When it comes to license plates, North Carolina drivers have plenty of choices to display their special interests – more than 100 with which they can cheer for their alma mater, honor veterans and promote charitable causes.
If state lawmakers have their way, drivers can even advocate a position or belief they fervently hold — renouncing the constitutionally protected right of abortion, for example, by purchasing a “Choose Life” plate.
What they won’t be able to do, though, is express the opposing view.
That’s because when the General Assembly approved more than 70 new plates near the end of the 2011 session – including the “Choose Life” plate – they rejected plates conveying a pro-choice theme, such as “Respect Choice” or “Trust Women. Respect Choice.”
At the time, critics said that by permitting drivers on one side of an issue to purchase plates supporting their views while denying those on the opposing side the same opportunity, the state was engaging in viewpoint discrimination.
And when the American Civil Liberties Union of North Carolina filed suit alleging as much, U.S. District Judge James C. Fox agreed, ruling in December 2012 that the state’s offering of a Choose Life license plate in the absence of a pro-choice plate violated the First Amendment.
Now it’s up to the Fourth U.S. Circuit Court of Appeals in Richmond to decide which plates the state must offer, and this morning the court is hearing arguments from both the state and from ACLU-NC on this question.
A matter of choice
On its website, the state Division of Motor Vehicles invites drivers to purchase special interest license plates which “allow citizens with common interests to promote themselves and/or their causes.”
“Make a statement with a specialized or personalized license plate,” the division says elsewhere on the site.
As proposed in 2011, drivers buying the “Choose Life” plate would pay $25.00 per year– in addition to the regular registration fee — $15.00 of which would go to support the Carolina Pregnancy Care Fellowship. None of the funds collected for the plate could go to any entity that provides or promotes abortion.
The plate is the brainchild of Choose Life America, Inc., an organization whose mission is to promote the sale of Choose Life license plates throughout the country so that proceeds can be used to “encourage adoption as a positive choice for women with unplanned pregnancies.”
So far, the organization can claim victory in 34 states (according to its website), with drivers purchasing plates that resemble the design and logo promoted by the group.
But the organization’s success does not mean that states have likewise been able to promote plates expressing one viewpoint to the exclusion of another. When it comes to picking and choosing, seven of the eight U.S. Circuit Courts of Appeal to have considered the issue – including the Fourth – have held that such plates must be “viewpoint neutral,” i.e. not favoring one position over another. Only the Sixth Circuit has held differently.
Whose message is it?
The key question before the district court, and now the Fourth Circuit, is whether the message conveyed on the license plate constitutes government or private speech.
The U.S. Supreme Court has held that regulation of private speech – here, drivers expressing a pro-life view by purchasing and displaying the license plate — is subject to scrutiny under the Free Speech clause of the First Amendment. But government speech — lawmakers advocating a state pro-life position through the plates – is not.
In the court below, Judge Fox held that the Choose Life plates were not a form of government speech but rather “were part of a larger program encouraging private speech by North Carolina drivers.”
The state advertised the plates as a way for North Carolina drivers to express their affinity for certain interests, Fox found. And it was ultimately the drivers who controlled the message. Unless and until they paid for the plates and displayed them on their vehicles, the message would not be disseminated.
Because the Choose Life plate was not government speech, Fox concluded, the offering of the plate in the absence of a pro-choice plate constituted viewpoint discrimination in violation of the First Amendment.
But the state contends that the many plates approved by lawmakers and offered to drivers are meant to convey a government message. As argued in briefs submitted to the court:
Compelling the state to provide alternate viewpoints “would force North Carolina either to allow opposing viewpoints—Undermine Our Troops, Clear-Cut the Great Smoky Mountains, In Atheism We Trust, Kids Last, and Tobacco Causes Cancer—or to terminate its specialty plate program.”
What the state overlooks, said the ACLU’s Chris Brook – who will be arguing his point before the court this morning – is that there are plenty of North Carolina drivers who support a pro-choice message and whose viewpoint is being excluded. And it is the drivers’ message. They pay for the plates and display the message on their cars.
“At bottom this case is about whether the state can open a venue to speech and then turn away speakers because of their political opinions,” Brook said. “All North Carolinians, regardless of the ideological leanings should be uncomfortable with that notion.”
(Noelle Talley, spokesperson for Attorney General Roy Cooper’s office, said that because this litigation is pending the Attorney General would not comment.)