The ACLU has filed suit on behalf of four state residents after lawmakers rejected six proposals for plates bearing words such as “Respect Choice” or “Trust Women; Respect Choice.”
Courts have held that such license plates do constitute speech by a state. ACLU v. Bredesen, 441 F.3d 370, 375 (6th Cir. 2006) (holding that a “Choose Life” license plate is government speech for First Amendment purposes because “the government determines [the] overarching message and retains the power to approve every word disseminated”). Conversely, courts have upheld the right of a state to reject Choose Life plates. Choose Life Ill., Inc. v. White, 547 F.3d 853 (7th Cir. 2009) (“Illinois may not discriminate on the basis of viewpoint, but it may control access to the forum based on the content of a proposed message–provided that any content-based restrictions are reasonable. The distinction between content and viewpoint discrimination makes a difference here.”).
What is particularly impressive is that the state is not only fighting for the right of viewpoint discrimination but it has chosen the very license plate that in 2004 the 4th Circuit struck down as unconstitutional. In a strikingly similar case in Planned Parenthood of South Carolina, Inc. v. Rose, 361 F.3d 786 (4th Cir. 2004), the Fourth Circuit looked at a state statute authorizing specialty plates with the “Choose Life” message. The Fourth Circuit employed a four-factor test to determine whether the messages on specialty plates constituted government or private speech: “(1) the central “purpose” of the program in which the speech in question occurs; (2) the degree of “editorial control” exercised by the government or private entities over the content of the speech; (3) the identity of the “literal speaker”; and (4) whether the government or the private entity bears the “ultimate responsibility” for the content of the speech.” The court found that South Carolina created a limited forum by creating the “Choose Life” specialty plate and had engaged in viewpoint discrimination by denying access to those who disagreed with the pro-life position.
Sponsor Rep. Mitch Gillespie says litigation over the bill is “fine” with him after he was confronted over the cost of such discrimination. It is a potentially high price to pay for the right of discrimination, but of course Gillespie is not paying that bill in the end.
Source: Courthouse News