Anti-Abortion License Plates in N.C. Tossed

(CN) - North Carolina's "Choose Life" license plate is unconstitutional because the state does not offer the same opportunity to those who would express another view on abortion, the 4th Circuit ruled.

The unanimous decision by a three-judge panel of the Richmond, Va.-based appellate court upholds a ruling by Senior U.S. District Judge James Fox in Raleigh, N.C.

North Carolina lawmakers approved the anti-abortion plates in June 2011, while rejecting half a dozen proposals to also offer plates bearing the messages "Trust Women" and "Respect Choice."

Then-Gov. Beverly Perdue's signing of the bill into law also came in spite of the 4th Circuit's 2004 decision to strike down that very plate in neighboring South Carolina as unconstitutional viewpoint discrimination.

The American Civil Liberties Union later sued North Carolina on behalf of four state residents, complaining the Legislature had "opened a state-created forum for private speech to only one viewpoint in the public debate over abortion, in violation of the plaintiffs' tights under the First and Fourteenth Amendments to the United States Constitution."

Judge Fox blocked North Carolina from issuing the "Choose Life" plate in December 2011 and granted the ACLU summary judgment and permanently injunction the next year.

In shutting down the state's appeal Tuesday, Judge James Wynn wrote that the Legislature's behavior "constitutes blatant viewpoint discrimination squarely at odds with the First Amendment."

The ruling notes that North Carolina never denied that it was engaging in viewpoint discrimination by approving the "Choose Life" plate while refusing to allow a pro-choice plate.

"Instead, North Carolina contends that it was free to discriminate based on viewpoint because the license plate speech at issue was solely its own," Wynn wrote for the court. "And under the government speech doctrine, when the government speaks for itself, it can say what it wishes. Plaintiffs disagree, arguing that the license plate speech at issue implicates private speech and all its attendant First Amendment protections, including the prohibition on viewpoint discrimination."

Finding that the state's specialty license plate program is actually a blend of the two, the appellate panel deemed it more an expression of private beliefs, rather than those of the state.

"Specialty plates are closely associated with the drivers who select and pay for them," Wynn wrote. "And the driver, on whose car the special message constantly appears for all those who share the road to see, is the ultimate communicator."

In support of their finding, the judges pointed to the Supreme Court's 2010 decision Citizens United v. FEC in which it held the First Amendment bars the government from abridging freedom of private speech.

"Chief amongst the evils the First Amendment prohibits are government 'restrictions distinguishing among different speakers, allowing speech by some but not others,' " Wynn wrote. "In this case, North Carolina seeks to do just that: privilege speech on one side of the hotly debated issue - reproductive choice - while silencing opposing voices."

The ruling concludes by noting that "North Carolina invites its vehicle owners to '[m]ake a statement' and 'promote themselves' - but only if they are on the government's side of a highly divisive political issue. This, North Carolina may not do. Because the specialty plate speech at issue implicates private speech rights and is not pure government speech, North Carolina's authorizing a 'Choose Life' plate while refusing to authorize a pro-choice plate constitutes viewpoint discrimination in violation of the First Amendment."

ACLU North Carolina attorney Chris Brook trumpeted the ruling as one that "protects the right of North Carolinians of all political beliefs to have equal access to avenues for free speech."

Noelle Talley, spokeswoman for North Carolina Attorney General Roy Cooper, would say only that state attorneys were reviewing the ruling.

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