Monday, December 10, 2012

If states can't choose their own license plates, then there may be no right to choose state songs, either

    Are state songs constitutional? If a recent federal court ruling banning North Carolina's "Choose Life" license plates is upheld I don't see how they can be. (ACLU v. Conti)
    Now what does a "Choose Life" license plate have to do with a state song? Simple. Both represent official, state-sanctioned or approved speech which -- in most cases and in North Carolina's case -- have been approved by the state legislature and signed into law. North Carolina had approved 150 license plates as speech which the state itself supported and was willing to give its imprinteur.
    North Carolina has only one state song, "The Old North State," but a majority of state have more than one. New Hampshire has 10 state songs. Yes, 10!
    In North Carolina, the procedure for adopting a state song and a license plate are identical. Both are proposed by a legislator and then enacted into law (any group may seek a special license plate, but it must be approved through the regular legislative process). Approval by the legislature and signing into law by the governor effectively makes the state song or the license plate officially approved state speech.
    It should be noted that a state may not force someone to carry a license plate with a message that violates their fundamental religious principles. Thus the U.S. Supreme Court ruled that Jehovah's Witnesses had the right to tape over the words "Live Free or Die" on New Hampshire license plates, Wooley v. Maynard, 430 U.S. 705 (1977). But North Carolina isn't trying to force people to carry the "Choose Life" plate; it is just declining to issue a pro-abortion plate.
    License plates aren't the only things with the potential to cause offense. State songs have just as much, if not more, potential to offend as the "Choose Life" license plate. Florida's state song, Swanee River by Stephen Foster, makes reference to "Darkies" longing for the plantation. Virginia's "Carry Me Back to Old Virginny" contains fond references to both "Darkies" and "Massa."
    And our own "Go Mississippi!" state song was adopted in 1962 and set to the tune of Gov. Ross Barnett's campaign song, in a clear show of support of his segregationist policies. I can see how some might find the history of the song offensive. Click here to hear the tune of the state song, which adds a note or two to spell the state name. The lyrics to both songs, sung to identical tune, are reproduced below (click to enlarge):

    For those of you interested in such things, Curtis Wilke in his book Dixie: A Personal Odyssey Through Events That Shaped the Modern Southgives the meaning of the derisive nicknames at the end of the song: Big Daddy was Gov. Hugh White; Tall Daddy was Gov. J.P. Coleman; and Little Boy Blue was Lt. Gov. Carroll Gartin, all more moderate than Barnett. In his unsuccessful 1955 campaign for governor, Barnett referred to the candidacy of former vice presidential candidate and Gov. Fielding Wright as "Wright to White and White to Wright," a memorable suggestion that the two men were swapping the office back and forth. Wright was defeated by J.P. Coleman and died in 1956.
    I think a strong argument can be made that Mississippi should have a new state song. But I don't have the right to have the current song banned just because I don't like it. I don't have the right to insist that the state adopt a song of my choosing to further my exercise of free speech, and the failure of the state to adopt a song of my choosing doesn't deprive me of my free speech rights. It is the prerogative of the legislature to adopt a state song or songs. If I don't like them I can choose not to sing them.
    The same goes for North Carolina's "Choose Life" license plate. The U.S. Supreme Court ruled in Roe v. Wade that the state had a legitimate interest in the life of the fetus from the time of conception. Roe just held that the Ninth Amendment privacy right of the mother outweighed the state's interest in the life of the fetus during the first trimester of the pregnancy. There is nothing in Roe v. Wade to suggest that a state may not pass proclamations urging women not to choose abortion; this should certainly include going so far as to put to these proclamations on license plates.
    It should be noted that the court in its decision banning the "Choose Life" license plates said that they weren't really government speech, as they were adopted along with 70 other license plates. However, several legislators suggested the additional of a "Respect Choice" plate and after vigorous debate this was rejected. So the state clearly had some messages that it was willing to support and some that it rejected. This is a state's sovereign right. And if New Hampshire can have 10 state songs, why can't North Carolina have 150 license plates?
    The Court's ruling is that North Carolina is engaging in viewpoint discrimination. Yet North Carolina as a state is permitted to engage in viewpoint discrimination. It is permitted to throw out a buffet of what it considers socially acceptable causes for its citizens to support with their license plates -- should they choose to do so -- while declining to give state sanction to those activities which, though legal, the state does not approve.
    By denying North Carolina the right to issue license plates of its choice the federal court is depriving that state of the right to exercise one its basic rights of state sovereignty: the right to have official positions as a state; the right to say that as a state it would prefer that its citizens "Choose Life."
    But the right to determine state birds, state songs and state license plates should be up to the several legislatures and states, not the federal courts. This is true whether we agree with the state's position or not.

Mississippi State Song Lyrics
"Go Mississippi"
Mississippi State Song, Adopted 1962

States may sing their songs of praise
With waving flags and hip-hoo-rays,
Let cymbals crash and let bells ring
Cause here's one song I'm proud to sing.


Go, Mississippi, keep rolling along,
Go, Mississippi, you cannot go wrong,
Go, Mississippi, we're singing your song,

Go, Mississippi, you're on the right track,
Go, Mississippi, and this is a fact,
Go, Mississippi, you'll never look back,

Go, Mississippi, straight down the line,
Go, Mississippi, ev'rything's fine,
Go, MIssissippi, it's your state and mine,

Go, Mississippi, continue to roll,
Go, Mississippi, the top is the goal,
Go, Mississippi, you'll have and you'll hold,

Go, Mississippi, get up and go,
Go, Mississippi, let the world know,
That our Mississippi is leading the show,

Roll With Ross
Ross Barnett 1959 Campaign Song

When they count the votes that night
You’ll find that things have gone just right
Folks will laugh and sing be gay
With Ross Barnett to lead the way


So climb on the wagon, it’s rolling along,
Shout from the rooftop, his victory song,
Climb on the wagon, it cannot go wrong,
Roll with Ross, Roll with Ross, He’s his own boss

He’s for segregation, 100 percent,
He’s not a moderate, like some other gent,
He’s fight integration, with forceful intent,
Roll with Ross, Roll with Ross, He’s his own boss

Invited Edward Rollins, up Tennessee way,
To fight for segregation, without any pay,
He’s one of the lawyers who helped save the day,
Roll with Ross, Roll with Ross, He’s his own boss

He is rebellious against the machine
Dictatorial politics are somewhat unclean,
He’s a man of the people if you know what we mean,
Roll with Ross, Roll with Ross, He’s his own boss

Owes no allegiance to some chosen few
Owes his allegiance to you and to you
[shout] Big Daddy, Tall Daddy, Little Boy Blue!
Roll with Ross, Roll with Ross, He’s his own boss

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