American Civil Liberties Union v. Anthony Tata , 742 F.3d 563 ( 2014 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1030
AMERICAN CIVIL LIBERTIES UNION OF NORTH CAROLINA; DEAN
DEBNAM; CHRISTOPHER HEANEY; SUSAN HOLLIDAY, CNM, MSN; MARIA
MAGHER,
Plaintiffs - Appellees,
v.
ANTHONY J. TATA, in his official capacity as Secretary of
the North Carolina Department of Transportation; JAMES L.
FORTE, in his official capacity as Commissioner of the North
Carolina Division of Motor Vehicles,
Defendants – Appellants,
and
MICHAEL GILCHRIST, in his official capacity as Colonel of
the North Carolina State Highway Patrol,
Defendant.
------------------------
NATIONAL LEGAL FOUNDATION,
Amicus Supporting Appellants.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:11-cv-00470-F)
Argued: October 30, 2013 Decided: February 11, 2014
Before TRAXLER, Chief Judge, WYNN, Circuit Judge, and George L.
RUSSELL, III, United States District Judge for the District of
Maryland, sitting by designation.
Affirmed by published opinion. Judge Wynn wrote the opinion, in
which Chief Judge Traxler and Judge Russell joined.
ARGUED: Kathryne Elizabeth Hathcock, NORTH CAROLINA DEPARTMENT
OF JUSTICE, Raleigh, North Carolina, for Appellants.
Christopher Anderson Brook, AMERICAN CIVIL LIBERTIES UNION OF
NORTH CAROLINA LEGAL FOUNDATION, Raleigh, North Carolina, for
Appellees. ON BRIEF: Roy Cooper, North Carolina Attorney
General, Neil Dalton, Special Deputy Attorney General, NORTH
CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellants. Steven W. Fitschen, THE NATIONAL LEGAL FOUNDATION,
Virginia Beach, Virginia, for Amicus Supporting Appellants.
2
WYNN, Circuit Judge:
The First Amendment prohibits the making of any law
“abridging the freedom of speech . . . .” U.S. Const. amend. I.
“Premised on mistrust of governmental power, the First Amendment
stands against attempts to disfavor certain subjects or
viewpoints.” Citizens United v. Fed. Election Comm’n, 558 U.S.
310, 340 (2010). Chief amongst the evils the First Amendment
prohibits are government “restrictions distinguishing among
different speakers, allowing speech by some but not others.”
Id.
In this case, North Carolina seeks to do just that:
privilege speech on one side of a hotly debated issue—
reproductive choice—while silencing opposing voices.
Specifically, though North Carolina invites citizens to “[m]ake
a statement,” 1 and “promote themselves and/or their causes” 2 with
specialty license plates, it limits this invitation to only
those citizens who agree with North Carolina’s “Choose Life”
stance. North Carolina contends that it may so discriminate
because specialty plate messages constitute pure government
speech free from First Amendment viewpoint-neutrality
constraints. With this, we cannot agree.
1
http://www.ncdot.gov/dmv/vehicle/plates/.
2
http://www.ncdot.gov/dmv/online/.
3
The Supreme Court and this Court have recognized individual
speech interests in license plate messages. And in this case,
too, the specialty plate speech at issue implicates private
speech rights, and thus First Amendment protections apply.
Because issuing a “Choose Life” specialty license plate while
refusing to issue a pro-choice specialty plate constitutes
blatant viewpoint discrimination squarely at odds with the First
Amendment, we affirm the district court’s grant of summary
judgment and a permanent injunction in Plaintiffs’ favor.
I.
In June 2011, the North Carolina General Assembly passed,
and the North Carolina Governor signed into law, House Bill 289
(“HB 289”). The resulting law, “An Act to Authorize the
Division of Motor Vehicles to Issue Various Special Registration
Plates,” authorizes the North Carolina Division of Motor
Vehicles (“NC DMV”) to issue, among other specialty license
plates, a “Choose Life” plate. 2011 N.C. Sess. Laws 392.
By contrast, this law authorizes no pro-choice specialty
license plate. Id. In fact, plates bearing slogans such as
“Respect Choice” were suggested but repeatedly rejected by the
North Carolina General Assembly. J.A. 61-62.
A “Choose Life” plate, like many other specialty license
plates, costs a vehicle owner an additional $25 per year. N.C.
4
Gen. Stat. § 20-79.7(a1). Of the $25, $15 go to the Carolina
Pregnancy Care Fellowship, a private organization that supports
crisis pregnancy centers in North Carolina. 3 N.C. Gen. Stat. §§
20-79.7(b), 20-81.12(b84). The remaining $10 go to the North
Carolina Highway Fund, as is the case with other specialty
plates. N.C. Gen. Stat. § 20-79.7(b). Further, the funds
collected from “Choose Life” plates are expressly prohibited
from “be[ing] distributed to any agency, organization, business,
or other entity that provides, promotes, counsels, or refers for
abortion . . . .” N.C. Gen. Stat. § 20-81.12(b84).
To develop a specialty license plate, NC DMV must receive
three hundred applications from individuals interested in that
plate. Id. Once the NC DMV issues the plate, any interested
vehicle owner registered in North Carolina may purchase it.
Over two hundred specialty plates are available, and North
Carolina invites vehicle owners to “find the plate that fits
you” and “[m]ake a statement with a specialized or personalized
license plate.” http://www.ncdot.gov/dmv/vehicle/plates/.
According to North Carolina, its specialty plate program “allows
citizens with common interests to promote themselves and/or
their causes.” http://www.ncdot.gov/dmv/online/.
3
The Carolina Pregnancy Care Fellowship also serves as the
official state contact for Choose Life, Inc., a national
organization devoted to getting “Choose Life” license plates on
the road in all fifty states.
5
Because North Carolina refused to allow a specialized plate
to promote their cause, North Carolina vehicle owners who wanted
a pro-choice specialty plate, along with the ACLU, brought this
lawsuit in the United States District Court for the Eastern
District of North Carolina. They sued the North Carolina
Department of Transportation (“NC DOT”) and the NC DMV
(collectively called “North Carolina”) for First and Fourteenth
Amendment violations.
In December 2011, the district court granted a preliminary
injunction blocking North Carolina from issuing the “Choose
Life” plate. Am. Civil Liberties Union of N.C. v. Conti, 835 F.
Supp. 2d 51 (E.D.N.C. 2011). One year later, in December 2012,
the district court granted summary judgment and permanently
enjoined the “Choose Life” plate. Am. Civil Liberties Union of
N.C. v. Conti, 912 F. Supp. 2d 363 (E.D.N.C. 2012). The
district court held, among other things, that “sufficient
private speech interests are implicated by the specialty license
plates to preclude a finding of purely government speech[,]” and
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.” Id. at
375. North Carolina appealed, and our review is de novo.
Planned Parenthood of S.C. Inc. v. Rose, 361 F.3d 786, 789 (4th
Cir. 2004).
6
II.
At the outset, we note that North Carolina does not deny
that it engaged in viewpoint discrimination by approving the
“Choose Life” plate while refusing to allow a pro-choice plate.
Instead, North Carolina contends that it was free to
discriminate based on viewpoint because the license plate speech
at issue was solely its own. And under the government speech
doctrine, when the government speaks for itself, it can say what
it wishes. Plaintiffs disagree, arguing that the license plate
speech at issue implicates private speech and all its attendant
First Amendment protections, including the prohibition on
viewpoint discrimination. Determining whether the “Choose Life”
specialty plate embodies pure government speech or something
else is therefore at the heart of this case.
A.
“Premised on mistrust of governmental power,” Citizens
United, 558 U.S. at 340, the First Amendment bars the government
from abridging freedom of private speech. U.S. Const. amend. I;
see also, Gitlow v. New York, 268 U.S. 652 (1925) (incorporating
the freedom of speech against the states). “It is axiomatic
that the government may not regulate speech based on its
substantive content or the message it conveys. Other principles
follow from this precept. In the realm of private speech or
expression, government regulation may not favor one speaker over
7
another. Discrimination against speech because of its message
is presumed to be unconstitutional.” Rosenberger v. Rector &
Visitors of Univ. of Va., 515 U.S. 819, 828 (1995) (citations
omitted).
“[T]he violation of the First Amendment is all the more
blatant” when the government targets not simply subject matter,
but particular viewpoints speakers take on a subject. Id. at
829. Indeed, the Supreme Court has called viewpoint
discrimination “an egregious form of content discrimination” and
has held that “[t]he government must abstain from regulating
speech when the specific motivating ideology or the opinion or
perspective of the speaker is the rationale for the
restriction.” Id. at 829.
By contrast, if the government engages in its own
expressive conduct, then the Free Speech Clause and its
viewpoint neutrality requirements have “no application.”
Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 467 (2009).
Indeed, under the “relatively new, and correspondingly
imprecise” government speech doctrine, Johanns v. Livestock
Mktg. Ass’n, 544 U.S. 550, 574 (2005) (Souter, J., dissenting),
“[a] government entity has the right to speak for itself. It is
entitled to say what it wishes, and to select the views that it
wants to express.” (quotation marks, citations, and alterations
omitted).
8
Although the Supreme Court has not yet recognized that
speech may be not purely government or private but instead
implicate both, this Court has. In Sons of Confederate
Veterans, Inc. ex rel. Griffin v. Commissioner of the Virginia
Department of Motor Vehicles (“SCV I”), this Court held that
Virginia’s barring the Sons of Confederate Veterans from
obtaining a specialty license plate with a confederate flag logo
constituted unconstitutional viewpoint discrimination. 288 F.3d
610 (4th Cir. 2002). While the panel opinion deemed the speech
at issue private only, Judge Luttig, in a separate opinion
regarding the denial of rehearing en banc, presciently
recognized that “speech in fact can be, at once, that of a
private individual and the government.” Sons of Confederate
Veterans, Inc. v. Comm’r of Va. Dep’t of Motor Vehicles (“SCV
II”), 305 F.3d 241, 245 (4th Cir. 2002) (Luttig, J.). He noted
that specialty plates were perhaps the “quintessential example
of speech that is both private and governmental because the
forum and the message are essentially inseparable, the
consequence being that it is difficult if not impossible to
separate sufficiently what is indisputably the speech act by the
private speaker from what is equally indisputably the speech act
by the government.” Id.
9
Two years later, in Rose, this Court embraced the notion of
mixed speech. 361 F.3d at 794. 4 In Rose, a case strikingly
similar to this one, South Carolina had authorized the issuance
of a “Choose Life” specialty license plate but no plate bearing
a pro-choice message. Id. at 787–88. The plaintiffs in Rose,
as here, alleged that in doing so, the state engaged in
unconstitutional viewpoint discrimination. Id. Deeming the
specialty plate speech at issue mixed speech implicating private
speech rights, we agreed. Id. We held that the speech at issue
there “appears to be neither purely government speech nor purely
private speech, but a mixture of the two.” Id. at 794. We
applied a forum analysis, which the Supreme Court has instructed
courts to use when private speech occurs on government property,
noted that the government may not viewpoint-discriminate in any
forum, and held that South Carolina’s allowing a pro-life plate
but no pro-choice plate constituted viewpoint discrimination in
violation of the First Amendment. Id. at 795-99.
4
While each member of the Rose panel wrote a separate
concurring opinion, Judge Michael authored the only opinion
laying out the Court’s analytical framework, and the other panel
members, Judge Luttig and Judge Gregory, essentially embraced
it. See, e.g., Rose, 361 F.3d at 800 (Luttig, J.) (“Needless to
say, I am pleased that the court adopts today the view that
speech can indeed be hybrid in character.”); Rose, 361 F.3d at
801 (Gregory, J.) (“[B]ecause I believe the judgment reached
today applies the factors set forth in Sons of Confederate
Veterans in a manner that begins to recognize the government
speech interests in the vanity license plate forum, I concur in
the judgment.”).
10
B.
To determine whether speech is that of the government,
private parties, or both, this Court looks to “instructive”
factors laid out in SCV I:
(1) “the central purpose of the program in which the
speech in question occurs;”
(2) “the degree of editorial control exercised by the
government or private entities over the content of the
speech;”
(3) “the identity of the literal speaker;” and
(4) “whether the government or the private entity
bears the ultimate responsibility for the content of
the speech[.]”
288 F.3d at 618 (quotation marks omitted).
North Carolina argues that this Court abandoned the SCV
factors with Page v. Lexington County School District One, 531
F.3d 275 (4th Cir. 2008). According to North Carolina, in Page
we lopped off several of the SCV factors in favor of an
exclusive focus on control of the message in question to
determine whose message it is. We disagree.
First, we note that “a panel of this court cannot over-
rule, explicitly or implicitly, the precedent set by a prior
panel of this court. Only the Supreme Court or this court
sitting en banc can do that.” United States v. Brooks, 524 F.3d
549, 559 n.17 (4th Cir. 2008) (quotation marks omitted). Page,
11
which is neither a Supreme Court nor an en banc decision, thus
did not supplant SCV I.
Second, Page does not suggest any attempt to overthrow the
SCV factors in favor of a single-factor control test. Instead,
in Page, a case about a school district’s speech, we cited to,
and considered, several factors—specifically, who disseminates
the speech, as well as who “establishes” and “controls” the
speech. Page, 531 F.3d at 281. Our flexible approach in Page
is not surprising, given our express acknowledgment in SCV I
itself that the four factors identified there are “instructive”
but neither “exhaustive” nor always uniformly applicable. SCV
I, 288 F.3d at 619. Therefore even Page does not support our
having embraced a single-factor approach to determining who is
speaking.
Further, in opinions postdating Page, we explicitly
employed the SCV factors to identify the pertinent speaker.
See, e.g., Turner v. City Council of City of Fredericksburg,
Va., 534 F.3d 352, 354 (4th Cir. 2008) (noting that the “Fourth
Circuit has adopted a four-factor test for determining when
speech can be attributed to the government,” listing the SCV
factors, and “[a]pplying these factors, . . . [to] conclude that
the legislative prayer at issue . . . is governmental speech”).
Clearly, then, this Circuit has not recognized Page as having
displaced SCV I.
12
North Carolina nonetheless presses that the Supreme Court
implicitly overruled our SCV test with Johanns, 544 U.S. 550,
and Summum, 555 U.S. 460. Specifically, North Carolina contends
that those cases instruct us to consider only “the level of
control the government exercises over the speech, not on who a
reasonable observer views as the literal speaker.” Appellants’
Br. at 7. Again, we disagree with North Carolina’s argument and
thus decline its invitation to “follow the ‘control’ test for
government speech set forth in Johanns and affirmed in Summum.”
Id. at 14.
Looking first at Johanns, we agree with the Ninth Circuit
that the case is factually distinguishable from specialty
license plate cases. “Johanns involved a government-compelled
subsidy of government speech. . . . In Johanns, the individual
harm was being forced to give the government money to pay for
someone else’s message.” Ariz. Life Coal. Inc. v. Stanton, 515
F.3d 956, 964 (9th Cir. 2008) (quotation marks omitted). In
specialty license plate cases, by contrast, “private individuals
choose to pay the price for obtaining a particular specialty
license plate. The First Amendment harm is being denied the
opportunity to speak on the same terms as other private citizens
within a government sponsored forum.” Id. (quotation marks
omitted).
13
Further, the Supreme Court itself limited its holding to
compelled subsidies, expressly declining to address as not on
point even compelled speech arguments. Johanns, 544 U.S. at
564-65. 5 While doing so, the Supreme Court recognized the
continued validity of Wooley v. Maynard, in which the Court held
that vehicle owners had a First Amendment right to cover the
“Live Free or Die” state motto on their New Hampshire license
plates. Johanns, 544 U.S. at 565 n.8 (citing and distinguishing
Wooley, 430 U.S. 705 (1977)). The Supreme Court also recognized
the continued validity of West Virginia State Board of Education
v. Barnette, in which the Court held a law requiring all
schoolchildren to recite the Pledge of Allegiance and salute the
American flag unconstitutional under the First Amendment.
Johanns, 544 U.S. at 565 n.8 (citing and distinguishing
Barnette, 319 U.S. 624 (1943)). Yet if North Carolina were
correct in its assertion that government control of the message
is all that matters, both Wooley and Barnette would have been
5
We recognize that, upon closer consideration, government
subsidies may look more like government regulation than courts
have generally been willing to admit. See, e.g., Joseph
Blocher, Viewpoint Neutrality and Government Speech, 52 B.C. L.
Rev. 695, 721 (2011) (noting, among other things, that funding
one group effectively singles out disfavored, unsubsidized
groups and thus looks like viewpoint-based regulation). We do
not resolve that quandary here. We simply conclude that Johanns
did not overrule the four-factor framework this Court
established in SCV I and has applied repeatedly since to
determine who is speaking in cases like this one.
14
wrongly decided—and they surely would not have been cited in
Johanns as good compelled speech law.
Indeed, Summum underscores that the Supreme Court did not
espouse a myopic “control test” in Johanns. Specifically, in
Summum, the Supreme Court held that placement of permanent
monuments, including those designed and donated by private
entities, in a city park constitutes government speech. 555
U.S. at 481. As in Johanns, the Supreme Court considered the
“control” factor, observing that the city “‘effectively
controlled’ the messages sent by the monuments in the [p]ark by
exercising ‘final approval authority’ over their selection.”
Summum, 555 U.S. at 473 (quoting Johanns, 544 U.S. at 560–61).
Importantly, however, the Supreme Court also focused on the
perceived identity of the speaker. The Court noted that
monuments installed on property are “routinely—and reasonably—
interpret[ed] as conveying some message on the property owner’s
behalf.” Id. at 471. Accordingly, the Court concluded that
“there is little chance that observers will fail to appreciate
the identity of the speaker” as the property owner. Id.
Additionally, context mattered in Summum. The Supreme
Court focused on the fact that “public parks can accommodate
only a limited number of permanent monuments.” Id. at 478. As
the Court noted, “[s]peakers, no matter how long-winded,
eventually come to the end of their remarks[,]” while “monuments
15
. . . endure.” Id. at 479. We cannot square the Supreme
Court’s multi-faceted, context-specific reasoning in Summum with
North Carolina’s blanket contention that all that matters is who
controls the message. 6
The third Supreme Court case upon which North Carolina
seeks to rely—Hurley v. Irish-American Gay, Lesbian & Bisexual
Group of Boston—has absolutely no bearing on this one. 515 U.S.
557 (1995). North Carolina cites to Hurley for the proposition
that “[u]nder the government speech doctrine, North Carolina can
claim the ‘fundamental rule of protection under the First
Amendment, that a speaker has the autonomy to choose the content
of his own message.’” Appellants’ Br. at 4 (quoting Hurley, 515
U.S. at 573). But Hurley had nothing to do with the government
speech doctrine—which, by its very nature, does not implicate
the First Amendment. See, e.g., Summum, 555 U.S. at 467-68
(noting that if the government engages in its “own expressive
conduct, then the Free Speech Clause has no application” because
“it does not regulate government speech”). Instead, that case
centered on private parties’ free speech rights, holding that
requiring private parade organizers to include amongst their
6
The Supreme Court also noted “the legitimate concern that
the government speech doctrine not be used as a subterfuge for
favoring certain private speakers over others based on
viewpoint.” Summum, 555 U.S. at 473. We do not take this
concern lightly.
16
marchers a group whose message they opposed violated the
organizers’ First Amendment rights. Hurley, 515 U.S. at 559.
If anything, Hurley hurts North Carolina’s cause, not least due
to its recognition that government regulation may not “interfere
with speech for no better reason than promoting an approved
message or discouraging a disfavored one, however enlightened
either purpose may strike the government.” Id. at 579.
In sum, for over a decade, this Circuit has found the SCV
factors instructive in determining whether speech is that of the
government, private parties, or both. Sometimes considering
those factors has led us to conclude that speech implicated both
government and private expression. See, e.g., WV Ass’n of Club
Owners & Fraternal Servs., Inc. v. Musgrave, 553 F.3d 292, 299-
300 (4th Cir. 2009); Rose, 361 F.3d at 794. In other cases,
considering the SCV factors led to the conclusion that the
speech at issue was purely government (see, e.g., Turner, 534
F.3d at 354) or purely private (see SCV I, 288 F.3d at 621).
But regardless of our conclusion in any particular case, we have
repeatedly looked to the SCV factors to help us identify the
pertinent speaker. And neither an en banc decision from this
Court, nor one from the Supreme Court, has implicitly, much less
explicitly, suggested that to do so was to err.
17
C.
Having concluded that the “instructive” factors we
identified in SCV remain appropriate tools for evaluating
whether speech is government, private, or both, we turn to
applying those factors here.
1. The Central Purpose Of The Program In Which The Speech
In Question Occurs
The first SCV factor, the central purpose of the program in
which the speech in question occurs, may—or may not—be readily
apparent. SCV I, 288 F.3d at 619. To divine the central
purpose, this Court has considered, e.g., revenue generation and
allocation and legislative intent. See, e.g., id.; Rose, 361
F.3d at 793.
Here, we must conclude that the purpose of the specialty
license plate program, including the “Choose Life” plate, is to
allow North Carolina drivers to express their affinity for
various special interests, as well as to raise revenue for the
state. 7 First, the legislative history of HB 289 indicates that
7
In his Rose opinion, Judge Michael focused exclusively on
the “Choose Life” specialty plate and its authorizing
legislation, rather than on South Carolina’s specialty plate
program more broadly. That narrow focus does not square with
SCV I’s instruction to look to the central purpose “of the
program in which the speech in question occurs.” SCV I, 288
F.3d at 618 (emphasis added). See also Am. Civil Liberties
Union of Tenn. v. Bredesen, 441 F.3d 370, 389-90 (6th Cir. 2006)
(Martin, J., dissenting) (“If we think of each individual
license plate in a vacuum, each one can be reasonably
(Continued)
18
the specialty license plate program was intended to be a forum
for private expression of interests. See, e.g., Remark of
Representative Tim Moore to the North Carolina House Fin. Comm.
(June 2, 2011), J.A. 19 ¶ 33 (stating that specialty license
plates constitute “voluntary speech that people are making by
purchasing the license plate”). Fittingly, then, North Carolina
expressly invites its vehicle owners to “[m]ake a statement with
a specialized or personalized license plate” and to “find the
plate that fits you.” http://www.ncdot.gov/dmv/vehicle/plates/.
It describes its specialty plate program as “allow[ing] citizens
with common interests to promote themselves and/or their
causes.” http://www.ncdot.gov/dmv/online/. By contrast,
nothing before us suggests that North Carolina has ever
communicated to the public that the specialty plate program is
characterized as a government message. But, in order to
properly characterize the specialty license plate program for
First Amendment purposes, we cannot view each license plate in
isolation. I suggest that when opening one’s eyes to the
license plate program as a whole, it is evident that the
government has created a program to encourage a diversity of
views and messages from private speakers.”). Even were we to
focus on the authorizing legislation alone, as did Judge
Michael, the North Carolina law at issue here authorized a wide
array of specialty plates, on topics ranging from wild turkeys
to stock car racing. We therefore could not conclude here that
the purpose of the authorizing law “is specifically to promote
the expression of a pro-life viewpoint[,]” as opposed to
legislation “allowing . . . for the private expression of
various views[.]” Rose, 361 F.3d at 793 (quotation marks and
citation omitted).
19
government-only speech or that it seeks volunteers to help
disseminate a government-only message.
The specialty license plate program also has a significant
revenue-raising component. The NC DMV is authorized to develop
a specialty license plate only after it has received three
hundred applications from North Carolina drivers interested in
the plate. N.C. Gen. Stat. § 20-81.12(b84). The specialty
plate costs a vehicle owner an additional $25 per year. N.C.
Gen. Stat. § 20-79.7. And $10 of that annual fee go to the
North Carolina Highway Fund. Id. As we noted in SCV I:
If the General Assembly intends to speak, it is
curious that it requires the guaranteed collection of
a designated amount of money from private persons
before its ‘speech’ is triggered. It is not the case,
in other words, that the special plate program only
incidentally produces revenue for the [government].
The very structure of the program ensures that only
special plate messages popular enough among private
individuals to produce a certain amount of revenue
will be expressed.
SCV I, 288 F.3d at 620 (footnote omitted).
Finally, the large number and wide array of specialty
plates also weigh in favor of private speech. North Carolina
drivers may choose from over two hundred specialty plates. And
the subjects of those plates range from the controversial (Sons
of Confederate Veterans, whose confederate flag logo many “view
to be a symbol of racism and slavery,” Rose, 361 F.3d at 801
(Gregory, J., concurring)), to the religious (Knights of
20
Columbus, a civic organization “which requires members to be
practicing Catholics,” Roach v. Stouffer, 560 F.3d 860, 868 (8th
Cir. 2009)), to the seemingly irrelevant to any conceivable
North Carolina government interest (e.g., out-of-state
universities). It defies logic, and may in fact create other
problems (such as Establishment Clause issues in the case of the
Knights of Columbus) to suggest that all of these plates
constitute North Carolina’s—and only North Carolina’s—message.
In sum, the first SCV factor, the central purpose of the
program in which the speech in question occurs, weighs in favor
of finding the speech at issue here private.
2. The Degree Of Editorial Control Exercised By The
Government Or Private Party Over The Content
The second factor, “the degree of editorial control
exercised by the government or private entities over the content
of the speech,” weighs in favor of the government. The
legislature determined, and the governor approved, the “Choose
Life” message. 2011 N.C. Sess. Laws 392 (“The plate shall bear
the phrase ‘Choose Life.’”). And the parties themselves agree
that “complete editorial control” rests with North Carolina.
Appellees’ Br. at 12.
3. The Identity Of The Literal Speaker
The third SCV factor, the identity of the literal speaker,
weighs in favor of private speech. In coming to that
21
conclusion, we first consider Wooley, in which the Supreme Court
held that New Hampshire residents had a First Amendment right to
cover the “Live Free Or Die” state motto on the standard state
license plate. 430 U.S. 705. Significantly, the Supreme Court
there declared that New Hampshire’s citizens found themselves
“faced with a state measure” that “invades the sphere of
intellect and spirit which it is the purpose of the First
Amendment to our Constitution to reserve from all official
control.” Id. at 715 (quotation marks omitted). In other
words, the Supreme Court deemed license plates a sphere of
private “intellect and spirit” that “implicat[es] First
Amendment protections” from government control. Id. 8
Moreover, any argument that the state alone is the literal
speaker is substantially weaker here than it was in Wooley. In
Wooley, the slogan at issue was the state motto, and it appeared
on all non-commercial New Hampshire plates, “a fact presumably
apparent to anyone driving in New Hampshire.” SCV II, 305 F.3d
at 244 (Williams, J.). “A fortiori must it be the case that
8
North Carolina suggests that Wooley—which predates the
Supreme Court’s recognition of the government speech doctrine
and the “control test” North Carolina contends flows from
Johanns and Summum—is no longer good law. Yet that contention
flies in the face of Johanns itself, in which the Supreme Court
majority recognized the continued validity of, and
distinguished, Wooley. Johanns, 544 U.S. at 565 n.8. Clearly,
the Supreme Court did not view Wooley as passé. Neither do we.
22
speech placed on a license plate by the government for a fee at
the request of a private organization or individual is at a
minimum partly the private speech of that organization or
individual.” Id. at 246 (Luttig, J.).
Indeed, to any reasonable observer, the literal speaker of
a message on a specialty plate that the observer knows the
vehicle owner selected is surely the vehicle owner. Messages on
some specialty license plates, such as the dance plate “I’d
Rather Be Shaggin,” N.C. Gen. Stat. 20-79.4(b)(203) (emphasis
added), or the plate depicting a dog and cat and stating “I
care,” N.C. Gen. Stat. 20-79.4(b)(12) (emphasis added), make the
connection explicit.
We do not deny that specialty license plates are state
property. Nor do we deny that even specialty plates, which must
be authorized by state law, to some extent bear North Carolina’s
imprimatur. Nevertheless, the copious specialty license plates,
including “Choose Life,” available to North Carolina drivers
constitute “voluntary speech that people are making . . . .”
Remark of Representative Tim Moore to the North Carolina House
Fin. Comm. (June 2, 2011), J.A. 19 ¶ 33. Specialty plates are
closely associated with the drivers who select and pay for them.
And the driver, on whose car the special message constantly
appears for all those who share the road to see, is the ultimate
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communicator. The third factor, the identity of the literal
speaker, thus weighs in favor of private speech.
4. Whether The Government Or The Private Party Bears
Ultimate Responsibility For The Speech’s Content
Finally, we must conclude that the fourth factor, the
ultimate responsibility for the speech, weighs in favor of
private speech. “When a special license plate is purchased, it
is really the private citizen who engages the government to
publish his message,” not the other way around. SCV II, 305
F.3d at 246 (Luttig, J.). Indeed “‘but for’” the private
individual’s action, the specialty license plate would never
exist. Id. North Carolina drivers must apply for the specialty
plate, which is issued only after at least three hundred seek
the plate. Further, those private individuals must pay for the
specialty plate “over and above the cost exacted for a standard
license plate.” Id.
In sum, applying SCV’s instructive factors to the facts at
hand, we conclude that three of the four factors indicate that
the specialty plate speech at issue is private, while one
suggests that the specialty plate speech is government. In
other words, we agree with the district court “that sufficient
private speech interests are implicated by the specialty license
plates to preclude a finding of purely government speech.”
Conti, 912 F. Supp. 2d at 375.
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Our conclusion is in line with those reached by our Sister
Circuits in similar cases. With only one exception, all
Circuits to have addressed the issue have held that specialty
license plates implicate private speech rights and cannot
properly be characterized as solely government speech. Roach,
560 F.3d 860; Stanton, 515 F.3d 956; Choose Life Ill., Inc. v.
White, 547 F.3d 853 (7th Cir. 2008); Women’s Emergency Network
v. Bush, 323 F.3d 937 (11th Cir. 2003); cf. Perry v. McDonald,
280 F.3d 159 (2d Cir. 2001). The sole outlier, the Sixth
Circuit, held in Bredesen that Tennessee’s “Choose Life”
specialty plate constituted pure government speech. 441 F.3d
370. For the many reasons discussed above, we must agree with
the Seventh Circuit that “this conclusion is flawed . . . .”
White, 547 F.3d at 863. We have no hesitation in holding that
the “Choose Life” plate at issue here implicates private speech
rights and cannot correctly be characterized as pure government
speech.
D.
On appeal, North Carolina argues only that because its
specialty plates are government speech, North Carolina can
viewpoint-discriminate free from First Amendment constraints.
North Carolina did not argue, for example, that even if we were
to deem specialty plates mixed speech, North Carolina still
wins. North Carolina did not challenge in any way the district
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court’s conclusion that, upon finding private speech rights
implicated, “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.” Conti, 912
F. Supp. 2d at 375. That conclusion, which is supported by
Rose, therefore stands. See Rose, 361 F.3d at 799 (“By limiting
access to a specialty license plate to those who agree with its
pro-life position, the State has distorted the forum in favor of
its own viewpoint. This it may not do.”).
North Carolina nevertheless laments that if it has created
a forum, it “must allow all viewpoints to be heard via specialty
plates.” Appellants’ Br. at 30. This complaint seems at odds
with North Carolina’s contention that its vast array of
specialty plates “celebrat[es]” the “diversity of its citizen’s
interests . . . .” Id. at 18, 41. Apparently, North Carolina
wishes to celebrate only some interests of some of its citizens—
namely those with which it agrees. This, it may not do.
North Carolina then sounds the death knell for specialty
plates, predicting a “flood” of “Kill The Sea Turtles” and
“Children Last” plates that will force it to end its specialty
plate program. Appellants’ Br. at 27-29. Melodrama aside, our
ruling today “does not render [North] Carolina powerless to
regulate its specialty license plate forum.” Rose, 361 F.3d at
799. But it must do so in a viewpoint-neutral fashion—which it
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already does, to some extent, by requiring three hundred
applicants before issuing a new specialty plate. Surely such a
requirement can filter out “frivolous license plate proposals”
and prevent the roads from being inundated with “license plates
advocating reckless pet breeding.” Bredesen, 441 F.3d at 391
(Martin, J., dissenting).
Another alternative: North Carolina can choose to avoid
the reproductive choice debate altogether. Illinois, for
example, “excluded the entire subject of abortion from its
specialty-plate program.” White, 547 F.3d at 865. The Seventh
Circuit upheld that viewpoint-neutral restriction, noting that
“the State has effectively imposed a restriction on access to
the specialty-plate forum based on subject matter: no plates on
the topic of abortion. It has not disfavored any particular
perspective or favored one perspective over another on that
subject; instead, the restriction is viewpoint neutral.” Id. at
866. But see Stanton, 515 F.3d 956. After all, “[i]t is one
thing for states to use license plates to celebrate birds and
butterflies . . . . It is quite another for the state to
privilege private speech on one side-and one side only-of a
fundamental moral, religious, or political controversy.”
Planned Parenthood Of S.C. Inc. v. Rose, 373 F.3d 580, 581 (4th
Cir. 2004) (Wilkinson, J., voting to deny rehearing en banc).
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III.
In sum, North Carolina invites its vehicle owners to
“[m]ake a statement” and “promote themselves”—but only if they
are on the government’s side of a highly divisive political
issue. This, North Carolina may not do. Because the specialty
plate speech at issue implicates private speech rights and is
not pure government speech, North Carolina’s authorizing a
“Choose Life” plate while refusing to authorize a pro-choice
plate constitutes viewpoint discrimination in violation of the
First Amendment.
AFFIRMED
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