Wooley v. Maynard and Rehnquist's Nixon-Era Blind Spots

Disclaimer: I read a lot, too much, and this has unfortunately left me with strong opinions on a wide variety of subjects. But no subject leaves me more agitated than that of Richard Nixon and William Rehnquist. Democracy will not survive in this nation if we do not pull back on the yoke of accountability in the executive branch in the comming two years. We are at the end of a path that started with the decision not to impeach Nixon, Ford's decision to pardon Nixon, and the subsequent decision to put Rehnquist on the U.S. Supreme Court (along with a list of other horrible ideas which followed in the 1970s and 1980s).

Wooley v. Maynard(1977) is a straight-up compelled-speech dispute: New Hampshire required noncommercial license plates to display “Live Free or Die,” and it criminalized obscuring the motto. Jehovah’s Witnesses George and Maxine Maynard covered the slogan because they found it “morally, ethically, religiously and politically abhorrent,” and George Maynard was fined and jailed for refusing to comply (Hudson, 2025; Wooley v. Maynard, 1977). The Supreme Court held that the State could not force the Maynards to use their private property as a “mobile billboard” for an ideological message they rejected, emphasizing the complementary First Amendment rights to speak and to refrain from speaking (Wooley v. Maynard, 1977).

Before we get started, consider if Ann Richards had put "Separate Church and State" on Texas license plates. Do you get the picture? What if California put "Three Strikes!" on their license plates back in the 1990s when they championed that initiative? Imagine if "Oklahoma is OK" were replaced with a Pride rainbow flag? I think I have offended everyone equally...because that is the point. Wooley was not just a small religious group balking about their marginal case. It was a principled stand against government compulsion of speech. This is how the majority ruled in the case.

Then there was Justice William Rehnquist...

Justice William Rehnquist’s dissent tries to shrink that principle. He argues that New Hampshire did not compel the Maynards to speak at all—at most, it required them to carry a standardized state-issued identifier on a car, with no reasonable implication that the driver endorses the motto (Wooley v. Maynard, 1977). It’s a clean framing, but it’s internally conflicted. The dissent keeps bouncing between “there’s no compelled speech,” “there might be an implication but it’s easy to fix,” and “the motto matters enough that the State can punish you for covering it.”

(Side note: I wish I had the power to resurrect Rehnquist and make him drive around with a license plate that read "Privacy is a Right," but that is a different set of cases where Rehnquist's hypocrisy came out, for which maybe I will write more later.)

Rehnquist’s Argument in Plain English

Rehnquist’s analysis rests on two moves.

First, he makes attribution do almost all the work. Because everyone knows plates are state-prescribed, he suggests observers will not “consider [the Maynards] to be advocating” the motto (Wooley v. Maynard, 1977). If the State is the obvious speaker, the First Amendment problem dissolves.

Second, he narrows compelled speech to compelled belief. In the Barnette sense, he says, the First Amendment is implicated only when the State forces a person actually (or apparently) to “assert as true” the message (Wooley v. Maynard, 1977). He then offers a practical workaround: if the Maynards worry about misattribution, they can add a “conspicuous bumper sticker” explaining that they “violently disagree” (Wooley v. Maynard, 1977). And he ends with a reductio: if the majority is right, atheists should be able to treat “In God We Trust” on money as a First Amendment violation (Wooley v. Maynard, 1977).

The trouble is that these moves undermine each other. I'm also thinking that Isaac Newton might be rolling his eyes considering his career was held back briefly because he wouldn't go with the Crown's religious preference to gain certain academic privileges. But that is a digression. Is it too much to hope Isaac Newton is kicking Rehnquist's ass in the afterlife?

Contradiction 1: “Nobody Thinks You Endorse It,” Except When They Might

Rehnquist’s foundation is that people won’t attribute the motto to the driver. But he immediately proposes a disclaimer because “any implication that they affirm the motto … can be displaced” by a bumper sticker (Wooley v. Maynard, 1977). That concedes an implication exists—otherwise there’s nothing to “displace.” So the dissent quietly admits the risk the majority takes seriously: the State is forcing the Maynards to display a public message on their own property, in a way that naturally invites social meaning and association.

Contradiction 2: The “Fix” Requires More Speech

Rehnquist’s bumper-sticker solution also flips the right “to refrain from speaking.” If the constitutional injury is being drafted into an ideological message, telling the objector to speak more to avoid misunderstanding is not a cure—it’s an added burden. It effectively turns “opt out” into “opt out, but only after you make a public announcement.” The dissent relies on the bumper sticker’s expressive power to neutralize the plate slogan’s expressive power, which is a backhanded admission that expressive participation is happening either way—only now the State gets its message and the dissenter has to do extra messaging just to protect their own conscience.

For those of you from Texas, imagine moving briefly to Oklahoma and having to drive around with a license plate that reads "Oklahoma is OK!" As a native Texan, I'd probably be inclined to set my car on fire if I saw such a degradation of my transportation. But, here too, is an example where expressive participation is happening either way—only now the State gets its message and the dissenter has to do extra messaging just to protect their own conscience. What is a Texan to do but express himself with the immoliation of a desecrated vehicle?

Contradiction 3: “Just Identification,” Except When It’s Messaging

Rehnquist treats the plate as a routine identification requirement. But the majority identifies New Hampshire’s second asserted interest as promoting “appreciation of history, individualism, and state pride” (Wooley v. Maynard, 1977). It calls that interest “not ideologically neutral” and says the State is trying to disseminate an “official view” (Wooley v. Maynard, 1977). That matters because it makes the defacement rule look less like administrative tidiness and more like compelled ideological distribution. If the motto is just decorative and irrelevant to state ends, it’s hard to explain why covering it triggers criminal penalties. If it’s important enough to protect by punishment, it’s doing ideological work—exactly what the majority says.

Contradiction 4: The “Asserting as True” Test Doesn’t Match How Slogans Work

Rehnquist’s proposed line—no First Amendment problem unless the State forces an “assertion” of truth—fits courtroom testimony better than public messaging (Wooley v. Maynard, 1977). Slogans work through association and repetition. A person can be forced to help disseminate an ideological message without being forced to swear belief in it. Rehnquist’s billboards example makes the point: even if taxpayers are made “instruments” in communicating “Live Free or Die,” he says there is no constitutional problem because there is no “affirmation of belief” (Wooley v. Maynard, 1977). That’s coherent under his test—but it effectively gives the government a blueprint for compelled dissemination so long as it avoids the formal words “I believe.”

If you need another example or two about how slogans work, go back to when George W. Bush as Texas Governor, with his "war on crime" (years after crime rates had started to decline). You'll remember a Senator Florence Shapiro of Plano (whom I once referred to as "Senator Factually Challenged" in a public forum). Shapiro had the audacity to repeatedly cite Judge Judy on an episode of Larry King Live as a source of statistical truth. She claimed that criminal recidivism was 75%—though Texas Legislative Budget Board (LBB) data showed that recidivism in Texas it was 23% or lower. Her messaging stuck, it scared voters, and we are still paying the price for it.

Contradiction 5: The Currency Analogy Misses the “Public Display on Your Property” Feature

Rehnquist’s “In God We Trust” reductio blurs the key feature the Court emphasizes: the State required continuous public display of a slogan on the Maynards’ private property as a condition of using that property in everyday life (Wooley v. Maynard, 1977). Currency mottos raise different questions about general exposure to government speech; they are not enforced through a targeted criminal ban on covering a particular ideological phrase on your own vehicle.

Nixon/Watergate: Rehnquist's Blind Spot to Individual Freedom

These tensions align with Rehnquist’s pre-Court job in the Nixon Justice Department. Immediately before joining the Court on January 7, 1972 (Supreme Court Historical Society, n.d.), he led the Office of Legal Counsel, a role that generates legal rationales for executive action (U.S. Senate Committee on the Judiciary, 1971). During his 1986 confirmation fight, Time described the post as “sensitive” in the Nixon era and noted that Rehnquist wrote on “civil liberties, government surveillance of radical groups and wiretapping shortly before the Watergate scandal broke” (Wilentz, 1986). This is the key “Watergate-adjacent” point about Rehnquist before he became a Justice: he helped shape legal justifications for surveillance and executive power in the exact period when the administration’s approach to secrecy and political control was hardening into what the country would soon recognize as Watergate-era abuse.

Read that again... In the post-Watergate era, conservatives thought it was a good idea to put a guy on the Supreme Court who had previously helped rationalize the activities that compelled Nixon to resign. That’s right, the guy who helped rationalize the activities that compelled Nixon to resign was put on the Supreme Court. On the court his dissent in Wooley argued that a state could force his fellow conservatives to have a slogan on their property.

Contemporary critics framed his outlook similarly. In a December 1971 Senate statement, Senator Edmund Muskie argued that Rehnquist favored executive-controlled national-security wiretaps and broad surveillance and minimized First Amendment chilling effects (Muskie, 1971). Whether or not one buys Muskie’s conclusions, the critique points to a consistent instinct: treat government power as normal and self-policing, and treat individual rights objections as speculative or easily managed.

The Watergate connection is also institutional. The Supreme Court Historical Society notes that Rehnquist helped screen Supreme Court candidates “along with … Attorney General John Mitchell” (Supreme Court Historical Society, n.d.). Mitchell later served prison time for his participation in Watergate (Mitchell, n.d.). Watergate itself detonated a few months after Rehnquist joined the Court: the 1972 break-in and cover-up that produced the Nixon tapes litigation (Reed, 2024). In that litigation—United States v. Nixon—Rehnquist recused himself because he had been “a former member of the Nixon administration” (Reed, 2024). None of that makes Wooley a Watergate case. But it helps explain why Rehnquist’s dissent reads like an argument for administrative normalcy and individual self-help (add a bumper sticker!) rather than a hard constitutional limit on government conscription of private citizens as message carriers.

Conclusions

Rehnquist’s Wooley dissent is driven by a neat doctrinal filter: compelled speech means compelled belief, and public observers will treat plate slogans as state speech. But his own argument keeps slipping: if there is no implication of endorsement, disclaimers are unnecessary; if the motto is mere identification, it shouldn’t be protected by criminal punishment; and if “asserting as true” is the only trigger, the State can mandate widespread ideological dissemination through forced display while insisting it never demanded belief.

Wooley endures because it treats compelled distribution as a First Amendment harm in itself. Rehnquist’s dissent tries to make that harm vanish by redefining it and outsourcing the fix to the speaker—an approach that looks especially uneasy once you remember how recently the country had watched “ordinary” government tools, supported by executive-branch legal rationales, slide into Watergate.

References

Hudson, D. L., Jr. (2025, March 31). Wooley v. Maynard (1977). The First Amendment Encyclopedia. https://firstamendment.mtsu.edu/article/wooley-v-maynard/

Mitchell, J. (n.d.). John Mitchell. Encyclopaedia Britannica. https://www.britannica.com/biography/John-Mitchell-attorney-general-of-United-States

Muskie, E. S. (1971, December 3). Rehnquist (Cong. Rec. Senate, p. 44644). Muskie Archives and Special Collections Library, Bates College. https://abacus.bates.edu/muskie-archives/ajcr/1971/Rehnquist.html

Reed, R. (2024, July 31). Are presidents “above the law”? 50 years ago, the Supreme Court said no. Harvard Law Today, Harvard Law School. https://hls.harvard.edu/today/are-presidents-above-the-law-50-years-ago-the-supreme-court-said-no/

Supreme Court Historical Society. (n.d.). Previous Chief Justices: William H. Rehnquist, 1986–2005. https://supremecourthistory.org/chief-justices/william-rehnquist-1986-2005/

U.S. Senate Committee on the Judiciary. (1971). Nominations of William H. Rehnquist and Lewis F. Powell, Jr. (hearing excerpt and American Bar Association report). https://www.govinfo.gov/content/pkg/GPO-CHRG-REHNQUIST-POWELL/pdf/GPO-CHRG-REHNQUIST-POWELL-7-1-1.pdf

Wilentz, A. (1986, August 11). Through the wringer. Time. https://time.com/archive/6706858/through-the-wringer/

Wooley v. Maynard, 430 U.S. 705 (1977). https://www.law.cornell.edu/supremecourt/text/430/705