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Appeals Court holds “Choose Life” license plates are government speech

chooselifeIn a 2-1 decision today, the 4th U.S. Circuit Court of Appeals reversed an earlier ruling and held that North Carolina’s “Choose Life” license plate constituted government speech not subject to First Amendment scrutiny.

The court had previously ruled in 2014 that the state’s offering of a “Choose Life” plate while rejecting an alternative pro-choice plate constituted unconstitutional viewpoint discrimination. That decision was premised upon a finding that specialty plates in North Carolina were a mix of government and private speech and thus implicated the First Amendment neutrality protections accorded to private speech.

The state then appealed that decision to the U.S. Supreme Court, where a similar Texas case was also pending.

The high court ruled last June in Walker v. Sons of Confederate Veterans that Texas specialty plates were simply government speech not subject to the First Amendment,  thus allowing that state to refuse the issuance of Confederate Veterans plates.

The Supreme Court then sent North Carolina’s case back to the Fourth Circuit for further review in light of the Texas decision.

Writing for the court, Chief Judge William B. Traxler, Jr. said:

The specialty license plate program at issue here is substantively indistinguishable from that in Walker, and the Walker Court’s analysis is dispositive of the issues in this case. Accordingly, we now conclude that specialty license plates issued under North Carolina’s program amount to government speech and that North Carolina is therefore free to reject license plate designs that convey messages with which it disagrees.

Circuit Judge James A. Wynn, Jr. dissented, chiding his colleagues for not standing by the circuit’s established “mixed speech” analysis, something he said the high court overlooked.

As he writes:

In Walker, the Supreme Court majority did not address, much less overrule, this Circuit’s common-sense recognition that speech can be “mixed”—i.e., that it can have elements of both government and private speech. Insisting otherwise is tantamount to “insisting that a mule must be either a horse or a donkey.”

I refuse to believe that with Walker, the Supreme Court meant to force us to choose that the mule in this case is either a horse or a donkey. Instead, Walker’s holding, when narrowly understood, does not lead to the conclusion that the North Carolina specialty plate speech at issue here constitutes pure government speech. On the contrary, based on the specifics of this case, it presents mixed speech—with private speech components that prohibit viewpoint discrimination.

The “Choose Life” plate is currently on the DMV’s Inactive Plate list.

You can, however, still purchase a Sons of Confederate Veterans plate.

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6 Comments


  1. Edison Carter

    March 11, 2016 at 8:54 am

    Welcome To North Carolina – Set Your Clocks Back 50 Years!

    When is free speech not free speech? When you live in North Carolina.

    Pathetic.

  2. brad jenkins

    March 11, 2016 at 2:09 pm

    Dear Edison. Why don’t you read the article! Free speech pertains to ALL, not just those of a particular group or belief. The reason the issue was ruled as it was is because the state refused to offer a separate plate for pro choice, along with the choose life one. The problem is not the view that the plate represents, but rather, that it will ONLY allow the one point of view…..pro life!!! Oh, and BTW, driving and owning a vehicle is NOT a right, it is a privilege, so the state government has the right to demand any equality message as a Constitutional issue.
    I wonder what “comment” you would have made regarding free speech if the facts were reversed? IE:If the state was willing to issue a plate that said pro choice AND refused to issue one that said choose life! Hmmmmmm…….

  3. Pamela Bartos

    March 11, 2016 at 4:05 pm

    All North Carolina Residents you need to read your Preamble:
    NORTH CAROLINA STATE CONSTITUTION

    PREAMBLE

    We, the people of the State of North Carolina, grateful to Almighty God, the Sovereign Ruler of Nations, for the preservation of the American Union and the existence of our civil, political and religious liberties, and acknowledging our dependence upon Him for the continuance of those blessings to us and our posterity, do, for the more certain security thereof and for the better government of this State, ordain and establish this Constitution.

    ARTICLE I

    DECLARATION OF RIGHTS

    That the great, general, and essential principles of liberty and free government may be recognized and established, and that the relations of this State to the Union and government of the United States and those of the people of this State to the rest of the American people may be defined and affirmed, we do declare that:

  4. Alan Ostregs

    March 11, 2016 at 5:01 pm

    This entire idea of using Government licsence plates to promote various political causes is moronic. if you wantto promote a cause, BUY A BUMPERSTICKER!!! Do NOT try to co-opt the government into supporting your cause. it is NOT their job!

  5. adam

    March 12, 2016 at 7:20 am

    last I checked the government dose not buy my license plate I do their for its my free speech if the outer group don’t like it the are not forced to buy it

  6. adam

    March 12, 2016 at 7:22 am

    what is next we cant buy milk because some people are allergic to it

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