'Choose Life' plates unconstitutional

by Craig Jarvis, News and Observer, February 12, 2014.

A federal appeals court on Tuesday ruled that North Carolina’s attempt to offer a “Choose Life” license plate and not provide an abortion-rights alternative was unconstitutional.

The ruling is the third time one of the Republican-led General Assembly’s abortion laws has been struck down over the past three years.

The U.S. Court of Appeals for the Fourth Circuit ruled in a 3-0 opinion written by Judge James Wynn of North Carolina.

“Chief amongst the evils the First Amendment prohibits are government ‘restrictions distinguishing among different speakers, allowing speech by some but not others,’ ” Wynn wrote, quoting the U.S. Supreme Court decision on campaign financing known as Citizens United. “In this case, North Carolina seeks to do just that: privilege speech on one side of the hotly debated issue – reproductive choice – while silencing opposing voices.”

The ruling came in a lawsuit filed against the state by the American Civil Liberties Union of North Carolina Legal Foundation. ACLU legal director Chris Brooks said the ACLU would have made the same argument if the situation was reversed and the state was allowing only a pro-choice license plate.

“Today’s ruling protects the right of North Carolinians of all political beliefs to have equal access to avenues for free speech,” Brooks said in a statement the organization released.

John Rustin, president of the N.C. Family Policy Council, said he hopes the state will continue to fight for the license plates.

“We encourage the State of North Carolina to continue its defense of this important law,” Rustin said.

The license plates were never on the street, because U.S. District Court Judge James Fox in November 2011 temporarily blocked the law, and then ruled in December 2012 that the plates were unconstitutional viewpoint discrimination. The state attorney general appealed, and the case was heard by the appeals court in Richmond, Va., in October.

North Carolina argued that the license plates constituted permissible “government speech” expressed by the state’s elected officials, not private speech. Government speech isn’t subject to scrutiny under the free speech clause of the First Amendment, according to the U.S. Supreme Court.

The Fourth Circuit in 2002 ruled that Virginia’s ban on the plates with the confederate flag was unconstitutional. Out of that case came the view that some speech is both private and government, and the case established factors for determining private versus government speech

The appeals court also ruled in 2004 that a similar “Choose Life” license plate law in South Carolina was unconstitutional, while implicating a mixture of private and government speech rights.

Wynn wrote that in the North Carolina case there were more factors indicating private speech than government speech.

Carl Tobias, a law professor at the University of Richmond, said the Fourth Circuit’s precedent rulings are well-established, and are the reason Virginia has an abortion-rights license plate as well as a “Choose Life” plate.

“It is unclear to me why North Carolina chose to fight this losing battle and will now have to pay attorneys’ fees,” Tobias said.

The attorney general’s office had no comment on the ruling Tuesday.

Another federal appeals court – the Sixth Circuit – has ruled to the contrary in a “Choose Life” case from Tennessee, and the U.S. Supreme Court has not dealt with the license plates issue directly.

The General Assembly approved a bill authorizing a number of new specialty license plates in June 2011. Democratic lawmakers were unsuccessful in several attempts to amend the bill to include plates with an alternative view, such as “Respect Choice.”

The plates would have cost $25 a year, with $10 going to the state highway fund and $15 to an umbrella organization that promotes alternatives to abortion through “crisis pregnancy centers.”

The funding scheme is part of a national effort to promote similar license plates across the country.

Federal judges have also struck down recent North Carolina laws that defunded Planned Parenthood and that required doctors to narrate and display ultrasound images in the days and hours before an abortion. The ultrasound ruling is under appeal.

Chief Judge William B. Traxler and Judge George L. Russell III from the U.S. District Court in Maryland were also on the panel.