In 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.