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In an order released today, the U.S. Supreme Court vacated the Fourth Circuit’s decision in Berger v. ACLU holding that the state’s “Choose Life” license plate constituted unconstitutional viewpoint discrimination, and sent the case back to the appeals court for a ruling consistent with the high court’s recent decision in Walker v. Sons of Confederate Veterans, Texas.

In Walker the state refused to allow plates displaying the confederate flag, finding them offensive to some residents. The Sons of Confederate Veterans sued and the U.S. Court of Appeals for the Fifth Circuit ultimately ruled in their favor, finding that since the specialty plate messages were a form of private speech, the state agency had engaged in unlawful viewpoint discrimination.

The challengers in North Carolina’s license plate case made a similar argument, agreeing that the specialty plates were private speech and contending that by offering a “Choose Life” plate but not a similar pro-choice one the state had likewise engaged in viewpoint discrimination.

U.S. District Judge James C. Fox agreed, ruling in December 2012 that the state’s offering of a Choose Life license plate in the absence of a pro-choice plate violated the First Amendment, and the Fourth Circuit later upheld that ruling.

But in June, the nation’s highest court ruled in Walker that specialty plates, like other state-issued license plates, conveyed government speech. Given that, states were free to pick and choose the message.

Now it will be left to the appeals court to decide whether to consider additional arguments from the parties in the “Choose Life” case, or simply enter an order consistent with the Supreme Court’s ruling in Walker.

“As the Supreme Court made clear in Walker, the attempt to censor a message like North Carolina’s ‘Choose Life’ message is inconsistent with both the purpose of the First Amendment and the Supreme Court’s government speech precedents,” Scott Gaylor, lead counsel for the state in the case said in a statement.

But Chris Brook, the attorney for parties challenging the “Choose Life” plates, hoped that the state would reconsider whether it wanted to be viewed as suppressing varying viewpoints — court decisions aside.

At the time the plates were adopted by the state, they were intended to convey the message of Choose Life America, Inc., an organization whose mission is to promote the sale of “Choose Life” license plates throughout the country so that proceeds can be used to “encourage adoption as a positive choice for women with unplanned pregnancies.”

Drivers buying the “Choose Life” plate here would pay $25.00 per year– in addition to the regular registration fee — $15.00 of which would go to support the Carolina Pregnancy Care Fellowship.

“This case has always been about more than specialty license plates; it asks whether the government should be allowed to provide a platform to one side of a controversial issue while silencing the other,” Brook said in an email. “The Court’s decision could allow states to censor private speech and discriminate against citizens who hold views that are different from the government’s. The General Assembly should do the right thing and allow citizens on both sides of the debate to purchase specialty plates supporting their views.”

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Roy Cooper 3North Carolina Attorney General is generally a good guy who has done many good things during his long stint heading the North Carolina Department of Justice, so he is probably entitled to a boneheaded error or two.

If that’s so, however, Cooper more than used up his quota with the ridiculous and wasteful appeal he filed today in the “Choose Life” license plate case.

What in the world is going on?!

That he ever sought to defend this blatantly unconstitutional law giving favored government treatment to the views of anti-abortion advocates in the first place was an extremely questionable decision.

Hello?! Anyone at home over there in the DOJ? Earth to Roy: You are an independently-elected constitutional officer with some discretion in these matters. What if the reactionaries down the street at the General Assembly had passed a law outlawing abortion entirely? Would you have defended that too? What about a law that only permitted Christians to serve in the General Assembly? A law that sought to reinstitute Jim Crow?  Read More

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Attorney General Roy Cooper today filed a notice of appeal of  Senior U.S. District Court Judge James C. Fox’s December 7 ruling that the state’s offering of a specialty “Choose Life” license plate to drivers, without a corresponding plate supportive of reproductive freedom, was unconstitutional.NCCHOOSE

“It’s unfortunate that the state has chosen to prolong what is really a very clear-cut First Amendment issue,” said Chris Brook, Legal Director for the American Civil Liberties Union of North Carolina Legal Foundation — a plaintiff in the case.  “The Fourth U.S. Circuit Court of Appeals has consistently ruled that anytime the government creates an avenue for private speech, it cannot restrict that avenue to only one side of a contentious debate. This case is ultimately about the right of North Carolinians of all political beliefs to have equal access to avenues for the free expression of ideas, and we look forward to making our arguments before the Court of Appeals.”

After the legislature approved the “Choose Life” license plate in 2011, some members proposed amendments that would authorize an additional plate stating “Trust Women. Respect Choice,” or simply “Respect Choice.” The legislature rejected all those amendments.

In the case before Judge Fox, the state argued in part that the “Choose Life” plate was protected government speech and thus constitutional. Fox, though, called that argument a “stretch,” given that the state advertised the specialty plate program as a chance for North Carolina drivers “to show off [their] special interests,” and 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.”