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.” http://www.ncdot.gov/dmv/vehicle/plates/. According to North Carolina, its specialty plate program [*5] “allows citizens with common interests to promote themselves and/or their causes.” http://www.ncdot.gov/dmv/online/.
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.” http://www.ncdot.gov/dmv/vehicle/plates/. It describes its specialty plate program as “allow[ing] citizens with common interests to promote themselves and/or their causes.” http://www.ncdot.gov/dmv/online/. 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.