License plate legal battle a mixed win for pro-life groups

The U.S. Supreme Court on Monday overturned a lower court’s ruling that prevented pro-life license plate sales in North Carolina because the state didn’t also offer pro-abortion plates. The high court ordered the 4th U.S. Circuit Court of Appeals to reconsider the case in light of its recent decision in a similar case from Texas.

Thousands of special interest groups raise money across the nation through the sale of specialized license plates that promote their viewpoint. After making it through the state approval process, the plates are made available as an option for the public to support their favorite causes, including sports teams, animal shelters, child welfare groups, and Hispanic pride.

In 2011, the North Carolina legislature approved the sale of license plates with the tagline “Choose Life.” The specialty plates would cost drivers an extra $25, with $15 going to crisis pregnancy centers. During the same legislative session, various legislators made six attempts to add a pro-abortion license plate with taglines such as: “Respect Choice” or “Trust Women. Respect Choice.” The General Assembly blocked each attempt. The American Civil Liberties Union (ACLU) filed suit, arguing viewpoint discrimination. In December 2012, a federal judge agreed with the ACLU and blocked the sale of the plates.

“The government cannot create an avenue of expression for one side of a contentious political issue while denying an equal opportunity to citizens with the opposite view,” Chris Brook, legal director of the ACLU's North Carolina Legal Foundation, said at the time.

North Carolina appealed, maintaining the plates were “government speech,” not “private speech,” and the government shouldn’t be forced to promote a viewpoint it disagrees with. But in February 2014, the 4th Circuit unanimously agreed with the lower court’s ruling, concluding the license plates were not government speech but “private speech in a government-created forum.” As such, the state must offer a forum for the opposite viewpoint, the lower court ruled. North Carolina appealed to the U.S. Supreme Court.

Meanwhile, in Texas, the Sons of Confederate Veterans used the same argument as the ACLU—license plates are private speech, not government speech—in an attempt to incorporate the Confederate flag into its design. But the motor vehicle board blocked the plate, stating it violated its policy against offensive messages. The Sons of Confederate Veterans sued, claiming the state violated its freedom of speech.

The Supreme Court, in a 5-4 split decision, issued a surprise ruling on the Texas case on June 18: License plates are government speech, and the government is allowed to discriminate based on content when it speaks.

The decision led to much public debate over the last two weeks. The Los Angeles Times wondered if the government could “take back” its decision to sublet part of its license plates as mini billboards for car owners. License plate decision-makers appear now to be free to approve only the license plates they like, and could also decide to deactivate plates they don’t like, The Washington Post noted.

Alliance Defending Freedom, which provided attorneys for the North Carolina case, anticipates a victory when the 4the Circuit reconsiders its argument.

“The First Amendment does not allow groups like the ACLU to suppress a state’s positive message just because the state does not also simultaneously approve a conflicting negative message,” said attorney Steven H. Aden.

But the same argument could easily be used against pro-life plates elsewhere. “Choose Life” or “Respect Choice”—which phrase represents “a state’s positive message” depends on whom you ask and in which state you are standing.