Bench Memos

Law & the Courts

Supreme Court Gives New Life to North Carolina ‘Choose Life’ License Plates

In Walker v. Texas Division, Sons of Confederate Veterans, the Supreme Court recently held that Texas could refuse to authorize a Sons of Confederate Veterans specialty license plate whose design included a Confederate flag. The court determined that Texas’s specialty license plate program, where the state maintained substantial government control of which plates would be printed, meant that the specialty plate designs were government (not private) speech. The state was therefore free to speak the messages it wanted to speak and not those it chose not to speak.

But the decision is not just about the Confederate flag. It will have implications for other state specialty plate programs like North Carolina “Choose Life” plates. In fact, despite previous claims that defending the “Choose Life” plates was a waste, the Supreme Court just Monday ordered the U.S. Court of Appeals for the 4th Circuit to reconsider its decision censoring the “Choose Life” plates in light of Walker. This should mean a clear victory for “Choose Life” plates and the citizens who want them in North Carolina. Here’s why.

In Berger v. American Civil Liberties Union of North Carolina, the 4th Circuit held that North Carolina could not approve a “Choose Life” specialty plate because it had not also approved a pro-abortion specialty plate. The ACLU of North Carolina sued, claiming that this violated the free speech rights of those who desire a pro-abortion plate.

But instead of asking the court to order North Carolina to also issue a pro-abortion plate, the ACLU asked only for censorship of the “Choose Life” plate. Rather than seeking to counter speech with more speech, the ACLU sought only to silence its opposition.

But treating the specialty plates like a private forum for speech, the Court of Appeals held that North Carolina could not approve a pro-life plate without also approving a pro-abortion plate. And it accepted the ACLU’s remedy – censoring the pro-life plates. Alliance Defending Freedom and Elon law professor Scott Gaylord represent North Carolina legislative leaders in defending the law and asked the Supreme Court to hear the case.

The Supreme Court’s Walker decision rejects the ACLU’s theory. The court held that the specialty plate designs are Texas’s speech because it maintains substantial control over the message. The state can speak for itself and offer plates supporting education without also authorizing anti-schooling plates.

In Berger, that should mean that the state is free to approve a “Choose Life” plate without also approving a pro-abortion plate. The ACLU’s cynical attempt to censor speech by complaining of its own supposed censorship should fail.

In fact, North Carolina’s specialty plate program obviously involves government, not private, speech because there the legislature itself proposes and approves the plate as opposed to a DMV board that approves plate applications from private groups.

When the case returns to the Fourth Circuit it should mean that the ACLU’s strategy of using the First Amendment to try to silence “Choose Life” license plates is at an end. North Carolina (and citizens who want “Choose Life” license plates) should prevail.

The ACLU has attempted a similar censorship strategy in other states like Tennessee, California, Florida, and South Carolina, and has used that threat in other states to prevent legislators from approving “Choose Life” plates that their citizens want. Thursday’s decision should bring an end to the ACLU’s cynical misuse of the First Amendment to stifle pro-life speech.

Casey Mattox is the Senior Fellow for Free Speech and Toleration at the Charles Koch Institute. Find him on twitter at @CaseyMattox_

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