The Establishment Clause requires the government to be neutral in matters of religion. But is the government required to be neutral on other issues? Clearly not, since the government can and should be able to advocate on behalf on one side of some issues, say the evils of drug use. This principle was established in the 1977 case Wooley v. Maynard (in which a New Hampshire resident objected to being forced to display the state motto “Live Free or Die” on his license plate) in which the court ruled that the state may advance an ideological message but this freedom of government speech is not without restrictions because the government cannot force others to be couriers or disseminators of its message.
On Tuesday, a new ruling issued by the Fourth Circuit Court of Appeals clarified this.
The state of North Carolina, like other states, sells so-called specialty license plates that have some message on them. To get one, the department must receive at least three hundred applications for that plate and by now there are over two hundred different plates available. One of those designs has “Choose Life” on it but the state said that they would not allow plates such as “Respect Choice”, claiming that it can so discriminate “because specialty plate messages constitute pure government speech free from First Amendment viewpoint-neutrality constraints.”
The ACLU sued the state and a US District Judge ruled that this policy was unconstitutional. The state government appealed and on Tuesday the Fourth Circuit Court Of Appeals upheld the trial court judge’s verdict.
The Appeals Court said that “issuing a “Choose Life” specialty license plate while refusing to issue a pro-choice specialty plate constitutes blatant viewpoint discrimination squarely at odds with the First Amendment”. Interestingly, it based its decision on the widely criticized Citizen’s United v. Federal Elections Commission case of 2010 that has allowed for almost unlimited money in elections and where the Supreme Court used viewpoint neutrality as part of its reasoning.
At issue in the North Carolina case is whether something is ‘pure government speech’ where the government can say what it likes, or whether it implicates private speech as well, in which case it cannot indulge in viewpoint discrimination since the First Amendment provides protections for private speech. As the Appeals Court said in its ruling:
At the outset, we note that North Carolina does not deny that it engaged in viewpoint discrimination by approving the “Choose Life” plate while refusing to allow a pro-choice plate. Instead, North Carolina contends that it was free to discriminate based on viewpoint because the license plate speech at issue was solely its own. And under the government speech doctrine, when the government speaks for itself, it can say what it wishes. Plaintiffs disagree, arguing that the license plate speech at issue implicates private speech and all its attendant First Amendment protections, including the prohibition on viewpoint discrimination. Determining whether the “Choose Life” specialty plate embodies pure government speech or something else is therefore at the heart of this case.
The court pointed to an earlier similar case out of South Carolina in which it ruled that specialty messages on license plates was not pure government speech but mixed speech since it consisted of private speech on government property. (p. 10)
Indeed, to any reasonable observer, the literal speaker of a message on a specialty plate that the observer knows the vehicle owner selected is surely the vehicle owner.
Specialty plates are closely associated with the drivers who select and pay for them. And the driver, on whose car the special message constantly appears for all those who share the road to see, is the ultimate communicator. (p. 23)
“When a special license plate is purchased, it is really the private citizen who engages the government to publish his message,” not the other way around. (p. 24)
The court also indulged in a little sarcasm at the expense of the government.
North Carolina nevertheless laments that if it has created a forum, it “must allow all viewpoints to be heard via specialty plates.” This complaint seems at odds with North Carolina’s contention that its vast array of specialty plates “celebrat[es]” the “diversity of its citizen’s interests . . . .” Apparently, North Carolina wishes to celebrate only some interests of some of its citizens—namely those with which it agrees. This, it may not do.
North Carolina then sounds the death knell for specialty plates, predicting a “flood” of “Kill The Sea Turtles” and “Children Last” plates that will force it to end its specialty plate program. Melodrama aside, our ruling today “does not render [North] Carolina powerless to regulate its specialty license plate forum.” But it must do so in a viewpoint-neutral fashion—which it already does, to some extent, by requiring three hundred applicants before issuing a new specialty plate. Surely such a requirement can filter out “frivolous license plate proposals” and prevent the roads from being inundated with “license plates advocating reckless pet breeding.” (p. 26)
In sum, North Carolina invites its vehicle owners to “[m]ake a statement” and “promote themselves”—but only if they are on the government’s side of a highly divisive political issue. This, North Carolina may not do. (p. 28)
As the court said, the state always has the option of excluding controversial items from its plates program altogether, the way that the state of Illinois bans any abortion-related plates.
The idea of viewpoint neutrality on the part of the government is not hard to understand, let alone see the value of, except for people for whom speech is only free for those who agree with them.