The question about whether North Carolina can issue “Choose Life” specialty license plates and not offer the other side of the political debate will be revived in the U.S. Fourth Circuit Court of Appeals.
The U.S. Supreme Court on Monday sent the North Carolina case back to the federal appeals court with instructions to reconsider it in light of a ruling this month in a Texas case.
In a 5-4 decision, the U.S. justices ruled that Texas did not violate the First Amendment when it refused to allow specialty plates bearing the Confederate battle flag.
Such plates, Stephen G. Breyer wrote for the majority, are the government’s speech and because of that immune from First Amendment attacks.
“As a general matter,” Breyer wrote in the Texas case, “when the government speaks it is entitled to promote a program, to espouse a policy or to take a position.”
If this were not the case, Breyer stated, the government would be powerless to encourage vaccinations or promote recycling.
People use the specialty plates, Breyer added, to suggest the government endorses the message on them. If not, he said, they “could simply display the message in question in larger letters on a bumper sticker right next to the plate.”
In North Carolina, legislators passed a law in 2011 that allowed the production of a “Choose Life” license plate but refused to offer alternatives with messages supported by abortion-rights advocates.
Six amendments were proposed in the legislature to authorize an additional new plate that stated either “Trust Women. Respect Choice” or simply “Respect Choice.” The legislature rejected all six amendments.
The American Civil Liberties Union of North Carolina Legal Foundation filed a lawsuit that year in the U.S. District Court for the Eastern District of North Carolina. The organization contended that the state’s plan violated the First Amendment by creating an avenue for private speech but opening it to only one side of a contentious issue.
U.S. District Judge James C. Fox ruled in favor of the ACLU in December 2012, stating 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.”
The U.S. Fourth Circuit Court of Appeals upheld Fox’s ruling in February 2014 in a unanimous ruling from a three-judge panel.
N.C. Senate President Pro Tem Phil Berger and Thom Tillis, then speaker of the N.C. House, intervened in the lawsuit and asked the U.S. Supreme Court to review the decision.
Chris Brook, legal director of the ACLU of North Carolina Legal Foundation, said Monday he was disappointed with the Supreme Court decision but was still trying to sort through the legal implications of the remand.
The federal appeals court judges could ask for additional briefs in light of the Texas decision or send the case back to the U.S. District Court for more arguments or to overturn the 2012 ruling.
“The government should not open only one side of a contentious political issue to North Carolinians wishing to exercise their First Amendment rights,” Brook said.
Other circuit appeals courts had made similar findings that specialty plates “constitute at least in part private speech,” Brook added.
Scott Gaylord, an Elon University law professor and lead counsel for the N.C. legislators who intervened in the case, issued a statement describing the Supreme Court order as “an important victory for government speech.”
“Third parties can no longer sanitize the public square of views a state communicates simply because they do not like those messages,” Gaylord said in his statement.