Berger, Moore win victory as Supreme Court sends ‘Choose Life’ plate case back for review

northcarolinachooselifeRALEIGH – In a victory for the General Assembly leadership, the U.S. Supreme Court has sent a legal fight over a North Carolina “Choose Life” license plate back to the 4th Circuit Court of Appeals for reconsideration. The nation’s high court vacated the federals appeals court and told it to reconsider its ruling striking down the Choose Life plate in light of a recent ruling by the Supreme Court that held that government-issued license plates are government speech and thus states can reject messages that are contrary to public policy.

The North Carolina case, Berger v. American Civil Liberties Union, pits the General Assembly and pro-life groups against the ACLU, which argued that the state cannot issue a pro-life plate without a pro-choice plate being authorized as well. As with other specialty license plates in the state, proceeds from drivers who choose to buy a Choose Life plate go to a third-party organization, in this case the Carolina Pregnancy Care Fellowship, a group that assists pregnant women in North Carolina.

ACLU legal director Chris Brook said he was expecting the development considering the high court’s decision in the Texas case, Walker v. Sons of Confederate Veterans.

“The Walker case held that specialty license plates constitute government speech, and further, that when the government is speaking it can engage in viewpoint discrimination,” said Brook.

The General Assembly argued that what Brook calls viewpoint discrimination is simply the state making a policy choice. The opinion in the Walker case would seem to support that view over Brook’s. The court wrote that “it is the democratic electoral process that first and foremost provides a check on government speech,” and pointed out that advancing certain government goals (recycling, immunizing children) would be unworkable if the government had to include a contrary message in every public appeal.

“There’s no way the 4th Circuit won’t reverse. We have a much stronger case even than Texas had,” said Rep. Paul Stam (R-Apex). Stam noted that in Texas anyone could apply for a specialty plate, while in North Carolina all specialty plates (other than collegiate plates) must be approved through legislation.

Brook says the ACLU has been consistent, fighting for the Confederate flag to be allowed on Texas plates. He said it is important to allow speech, even speech that is “controversial, even repulsive.”

The Supreme Court vacating the Fourth Circuit’s ruling is the first victory for the legislature in the case. Berger and the Speaker of the House (first Thom Tillis, now Tim Moore) lost at both the district court level and the appeals level, when courts ruled that the state was practicing viewpoint discrimination by offering the Choose Life plate without offering a plate with a contrasting viewpoint.

Through the appeal to the Supreme Court, Berger and Moore argued that the state was not making a space on license plates available for private expression, but rather making a policy choice of promoting pregnancy and adoption over abortion. They pointed out that the 2011 bill that authorized the Choose Life plate restricted the $15 part of the fee to go to organizations that promoted “pregnancy services that are limited to counseling and/or meeting the physical needs of pregnant women” and expressly prohibited funds going to organizations that provide, promote, counsel, or refer for abortion.

“Third parties like the ACLU cannot sanitize the public square of views a state communicates simply because they do not like those messages,” read a statement by Scott Gaylord, a professor of law at Elon University School of Law and counsel for the legislature on the case. “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.”

As for the plates themselves, Stam predicts they will be available by the fall.

“You can argue all day long whether the Supreme Court was right or wrong” in the Walker case, Stam says. “But what you can’t argue is that the state of North Carolina can authorize a Choose Life license plate and the proceeds go to organizations that offer help to pregnant women.”