RICHMOND, Va. – North Carolina's anti-abortion license plate is unconstitutional because the state doesn't provide the same forum for motorists on the other side of the contentious issue, a federal appeals court ruled Tuesday.
A three-judge panel of the Richmond-based 4th U.S. Circuit Court of Appeals unanimously upheld a federal judge's ruling that the "Choose Life" license plate is unconstitutional.
Lawmakers approved the anti-abortion plates in 2011 and rejected proposals to offer plates with messages "Trust Women" and "Respect Choice." That constitutes "blatant viewpoint discrimination squarely at odds with the First Amendment," wrote appeals court Judge James A. Wynn, who is from North Carolina.
"Today's ruling protects the right of North Carolinians of all political beliefs to have equal access to avenues for free speech," American Civil Liberties Union of North Carolina attorney Chris Brook said in a written statement. Brook, who urged the appeals court to strike down the specialty plate at a hearing in October, said the ACLU would have taken the same position had the state authorized a plate only for abortion-rights supporters.
The state could appeal the panel's decision to the full appeals court or to the U.S. Supreme Court. Noelle Talley, spokeswoman for Attorney General Roy Cooper, said state attorneys were reviewing the ruling but had no further comment.
The central issue in the case was whether the specialty license plate is purely government speech, which would allow the state sole discretion over the message, or individual speech implicating the First Amendment. The appeals court concluded that the program is a blend of the two, but that it tilts heavily in favor of private expression.
"Specialty plates are closely associated with the drivers who select and pay for them," Wynn wrote. "And the driver, on whose car the special message constantly appears for all those who share the road to see, is the ultimate communicator."
The 4th Circuit previously ruled the same way on South Carolina's "Choose Life" license plate. Wynn noted that three of the other four federal appeals courts that have ruled on specialty plates also have concluded that they are not solely government speech.
In North Carolina, the "Choose Life" plate was one of 80 specialty tags approved by the General Assembly in 2011. Each "Choose Life" plate would cost $25, with $15 of that going to the Carolina Pregnancy Care Fellowship, an association of nonprofit pregnancy counseling centers.
The state has been barred from manufacturing the plates while the ACLU's challenge is pending.