Why the North Carolina court got it wrong.
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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