Fourth Circuit Declares North Carolina’s “Choose Life” License Plate Is Unconstitutional

121112_an_plate2_640The United States for the Fourth Circuit has ruled that North Carolina’s “Choose Life” license plates are unconstitutional since the state has rejected the alternative pro-choice plates from citizens like “Respect Choice.” It is an important and clearly well-founded decision by Judge Wynn in Aclu of N.C. v. Tata, 2014 U.S. App. LEXIS 2573. The case was an appeal from the United States District Court for the Eastern District of North Carolina and the earlier decision of Senior Judge James C. Fox, who ruled in favor of the Plaintiff.

The three-judge panel voted unanimously upheld a federal judge’s ruling that the “Choose Life” license plate is unconstitutional.

The court describes the program:

To develop a specialty license plate, NC DMV must receive three hundred applications from individuals interested in that plate. Id. Once the NC DMV issues the plate, any interested vehicle owner registered in North Carolina may purchase it. Over two hundred specialty plates are available, and North Carolina invites vehicle owners to “find the plate that fits you” and “[m]ake a statement with a specialized or personalized license plate.” According to North Carolina, its specialty plate program [*5] “allows citizens with common interests to promote themselves and/or their causes.”

Because North Carolina refused to allow a specialized plate to promote their cause, North Carolina vehicle owners who wanted a pro-choice specialty plate, along with the ACLU, brought this lawsuit in the United States District Court for the Eastern District of North Carolina. They sued the North Carolina Department of Transportation (“NC DOT”) and the NC DMV (collectively called “North Carolina”) for First and Fourteenth Amendment violations.

However, when you try to find “the place that fits you” you had better not believe in abortion because there is only an anti-abortion plate.

The state advances an extreme theory that could have opened up a new era of government controlled speech — a curious position for the conservatives who backed this ill-conceived litigation. The state did not deny that it was engaging in viewpoint discrimination but insisted that it was free to discriminate based on viewpoint because the license plate speech at issue was solely its own. Another irony is that the Citizen’s United ruling that is considered a major conservative victory was key to the rejection of these claims. The Court noted:

“Premised on mistrust of governmental power,” Citizens United, 558 U.S. at 340, the First Amendment bars the government from abridging freedom of private speech. U.S. Const. amend. I; see also, Gitlow v. New York, 268 U.S. 652 (1925) (incorporating the freedom of speech against the states). “It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys. Other principles follow from this precept. In the realm of private speech or expression, government regulation may not favor one speaker over another. Discrimination against speech because of its message is presumed to be unconstitutional.” Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 828 (1995) (citations omitted).

“[T]he violation of the First Amendment is all the more blatant” when the government targets not simply subject matter, but particular viewpoints speakers take on a subject. Id. at 829. Indeed, the Supreme Court has called viewpoint discrimination “an egregious form of content discrimination” and has held that “[t]he government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.” Id. at 829.

The state built its case on the concept of government speech where the government engages in its own expressive conduct, then the Free Speech Clause and its viewpoint neutrality requirements have “no application.” Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 467 (2009). In Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 574 (2005), Justice Souter noted in dissent that “[a] government entity has the right to speak for itself. It is entitled to say what it wishes, and to select the views that it wants to express.” However, the Fourth Circuit ruled that this was viewpoint discrimination, plain and simple. It even cited the comments of legislators to prove its point:


Here, we must conclude that the purpose of the specialty license plate program, including the “Choose Life” plate, is to allow North Carolina drivers to express their affinity for various special interests, as well as to raise revenue for the state.7 First, the legislative history of HB 289 indicates that the specialty license plate program was intended to be a forum for private expression of interests. See, e.g., Remark of Representative Tim Moore to the North Carolina House Fin. Comm. (June 2, 2011), J.A. 19 ¶ 33 (stating that specialty license plates constitute “voluntary speech that people are making by purchasing the license plate”). Fittingly, then, North Carolina expressly invites its vehicle owners to “[m]ake a statement with a specialized or personalized license plate” and to “find the plate that fits you.” It describes its specialty plate program as “allow[ing] citizens with common interests to promote themselves and/or their causes.” By contrast, nothing before us suggests that North Carolina has ever communicated to the public that the specialty plate program is government-only speech or that it seeks volunteers to help disseminate a government-only message.

North Carolina was wrong in taking this step and as a result it has wastes hundreds of thousands of dollars, if not millions, in court time, counsel fees, and state resources. That is money that could go to a better purpose than trying to favor one set of citizens over another in a political debate. This is one of the most conservative circuits in the country and its rejection (under such conservative iconic rulings as Citizen’s United) should be an even greater embarrassment for those who approved not only this litigation but advanced this extreme argument in the federal courts.

36 thoughts on “Fourth Circuit Declares North Carolina’s “Choose Life” License Plate Is Unconstitutional”

  1. David,

    It’s good you can cut and paste…. Do you have any clues to what those words used together sound like…. A state had a right to regulate…. In a neutral manner….. It can’t be selective…. So long as the necessary signatures are there….. See my first post…. It’s the stripper club ordinance…. Time, place, manner so long as it’s content nuetral…. The state may regulate where these establishments are located….

    1. AY, I understand the decision and agree with it. However, I do not understand what you are trying to say through your fragmented sentences.

      The opinion gives the State the option to allow both viewpoints or neither viewpoint. They cannot do as they have done, which is accept one viewpoint as the message that they want to convey while rejecting another viewpoint with which the State disagrees.

      “Choose Life” is a constitutionally protected viewpoint.

  2. And if I was a guy named “Tata” I’d change it as being not politically correct….

  3. David,

    Do you have reading comprehension issues or retention of information read issues…… Seems to me that by ruling against over turning the district courts decision and relying on that pesky case of “citizen”….. Which I don’t care for either….. Seems to be saying that the licenses plate is unconstitutional ….. My understanding may be flawed …. But that seems to be my take on it…. Maybe others can speak more clearly….

    1. AY wrote: “Seems to be saying that the licenses plate is unconstitutional ….. My understanding may be flawed.”

      From page 26-27 of the ruling:

      “North Carolina then sounds the death knell for specialty plates, predicting a “flood” of “Kill The Sea Turtles” and “Children Last” plates that will force it to end its specialty plate program. Appellants’ Br. at 27-29. Melodrama aside, our ruling today “does not render [North] Carolina powerless to regulate its specialty license plate forum.” Rose, 361 F.3d at 799. But it must do so in a viewpoint-neutral fashion—which it already does, to some extent, by requiring three hundred applicants before issuing a new specialty plate. Surely such a requirement can filter out “frivolous license plate proposals” and prevent the roads from being inundated with “license plates advocating reckless pet breeding.”

  4. Oh, good. I’m tired of seeing them in my home state of MD. Maybe I can get this to happen, too.

  5. Geeze David…. Maybe you should try reading more decisions by the court just not the ones your agree with….

  6. David:

    The reason they shut down the “Choose Life” plates was that very few people would get a pro-abortion license plate. So just curtail the speech you dont like.

    It is easier that way, why be on the side of more freedom when you can just shut down the other guys side?

    I would have allowed the pro-abortion plates.

    1. Bron wrote: “The reason they shut down the “Choose Life” plates was that very few people would get a pro-abortion license plate. So just curtail the speech you dont like.”

      Very good point. Florida has had a lot of failed attempts by these activists to prohibit the Choose Life license plate. The money raised here for the sale of the license plates goes to a good cause, to help pregnant women with putting babies up for adoption instead of killing them before they are born.

      The title of this article is deceptive. If you read the actual opinion, it is a good one. It allows for both license plates. It does not declare one license plate “unconstitutional.”

  7. Davidm. The opinion leaves to the state the option of either allowing both viewpoints or neither. It only eliminates the option of permitting one view while refusing to permit the other.

    1. Blhlls wrote: “The opinion leaves to the state the option of either allowing both viewpoints or neither.”

      Thanks for the clarification. I finally was able to read the opinion myself. This makes much more sense than the idea that they declared the “Choose Life” license plate to be unconstitutional.

  8. Very good decision here. I am pleasantly surprised that the State’s attempt to only allow ideas that they like was tossed on its ear.

  9. David,

    Equal treatment under the law…. And yes, the ACLU would represent you in a case like this…. Just like they’ve represented the KKK…..

  10. Mixed metaphors are nothing compared to the confusion pelted out between religion and woman’s reproductive rights in medicine itself and the political-business side of legal adjustments to damages. The protocol faulted in what is given is more than enough to suspect a medical delivery problem here and not a fetus delivery. Perhaps liability was at the very start of this to begin with when physicians refuse to take another physicians problems into their own hands? Your ethics perspectives that i have seen are typically moving in one direction…forget “Do no harm” …as you know most medical schools do not ask their graduates to actually take that vow…

  11. Denial of care is an assault upon an individual person as much as anything else legally defined; but ethically it is immoral …not simply a-moral (sterile medical decisions made through business glasses). The facts in this case do not get far beyond medical negligence and all the extreme cases cited to influence the emotionally charged air of contempt against Catholic dogma does not dictate fault in this particular case.

  12. Charlton Stanley
    “Logical thinking has been proven repeatedly to not be your strong point. This was about deliberate withholding of critical health care information from a competent patient.

    The reasons for withholding that information had nothing to do with health care and everything to do with the religious dogma of a single sect of the religious community at large.”

    You must have information that is not provided in the actual blog entry above. How in the world can a professional ,make such a blatant assumption? Base upon the meager evidence provided, the woman’s water broke and she was sent home on the very first entry to the emergency room. Facts at that point are extremely pertinent and not provided.

  13. This was a no brainer. Judges will almost always be smarter than stupid politicians.

  14. David, for a regular commenter on a legal blog, your lack of understanding of the most fundamental and basic Constitutional law never ceases to amaze me. The ruling is about equal treatment. If the license plate was about dwarf tossing, then they have to allow plates for those in favor as well as those against dwarf tossing. The third option is no plates about dwarf tossing at all.

    1. Charlton Stanley wrote: “The ruling is about equal treatment. If the license plate was about dwarf tossing, then they have to allow plates for those in favor as well as those against dwarf tossing. The third option is no plates about dwarf tossing at all.”

      You don’t seem to understand my point. Why prohibit speech entirely as opposed to your first option of allowing plates in favor of both? If the State provides a forum for advocacy, why not simply say that the State cannot censor the content of the advocacy? To prohibit speech entirely by declaring one side of the speech unlawful is itself unconstitutional.

      I was actually the focus of a free speech case in Tampa, Florida where they followed this draconian method of not allowing any advocacy in the downtown area. I was arrested under that ordinance, but the courts sided with me that the city of Tampa had an unconstitutional ordinance by restricting my speech.

      We should always side with liberty and freedom in these cases, not with tyrannical administrations that prohibit speech as being unlawful.

  15. It seems to me that it would be unconstitutional to prohibit the pro-choice license plate. Why was the pro-life license plate declared unconstitutional instead?

  16. Can PRIVATIZING license plates be far behind? One might actually thin that this is an area that has potential. Unfortunately, one might jump right to the consequences of privatized prisons being the factory-industrial benefactor of such a move. Perhaps legislation should be created to separate church, state AND corporate??? Sounds like things are getting very tangled up when millions are spent to reject the obvious but finances are never “realistic’ when it comes to saving small town America itself (or Detroit?).The BIG PICTURE is here somewhere, but we seem to miss the car for the plate, and the forest for the trees.

  17. Seems like a rational basis to me….. Time, place, content neutral…..ah… The manner …..

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