Banning ‘Choose Life’ License Plates to Protect Free Speech?


U.S. District Court Judge James C. Fox ruled last Friday that North Carolina cannot produce or distribute the “Choose Life” specialty license plate unless it also agrees to issue some variant of a “Respect Choice” license plate.

In response to a complaint by the American Civil Liberties Union brought on behalf of pro-abortion North Carolina drivers who wanted the opportunity to purchase a license plate bearing a message expressing support for a woman’s right to reproductive choice, Judge Fox held that the “State’s offering of a Choose Life license plate in the absence of a pro-choice plate constitutes viewpoint discrimination in violation of the First Amendment.” By limiting access to a specialty license plate to those with a pro-life position, the state has impermissibly chosen sides.

By way of background, the democratically elected North Carolina legislature determines what specialty license plates are made available. It authorized the “Choose Life” license plate, which would cost $25 annually in addition to the regular yearly registration fees.  From this price, $15 of every such plate sold would go to the Carolina Pregnancy Care Fellowship, a private organization which funds and supports crisis pregnancy centers in North Carolina. The legislature prohibited the funds to be collected from the “Choose Life” plate to be distributed to any entity promoting, counseling or referring to abortion.  The legislature also rejected proposed amendments to the authorizing legislation to include another specialty license plate stating “Respect Choice” or “Trust Women. Respect Choice.”

Judge Fox agreed with the ACLU’s contention that by authorizing the “Choose Life” license plate while rejecting a pro-choice license plate, the North Carolina legislature was opening “a state-created forum for private speech to one viewpoint alone in the public debate over abortion” in violation of the plaintiffs’ right of free speech. In other words, there must be equal access to license plate space for all sides to the debate or nothing at all may appear on the license plate regarding the issue.

There are several logical problems with Judge Fox’s decision, although it is admittedly consistent with opinions in a few other cases involving the “Choose Life” specialty license plate.

First, Judge Fox gave short shrift to the Supreme Court’s recent cases applying what it calls the government-speech doctrine, which allows the government to convey publicly a message of its own choosing without being subject to scrutiny under the free speech clause of the First Amendment.  The free speech clause restricts government regulation of private speech. It does not regulate what the government itself is permitted to say or write.

In the words of one Supreme Court decision upholding the government’s proactive promotion of beef consumption, the government-speech doctrine applies when “the government sets the overall message to be communicated and approves every word that is disseminated.” This is true even if it obtains “assistance from nongovernmental sources in developing specific messages.” The key test is whether the government is using means of communication to advocate and publicly disseminate its own views, which it is permitted to do.  By its very nature, the government is selecting one side of an issue and dismissing others in the message that it advocates and communicates to the public

In its latest opinion concerning government speech, the Supreme Court held that the government’s action of placing a permanent monument on public property, even if designed and donated by a private entity, constitutes permissible government speech. Just because one side on an issue may like the government’s message while the other side detests it, the government is not violating the First Amendment right of the private individual or entity detesting the government’s message to freely express such disagreement.

Despite this well-established law on government speech, Judge Fox said it was not applicable to the two word message on the North Carolina government issued license plate that says “Choose Life.” Since he decided the case purely on the law, he did not consider any evidence as to the intent of the North Carolina legislature in specifically approving what can be considered a pro-life message for its state specialty licenses and rejecting a pro-choice message. He assumed, without a full evidentiary record, that the North Carolina legislature was merely providing a conduit for the private message of one side and discriminating against the other side, without any intent to convey the government’s own position in the message.

Although federal court decisions in Arizona, Illinois, and South Carolina concluded that the “Choose Life” message on specialty license plates approved in those states was essentially a forum for the private speech of pro-life advocates, and not government speech, each case must be analyzed on its own merits.

The fact is that the North Carolina legislature is not neutral on the abortion issue. It wasn’t simply raising revenue by selling space to private entities or individuals for messages of their choosing through the medium of specialty license plates for which they are willing to pay a premium price. The North Carolina legislature has passed laws regulating abortion including a law banning most post-viability abortions, a law preventing a minor from obtaining an abortion without parental consent or notice, and a law that permits certain medical personnel, and health facilities to refuse to participate in abortion on the basis of conscience or religious conviction. It has shown a strong pro-life orientation.

A message appearing on North Carolina state license plates advocating the North Carolina state government’s own demonstrable pro-life position should fall within the Supreme Court’s government-speech doctrine.  It necessarily follows that the government should not have to dilute its message with the issuance of specialty license plates conveying precisely the opposite message.

Second, nobody who disagrees with the message “Choose Life” is forced to use or display the license plate bearing that message. The plaintiffs in the case were free to put bumper stickers on their cars and paint their cars with the words “Respect Choice” or “Trust Women. Respect Choice” in letters larger than the “Choose Life” message on the license plates.

When does a democratically elected government have to dilute its own advocacy of a point of view on a controversial issue by incorporating the opposing point of view in the government’s message? Does the First Amendment require equal access by all sides to shape the message the government wishes to convey in a government-established medium such as a license plate? The Supreme Court may need to weigh in.

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  • UCSPanther

    Can someone please tell me why the abortion debate is still on? I don't care what side you are on or how you express it on your personal property, just as long as you aren't jamming it down my throat.

    Both sides have some real screwballs on them, and both have repeatedly demonstrated a severe lack of ethics (IE The Army of God's terror antics and the pro-abortion side's severe lack of regard or understanding for human life and the shameless exhibitionism that both sides are known to exhibit)

    • Western Canadian

      Why is the debate still on? It isn’t. There never was a ‘debate’. There was a scam, run by anti-religious bigots and woman haters (and child haters, especially black children), that, if the media were not such a pathetic joke, would have failed. It didn’t fail, and unlike the slave trade, has yet to be exposed and ended. If there ever is a debate, the vicious racket will be exposed, and ended. As an example, in Canada, in the third morgentaler trial, a juror was dismissed when she told the judge that a bribe offer was made to her, to change her vote and let morgentaler walk. And the only reason I know about her being dismissed from the jury, is because I was in Montreal during the time of the trial, and it was frontpage news on every Montreal paper. Stalin would have been proud of the news blackout on this sad (and utterly criminal) fact. Papers in western Canada? No mention of the juror being dismissed. Nothing. Cover up, fraud, and abuse of the legal system. That was allowed to stand.

  • kafir4life

    In all the debates about abortion, I don't think that ANYBODY would disagree that it's a damn shame that Stanley Ann Dunham didn't have a "choice" about carrying her baby to term in the summer of 1961. As an ultra-liberal woman, it would have been considered incumbant on her to remove the disease from her belly sometime mid to late July. You wouldn't have denied Mrs. Hitler, would you? Imagine what a wonderful place it would be had "choice" been available to Ms. Dunham.

  • Jonathan

    I'm an avid defender of free speech, but this is a different matter. This is the government we're talking about.

    • NAHALKIDES

      Agreed, and the Supreme Court got it wrong – the government has no business expressing "its point of view" about anything. Government officials should not be allowed to spend public funds advocating any particular point of view. I'm very angry when I see government "informational" messages telling us how wonderful the new benefits of Obamacare are.

      This license plate message isn't the issue for conservatives to be fighting; instead, fight the idea of abortion and since the Supreme Court isn't going to come to its senses any time soon, remove by legislation the Court's jurisdiction over abortion cases. That's about the best we can do right now.

  • Jonathan

    The judge didn't ban the license plates, she simply urged the state to issue 'Pro Choice' license plates as well in order to exhibit impartiality. The state doesn't have a right to free speech. It is a functional machine which is in place strictly to serve the people.

    • kentatwater

      "James" is a female? Who knew.

      "[S]he simply urged the state…"

      Sort of like how Hussein "urges" the employers and producers to "contribute" more of their "fair share."

      Meh.

      • objectivefactsmatter

        ""James" is a female? Who knew. "[S]he simply urged the state…""

        Well you've got to alternate gender on your pronouns regardless of actual gender of the subject. Failure to do so is clearly oppressive towards women. Come on now! It's perfectly consistent with the main subject of the article.

  • Thomas Wells

    Choose life is not limited to the starting phase of human life, but rather to life itself in all its phases.
    Would an "alternative" plate be : "Chose death-become a suicide bomber"?

    • objectivefactsmatter

      "Choose life is not limited to the starting phase of human life, but rather to life itself in all its phases.
      Would an "alternative" plate be : "Chose death-become a suicide bomber"?"

      To be fair to "Palestinians" and other jihadis, yes. Otherwise your language would cause more unjust bias towards these oppressed peoples.

  • Ghostwriter

    This is a little ridiculous. Banning a license place that says "Choose life" is a silly waste of time. Politicians have better things to do than this.

    • objectivefactsmatter

      "This is a little ridiculous. Banning a license place that says "Choose life" is a silly waste of time. Politicians have better things to do than this."

      Understatement of the month.

  • F. Swemson

    Government has no business trying to teach moral lessons based on the religious principles of any group, no matter how large a majority they represent.

    Abortion, Gay Marriage & all related issues have no place in the political arena. We saw how the far left used her morality as a weapon against Sarah Palin. We must deny this tool to them. We need to concentrate 110% of our efforts in national elections, on the issues that the elections are about. They are as follows:

    1: Our economy: Capitalism v Socialism (freedom & liberty v servitude)
    2: National security (including homeland security)
    3: Immigration (closing our borders)

    We need to eliminate the Federal Reserve, the EPA, the DOE (both, energy & education) and we need to stop the handouts.

    Whenever a GOP politician is asked a question relating to his or her personal religious beliefs, the correct answer should be something like the following:

    My private & personal feelings about those issues are not relevant to the issues of this election. You know what my opponent thinks about these questions. Is there any way that I could be worse than that?

    We stuck to the key issues in 2010 and won big.

    In 2012, in addition to massive democratic voter fraud, we got "SANTORUMED" just as Sarah Palin did four years earlier. We're trying to elect a minister in chief, when what we need is a COMMANDER in Chief!

    fs

    • Russ

      fs,

      Well presented!

      deerslayer

  • objectivefactsmatter

    "U.S. District Court Judge James C. Fox ruled last Friday that North Carolina cannot produce or distribute the “Choose Life” specialty license plate unless it also agrees to issue some variant of a “Respect Choice” license plate."

    Oh you don't know how to read the US constitution. When the first amendment really should read that politically correct speech is protected. We'll let you know the details about that as we cruise along in to La-La land.

  • objectivefactsmatter

    Subtitle of the article, "Political Correctness Run Amok."

    It's mind boggling and shows the emptiness of the supposed war on women. Sure, it's a war on women, trying to live without insane levels of political correctness indoctrination.

  • Russ

    "Planned Parenthood" is subsidized in part with our tax dollars for the MURDER of INNOCENTS.The collusion between bureaucractic marxism amd the brain-child of the genocidal Margaret Sanger has never had anything to do with "womens rights'! In my life and all the people I have met I have never met a REAL WOMAN that would not give own life to protect her CHILD; NEVER! The democrat Party with the socialist/marxist leadership colluding with indoctrinators laughingly referred to as "teachers"! Unions established in this country was and is openly directed by socialists with all the allure of Stalins Elitist thugs and Hitlers SA mix in the top tier of the OWS A**HOLES and Viola' it's 1917 Russia, 1930's Germany. When things really get interesting is when they will feel emboldened enough to throw in a little Mao and Pol Pot enforcement theories.

    If we look back in political history in America over the last 100 years it is apparent what is coming.

  • Russ

    DIVIDE AND CONQUER!! How many "divisions have been created BY THE "LEFT" IN THIS COUNTRY? . Special Interest Groups. We are not AMERICANS ANYMORE. There is no common bond as a people. Without all the groups to pit against each other to vie for special privelage/money/power; the Democrat Party couldn't exist. They are the ones that are racist, homophobe, women hating, narcisistict/condescending, arrogant little punks. They don't "stand" for anything only against everything that is TRUE AND LOGICAL!!!!

  • jasontromm

    There are certain startup costs associated with producting a new license plate. Obviously, the legislature in NC decided there was enough demand for a "Choose Life" license plate to being producing it. I'm guessing there is not enough support for a "Respect Choice" license plate and the state would not get their startup costs back.