May 29, 2003

PEOPLE ARE ALWAYS SAYING THAT “DRIVING ISN’T A RIGHT, IT’S A PRIVILEGE,” and they’re always saying it because it’s in bold-face type in every “driver’s handbook” issued by every state Department of Safety. (Which shows that the people who write those handbooks understand the value of early indoctrination.) But it’s not really true, as Eugene Volokh points out. At least, it doesn’t mean what people who use the phrase tend to think it means, that driving is a privilege that the government may bestow or withdraw at its whim:

But this does not give the state the unlimited right to control what you do when you drive, or to deny you the right to drive based on your exercise of other constitutional or statutory rights. The government does not have unlimited power to search your car, or even to pull you over; the Fourth Amendment still applies to you when you’re driving. (The Fourth Amendment covers cars less than houses, for a variety of reasons; but whether that’s right or wrong, the justification is not that driving is a “privilege” rather than a constitutional right.) The government may require you to submit to blood tests when you’re pulled over for drunk driving, but the case upholding that didn’t rest on a “driving is a privilege theory.” (Some legislators have justified some such requirements on an “implied consent” theory — by choosing to drive, you implicitly consent to submit to blood tests — but that’s not how the Supreme Court has justified it.)

Likewise, the state may not deny you a driver’s license because of your speech — or even specially control your speech while you’re driving, e.g., by restricting the content of your bumper stickers (at least outside the narrow exceptions, such as threats or libel, that are recognized for all speech).

Read the whole thing.