By Pam Blume
Christian Action League
March 27, 2015
WASHINGTON D.C. – Is the message on a specialty license plate government speech or is it the private speech of the automobile owner that should be protected by the first amendment?
This was the discussion before the U.S. Supreme Court on Monday. The decision could affect the legality and availability of “Choose Life” specialty plates in North Carolina.
The Thomas Moore Society had filed an amicus brief for Choose Life America and several state Choose Life groups asking that specialty license plates be considered private speech in a public forum.
There have been conflicting actions in courts and state legislatures over the messages on some specialty plates.
As the “Choose Life” case is pending for potential review, the discussion before the High Court centered on a similar case of Walker vs. Texas Div. Sons of Confederate Veterans, Inc. The state of Texas had rejected a specialty license plate for the Sons of Confederate Veterans because it included a Confederate battle flag. The state solicitor general, Scott Keller, said that specialty plates are the government’s speech and therefore not eligible for First Amendment protection.
Justice Ruth Bader Ginsburg, noting that a Texas burger chain had a specialty plate, said “Is it government speech to say ‘Mighty Fine Burgers’ to advertise a product?”
Justice Anthony Kennedy compared the messaging on specialty plates to the freedom of speakers of all persuasions to speak in a public park. He described the plates as a new public forum.
The state of Texas deemed the Confederate flag as offensive and demeaning to some groups, which Ginsburg said was “a nebulous standard.”
The veteran’s group had won in the U.S. Court of Appeals for the Fifth Circuit. That court had agreed that the plates constituted private speech and Texas had discriminated against the group’s argument that the battle flag is “a symbol of sacrifice, independence and Southern heritage” to many individuals.
The conundrum that the Supreme Court finds itself in is whether deciding in favor of free speech could open the door to vulgarity and blatantly offensive messages such as the support of Nazis or Al Qaeda.
Chief Justice Roberts suggested the solution to the problem would be for states to not “get in the business of selling space on their license plates to begin with.” Justice Ginsburg suggested getting a bumper sticker.
At issue with the availability of the Choose Life plates is the fact that such plates have raised $21 million dollars for various pro-life organizations in the states where the plates are allowed. In North Carolina, the Carolina Pregnancy Care Fellowship is the legally designated recipient of the funds generated by the Choose Life plates and that board will distribute funds to eligible pro-life groups that meet the established criteria.
Although the choice of Choose Life plates in NC became law in the 2010-2011 legislative sessions, the plates are not available due to a lawsuit brought by the ACLU. The rationale is that there is no corresponding “Reproductive Choice” plates available thus creating “viewpoint discrimination.”
The U.S. District Court of Appeals for the Fourth Circuit ruled the NC law was unconstitutional. The state of North Carolina filed an appeal in 2013.
NC Choose Life says that “the Choose Life message on our roadways is so important…and so is our support of the 80 life-affirming pregnancy centers across the state. Funds generated from the license plate will help them to serve those struggling to decide.”