’s no comparison.

Chief Justice Warren E. Burger: Do you think all your arguments would apply with equal force if the motto on a license plate was “Don’t Litter”

Mr. Kohn: [Laughters] I think that would be --

Chief Justice Warren E. Burger: I think everyone would agree with that?

Mr. Kohn: That would be a tough one.

I think everyone would agree with that.[Laughter]

Chief Justice Warren E. Burger: Maybe some people would think the right of privacy permits any person to throw any garbage or junk anywhere he wants to?

Mr. Kohn: Yes, sir.

I think that you do reach a point.

I’m sure my brother counsel would argue that some people would disagree that some State is a vacation land or that Mississippi is the hospitality state.

I guess I would have to say that if someone has a conscientious opposition to this, thinks that it isn’t true, that would be a case of symbolic expression if they taped it over.

And unless the State can show some overriding need for that motto, then there can be no criminal penalties that attach.

And, I should make another point in connection with that.

It’s essential to understand this case that it is criminal penalties that are involved.

Justice William J. Brennan: How about a license that says, “Wear your seatbelts?”

Does that involve liberty?

Mr. Kohn: [Laughter Attempt] I suppose it does, Your Honor.

I suppose it does.

It does involve liberty and I think that it probably would be protected expression if someone covered it.

In any event, I would argue that the motto in this particular case is so different from these that it almost stands sui generis.

“Live Free or Die” or “The Mormon State” or “Amnesty Now” or any politically loaded message that is bound to offend sensibilities cannot withstand a First Amendment attack.

With respect to the Barnette issue which Mr. Justice Stewart mentioned, the State’s response to this and they didn’t actually briefed this, but they relied on the New Hampshire Supreme Court’s decision in Hoskin was that, well, everybody knows that the State motto is required, therefore, it can’t offend the Barnett principle, but I find that totally un-understandable.

Barnett itself could have been explained on those grounds.

Everyone knows that children have to salute the flags, so it doesn’t matter.

Well, that’s not the issue in these cases.

The issue is whether it’s an affront to the particular individual’s deeply held beliefs.

I think that that concludes my presentation Mr. Chief Justice.

Chief Justice Warren E. Burger: Very well the.

Thank you counsel.

Mr. Kohn: Thank you.

Chief Justice Warren E. Burger: Mr. Johnson, do you have anything further?

Rebuttal of Robert V. Johnson Ii

Mr. Johnson: Very briefly Mr. Chief Justice and Justices.

During my direct remarks, I was inquired as to whether the State of New Hampshire is before this Court seriously.

We are here seriously.

There are many mottos which we have in this country and I think this is an important case.

“In God We Trust” is upon our coins and currency.

“E Pluribus Unum” is upon our coins and currency.

“Equal Justice under Law” is upon the edifice in which we appear today.

I think there is something to be said for the preservation of certain slogans and mottos.

Next, I would point out that we lawyers are required to be members of bar associations in many states and yet by that requirement, it is not implicit that we agree with what the bar association in each State says or stands for.

When we place postage stamps on our envelopes, those postage stamps contain symbols and mottos.

“Liberty depends on Freedom of the Press” issued November 13, 1975 by the United States Government and I’m not sure whether every member of the judiciary necessarily would believe in that particular motto.

And certainly, if a member of the judiciary were to place a stamp bearing that motto, “Liberty Depends on Freedom of the Press” upon a letter, no one reasonably would believe that he necessarily concurs with the sentence.

Justice Thurgood Marshall: Usually, we don’t put stamps on letter.[Laughter]

Mr. Johnson: But if your secretary, Mr. Justice Marshall placed such a stamp on a letter, I don’t think that if I were to receive the letter, I would necessarily believe that you believed in that particular motto merely because it was upon your letter.

I think it’s important in this case also that the defendant mutilated the license plates.

He cut out the words.

And I think finally, it’s important that there was no particular message enunciated by the conduct of the appellees.

The District Court found that by his conduct, he expressed a particular message, a message which indicated his objections.

I would submit that if you were to examine the plaintiff’s exhibit number one which is before this Court, the particular license plate, in its condition and ask yourselves what message was conveyed by this act of whimsy that you would find no message conveyed.

And for these reasons, the State would ask you to reverse the judgment of the District Court of the State of New Hampshire.

Thank you.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.