On Friday, attorneys from the conservative legal advocacy organization Alliance Defending Freedom and those representing Thom Tillis, the Republican speaker of the North Carolina house and a candidate for the U.S. Senate, asked the U.S. Supreme Court to review a decision blocking the state from issuing anti-choice license plates unless they also offer pro-choice plates as well.
In 2011, North Carolina lawmakers approved the “Choose Life” license plates as one of 80 specialty plates to be offered in the state, but rejected proposals for plates with messages such as “Respect Choice” and “Trust Women.” Each “Choose Life” plate would have cost $25, with $15 of the proceeds from each plate going to the Carolina Pregnancy Care Fellowship, an association of anti-choice crisis pregnancy centers.
This February, a unanimous three-judge panel of judges for the U.S. Court of Appeals for the Fourth Circuit upheld a decision ruling the plates unconstitutional. The appeals court ruled that North Carolina’s decision not to offer a license plate with an alternative message to the “Choose Life” plates constituted “blatant viewpoint discrimination squarely at odds with the First Amendment.”
Attorneys for the Alliance Defending Freedom disagree, characterizing the ruling as a type of censorship of anti-chioce viewpoints. “State governments have a right to advance messages consistent with their public policies,” said Casey Mattox, senior counsel at the group, in a statement. “The Supreme Court has already affirmed that right. North Carolinians support protecting life and helping pregnant women in need; the First Amendment does not require the state to bow to demands that it censor the ‘Choose Life’ message.”
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The central issue of the North Carolina case is whether or not the state-sponsored “Choose Life” license plate is to be considered purely government speech of which the state retains sole discretion over the message, or whether the plates are considered individual speech, which raises competing First Amendment protections that prevent the government from favoring one message at the expense of another.
In February, the Fourth Circuit ruled that the specialty plates are a combination of both government speech and individual speech, and because North Carolina did not offer citizens a pro-choice license plate option, the plates violated the First Amendment’s prohibition of governments favoring one message over another. Clearly, the Fourth Circuit held, the government has control over the message of the plates it issues, but citizens choose specialty plates to communicate a specific viewpoint. That means the Fourth Circuit explained, that the plates tilt strongly in favor of private speech. Thus, North Carolina is not free to privilege an anti-choice message over a pro-choice one.
Scott Gaylord, an attorney allied with the Alliance Defending Freedom and an associate professor of law at Elon University School of Law, called the ruling “inconsistent” with the First Amendment. “Across the country, groups like the ACLU have tried to use the high court’s First Amendment speech cases to censor government expression,” he said in a statement. “Such efforts are not only inconsistent with the purpose of the First Amendment, but also with the Supreme Court’s government speech precedents.”
In 2004, the Fourth Circuit came to an almost identical conclusion in a case challenging “Choose Life” license plates in South Carolina. The Supreme Court declined to take up that case.