U.S. District Court Judge James C. Fox ruled last Friday that North Carolina cannot produce or distribute the “Choose Life” specialty license plate unless it also agrees to issue some variant of a “Respect Choice” license plate.
In response to a complaint by the American Civil Liberties Union brought on behalf of pro-abortion North Carolina drivers who wanted the opportunity to purchase a license plate bearing a message expressing support for a woman’s right to reproductive choice, Judge Fox held 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.” By limiting access to a specialty license plate to those with a pro-life position, the state has impermissibly chosen sides.
By way of background, the democratically elected North Carolina legislature determines what specialty license plates are made available. It authorized the “Choose Life” license plate, which would cost $25 annually in addition to the regular yearly registration fees. From this price, $15 of every such plate sold would go to the Carolina Pregnancy Care Fellowship, a private organization which funds and supports crisis pregnancy centers in North Carolina. The legislature prohibited the funds to be collected from the “Choose Life” plate to be distributed to any entity promoting, counseling or referring to abortion. The legislature also rejected proposed amendments to the authorizing legislation to include another specialty license plate stating “Respect Choice” or “Trust Women. Respect Choice.”
Judge Fox agreed with the ACLU’s contention that by authorizing the “Choose Life” license plate while rejecting a pro-choice license plate, the North Carolina legislature was opening “a state-created forum for private speech to one viewpoint alone in the public debate over abortion” in violation of the plaintiffs’ right of free speech. In other words, there must be equal access to license plate space for all sides to the debate or nothing at all may appear on the license plate regarding the issue.
There are several logical problems with Judge Fox’s decision, although it is admittedly consistent with opinions in a few other cases involving the “Choose Life” specialty license plate.
First, Judge Fox gave short shrift to the Supreme Court’s recent cases applying what it calls the government-speech doctrine, which allows the government to convey publicly a message of its own choosing without being subject to scrutiny under the free speech clause of the First Amendment. The free speech clause restricts government regulation of private speech. It does not regulate what the government itself is permitted to say or write.In the words of one Supreme Court decision upholding the government’s proactive promotion of beef consumption, the government-speech doctrine applies when “the government sets the overall message to be communicated and approves every word that is disseminated.” This is true even if it obtains “assistance from nongovernmental sources in developing specific messages.” The key test is whether the government is using means of communication to advocate and publicly disseminate its own views, which it is permitted to do. By its very nature, the government is selecting one side of an issue and dismissing others in the message that it advocates and communicates to the public
Read the whole thing via Banning ‘Choose Life’ License Plates to Protect Free Speech?.
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