Decided: February 11, 2014
The Fourth Circuit held that the First Amendment prohibited North Carolina from allowing its drivers to purchase “Choose Life” license plates while refusing to offer a pro-choice alternative.
In 2011, North Carolina enacted a law that authorized many “Special Registration” license plates, including a “Choose Life” license plate. However, the law authorized no alternative pro-choice specialty license plate. Under North Carolina law, the Department of Motor Vehicles (“DMV”) may only issue a specialty plate after receiving three hundred applications from individuals interested in acquiring the plate. Once the DMV issues the plate, any driver may purchase it from the DMV. In addition to the “Choose Life” plate, there are over two hundred other options to choose from. According to North Carolina, the specialty plate program “allows citizens with common interests to promote themselves and/or their causes.” After refusing to offer a specialized pro-choice license plate, North Carolina vehicle owners who wanted the plate and the ACLU (collectively “Plaintiffs”) filed suit. The district court granted a preliminary injunction before granting summary judgment for the Plaintiffs and permanently enjoining the “Choose Life” plate. North Carolina appealed.
On appeal, North Carolina did not dispute that it engaged in “viewpoint discrimination” by not providing a competing pro-choice license plate. Rather, North Carolina argued that it was free to discriminate based on viewpoint because the license plate was covered under the “government speech doctrine.” Under this doctrine “[a] government entity has the right to speak for itself. It is entitled to say what it wishes, and to select the views that it wants to express.” Conversely, the Plaintiffs argued that the license plate speech implicates private speech concerns and its prohibition on viewpoint discrimination. Because there was no dispute that the license plate was viewpoint discrimination that is prohibited under private speech concerns, the only issue for the Fourth Circuit was whether the “Choose Life” license plate was government speech or private speech. The court held that the license plate was a combination of government and private speech, but that it mainly implicated private speech concerns. The court dismissed North Carolina’s argument that the party having “control of the message” was the determinative factor, and instead followed its “instructive” four-factor test to determine whether the license plate was government or private speech.
The Fourth Circuit held that the first factor, “the central purpose of the program in which the speech in question occurs” weighed slightly in favor of concluding that the license plate constituted private speech. The court determined that the purpose of the license plate program was “to allow North Carolina drivers to express their affinity for various special interests, as well as raise revenue for the state.” While the purpose implicates both government and private speech concerns, the Fourth Circuit held that the purpose weighed primarily in favor of private speech because it was impossible to claim that the over two hundred options for specialty license plates, ranging from controversial confederate flag logos, to religious symbols, to university emblems all “constitute North Carolina’s—and only North Carolina’s—message.” Next, the court held that the second factor, “degree of editorial control exercised by the government or private party over the content” weighed in favor of the government because the government has “complete editorial control” over determining whether or not to make a particular license plate. Then, the court held that the third factor, “the identity of the literal speaker,” weighed in favor of private speech. Any typical driver would expect that the message selected on one’s license plate is the message of the vehicle’s owner. Even though the license plates are technically state property, the court held that “the driver… is the ultimate communicator.” Finally, the court held that the fourth factor, “whether the government or the private party bears the ultimate responsibility for the speech’s content,” similarly weighed in favor of private speech. The Fourth Circuit emphasized that when a driver purchases a specialty license plate, the driver essentially “engages the government to publish his message” and not the other way around. Furthermore, without the individual’s action collecting three hundred others to seek the plate, the specialty license plate would never exist. Additionally, once the plate is produced, those seeking it must pay an additional fee, above and beyond the cost of a traditional license plate. Therefore, with three out of four factors weighing in favor of private speech, the Fourth Circuit held that the “Choose Life” specialty license plate was a form of private speech on which the government could not practice viewpoint discrimination.
The court also noted that its decision was largely in accord with its sister circuits, with only the Sixth Circuit in disagreement. Furthermore, while the court explained that under its current system, North Carolina could not offer the “Choose Life” license plate without a pro-choice alternative, North Carolina may alternatively choose to exclude any representations regarding such a controversial political and moral issue from its license plates entirely without any First Amendment violation.
– Wesley B. Lambert