Arizona Life Coalition, Inc. v. Stanton ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARIZONA LIFE COALITION INC., an 
Arizona nonprofit corporation;
GARY PAISLEY, an individual,
Plaintiffs-Appellants,
v.
STACEY STANTON, Arizona License
Plate Commission Chair, in her
personal capacity; MICHAEL FRIAS,
Arizona License Plate Commission
member, in his personal capacity;
BRIAN LANG, Arizona License
Plate Commission member, in his
personal capacity; JOHN SPEARMAN, No. 05-16971
Arizona License Plate Commission
member, in his personal capacity;  D.C. No.
CV-03-01691-PGR
JACKIE ALLGOOD, Arizona Motor
OPINION
Vehicle Division legislative
liaison, in her personal capacity;
TERRY CONNOR, individually and in
his capacity as an Arizona License
Plate Commission member;
WILLIAM A. ORDWAY, in his
official capacity as an Arizona
License Plate Commission
member; LELA STEFFEY, in her
official capacity as an Arizona
License Plate Commission
member,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Arizona
Paul G. Rosenblatt, District Judge, Presiding
1279
1280 ARIZONA LIFE COALITION v. STANTON
Argued and Submitted
October 15, 2007—San Francisco, California
Filed January 28, 2008
Before: David R. Thompson and Richard C. Tallman,
Circuit Judges, and Kevin Thomas Duffy,*
Senior United States District Judge.
Opinion by Judge Tallman
*The Honorable Kevin Thomas Duffy, Senior United States District
Judge for the Southern District of New York, sitting by designation.
1284 ARIZONA LIFE COALITION v. STANTON
COUNSEL
Jeffrey A. Shafer (argued), Alliance Defense Fund, Washing-
ton, D.C.; Benjamin W. Bull, Alliance Defense Fund, Scotts-
dale, Arizona; Peter A. Gentala, The Center for Arizona
Policy, Scottsdale, Arizona; Gary S. McCaleb, Alliance
Defense Fund, Scottsdale, Arizona, for the plaintiffs-
appellants.
Daniel P. Schaack (argued), Assistant Attorney General,
Phoenix, Arizona; James R. Morrow, Assistant Attorney Gen-
eral, Liability Management Section, Phoenix, Arizona, for the
defendants-appellees.
Denise M. Burke, Women’s Choice Pregnancy Clinic, Chi-
cago, Illinois, for the amicus curiae.
OPINION
TALLMAN, Circuit Judge:
Arizona Life Coalition (“Life Coalition”) appeals a sum-
mary judgment in favor of Stacey Stanton and other members
of the Arizona License Plate Commission (collectively the
“Commission”). Life Coalition contends that the Commission
violated its First Amendment right to free speech and Four-
teenth Amendment right to equal protection by arbitrarily
denying its application for a special Arizona organization
license plate that would portray its message “Choose Life.”
We agree that the Commission violated Life Coalition’s First
Amendment right to free speech and therefore do not reach its
equal protection argument.
Messages conveyed through special organization plates—
although possessing some characteristics of government
speech—represent primarily private speech. Through its spe-
ARIZONA LIFE COALITION v. STANTON 1285
cial organization license plate program, Arizona has created
a limited public forum for all nonprofit organizations that
meet the State’s statutory requirements. Because the Commis-
sion denied Life Coalition’s application on grounds not speci-
fied in the statute or related to the limited purpose of the
license plate forum, we reverse the district court’s grant of
summary judgment in favor of the Commission.
I
The parties do not dispute the facts, and there is no material
issue of fact to prevent summary judgment from being
entered. Life Coalition is an Arizona nonprofit corporation
that provides “compassionate care . . . to persons who are con-
sidering abortion, or who are affected by abortion.” In June
2002, Life Coalition resubmitted an application for a special-
ity plate that would “display Life Coalition’s official logo, a
small graphic of two children’s faces and the motto, ‘Choose
Life.1 The Arizona Department of Transportation (“Depart-
ment”) certified that Life Coalition met the requirements of
Arizona Revised Statute section 28-2404(G)(2)2 and submit-
ted Life Coalition’s request for its special license plate to the
Commission.3
1
Life Coalition had previously submitted an application in January
2002; however, that application was either not received by the Commis-
sion or lost.
2
Arizona Revised Statute section 28-2404(G)(2) defines “organization”
as
an entity that is organized as a nonprofit corporation pursuant to
title 10, chapters 24 through 40 and that either: (a) Certifies to the
department that the organization has at least two hundred mem-
bers[; or] (b) If the organization has fewer than two hundred
members, agrees to pay the production and program costs of the
special organization plate as determined by the commission.
(Footnote omitted).
3
Arizona Revised Statute section 28-2404(A) provides that if the
Department “determines the organization meets the requirements of an
organization as defined in [section 28-2404(G)(2)], the [D]epartment shall
submit the request for a special organization plate to the license plate com-
mission.”
1286 ARIZONA LIFE COALITION v. STANTON
Upon receiving a request, section 28-2404(B) provides that
[t]he [C]ommission shall authorize a special organi-
zation plate if the organization meets the following
requirements:
(1) The primary activity or interest of the
organization serves the community, con-
tributes to the welfare of others and is not
offensive or discriminatory in its purpose,
nature, activity or name[;]
(2) The name of the organization or any
part of the organization’s purpose does not
promote any specific product or brand
name that is provided for sale[;] and
(3) The purpose of the organization does
not promote a specific religion, faith or
antireligious belief.
(Emphasis added).
The Commission first considered Life Coalition’s applica-
tion in August 2002. Members of the Commission raised con-
cerns over whether the general public would believe Arizona
had endorsed the message of the “Choose Life” license plate,
as well as concerns over whether groups with differing view-
points would file applications. To obtain legal advice, the
Commission tabled Life Coalition’s application without tak-
ing action.
To alleviate the Commission’s concerns, Life Coalition
filed a revised application on September 27, 2002. In this
application Life Coalition proposed including its name on the
plate design. The Commission considered Life Coalition’s
revised application in an August 2003 meeting. During the
meeting, Gary Paisley, Chairman of Life Coalition, explained
ARIZONA LIFE COALITION v. STANTON 1287
how Life Coalition served the community: (1) it organized a
diaper drive, after which Life Coalition donated thousands of
diapers to the Arizona Diaper Bank; (2) “Life Coalition’s pur-
pose is to provide compassionate services to those people that
are considering or have been affected by abortion including
pregnancy tests, pregnancy counseling, and relationship coun-
seling”; and (3) Life Coalition “established a hotline for
women who are pregnant.” Paisley also told the Commission
that Life Coalition’s membership included approximately 40
organizations and 100,000 individuals. Paisley then confirmed
that a person or organization must subscribe to Life Coali-
tion’s statement of principles to become a member.4
Initially, the Commission declined to take action on Life
Coalition’s application. After Paisley implored the Commis-
sion to explain what statutory requirements Life Coalition
failed to satisfy, a member of the Commission moved to for-
mally deny the application, which passed by voice vote.
Chairwoman Stanton replied to Paisley’s request for an expla-
nation by stating that “the action of the Commission is final”
and that she did not believe “now is an opportunity for[ ] fur-
ther debate, or for further info that [Life Coalition] could put
on additional applications.”
Life Coalition filed suit in the United States District Court
for the District of Arizona on September 2, 2003. It filed its
First Amended Verified Complaint on December 10, 2003.
Pertinent to this appeal, Life Coalition moved for summary
judgment on November 30, 2004, and the Commission cross-
moved for summary judgment on January 1, 2005. The dis-
trict court denied Life Coalition’s motion for summary judg-
ment, and granted the Commission’s cross-motion for
summary judgment. Life Coalition timely appealed. We
reverse.
4
Life Coalition’s members must adhere to its stated secular principles.
For example, one of Life Coalition’s principles is to “believe in the sanc-
tity of every innocent human life, from conception to natural death,
regardless of age, gender, disability, or degree of dependence.”
1288 ARIZONA LIFE COALITION v. STANTON
II
We review de novo a grant of summary judgment. Balint
v. Carson City, 180 F.3d 1047, 1050 (9th Cir. 1999). The Tax
Injunction Act (“TIA”), 28 U.S.C. § 1341, imposes a jurisdic-
tional limitation on federal courts. Hoohuli v. Ariyoshi, 741
F.2d 1169, 1176 (9th Cir. 1984), overruled on other grounds
as recognized by Arakaki v. Lingle, 477 F.3d 1048, 1062 (9th
Cir. 2007). We are required to raise jurisdictional issues sua
sponte, id., and we note the TIA’s application in the special
organization plate context has been raised by our sister cir-
cuits. Compare Am. Civil Liberties Union of Tenn. v.
Bredesen, 441 F.3d 370, 373 (6th Cir. 2006) (rejecting the
argument that the TIA barred suit because the extra payments
for special organization plates resemble “payments for simple
purchases from the government” and are not taxes), with Hen-
derson v. Stalder, 407 F.3d 351, 356 (5th Cir. 2005) (conclud-
ing that the additional charges for speciality plates are taxes
because they “sustain[ ] the essential flow of revenue to the
government,” are “imposed by a state or municipal legisla-
ture,” and are “designed to provide a benefit for the entire
community”). Therefore, although neither party questions
whether the TIA precludes jurisdiction in this case, we none-
theless address it here.
[1] The TIA provides that “[t]he district courts shall not
enjoin, suspend or restrain the assessment, levy or collection
of any tax under State law where a plain, speedy and efficient
remedy may be had in the courts of such State.” 28 U.S.C.
§ 1341. In Arizona, drivers must pay an additional twenty-
five dollar fee to obtain a special organization plate. The issue
is whether the money paid to obtain a special organization
plate constitutes a tax to which the TIA would apply.
[2] We find persuasive the Sixth Circuit’s analysis in
Bredesen and hold the extra fee is not a tax. The transaction
between a state’s vehicle owner and the issuing authority is
more akin to a contractual debt than a state imposed tax. Ari-
ARIZONA LIFE COALITION v. STANTON 1289
zona has not coerced a sale attendant to the requirement that
cars bear license plates to assist in identifying their owners,
but has instead induced willing purchasers to agree to pay a
certain extra sum of money in return for the right to bear a
special message on an organizational license plate. See
Bredesen, 441 F.3d at 374; see also Women’s Res. Network
v. Gourley, 305 F. Supp. 2d 1145, 1154 (E.D. Cal. 2004)
(“[The additional payments are] voluntarily paid by a limited
group of motorists who wish to both support a [special cause],
and presumably desire to display that support on their license
plate.”).
[3] The Sixth Circuit’s reasoning is supported by our deci-
sion in Bidart Brothers v. California Apple Commission, 73
F.3d 925 (9th Cir. 1996). There, we recognized that the addi-
tional charge does not have to be characterized as a “tax” or
a regulatory “fee.” Id. at 933. In determining whether the TIA
applies, the “ultimate question remains whether an assessment
is a ‘State tax.’ ” Id. Because the additional charges for a spe-
cial organization plate are more akin to a contractual payment
than a tax, we hold that the TIA does not apply to Life Coali-
tion’s suit. We therefore retain jurisdiction to hear its federal
constitutional claim.
III
A
1
[4] We must decide whether, by authorizing a specialty
license plate sought by a nonprofit organization to display its
message and the message of the organization’s members, the
State of Arizona has adopted that speech as its own. It is
undeniable that “when the government speaks for itself, it
‘may take legitimate and appropriate steps to ensure that its
message is neither garbled nor distorted.’ ” Planned Parent-
hood of S.C. Inc. v. Rose, 361 F.3d 786, 792 (4th Cir. 2004)
1290 ARIZONA LIFE COALITION v. STANTON
(plurality) (quoting Rosenberger v. Rector and Visitors of
Univ. of Va., 515 U.S. 819, 833 (1995)); see also Sons of Con-
federate Veterans, Inc. v. Comm’r of Va. Dep’t of Motor Vehi-
cles, 288 F.3d 610, 616 (4th Cir.), reh’g en banc denied, 305
F.3d 241 (4th Cir. 2002) (“It is well established that ‘the gov-
ernment can speak for itself.’ ” (quoting Bd. of Regents of
Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 229 (2000)).
However, when the government regulates private speech, we
must conduct a traditional First Amendment analysis. Rose,
361 F.3d at 792; see also PMG Int’l Div., L.L.C., v. Rumsfeld,
303 F.3d 1163, 1169 (9th Cir. 2002).
There is some question as to what standard we should apply
in differentiating between private and government speech. In
Johanns v. Livestock Marketing Ass’n, 544 U.S. 550 (2005),
the Court addressed whether a federal program that requires
beef producers to finance promotional messages to support
the beef industry—“Beef. It’s What’s for Dinner”—violated
the First Amendment. Id. at 554. The Court held that “[w]hen
. . . the government sets the overall message to be communi-
cated and approves every word that is disseminated,” it is
government speech. Id. at 561-62. And, because “[t]he mes-
sage set out in the beef promotions is from beginning to end
the message established by the Federal Government,” “Con-
gress . . . directed the implementation of a ‘coordinated pro-
gram’ of promotion, ‘including paid advertising, to advance
the image and desirability of beef and beef products,’ ” and
the Secretary of Agriculture “exercise[d] final approval
authority over every word used in every promotional cam-
paign,” the beef promotional messages represented govern-
ment speech. Id. at 560-61.
In Bredesen, 441 F.3d 370, the Sixth Circuit relied on
Johanns to hold that the Tennessee statute authorizing a spe-
cialty license plate with a “Choose Life” logotype did not vio-
late the First Amendment, despite the fact that the legislature
refused to make available license plates with a “pro-choice”
or “pro-abortion” message. Id. at 372. In doing so, the Sixth
ARIZONA LIFE COALITION v. STANTON 1291
Circuit rejected—on nearly identical facts—the Fourth Cir-
cuit’s reasoning in Rose, 361 F.3d 786, in part because the
Fourth Circuit had relied on the “pre-Johanns four-factor
test.” See Bredesen, 441 F.3d at 380.
[5] Prior to Johanns, the Fourth, Eighth, and Tenth circuits
had adopted a nonexhaustive list of four factors to differenti-
ate between the two types of speech. Those factors are:
(1) the central “purpose” of the program in which the
speech in question occurs; (2) the degree of “edito-
rial control” exercised by the government or private
entities over the content of the speech; (3) the iden-
tity of the “literal speaker”; and (4) whether the gov-
ernment or the private entity bears the “ultimate
responsibility” for the content of the speech, in ana-
lyzing circumstances where both government and a
private entity are claimed to be speaking.
Sons of Confederate Veterans, Inc., 288 F.3d at 618-19 (citing
Wells v. City and County of Denver, 257 F.3d 1132, 1141
(10th Cir. 2001); Knights of the Ku Klux Klan v. Curators of
the Univ. of Mo., 203 F.3d 1085, 1093-94 (8th Cir. 2000)).5
5
Although we have not yet expressly adopted the four-factor test, we
relied on similar factors in Downs v. Los Angeles Unified School District,
228 F.3d 1003 (9th Cir. 2000). There, we addressed whether messages
conveyed through school bulletin boards constituted government speech.
Id. at 1011. We discussed various factors, including: (1) “who actually
was responsible for the speech”; (2) who had access to the school bulletin
boards; (3) who maintained editorial control over the bulletin boards; and
(4) the purpose of the school bulletin boards. Id. at 1011-12. While recog-
nizing that Downs cites similar factors, other circuits have declined to rely
on its reasoning because of the special circumstances related to the school
setting. See Wells, 288 F.3d at 1141 (stating that, “[d]ue to the ‘special
characteristics of the school environment,’ [the court will] rely primarily
on the four factors articulated in Knights of the [Ku Klux Klan]” (citation
omitted)); Sons of Confederate Veterans, Inc., 288 F.3d at 619 n.7 (same).
1292 ARIZONA LIFE COALITION v. STANTON
As noted by Judge Martin in his dissenting opinion in
Bredesen, Johanns is factually distinguishable from these spe-
cialty license plate cases. 441 F.3d at 385 (Martin, J., dissent-
ing). Johanns involved a government-compelled subsidy of
government speech. Johanns, 544 U.S. at 557. Specialty
license plate programs do not raise issues regarding
“compelled-speech” or a “compelled-subsidy.” See id. (dis-
cussing the difference between “compelled-speech” cases and
“compelled-subsidy” cases); see generally Paramount Land
Co. v. Cal. Pistachio Comm’n, 491 F.3d 1003 (9th Cir. 2007)
(applying Johanns in a compelled-speech case). In Johanns,
the individual harm was “being forced to give the government
money to pay for someone else’s message.” Bredesen, 441
F.3d at 385 (Martin, J., dissenting). In specialty license plate
cases, 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. at 386. Moreover, “specialty plate programs are
not part of a larger governmental scheme to encourage some
private activity, like beef consumption.” Andy G. Olree, Spe-
cialty License Plates: Look Who’s Talking in the Sixth Cir-
cuit, 68 Ala. Law. 213, 214 (May 2007). In light of these
differences, Judge Martin believed that “[t]he government
speech doctrine, as it is used in Johanns” is inapplicable to
specialty license plate cases such as this. Bredesen, 441 F.3d
at 385.
[6] Although we agree with Judge Martin in that Johanns
is factually distinguishable, we believe that Johanns is
instructive when determining whether the message constitutes
government or private speech. In concluding that the beef pro-
gram represented government speech, the Court relied on fac-
tors similar to those set forth in the four-factor test. It
considered who controlled the speech, 544 U.S. at 560-61, the
purpose of the program, id. at 561, and the fact that the Secre-
tary of Agriculture exercised final editorial control over the
promotional campaign, id. We therefore adopt the Fourth Cir-
ARIZONA LIFE COALITION v. STANTON 1293
cuit’s four-factor test—supported by the Supreme Court’s
decision in Johanns—to determine whether messages con-
veyed through Arizona’s special organization plate program
constitute government or private speech.
2
i
The Commission argues that the “primary function of Ari-
zona license plates—including special plates—is the State’s
need to identify a vehicle and its owner.” It cites Kahn v.
Department of Motor Vehicles, 16 Cal. App. 4th 159 (Cal. Ct.
App. 1993), where the California Court of Appeal stated:
A vehicle license plate is a state-imposed display of
registered vehicle identification. That the state per-
mits license holders, for an additional fee, to vary
minimally their vehicle identification from the pre-
scribed form by selecting letter and/or number com-
binations which may reflect an individual’s personal
or professional identity, or possibly express a
thought or idea, is purely incidental to the primary
function of vehicle identification.
Id. at 166. Life Coalition argues that the speciality license
plates offer something more: “the opportunity to identify
themselves with individualized messages via these specialized
plates” as well as “the opportunity to benefit worthy organiza-
tions financially.”
We agree with Life Coalition. While the primary purpose
of any vehicle license plate is vehicle identification and regis-
tration, we are not concerned with the general validity of Ari-
zona’s licensing requirements. Cf. Rose, 361 F.3d at 793
(stating that the primary purpose of a South Carolina statute
authorizing a specialty license plate with the words “Choose
Life” was “to promote the State’s preference for the pro-life
1294 ARIZONA LIFE COALITION v. STANTON
position”); Sons of Confederate Veterans, Inc., 288 F.3d at
619-20 (stating that the primary purpose of Virginia’s special
plate program is to collect revenue); Choose Life Illinois, Inc.
v. White, 2007 WL 178455, *5 (N.D. Ill. Jan. 19, 2007) (con-
cluding that the purpose of the Illinois specialty plate program
is to “raise revenue for the state as well as to allow for some
private expression”). Rather, we must address Arizona’s spe-
ciality license plate program as a whole. See Sons of Confed-
erate Veterans, Inc., 288 F.3d at 619.
[7] By allowing organizations to obtain speciality license
plates with their logo and motto, Arizona is providing a forum
in which philanthropic organizations, see Ariz. Rev. Code
§ 28-2404(B), can exercise their First Amendment rights in
the hopes of raising money to support their cause. See Ariz.
Rev. Code § 28-2402(1) (setting the fee for specialty license
plates at twenty-five dollars); id. § 28-2404(F) (stating that
eight dollars of the fee is a specialty plate administration fee
and seventeen dollars is an annual donation to the organiza-
tion). As in Sons of Confederate Veterans, Inc., the fee struc-
ture for Arizona speciality plates suggests the program’s
revenue-producing aim. See 288 F.3d at 619. Before obtaining
approval from the Department, the organization must certify
that it either has 200 members or that it will agree to pay the
production and program costs for the special organization
plate. Ariz. Rev. Code § 28-2404(G)(2); cf. Sons of Confeder-
ate Veterans, Inc., 288 F.3d at 620 (“The very structure of the
program [—requiring 350 prepaid applicants—] ensures that
only special plate messages popular enough among private
individuals to produce a certain amount of revenue will be
expressed.”).
[8] The revenue raising purpose of the Arizona special
organization plate program supports a finding of private
speech.
ii
[9] The Commission’s de minimis editorial control over the
plate design and color does not support a finding that the mes-
ARIZONA LIFE COALITION v. STANTON 1295
sages conveyed by the organization constitute government
speech. The Arizona legislature has chosen to limit the license
plate forum to only those organizations that “serve[ ] the com-
munity, contribute[ ] to the welfare of others and [are] not
offensive or discriminatory in [their] purpose, nature, activity
or name.” Ariz. Rev. Stat. § 28-2404(B). In addition, the orga-
nizations cannot “promote a specific religion, faith or antireli-
gious belief.” Id.
However, as Life Coalition notes in its brief, the statutory
requirements address who may speak, not what they may say.
For instance, in Rose, the “Choose Life” license plate “origi-
nated with the State, and the legislature determined that the
plate will bear the message ‘Choose Life.’ ” 361 F.3d at 793.
Therefore, the state exercised control over the substantive
content of the speech. Cf. Sons of Confederate Veterans, Inc.,
288 F.3d at 621 (noting that Virginia’s license plate design
criteria “do[ ] not contain guidelines regarding the substantive
content of the plates or any indication of reasons, other than
failure to comply with size and space restrictions”); see also
Johanns, 544 U.S. at 561 (noting that the Secretary’s role in
the beef campaign extended beyond granting final approval or
rejection; government officials “also attend[ed] and partici-
pat[ed] in the open meetings at which proposals [we]re devel-
oped” (emphasis added)).
[10] In this case, the idea of a “Choose Life” license plate
originated with Life Coalition. While the Commission deter-
mined whether Life Coalition met the statutory guidelines for
gaining access to the license plate forum, Life Coalition deter-
mined the substantive content of their message. Cf. Wells, 257
F.3d at 1142 (concluding that this factor weighed in favor of
government speech because “there [wa]s no indication that
any of the [private speakers] even knew about the Happy Hol-
idays sign, much less exercised any editorial control over its
design or content”); Choose Life Illinois, 2007 WL 178455,
at *6 (stating that this factor weighed in favor of private
speech because “the idea and message of the Choose Life
1296 ARIZONA LIFE COALITION v. STANTON
plate originated with a private organization, Choose Life Illi-
nois, not the legislature”).
[11] Therefore, this factor weighs in favor of private
speech.
iii
[112] “[O]wnership of the means of communication [i]s a
valid consideration in determining whether [the license plate]
contained government speech.” Sons of Confederate Veterans,
Inc., 288 F.3d at 621; Wells, 257 F.3d at 1142. Therefore, the
fact that Arizona owns the special organization plates sup-
ports a finding that the State is the literal speaker. However,
in Wooley v. Maynard, 430 U.S. 705 (1997), the Supreme
Court indicated that messages conveyed through license
plates “implicate private speech interests because of the con-
nection of any message on the plate to the driver or owner of
the vehicle.” Sons of Confederate Veterans, Inc., 288 F.3d at
621 (discussing Wooley, 430 U.S. at 714-15); see also
Johanns, 544 U.S. at 557 (“[In Wooley,] we held that requir-
ing a New Hampshire couple to bear the State’s motto, ‘Live
Free or Die,’ on their cars’ license plates was an impermissi-
ble compulsion of expression.”).6 Relying on Wooley, most
6
In a letter of supplemental authority filed after oral argument, the Com-
mission directs us to the following statement from Pacific Gas & Electric
Co. v. Public Utilities Commission of Cal., 475 U.S. 1 (1986):
In Wooley v. Maynard, we held that New Hampshire could not
require two citizens to display a slogan on their license plates and
thereby “use their private property as a ‘mobile billboard’ for the
State’s ideological message.” The “private property” that was
used to spread the unwelcome message was the automobile, not
the license plate.
Id. at 17 (citation omitted). That statement does not undermine the senti-
ment, taken from Wooley, that license plate messages implicate private
speech. See Johanns, 544 U.S. at 557. We have no doubt that New Hamp-
shire’s motto, “Live Free or Die,” constitutes government speech. Never-
theless, it still implicated private speech interests because private
individuals were being compelled to spread that message through the use
of their vehicle. Here, however, the question is whether the message dis-
played on the license plate is itself private speech.
ARIZONA LIFE COALITION v. STANTON 1297
courts that have addressed vanity plates have concluded the
messages are private speech. Sons of Confederate Veterans,
Inc., 288 F.3d at 621 & n.9; see also Rose, 361 F.3d at 794
(“The literal speaker of the Choose Life message on the spe-
cialty plate therefore appears to be the vehicle owner, not the
State, just as the literal speaker of the bumper sticker message
is the vehicle owner, not the producer of the bumper stick-
er.”); Perry v. McDonald, 280 F.3d 159, 166 (2d Cir. 2001)
(stating that a restriction on vanity plates “concern[ed] private
individuals’ speech on government-owned property”); Lewis
v. Wilson, 253 F.3d 1077, 1079 (8th Cir. 2001) (characterizing
a restriction on vanity plates as a restriction on private
speech); Choose Life Illinois, 2007 WL 178455, *6 (conclud-
ing that a private individual is the literal speaker with spe-
cialty plates because they pay an extra fee to express a certain
message).
[13] This factor has characteristics of both private and gov-
ernment speech. Nevertheless, in this situation, where Life
Coalition’s logo depicting the faces of two young children
will also be displayed on the license plate supporting the mes-
sage “Choose Life,” we conclude that it weighs in favor of
finding this to be primarily private speech.
iv
[14] The question of who bears “ultimate responsibility”
for the “Choose Life” license plate is very similar to the ques-
tion of who is the literal speaker. See Rose, 361 F.3d at 794;
Sons of Confederate Veterans, Inc., 288 F.3d at 621.
“[P]rivate individual[s] choose[ ] to spend additional money
to obtain the plate and to display its pro-life message[s] on
[their] vehicle.” Rose, 361 F.3d at 794. Here, Life Coalition
submitted its motto to be placed on a speciality license plate
that would also identify the organization by name. Life Coali-
tion controlled the message of its special organization plate,
and the individual members who choose to purchase the plate
voluntarily choose to disperse that message. Cf. Johanns, 544
1298 ARIZONA LIFE COALITION v. STANTON
U.S. at 561 (noting that Congress directed implementation of
the promotional plan and that Congress and the Secretary
determined what the promotional campaigns shall contain);
Rose, 361 F.3d at 794 (finding that the drivers bore ultimate
responsibility for the “Choose Life” license plate authorized
by the State legislature).
It is true that, like the Secretary in Johanns, Arizona devel-
oped the program that allows nonprofit organizations such as
Life Coalition to obtain specialty license plates. However, in
Johanns the beef producers had no choice but to support the
beef ad. In comparison, there is nothing in the record to even
suggest that Arizona intended to adopt the message of each
special organization plate as its own state speech. Instead, the
burden is on the nonprofit organization. If it wants to convey
a certain message through the Arizona specialty plate pro-
gram, it must take the affirmative step of submitting an appli-
cation. This suggests that it is Life Coalition, rather than the
State of Arizona, that bears ultimate responsibility for the
content of the speech.
[15] We therefore hold that the “Choose Life” message dis-
played through a speciality license plate if issued by Arizona
would constitute private speech.
B
1
Having determined that the “Choose Life” message would
represent private speech, we must now determine whether the
Commission has acted appropriately under the First Amend-
ment. The first step in assessing a First Amendment claim
relating to private speech on government property is to “iden-
tify the nature of the forum, because the extent to which the
Government may limit access depends on whether the forum
is public or nonpublic.” Sammartano v. First Judicial Dist.
Court, 303 F.3d 959, 965 (9th Cir. 2002) (quoting Cornelius
ARIZONA LIFE COALITION v. STANTON 1299
v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 797
(1985)). In defining the forum, we must focus “on the access
sought by the speaker. When speakers seek general access to
public property, the forum encompasses that property. In
cases in which limited access is sought, [the Supreme Court’s]
cases have taken a more tailored approach to ascertain[ ] the
perimeters of a forum within the confines of the government
property.” Cornelius, 473 U.S. at 801 (citation omitted). Here,
the forum is Arizona license plates. Cf. Lehman v. City of
Shaker Heights, 418 U.S. 298, 300 (1974) (treating the adver-
tising spaces on city owned buses as the forum).
[16] “[A] public forum may be created by government des-
ignation of a place or channel of communication for use by
the public at large for assembly and speech, for use by certain
speakers, or for the discussion of certain subjects.” Cornelius,
473 U.S. at 802. In a designated public forum, speakers can-
not be excluded unless it is “necessary to serve a compelling
state interest” and the exclusion is “narrowly drawn to
achieve that interest.” Sammartano, 303 F.3d at 965 (internal
quotation marks omitted). We have further refined the con-
cept of “designated” public forum by carving out a sub-
category we call a “limited” public forum. See Hopper v. City
of Pasco, 241 F.3d 1067, 1074 (9th Cir. 2001) (“[A] limited
public forum is a sub-category of a designated public forum
that ‘refer[s] to a type of nonpublic forum that the government
has intentionally opened to certain groups or to certain top-
ics.’ ” (alteration in original) (quoting DiLoreto v. Downey
Unified Sch. Dist. Bd. of Educ., 196 F.3d 958, 965 (9th Cir.
1999))). The government may restrict speech in limited public
fora so long as the restrictions are “viewpoint neutral and rea-
sonable in light of the purpose served by the forum.” Id. at
1075 (internal quotation marks omitted).
The designated and limited public forum classifications
“ha[ve] been the source of much confusion.” Id. at 1074. A
limited public forum exists when the government intention-
ally opens a nonpublic forum to expressive activity by a cer-
1300 ARIZONA LIFE COALITION v. STANTON
tain class of speakers to address a particular class of topics.
Cogswell v. City of Seattle, 347 F.3d 809, 814 (9th Cir. 2003)
(citing Kaplan v. County of Los Angeles, 894 F.2d 1076, 1080
(9th Cir. 1990) (finding a limited public forum when “Califor-
nia created the [voters’] pamphlets for the specific purpose of
allowing a limited class of speakers, the candidates, to address
a particular class of topics, statements concerning the personal
background qualifications of each candidate”)).
[17] We have no trouble concluding that Arizona’s purpose
was to open up its license plate forum to a certain class of
organizations for expressive activity. Cf. Faith Ctr. Church
Evangelistic Ministries v. Glover, 480 F.3d 891, 908 (9th Cir.
2007) (stating that the County intended to open its library
meeting room to expressive activity when it allowed all
“[n]on-profit and civic organizations, for-profit organizations,
schools and governmental organizations” to use the meeting
room for “meetings, programs, or activities of educational,
cultural or community interest”) (internal quotation marks
omitted). As the Commission correctly notes in its brief,
“[h]istorically, Arizona’s license plates have served the purely
governmental function of vehicle and vehicle owner identifi-
cation and have been a nonpublic forum.” However, Arizona
took the affirmative step by passing its special license plate
legislation of allowing limited access to license plates pub-
licly displayed for expressive conduct as vehicles are driven
throughout the state. See Sons of Confederate Veterans, Inc.
v. Holcomb, 129 F. Supp. 2d 941, 948 (W.D. Va. 2001) (stat-
ing, in dicta, that “allowing groups to place various slogans
and designs on license plates represents the Commonwealth’s
intentional action to open up a nontraditional forum for public
discourse”).
Arizona’s speciality plate program encompasses a wide
range of philanthropic organizations with community based
programs/ideals. Section 28-2404(B) states that the Commis-
sion shall authorize a speciality license plate to all nonprofit
organizations that (1) “serve[ ] the community, contribute[ ]
ARIZONA LIFE COALITION v. STANTON 1301
to the welfare of others and [are] not offensive or discrimina-
tory in [their] purpose, nature, activity or name”; (2) has an
organizational name or purpose that “does not promote any
specific product or brand name . . . provided for sale”; and (3)
the organizations do not “promote a specific religion, faith, or
antireligious belief.”
Applying this statutory mandate, the Commission has
authorized, and the Department has issued, the following spe-
cial organization plates: (1) The University of Phoenix
Alumni Network (bearing the University’s identifier, “Univ.
of Phoenix”); (2) Associated Fire Fighters of Arizona (bearing
the Union’s motto, “Professional Fire Fighters”); (3) Fraternal
Order of Police (bearing the Order’s identifier, “Fraternal
Order of Police”); (4) Legion of Valor (bearing the Legion’s
identifier, “Legion of Valor”); and (5) Wildlife Conservation
Council (bearing the Council’s motto, “Conserving Wildlife”).7
In addition, the Commission has authorized six additional
license plates, but at the time of briefing this appeal we were
told the Department had yet to issue them because of factors
unrelated to this appeal: (1) Civil Air Patrol; (2) Arizona
Association of Future Farmers of America; (3) Rotary Inter-
national; (4) Arizona Hospice Palliative Care Organizations;
(5) Red Means Stop Coalition; and (6) Arizona Historical
Society.
Nevertheless, “[a] policy with a broad purpose . . . is not
dispositive of an intent to create a public forum by designa-
tion.” Faith Ctr. Church Evangelistic Ministries, 480 F.3d at
909. We must therefore look closely at the Commission’s pol-
icy and practice to determine whether Arizona intended the
speciality plate forum to be “open for indiscriminate use.” Id.
In other words, if Arizona intended only to open the forum to
“certain groups or to certain topics,” it has created only a lim-
7
The parties stipulated to this fact in filings before the district court. We
do not know whether, since the inception of this appeal, the Commission
has authorized the making of any other speciality license plates.
1302 ARIZONA LIFE COALITION v. STANTON
ited public forum. Cogswell, 347 F.3d at 814 (internal quota-
tion marks omitted). For instance, despite Contra Costa
County’s broad purpose in opening its library meeting room
to public use, we held in Faith Center Church Evangelistic
Ministries that the County created a limited public forum
because the “County’s policy excludes schools from using the
meeting room ‘for instructional purposes as a regular part of
the curriculum’ and organizations who wish to engage in
‘religious services.’ ” 480 F.3d at 909. In addition, “the policy
requires a potential user to submit an application describing
the intended use and identifying the applicant,” and the “ap-
plication must be reviewed and approved in advance by the
County.” Id.
[18] Similarly, Arizona by statute restricts its speciality
license plate program to only nonprofit organizations with
community driven purposes that do not promote a specific
religion, faith or antireligious belief. Ariz. Rev. Stat. § 28-
2404(B). To gain access, the nonprofit organization must have
its application reviewed and approved by the Commission. Cf.
Cornelius, 473 U.S. at 803; Perry, 280 F.3d at 168 (citing the
fact that Vermont vehicle owners must obtain permission to
receive vanity plates to support its finding of a nonpublic
forum). These are not abstract policy statements, but are defi-
nite and unambiguous restrictions on gaining access to the
forum. See Hopper, 241 F.3d at 1077 (citing Christ’s Bride
Ministries, Inc. v. Se. Pa. Transp. Auth., 148 F.3d 242 (3d Cir.
1998)).
[19] From the record before us, it is also clear that the
Commission has consistently applied the access restrictions
when reviewing pending applications. See Faith Ctr. Church
Evangelistic Ministries, 480 F.3d at 909 (citing Hopper, 241
F.3d at 1076 (“[C]onsistency in application is the hallmark of
any policy designed to preserve the non-public status of a
forum.”)). In addition to Life Coalition’s application, the
Commission has denied two other applications for speciality
license plates. The Commission unanimously denied Interna-
ARIZONA LIFE COALITION v. STANTON 1303
tional Dark Sky Society’s application because its suggested
“dark blue sky” motif would replace the standard Arizona
license plate motif in violation of other statutory require-
ments. See Ariz. Rev. Stat. § 28-2403(a)(2). The Commission
also denied an application submitted by Embry-Riddle Aero-
nautical University, explaining that Arizona universities had
to obtain legislative plates, whereas only alumni associations
may obtain the special organization license plates. In compar-
ison to the city in Hopper, through the License Plate Commis-
sion, Arizona has retained some substantive control over the
content of its speciality license plate program. See 241 F.3d
at 1078 (stating that the city failed to consistently enforce its
“non-controversy” policy as it “neither pre-screened submit-
ted works, nor exercised its asserted right to exclude works”).
[20] Finally, we note that the nature of the forum also sup-
ports a conclusion that Arizona intended only to create a lim-
ited public forum. See Faith Center Church Evangelical
Ministries, 480 F.3d at 910. As the Second Circuit noted in
Perry, the primary purpose in issuing license plates in general
is to aid in vehicle identification. 280 F.3d at 167. However,
one of the primary purposes in issuing vanity license plates
(and, in turn, special organization plates) is to raise revenue.
Id. Nevertheless, given the general overarching purpose of
aiding in vehicle identification, expression through vanity
plates (and, in turn, special organization plates) is subject to
numerous restrictions with the general public having only lim-
ited access. Id. We therefore conclude that Arizona’s special-
ity license plate program is a limited public forum, and that
any access restriction must be viewpoint neutral and reason-
able in light of the purpose served by the forum. See Faith
Center Church Evangelical Ministries, 480 F.3d at 910 (citing
Cornelius, 473 U.S. at 806).
2
i
The distinction between viewpoint discrimination and
content-based discrimination is not precise. Rosenberger, 515
1304 ARIZONA LIFE COALITION v. STANTON
U.S. at 831. The Commission contends that it did not engage
in viewpoint discrimination because it “did not grant a special
organization plate to a group with a viewpoint in opposition
to Life Coalition’s” and therefore, “[n]either side of the
‘Choose Life’ issue is represented by a special organization
plate.” The Supreme Court rejected a similar argument in
Rosenberger, where it found a First Amendment violation
when a public university withheld funding to a student publi-
cation because its paper “primarily promote[d] or mani-
fest[ed] a particular belie[f] in or about a deity or an ultimate
reality.” 515 U.S. at 823 (internal citations omitted; alter-
ations in original). The dissent argued that the University did
not engage in viewpoint discrimination because it limited all
religious speech, both theistic and atheistic. Id. at 831. The
majority rejected this argument, stating
The dissent’s assertion that no viewpoint discrimina-
tion occurs because the Guidelines discriminate
against an entire class of viewpoints reflects an
insupportable assumption that all debate is bipolar
and that antireligious speech is the only response to
religious speech. Our understanding of the complex
and multifaceted nature of public discourse has not
embraced such a contrived description of the market-
place of ideas. If the topic of debate is, for example,
racism, then exclusion of several views on that prob-
lem is just as offensive to the First Amendment as
exclusion of only one. It is as objectionable to
exclude both a theistic and an atheistic perspective
on the debate as it is to exclude one, the other, or yet
another political, economic or social viewpoint.
Id.
[21] Unlike the University system in Rosenberger, the Ari-
zona statutes do not expressly prohibit abortion-related speech
in the license plate forum. Cf. id. (stating that the Guidelines
prohibit religious activity). Rather, the State has opened this
ARIZONA LIFE COALITION v. STANTON 1305
forum to all organizations that serve the community and con-
tribute to the welfare of others in a nondiscriminatory way.
Ariz. Rev. Stat. § 28-2404(B)(1). The Commission does not
argue that Life Coalition failed to meet this statutory require-
ment. Instead, the only justification the Commission can give
for denying Life Coalition’s application is that it chose not to
enter the Choose Life/Pro-Choice debate. And “where the
government is plainly motivated by the nature of the message
rather than the limitations of the forum or a specific risk
within that forum, it is regulating a viewpoint rather than a
subject matter.” Sammartano, 303 F.3d at 971; see also
Choose Life Illinois, Inc., 2007 WL 178455, *8 (stating in
dicta that the denial of an application for a “Choose Life”
license plate because it is “controversial” amounts to view-
point discrimination).
Moreover, during the August 2002 hearing, the Commis-
sioners expressed concerns that, if they granted Life Coali-
tion’s application, groups with opposing viewpoints would
file applications for their own special organization plate. Pre-
venting Life Coalition from expressing its viewpoint out of a
fear that other groups would express opposing views seems to
be a clear form of viewpoint discrimination. As we previously
stated in Hopper, “[a] ban on ‘controversial [speech]’ may all
too easily lend itself to viewpoint discrimination.” 241 F.3d
at 1079. Restrictions based on community standards of
decency must be based on “objective criteria set out in
advance.” Id. at 1080.
Admittedly, this is a difficult issue. “The line between an
acceptable subject matter limitation and unconstitutional
viewpoint discrimination is not a bright one.” Cogswell, 347
F.3d at 815. One thing is clear, “once the government has
chosen to permit discussion of certain subject matters, it may
not then silence speakers who address those subject matters
from a particular perspective.” Id.
[22] Arizona has created a limited public forum for non-
profit organizations. The only substantive restriction is that
1306 ARIZONA LIFE COALITION v. STANTON
the license plate cannot promote a specific product for sale,
or a specific religion, faith, or antireligious belief. Nowhere
does the statute create objective criteria for limiting “contro-
versial” material, and nowhere does the statute prohibit
speech related to abortion. Cf. Cogswell, 347 F.3d at 815
(finding restriction prohibiting candidates from discussing
their opponents’ views viewpoint neutral because the limited
public forum was limited to candidate self-discussion and the
submitted material included subject matter not included in the
limited public forum). Consequently, because abortion-related
speech falls within the boundaries of Arizona’s limited public
forum, and because the Commission clearly denied the appli-
cation based on the nature of the message, we conclude the
Commission’s actions were viewpoint discriminatory.
ii
We also hold that the Commission acted unreasonably by
denying Life Coalition’s application for reasons not statu-
torily based or related to the purpose of the limited public
forum. “The reasonableness of a governmental restriction lim-
iting access to a nonpublic forum must be assessed ‘in light
of the purpose of the forum and all of the surrounding circum-
stances.’ ” Id. at 817 (quoting Cornelius, 473 U.S. at 789).
“The reasonableness analysis emphasizes the consistency of
the limitation in the context of the forum’s intended purpose.”
Id.
[23] The Commission, in fulfilling the legislature’s intent
to allow nonprofit organizations a means to promote their
community-based cause to the public in the hopes of raising
awareness and revenue, regulates access to the forum to pre-
serve its community-based function and protect the primary
function of license plates: to aid in vehicle identification. The
Commission does not dispute that Life Coalition has met each
of the statutory requirements. It is an organization that bene-
fits the community without promoting the sale of a product or
any religious, faith, or antireligious belief. Nor does the Com-
ARIZONA LIFE COALITION v. STANTON 1307
mission contend that Life Coalition’s special organization
plate will interfere with vehicle identification. In other words,
it fits within the program’s purpose. When an organization
meets the requirements, the statute provides that “[t]he
[C]ommission shall authorize a special organization plate.”
Ariz. Rev. Stat. § 28-2404(B) (emphasis added). By denying
Life Coalition’s application, although the organization and its
message complied with the limited public forum’s purpose as
it is currently defined under Arizona law, the Commission
ignored its statutory mandate and acted unreasonably in viola-
tion of the First Amendment to the United States Constitution.8
IV
We recognize that Arizona has a legitimate interest in regu-
lating controversial material displayed publicly on govern-
ment property. Nevertheless, we are mindful of potential
constitutional problems when government officials are given
unbridled discretion in regulating speech, even in limited pub-
lic fora. Arizona has defined the outer limits of its speciality
license plate program, and Life Coalition fits within those
statutory boundaries. Because the Commission denied Life
Coalition’s application on a ground not expressly related to
the forum’s purpose by discriminating on the basis of the
viewpoint contained in its proposed message, we conclude
that the Commission acted in violation of the First Amend-
ment. We therefore reverse the district court’s grant of sum-
mary judgment in favor of the Commission. The cause is
remanded for entry of judgment in favor of Arizona Life
Coalition on its First Amendment claim and such further pro-
ceedings as are necessary to ensure that its specialty license
8
Given our holding, we will not address Life Coalition’s claim that the
Commission also violated its equal protection rights under the Fourteenth
Amendment, or that section 28-2404 is unconstitutionally vague. ACLU of
Nev. v. City of Las Vegas, 466 F.3d 784, 797 n.15 (9th Cir. 2006) (declin-
ing to address equal protection arguments after finding the ordinance vio-
lated the First Amendment); Cinevision Corp. v. City of Burbank, 745
F.2d 560, 571 n.11 (9th Cir. 1984) (same).
1308 ARIZONA LIFE COALITION v. STANTON
plate application is approved by the Arizona License Plate
Commission.
REVERSED and REMANDED.