March 10, 2016 – North Carolina Drivers Can “Choose Life”

License plates in North Carolina have had a litigious history.

On February 11, 2014, the U.S. Court of Appeals for the Fourth Circuit ruled that the State of North Carolina would not be allowed to produce “Choose Life” license plates without offering a pro-choice alternative.

The panel of judges unanimously struck down as unconstitutional a law passed by the North Carolina General Assembly in June, 2011 which would have allowed North Carolina drivers to buy a pro-life license plate for $25, with no option for a pro-choice alternative. The Court wrote:

Chief amongst the evils the First Amendment prohibits are government “restrictions distinguishing among different speakers, allowing speech by some but not others.” … 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,” and “promote themselves and/or their causes” 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. [footnotes omitted]”

During the same 2011 legislative session, lawmakers voted down amendments to the bill for additional license plate options that would read either “Trust Women. Respect Choice.” or “Respect Choice.”

Certiorari was granted by U.S. Supreme Court, June 29, 2015 and it was vacated and remanded by the Court on June 29, 2015 in light of the decision in Walker v. Texas Div., 135 S. Ct. 2239 (2015). Therein the Court held, in an opinion delivered by Justice Breyer: “Texas’s specialty license plate designs constitute government speech and that Texas was consequently entitled to refuse to issue plates featuring [the plaintiff’s] proposed [Confederate battle flag] design.” Walker, 135 S. Ct. at 2253.  

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On March 10, 2016, the 4th U.S. Circuit Court of Appeals ruled (No. 13-1030) that North Carolina could in fact issue just the “Choose Life” license plates. The court found that “[t]he specialty license plate program at issue here is substantively indistinguishable from that in Walker, and the Walker Court’s analysis is dispositive of the issues in this case.” Thus the 4th Circuit, following Walker, decided that the license plates amounted to government speech, and that North Carolina officials could reject messages with which the state disagrees. (See Walker, 135 S. Ct. at 2245 (“When government speaks, it is not barred by the Free Speech Clause from determining the content of what it says.”)

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