JURIST Guest Columnist Scott Gaylord of Elon University School of Law says a district court applied an outdated government speech test when it issued an injunction preventing North Carolina from allowing drivers to select “Choose Life” license plates, the proper test should ask if government controls the speech, not if a third party can tell that the government is speaking…

On November 29, 2011, Judge James Fox of the US District Court for the Eastern District of North Carolina entered an order in American Civil Liberties Union of North Carolina v. Conti preliminarily enjoining North Carolina from distributing its “Choose Life” license plate, which had been authorized by statute [PDF] earlier in the year. According to the district court, because North Carolina had created a forum for private speech by offering over 100 such specialty license plates, it could not permit an allegedly pro-life message (“Choose Life”) while prohibiting a message that supported abortion rights (“Respect Choice”). The court found that “by authorizing the ‘Choose Life’ plate without also offering a pro-choice alternative, the State has engaged in impermissible viewpoint discrimination in violation of the First Amendment.” The district court based its decision in large part on two prior cases from the US Court of Appeals for the Fourth Circuit, Sons of Confederate Veterans, Inc. v. Commissioner of the Virginia Department of Motor Vehicles (SCV) and Planned Parenthood of South Carolina Inc. v. Rose. Contrary to the district court’s order, though, the US Supreme Court’s recent decisions in Johanns v. Livestock Marketing Association and Pleasant Grove City v. Summum undermine the Fourth Circuit’s reasoning in SCV and Rose. In fact, under the Supreme Court’s “newly minted” government speech doctrine, North Carolina has “the right to ‘speak for itself,'” which includes the right to allow a “Choose Life” plate but not a “Respect Choice” plate.

In Conti, the district court properly noted that the dispositive issue was “whether the ‘Choose Life’ license plate constitutes government speech.” To determine whether North Carolina was speaking through its “Choose Life” plate, the court relied on the four-factor test that the Fourth Circuit developed in SCV and Rose. In particular, the court considered: (i) the central purpose of the program in which the speech occurs, (ii) the extent of editorial control the government or private entity exercises over the content of the speech, (iii) the identity of the literal speaker, and (iv) whether the government or the private entity is ultimately responsible for the content of the speech. Following Judge Michael’s decision in Rose, Judge Fox found that North Carolina’s specialty plate was a form of “hybrid” speech, or speech that involved attributes of both private and government speech. As Judge Michael, who wrote the most detailed of the three opinions in Rose, explained, although the state controlled the content of the plate:

the specialty plate gives private individuals the option to identify with, purchase, and display one of the authorized messages. … The private individual bears the ultimate responsibility for the speech on the Choose Life plate … [because] the private individual chooses to spend additional money to obtain the plate and to display its pro-life message on her vehicle.

Given that private individuals were the actual speakers and bore the ultimate responsibility for conveying the message on the “Choose Life” plate, North Carolina could not be engaging in viewpoint discrimination. As a result, Judge Fox held that ACLU-NC was likely to prevail on its claims and granted the preliminary injunction.

In the wake of the Supreme Court’s recent decisions in Johanns and Summum, however, the district court erred in adhering to the Fourth Circuit’s SCV/Rose test for at least three reasons. First, although Judge Fox correctly notes that post-Johanns the Fourth Circuit has considered the identity of the literal speaker when deciding whether the government was speaking, Summum clarifies that the government speech doctrine is inconsistent with SCV and Rose. Contrary to the order in Conti, neither Johanns nor Summum takes the “identity of the literal speaker” as central to the government speech inquiry. In Johanns, the Court expressly stated that the “correct focus is not on whether the ads’ audience realizes the Government is speaking, but on the compelled assessment’s purported interference with respondents’ First Amendment rights.” That is, as Justice Souter acknowledged in his dissent, the Johanns majority focused on the government’s “control” over the message, not a third party’s ability to identify the government as the speaker. Whereas Justice Souter claimed that the government speech doctrine applied only if the government’s control over the message was “made apparent to those who get the message,” the majority took “the view that because Congress authorized this scheme and the Government controls (or at least has a veto on) the content of the beef ads, the need for democratic accountability has been satisfied.”

Similarly, in Summum, Justice Souter argued that the identity requirement was not limited to the compelled subsidy context of Johanns: “the government should lose [the protection of the government speech doctrine] when the character of the speech is at issue and its governmental nature has not been made clear.” Hence, in Summum, Justice Souter proposed a reasonable observer test that mirrored the identity requirement of SCV and Rose: “the best approach that occurs to me is to ask whether a reasonable and fully informed observer would understand the expression to be government speech.”

In both Johanns and Summum a majority of the Court rejected Justice Souter’s identity test, however. Although, as Conti notes, Summum acknowledged that “persons who observe donated monuments routinely — and reasonably — interpret them as conveying some message on the property owner’s behalf,” the Court made this statement while explaining why Summum was not a difficult case in which to determine whether the government was speaking. In Summum, not only did the government “effectively control” the message — the essential consideration under the Court’s government speech doctrine — but also there was no chance that someone would mistake the government’s message as that of a third party. Yet, as Johanns demonstrates, the fact that a third party might not identify the government as the speaker does not change the fact that the government is speaking. In those situations where an observer might reasonably view the message as belonging to a third party instead of the government, the third party might bring an as-applied claim under the Court’s compelled speech line of cases. The question of whether a third party is misidentified as the speaker of a government message, though, is separate and distinct from whether the message is that of the government. As Justice Thomas explained in his concurrence in Johanns, “the government may not, consistent with the First Amendment, associate individuals or organizations involuntarily with speech by attributing an unwanted message to them, whether or not those individuals fund the speech, and whether or not the message is under the government’s control.”

Second, the district court improperly contends that even if Johanns alters the SCV/Rose test, North Carolina’s “Choose Life” plate still is unconstitutional under Wooley v. Maynard. In Wooley, the Court held that New Hampshire could not force the Maynards to carry the government’s message, the state motto, on the State’s standard issue license plate. In Conti, the district court concluded from this that “if, as Wooley suggests, standard license plates implicate private speech rights because of their association with the driver of a vehicle, then specialty plates provide an even closer association.” But Wooley stands for the proposition that a private individual cannot be forced to involuntarily carry a government message. The Court did not require New Hampshire to stop using or even to modify the “Live Free or Die” plate because the plate’s private speech discriminated against opposing viewpoints. Accordingly, the Court struck down only the part of the statute that prohibited covering up the motto because that provision “requires that [the Maynards] use their private property as a ‘mobile billboard’ for the State’s ideological message.” Unlike the standard issue plate in Wooley, however, North Carolina does not compel anyone to purchase and display the “Choose Life” specialty plate; instead, motorists voluntarily choose to display the State’s message on their vehicles. As a result, Wooley does not govern the outcome in Conti because, instead of being forced to be “the courier for [the government’s] message” as in Wooley, motorists consent to carrying the government’s message and are actually willing to pay for the opportunity to do so.

Third, the district court ignores a central lesson of Summum — that the government does not lose the protection of the government speech doctrine simply because a private person, who assists the government in creating or disseminating its message, also seeks to engage in expressive activity. As Summum expressly acknowledges in its discussion of monuments, government speech may convey more than one message: “the thoughts or sentiments expressed by a government entity that accepts and displays [a monument] may be quite different from those of either its creator or its donor.” Not surprisingly, then, those who observe a monument may interpret it in myriad ways, and even attribute a message to the donor, without causing the government to forfeit the protection of the government speech doctrine. The same is true for specialty license plates — the message that North Carolina seeks to convey through a specialty plate may differ from the message that motorists who voluntarily display that specialty plate on their vehicles seek to convey: “Even when a monument features the written word, the monument may be intended to be interpreted, and may in fact be interpreted by different observers, in a variety of ways.” For example, North Carolina offers specialty plates with the emblems of both University of North Carolina at Chapel Hill and Duke University. School license plates enable motorists to show their pride in or support for a particular school. In offering such specialty plates, the government does not advocate one school over another even though individuals choosing a specific college plate might do so. By approving specialty plates for many colleges and universities, North Carolina conveys a message about its diverse, well-educated citizens and champions the various educational opportunities that North Carolina offers to its citizens.

What is critical under Johanns and Summum, then, is not whether a third party can identify the government as the speaker but whether the government is actually speaking. Where the government “sets the overall message to be communicated and approves every word that is disseminated” or “has ‘effectively controlled’ the messages sent … by exercising ‘final approval authority’ over the selection” of the message, it may claim the fundamental right protected by the Speech Clause — the right to choose the content of its message: “The fundamental rule of protection under the First Amendment [is] that a speaker has the autonomy to choose the content of his own message.” As a result, contrary to Rose and the district court’s order in Conti, if North Carolina has “effective control” over the “Choose Life” specialty plate and “final approval authority” over any message on such plates, then it can discriminate against particular viewpoints, issuing a “Choose Life” plate but not a “Respect Choice” plate.

Under Johanns and Summum, North Carolina exercises the requisite level of control over the “Choose Life” plate to qualify for the protection of the government speech doctrine. The North Carolina General Assembly has final approval authority over the images and wording that appear on all specialty plates, including the “Choose Life” plate through NC Gen. Stat. § 20-79.4. Moreover, the design of any proposed specialty plates “that are not ‘First in Flight’ plates must be approved by the Division and the State Highway Patrol for clarity and ease of identification.” In addition, the State of North Carolina retains such control even over vanity plates, ie, plates that consist of a combination of letters and numbers chosen by a North Carolina motorist: “The Division may refuse to issue a plate with a letter combination that is offensive to good taste and decency.” And, just as the General Assembly can create new specialty plates through legislation, it can revoke or amend any specialty plate through new legislation that is signed by the governor. Thus, because North Carolina exercises complete control over the specialty plate program, “no more is required.”

As a result, when deciding whether to make the preliminary injunction permanent, the district court should apply the “control” test in Johanns and Summum, not the Fourth Circuit’s multi-factor test in SCV and Rose. Under the Court’s “newly minted” government speech doctrine, because the North Carolina legislature has final approval authority over all specialty plates, it can approve a “Choose Life” plate while declining the invitation to produce a “Respect Choice” plate. To the extent that plaintiffs or others disagree with this policy decision, they can exercise what Summum identifies as a primary check on disfavored legislative action — the political process: “And of course, a government entity is ultimately ‘accountable to the electorate and the political process for its advocacy. … If the citizenry objects, newly elected officials later could espouse some different or contrary position.'”

Scott Gaylord is an Associate Professor of Law at Elon University School of Law. He has written several articles on the government speech doctrine and is a frequent speaker on the First Amendment, presenting at the Loyola University Chicago School of Law’s Constitutional Law Colloquium and the Nootbar Institute’s upcoming Law and Religion conference. After receiving his PhD in Philosophy from the University of North Carolina at Chapel Hill and his JD from Notre Dame Law School, he served as a law clerk to Judge Edith Jones on the US Court of Appeals for the Fifth Circuit from 1999 to 2000.

Suggested citation: Scott Gaylord, Government Speech and North Carolina’s ‘Choose Life’ License Plate, JURIST – Forum, Dec. 21, 2011, http://jurist.org/forum/2011/12/scott-gaylord-government-speech.php.