In a unanimous decision Tuesday, a three-judge panel of the United States Court of Appeals for the Fourth Circuit upheld a lower court’s ruling that North Carolina’s “Choose Life” license plates are unconstitutional because the state does not offer alternative, pro-choice license plates.
In 2011, North Carolina lawmakers approved “Choose Life” license plates as one of 80 specialty plates to be offered by the state. Each “Choose Life” plate would cost $25, with $15 of the proceeds going into the Carolina Pregnancy Care Fellowship, an association of anti-choice crisis pregnancy centers. But while the assembly approved the “Choose Life” plates, it rejected proposals to offer license plates with alternative messages such as “Respect Choice” and “Trust Women.” The decision to not offer a specialty plate with an alternative viewpoint on abortion, the Fourth Circuit concluded, constitutes “blatant viewpoint discrimination squarely at odds with the First Amendment.”
The core issue in cases like these is whether or not the speech at issue—in this instance, the state-sponsored “Choose Life” license plate—is to be considered purely government speech, which would grant the state sole discretion over the message, or whether the plates constitute individual speech, which implicates First Amendment protections from the government favoring one message at the expense of another. According to the Fourth Circuit, the specialty plates here are a combination of both government speech and individual speech. Clearly the government has control over the message, but citizens chose specialty plates to communicate a specific viewpoint. But, when balanced on the whole, the plates tilt strongly in favor of private speech, the court determined. Thus, North Carolina is not free to privilege an anti-choice message over a pro-choice one.
“Specialty plates are closely associated with the drivers who select and pay for them,” the court wrote. “And the driver, on whose car the special message constantly appears for all those who share the road to see, is the ultimate communicator.”
The conclusion that the specialty plates represent a combination of government and private speech and, therefore, cannot blatantly discriminate in terms of messaging was in many ways expected. The Fourth Circuit issued a very similar ruling with respect to neighboring South Carolina’s “Choose Life” license plate.
“Today’s ruling protects the right of North Carolinians of all political beliefs to have equal access to avenues for free speech,” Chris Brook, an attorney for the American Civil Liberties Union of North Carolina, said in a statement.
The decision marks the second recent loss for North Carolina anti-choice activists from the federal courts. Just last month, a federal district court permanently blocked the state’s mandatory ultrasound law. And despite the fact that the current administration is on the record as not supporting the ultrasound law, North Carolina Attorney General Roy Cooper has said he plans to appeal the decision striking the mandatory ultrasound law to the Fourth Circuit.
Attorneys for North Carolina could appeal the decision and request either the full appeals court or the U.S. Supreme Court take up the case.