American Civil Liberties Union v. Tata, No. 13-1030 (4th Cir. 2014)
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North Carolina's House Bill 289 authorized the state's Division of Motor Vehicles to issue, among other specialty license plates, a "Choose Life" plate. However, this law authorized no pro-choice specialty license plate. North Carolina vehicle owners who wanted a pro-choice specialty plate, along with the ACLU, filed suit challenging the statute. North Carolina argued that it could so discriminate because specialty plate messages constituted pure government speech free from First Amendment viewpoint-neutrality constraints. The court concluded that, because the specialty plate speech at issue implicated private speech rights and was not pure government speech, North Carolina's authorizing a "Choose Life" plate while refusing to authorize a pro-choice plate constituted viewpoint discrimination in violation of the First Amendment. Accordingly, the court affirmed the district court's grant of summary judgment and a permanent injunction in favor of the vehicle owners and the ACLU.
The court issued a subsequent related opinion or order on March 10, 2016.
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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 abridging the freedom of speech . . . . of any law U.S. Const. amend. I. Premised on mistrust of governmental power, the First Amendment stands against viewpoints. attempts disfavor certain subjects or Citizens United v. Fed. Election Comm n, 558 U.S. 310, 340 (2010). prohibits to are Chief amongst the evils the First Amendment government restrictions distinguishing among different speakers, allowing speech by some but not others. Id. In privilege this case, speech reproductive North on Carolina side one seeks a choice while of to hotly silencing do just debated opposing that: issue 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 speech free constraints. 1 2 plate from messages First constitute Amendment government viewpoint-neutrality With this, we cannot agree. http://www.ncdot.gov/dmv/vehicle/plates/. http://www.ncdot.gov/dmv/online/. 3 pure The Supreme Court and this Court have recognized individual speech interests in license plate messages. too, the speech specialty rights, plate speech thus First and at And in this case, issue implicates protections Amendment private 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 Vehicles ( NC to DMV ) North issue, plates, a Choose Life plate. Carolina among Division other of specialty Motor license 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. 4 N.C. 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 is Highway Fund, plates. N.C. Gen. collected from Choose as Stat. § Life the case with 20-79.7(b). plates are other Further, expressly specialty the funds 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. vehicle owner Over two Once the NC DMV issues the plate, any interested registered hundred in specialty North plates Carolina are may purchase available, and it. 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 their causes. common interests to promote themselves and/or 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 District the of Department United North of States District Carolina. Court They ( NC Transportation sued DOT ) for the the North and Eastern Carolina the NC DMV (collectively called North Carolina ) for First and Fourteenth Amendment violations. In December 2011, the district court granted a preliminary injunction blocking Life plate. North Carolina district issuing the Choose Am. Civil Liberties Union of N.C. v. Conti, 835 F. Supp. 2d 51 (E.D.N.C. 2011). the from court granted One year later, in December 2012, summary judgment and permanently enjoined the Choose Life plate. Am. Civil Liberties Union of N.C. 363 v. Conti, 912 F. district court held, Supp. among 2d other (E.D.N.C. things, 2012). that The 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. 375. North Carolina appealed, and our review is Id. at 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 pure plate embodies 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). that the government may not regulate speech substantive content or the message it conveys. follow from this precept. It is axiomatic based on its Other principles 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. 829. Indeed, the Supreme Court has called Id. at 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 restriction. By the speaker is the rationale for the in its own Clause and its Id. at 829. contrast, if expressive conduct, viewpoint neutrality the then government the Free requirements engages Speech have no application. Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 467 (2009). Indeed, under imprecise the government relatively speech new, doctrine, and Johanns correspondingly 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 speech may implicate the be Supreme not both, Court purely this has not government Court has. yet or recognized private In Sons of but that instead 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. 610 (4th Cir. 2002). at issue private regarding the 288 F.3d While the panel opinion deemed the speech only, denial Judge of Luttig, rehearing in a en separate banc, opinion 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 forum and consequence that is the both private message are being that it is and governmental essentially difficult if because inseparable, not impossible the the 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. as here, alleged unconstitutional Id. at 787 88. that in viewpoint doing so, The plaintiffs in Rose, the discrimination. state Id. engaged Deeming in 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. 4 Id. at 795-99. 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 private determine parties, whether or speech is this Court both, that of looks the to government, 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). we lopped exclusive off focus several on According to North Carolina, in Page of the SCV of the control determine whose message it is. factors message in in favor of an question to We disagree. First, we note that a panel of this court cannot overrule, 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). 11 Page, 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, speech. as well as who establishes Page, 531 F.3d at 281. and controls the 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. I, 288 F.3d at 619. SCV Therefore even Page does not support our having embraced a single-factor approach to determining who is speaking. Further, employed the in SCV opinions factors postdating to identify Page, the we explicitly 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. Br. at 7. Appellants 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 license plate cases. factually distinguishable from specialty 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. omitted). 13 Id. (quotation marks 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 Court While doing so, the Supreme 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 Johanns, 544 unconstitutional U.S. at 565 n.8 Barnette, 319 U.S. 624 (1943)). under the (citing First and Amendment. distinguishing 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. Summum, the monuments, Supreme Court held that including those designed Specifically, in placement and of donated permanent by private entities, in a city park constitutes government speech. U.S. at 481. control 555 As in Johanns, the Supreme Court considered the 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. Additionally, context mattered in Summum. Id. The Supreme Court focused on the fact that public parks can accommodate only a limited number of permanent monuments. the Court noted, [s]peakers, no matter Id. at 478. how As 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. 557 (1995). 515 U.S. 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. U.S. at 573). Appellants Br. at 4 (quoting Hurley, 515 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 6 to include amongst their 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 organizers First Amendment rights. opposed violated the 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, 299300 (4th Cir. 2009); Rose, 361 F.3d at 794. considering the SCV factors led to the In other cases, 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 identified whether concluded in speech SCV is that remain the instructive appropriate government, private, tools or factors for both, we evaluating 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 causes. nothing interests to promote themselves http://www.ncdot.gov/dmv/online/. before us suggests that North and/or By Carolina their contrast, 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 only specialty license plate 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. Gen. Stat. § 20-79.7. N.C. 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 plates also weigh in favor of private speech. of specialty 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 20 the religious (Knights of Columbus, a civic organization which requires members to be practicing Catholics, Roach v. Stouffer, 560 F.3d 860, 868 (8th Cir. 2009)), North to the Carolina universities). seemingly government irrelevant interest to any (e.g., conceivable out-of-state 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. ). that complete editorial And the parties themselves agree 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. 21 In coming to that 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 intellect and Amendment to state spirit our control. Id. words, private which at intellect 715 that it Constitution Supreme the measure invades is the to reserve (quotation the purpose marks Court deemed license and spirit that from of all omitted). plates sphere a the First official In other sphere implicat[es] Amendment protections from government control. of of First 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. at 244 (Williams, J.). SCV II, 305 F.3d 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 individual. the private speech of that organization or 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 plate specialty license plates, such as the dance 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 property. deny that specialty license plates are state Nor do we deny that even specialty plates, which must be authorized by state law, to some extent bear North Carolina s imprimatur. including Nevertheless, the copious specialty license plates, 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 23 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, ultimate we conclude responsibility private speech. is must really the for that the the speech, fourth factor, weighs in favor the of When a special license plate is purchased, it private citizen who engages the government to publish his message, not the other way around. SCV II, 305 F.3d at 246 (Luttig, J.). specialty but for the private license plate would individual s action, exist. North Carolina drivers must apply for the specialty Id. the Indeed never 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 suggests that plate the speech specialty at issue plate is speech private, is while one 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 Conti, 912 F. Supp. 2d at 375. 24 purely government speech. 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 properly be characterized as solely government speech. cannot 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 Circuit, (2d held in Cir. 2001). Bredesen The that sole outlier, Tennessee s Choose specialty plate constituted pure government speech. 370. the Sixth Life 441 F.3d 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, specialty North plates are viewpoint-discriminate Carolina argues government free from only speech, First that Amendment its Carolina North because can constraints. North Carolina did not argue, for example, that even if we were to deem wins. specialty plates mixed speech, North Carolina still North Carolina did not challenge in any way the district 25 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 discrimination in violation of the First Amendment. F. Supp. 2d at 375. viewpoint Conti, 912 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. with Appellants Br. at 30. North Carolina s This complaint seems at odds 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. ruling today Appellants Br. at 27-29. does not render [North] Melodrama aside, our Carolina regulate its specialty license plate forum. 799. powerless to Rose, 361 F.3d at But it must do so in a viewpoint-neutral fashion which it 26 already does, to some extent, by requiring three applicants before issuing a new specialty plate. hundred 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: the reproductive example, North Carolina can choose to avoid choice excluded the debate entire specialty-plate program. altogether. subject of Illinois, abortion White, 547 F.3d at 865. for from its 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. perspective or favored It has not disfavored any particular one perspective over another on subject; instead, the restriction is viewpoint neutral. 866. But see Stanton, 515 F.3d 956. that Id. at After all, [i]t is one thing for states to use license plates to celebrate birds and butterflies privilege . . private fundamental . . It is speech on moral, quite one religious, another side-and or for one political the side state to only-of a 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). 27 III. In sum, North Carolina invites its vehicle owners to [m]ake a statement and promote themselves but only if they are on issue. the government s side of a highly This, North Carolina may not do. divisive political 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 28
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