ACLU, North Carolina argue over special license tags in court

cjarvis@newsobserver.comOctober 30, 2013 

The “Choose Life” plates have not yet been issued.


A federal appeals court on Wednesday heard oral arguments in the lawsuit challenging North Carolina’s ability to issue license plates that promote an anti-abortion message without offering plates with opposing viewpoints.

The three-judge panel asked a number of questions of lawyers for the American Civil Liberties Union and North Carolina’s attorney general’s office during the 40-minute session in Richmond, Va. A ruling is not expected for several weeks.

The state is appealing a ruling in December by U.S. District Judge James Fox in the ACLU’s favor that the 2011 law enacted by the General Assembly was an unconstitutional restriction of speech. The “Choose Life” plates have not been issued since an earlier ruling by Fox halted their production pending the outcome of the lawsuit.

The central legal issue is whether the license plates constitute a free-speech expression of drivers or an expression of speech by the government. Case law has established that the government can restrict its own speech – in this instance by excluding other points of view – but it cannot discriminate when it is speech by private citizens.

The state argues the plates are government speech, and so not a violation of the First Amendment, while the ACLU argues they are private speech and an unconstitutional restriction of viewpoints.

When the General Assembly approved the specialty plate in 2011, legislators rejected six attempts to include the opposing opinion on other plates, such as “Respect Choice.”

“At bottom, this is a case about the government opening up a venue for private speech and then telling certain North Carolinians they cannot engage in that speech because of their political beliefs,” said Chris Brook of the state ACLU chapter. “Regardless of your ideological leanings, no North Carolinian should be comfortable with that notion.”

Doctors and nurses

The attorney general’s office declined to comment. The National Legal Foundation, a Virginia-based Christian public-interest law firm, filed a brief supporting the plates.

“We thought it was important because there’s a pretty big dispute over whether it’s government or hybrid or private speech,” Steve Fitschen, president of the foundation, said Wednesday. “It is one of our key issues.”

Tami Fitzgerald, executive director of the N.C. Values Coalition, said no one forces taxpayers to buy the specialty plates, the proceeds of which go to a variety of charities, in this case to help pregnant women and their families.

“The courts did not require that the state offer a license plate for doctors before it approved the license plate for nurses,” Fitzgerald said. “Neither should the courts require a pro-abortion plate as a prerequisite for the ‘Choose Life’ plate that the General Assembly voted to approve.”

Kathryne Hathcock, an assistant attorney general, presented the government-speech argument to the appeals court Wednesday.

“This is about North Carolina’s right to speak for itself,” Hathcock said.

That drew a response from Judge James Wynn of North Carolina, who said, “What you are doing is suppressing speech. It’s troubling.”

That prompted Hathcock to present the “Kill the Sea Turtles” argument that has been running through the appellate briefs both sides have filed in the lawsuit.

Absurd ends?

The state contends that if it was forced to accommodate all points of view, the license plate program – which issues about 200 specialty tags – would have to cease or else reach absurd ends.

Current plates such as “Support Our Troops,” “Friends of Great Smoky Mountains,” “In God We Trust,” “Kids First” and “Tobacco Heritage” would have to be balanced, the state says, with tags like “Kill the Sea Turtles,” “Let the Sea Turtles Die,” “Undermine Our Troops,” “Clear-Cut the Great Smoky Mountains,” “In Atheism We Trust,” “Kids Last” and “Tobacco Causes Cancer.”

North Carolina argues that the specialty plates, which the General Assembly must approve, carry a message about what makes the state unique, whether it’s military service, wildlife conservation, NASCAR or the arts – all conveying the government’s message.

The ACLU argues that the sheer number and variety of specialty plates undermines that argument. Plates with such diverse interests as Knights of Columbus and Sons of Confederate Veterans prove that there is no “overarching message” from the state expressed in the plates, the civil rights group contends.

Another argument judges will have to consider is whether previous rulings by appellate courts have already settled the question of what constitutes government speech. Both sides have cited opposing rulings, and the 4th Circuit judges will have to decide which ones are relevant to this case.

The “Choose Life” plate was included in a bill that expanded the number of specialty tags, which require that at least 300 people sign up to buy them. In addition to the regular registration price, the plate costs $25 a year, $15 of which would go to a nonprofit pregnancy care organization that would distribute the money to centers around the state. A national anti-abortion group has been promoting the plates as a funding mechanism for at least the past decade. The Associated Press contributed to this report.

Jarvis: 919-829-4576; Twitter: @CraigJ_NandO

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