You may have heard about the rash of "Choose Life" license plate disputes clogging up the dockets in courts across this fine nation. States pass laws that allow special interest groups to have vanity plates created with their logo, charge a premium to drivers who wish to display the message, and split the revenue.
And then someone wants to say something that the majority doesn't like. In Virginia, it was a battle over a censored Confederate Flag logo. In South Carolina, it was a "Choose Life" plate, with no pro choice counterpart. Ditto for North Carolina, which made a bunch of unconvincing arguments that flopped in the face of binding circuit precedent, as well as the near-universal "Choose Life" opinions of other circuit courts.
Four Factor Test for Government Speech
North Carolina doesn't argue that it isn't practicing viewpoint discrimination. Instead, the state argued that vanity plates are government speech, rather than individual speech. When the government speaks for itself, it can espouse whatever viewpoints it chooses.
In the Confederate Flag license plate dispute, the court hinted that mixed government and private speech was possible, and in the SC "Choose Life" case, the court "embraced the notion of mixed speech."
The test for private, government, or mixed speech is a four-factor "instructive" (no factor is necessary or dispositive) test:
(1) "the central purpose of the program in which the speech in question occurs;"
Here, the purpose is to "allow North Carolina drivers to express their affinity for various special interests, as well as to raise revenue for the state." The expressive effect, and the large variety of plates (including some, which have no relation to the state, such as out-of-state universities), weights in favor of private speech.
(2) "the degree of editorial control exercised by the government or private entities over the content of the speech;"
State's editorial control weighs in favor of government speech.
(3) "the identity of the literal speaker;" and
In Wooley, a state motto ("Live Free or Die") placed on all plates was labeled by SCOTUS as drivers' private speech. Here, they actually get a choice in vanity plates. Definitely private speech.
(4) "whether the government or the private entity bears the ultimate responsibility for the content of the speech[.]"
"When a special license plate is purchased, it is really the private citizen who engages the government to publish his message," not the other way around. Circuit precedent says this is another factor for private speech.
Get the point? The factors clearly lean towards private speech, or at best mixed speech, instead of pure government speech. Viewpoint discrimination is therefore unconstitutional.
Does Everyone Get a Plate?
Immediately after the opinion was handed down this morning, a professor quipped on Twitter that we'd see pro-smoking license plates. That's entirely possible under North Carolina law, which requires 300 individuals to apply for a specialty plate before it is issued. Find 300 passionate smokers, and you're set.
Can North Carolina find a way to continue prohibiting pro-choice plates or other controversial topics? It's actually quite easy. As we saw in Lexington, Virginia, you can close the forum (to all license plates) if you want to avoid the viewpoint discrimination problem. Then again, vanity plates bring in revenue.
The Fourth Circuit also cited, with favorable language, the Seventh Circuit's approval of a ban on all abortion-related plates. It's arguably viewpoint neutral because it mutes everyone, whether pro-choice or pro-life.
Or they could just respect free speech. That might be easier.
- ACLU of North Carolina v. Tata (Fourth Circuit Court of Appeals)
- Student Can't Wear 'Inflammatory' Confederate Flag T-Shirts (FindLaw's Fourth Circuit Blog)
- Texas Confederate Flag License Plate Denial Before 5th Cir. (FindLaw's Fifth Circuit Blog)
- 'GAYGUY' License Plate Denial Drives Ga. Man to Sue (FindLaw's Legally Weird Blog)
- 'Human' Sues Over 'COPSLIE' License Plate Denial (FindLaw's Legally Weird Blog)