N.C. can't offer only 'Choose Life' license plates, federal judge rules

The News & Observer (Raleigh, N.C.)December 10, 2012 

— A federal judge has ruled that North Carolina cannot issue “Choose Life” license plates without offering a choice of plates with alternate viewpoints.

The decision on Friday by U.S. District Court Judge James Fox was praised by pro-choice advocates in the abortion debate and representatives of the American Civil Liberties Union behind the lawsuit.

The ACLU filed suit in 2011, challenging a decision by the Republican-led legislature to offer “Choose Life” specialty plates, but not plates with a pro-choice message.

Fox, 84, based in Wilmington, ruled the legislature’s decision was unconstitutional, saying it was “viewpoint discrimination in violation of the First Amendment.”

The ruling sparked a litany of criticism and opposing arguments from pro-life advocates. One legal analyst, who served as a consultant for defendants of the “Choose Life” plate, posed a question about whether the ruling meant the state now will have to offer a “Kill The Sea Turtles” license plate to counter the “Save The Sea Turtles” one.

“The ruling has implications for other things as well,” said Scott Gaylor, an Elon University law professor who teaches First Amendment and constitutional law.

Fox’s ruling comes 15 months after the American Civil Liberties Union filed a lawsuit on behalf of four “pro-choice automobile owners” who contended the “Choose Life” plates were state-sponsored discrimination.

Attempts failed to persuade the Republican-led legislature to amend legislation to include plates with such phrases as “Respect Choice” or “Trust Women. Respect Choice.”

Rep. Mitch Gillespie, a Republican from a district that includes Burke, Caldwell and McDowell counties, was the sponsor of the legislation. He said Monday that he had tried for 14 years to get a “Choose Life” plate as part of the specialty program under the state Division of Motor Vehicles.

In 2011, when Republicans had control of the House of Representatives and the Senate for the first time in a century, Gillespie introduced his bill for a specialty plate. The proceeds would be routed to the Carolina Pregnancy Care Fellowship, a nonprofit pregnancy care ministry.

That year, there was an abundance of specialty-plate requests and Gillespie said he offered to include them all in one bill.

Pro-choice advocates sought inclusion in the bill, Gillespie said, but he did not want their message, one he politically opposed, in legislation he sponsored.

“I don’t have a problem with them having their side of the opinion heard, but I would not like it to be under my name,” Gillespie said Monday.

Gillespie said he planned to present a letter to Roy Cooper, the state attorney general, seeking legal aid from his office on an appeal of Fox’s ruling. He also said he would attempt to get the plate through other legislative action, either by turning the decision making over to the Division of Motor Vehicles or introducing a bill again.

“As long as I’m in the General Assembly, my goal will be to get that passed,” Gillespie said.

Noelle Talley, a spokeswoman for Cooper, said Monday lawyers were reviewing the ruling. No decision had been made on whether to appeal.


Government speech isn’t subject to scrutiny under the free speech clause of the First Amendment, according to a 2009 decision by the U.S. Supreme Court. In Fox’s ruling, he said the plates were not purely governmental speech.

“The court finds that this conclusion is in keeping with the common-sense notion that the North Carolina specialty plate program as a whole, and the Choose Life plates in particular, are, at bottom, a government-sponsored avenue to encourage private speech,” Fox said in his ruling.

In 2004, the 4th U.S. Circuit Court of Appeals upheld a South Carolina judge’s ruling that the “Choose Life” plates approved by lawmakers in that state were unconstitutional because they provided one group a forum to express its beliefs without doing the same for those who held a different view. The U.S. Supreme Court declined to hear the case.

No “Choose Life” plates have been issued. Fox halted sales while the ACLU lawsuit was pending.

“This is a great victory for the free speech rights of all North Carolinians, regardless of their point of view on reproductive freedom,” Chris Brook, legal director of the ACLU’s N.C. Legal Foundation, said in a statement. “The government cannot create an avenue of expression for one side of a contentious political issue while denying an equal opportunity to citizens with the opposite view.”

As for the sea turtle argument Brook said, “For there to be unconstitutional viewpoint discrimination there must be dueling viewpoints. Until there is a group devoted to turtle destruction, there aren’t exactly the same concerns in that example as the current controversy.”

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