Supreme Court Decision Supports Choose Life License Plates in North Carolina

State   Steven Ertelt   Jun 29, 2015   |   10:11AM    Washington, DC

In a victory for pro-life advocates, the Supreme Court today reversed a lower court decision striking down Choose Life license plates in North Carolina. Legislators in the Tar Heel State had petitioned the U.S. Supreme Court to review a decision by the U.S. Court of Appeals for the 4th Circuit that barred the state from issuing “Choose Life” license plates.

Attorneys for Thom Tillis, speaker of the North Carolina House of Representatives, and Phil Berger, president pro tempore of the North Carolina Senate, asked the High Court to determine whether a 2011 law creating the specialty license plate is constitutional.

“State governments have a right to advance messages consistent with their public policies,” said Alliance Defending Freedom [ADF] Senior Counsel Casey Mattox. “The Supreme Court has already affirmed that right. North Carolinians support protecting life and helping pregnant women in need; the First Amendment does not require the state to bow to demands that it censor the ‘Choose Life’ message.”

“Across the country, groups like the ACLU have tried to use the high court’s First Amendment speech cases to censor government expression,” Elon University School of Law Professor Scott Gaylord added. “Such efforts are not only inconsistent with the purpose of the First Amendment, but also with the Supreme Court’s government speech precedents.”

The Supreme Court vacated the decision and ordered the U.S. Court of Appeals for the 4th Circuit to reconsider the case in light of the high court’s June 18 decision in another license plate case, Walker v. Texas Division, Sons of Confederate Veterans.

In February, the 4th Circuit upheld a district court decision that prohibited the state from issuing “Choose Life” plates unless it also issued a pro-abortion plate. That prompted Alliance Defending Freedom attorneys and an allied attorney representing Phil Berger, president pro tempore of the North Carolina Senate, and Thom Tillis, then speaker of the North Carolina House of Representatives (now a U.S. senator) to ask the U.S. Supreme Court to hear the case, Berger v. American Civil Liberties Union of North Carolina.

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“The First Amendment does not allow groups like the ACLU to suppress a state’s positive message just because the state does not also simultaneously approve a conflicting negative message,” said ADF Senior Counsel Steven H. Aden. “Citizens of North Carolina have the freedom to promote messages on their vehicles that their legislature has expressly adopted through license plate legislation.”

In the Walker case, the Supreme Court held that Texas’s license plate program constituted government speech, and that Texas therefore could reject plates with messages that contradicted the state’s public policy.

“Third parties like the ACLU cannot sanitize the public square of views a state communicates simply because they do not like those messages,” added lead counsel Scott Gaylord, one of more than 2,500 private attorneys allied with ADF and a professor of law at Elon University School of Law. “As the Supreme Court made clear in Walker, the attempt to censor a message like North Carolina’s ‘Choose Life’ message is inconsistent with both the purpose of the First Amendment and the Supreme Court’s government speech precedents.”

In 2011, the North Carolina General Assembly authorized an optional “Choose Life” specialty license plate. Citizens who choose the plate pay an additional $25 fee, $15 of which goes to the Carolina Pregnancy Care Fellowship, a private organization that assists pregnant women in North Carolina. The state offers other specialty plates that also fund causes benefitting the state and that are consistent with its public policies.

Hundreds of North Carolinians requested the “Choose Life” specialty plates, but before North Carolina could begin issuing them, the ACLU challenged the law. The ACLU argued that the “Choose Life” plate must be censored because the state did not also issue a license plate that encourages abortion, even though encouraging abortions is contrary to the state’s interests and public policy.

U.S. District Court Judge James C. Fox ruled against the law because “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”

In February 2014, a divided panel of the U.S. Court of Appeals for the 4th Circuit upheld his decision.

“Pro-life people worked hard to get this ‘Choose Life’ license plate,” said Barbara Holt, President of North Carolina Right to Life. “They will be the ones who will purchase them. The extra money they voluntarily pay for the plate will go toward encouraging adoption.”

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