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March 10 — North Carolina can allow motorists to promote an anti-abortion agenda on their license plates while denying those on the other side of the issue the same right, the U.S. Court of Appeals for the Fourth Circuit held March 10.
The opinion reverses a 2014 holding in the case. In 2014, the Fourth Circuit said North Carolina violated the First Amendment because the plates implicate private speech interests and can't be classified as pure government speech outside viewpoint-neutrality constraints.
But in 2015, the U.S. Supreme Court held that Texas's specialty plate designs did constitute government speech, and that the state could refuse designs with which it disagreed, in Walker v. Texas Div., Sons of Confederate Veterans, Inc., 83 U.S.L.W. 4453, 2015 BL 194034 (U.S. 2015) .
Here, North Carolina's license plate scheme is “substantively indistinguishable from that in Walker,” Chief Judge William B. Traxler Jr.'s opinion said. The court therefore held that North Carolina's plates “amount to government speech and that North Carolina is therefore free to reject license plate designs that convey messages with which it disagrees.”
Steven W. Fitschen of the National Legal Foundation, Virginia Beach, Va., which filed an amicus brief in the case supporting the state's position, told Bloomberg BNA in a March 14 e-mail that the holding in this case expands on the holding in Pleasant Grove City, Utah v. Summum, 555 U.S. 460 (2009).
In that case, a city rejected a request from Summum, a religious organization, to erect a monument containing the Seven Aphorisms of Summum, even though the park contained a display about the Ten Commandments.
The city explained that it limited park monuments to those either directly related to its history or donated by groups tied to the community.
The Supreme Court said, “although a park is a traditional public forum for speeches and other transitory expressive acts, the display of a permanent monument in a public park is not a form of expression to which forum analysis applies. Instead, the placement of a permanent monument in a public park is best viewed as a form of government speech and is therefore not subject to scrutiny under the Free Speech Clause.”
“Not every governmental unit may have the occasion to display a donated Ten Commandments monument, while declining to display another. But many states have specialty plate programs and many governmental units engage in speech in all sorts of ways,” Fitschen explained.
According to Fitschen, the Fourth Circuit's opinion “stands for the proposition that—just as we would not let a citizen force a fellow citizen to make an unwanted statement—so we ought not let a citizen force government to make an unwanted statement.”
But Christopher A. Brook of the American Civil Liberties Union of North Carolina Legal Foundation, Raleigh, N.C., who represented the ACLU in the case, called the Fourth Circuit's opinion “unfortunate.”
In a March 14 e-mail to Bloomberg BNA, he said the holding “gives the government more power to control what, at bottom, is private expression.”
He added, “Allowing the government to choose what political speech it will and will not allow private parties to engage in is a dangerous precedent.”
For Brook, the key distinction in the case “is whether the government or private actors are speaking through North Carolina's specialty license plate program.”
“If the government is speaking, then it is allowed to choose the message it sends. If a private actor is speaking or the speech is a combination of government and private elements, then North Carolina cannot engage in viewpoint discrimination,” he said.
“This distinction was pivotal in determining whether North Carolina was permitted to offer an anti-choice license plate without a pro-choice alternative,” Brook said.
North Carolina clearly wants to promote a “Choose Life” message, Fitschen said. He added that the state general assembly authorizes all specialty plates and rejected “Respect Choice” plates six times. The state's message is clear, he said.
Fitschen did say, however, that it's arguable that the specialty plate programs in other states could be seen as hybrid speech, depending on the mechanism by which the plate is created. A plate “that is a combination of a specialty plate and a vanity plate could possibly be hybrid speech,” he said.
Under that scenario, “citizens and groups might be creating part of the message,” he said.
Fitschen and Brook said that the game changer for this case was the Supreme Court's holding in Walker. Both noted that the majority of the Fourth Circuit panel made plain that it was reversing its earlier ruling because of Walker.
Judge George L. Russell III, sitting by designation from the District of Maryland, joined the opinion.
Dissenting Judge James A. Wynn Jr. argued that Walker, “when narrowly understood,” doesn't mean that North Carolina's plates are pure government speech. Instead, he said that they're mixed speech and that the state can't discriminate between the two sides of the abortion debate.
The North Carolina Department of Justice represented the state. The American Civil Liberties Union represented itself.
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