"Choose Life" License Plates:
Funding the cause for life
by Alana Hake
2006 Blackstone Intern
Laura stares with unbelieving eyes at the lines on her home pregnancy test. Her parents have made it clear that she is going to college this year, even if it means getting an abortion. This is her second pregnancy, and she wants to keep this one. Laura remembers a billboard she saw on the freeway, identifying a counseling center for pregnant women. Maybe she could find the number in the phone book. And maybe her mother would be willing to go her to learn about other options for her unborn child.
Counselors at pregnancy resource centers speak girls like Laura every day, providing emotional care, material support, ultrasounds, and information about abortion and alternatives like adoption. The effectiveness of this for women and their unborn children is increasingly recognized by lawmakers across country. Seventeen states financially support pregnancy resource centers and/or abortion alternatives through specialty license plate programs (map).1 For a premium, drivers may purchase a vehicle license plate imprinted with the message "Choose Life." The plate may be offered at the initiative of the state legislature or request of a pro-life organization. A portion of the premium benefits pregnancy resource centers and other organizations facilitating alternatives to abortion, including adoption. Specifically excluded are organizations that counsel or promote abortion.
Constitutional Issues
The constitutional dimension of "Choose Life" programs is rooted in the First Amendment, which guarantees individuals the right of free speech. State decisions both offering and denying "Choose Life" plates have been challenged in court as violating this right by discriminating on the basis of viewpoint, either that of a pro-abortion or a pro-life organization. A state may constitutionally offer a "Choose Life" plate without a pro-abortion counterpart if the plate is government speech outside a forum.2 In a forum, private speakers have the right to access government property regardless of their viewpoint on an issue.3 If a state has opened up its license plates as a forum for private speech, it may not constitutionally deny a "Choose Life" plate on the basis of the viewpoint it expresses about abortion.4
The constitutional controversy boils down to two primary questions. First, who is "speaking" through the "Choose Life" plate? -- is it the government or the individual driver? Second, has the government engaged in viewpoint discrimination within a speech forum -- either by failing to offer a pro-abortion counterpart or by denying a "Choose Life" plate? The United States Supreme Court (USSC) has, thus far, declined to weigh-in on the debate over the constitutional status of the plates.5
Constitutional Backdrop
The USSC's only case reviewing license plate speech, Wooley v. Maynard, held that a state could not require drivers to display an ideological state motto on their standard plates.6 The Court noted that license plates were "associated with" drivers.7
Outside the license plate context, the USSC has articulated the distinction between government and private speech. The Court identified two components of government speech in Johanns v. Livestock Marketing Association.8 First, the government sets the "overall message" to be conveyed.9 Second, while private individuals may help design details, the government retains "final approval authority" over the entire message.10
The government may convey a message through private individuals, making it tricky at times to discern government speech. The Supreme Court in Rust v. Sullivan allowed the government to prohibit doctors from recommending abortion to their patients in a federally-funded program.11 The doctors' First Amendment rights were not violated because by accepting the funds, they became willing couriers for the government's pro-childbirth message.12
When private individuals speak their own message on state-owned property opened as a speech forum, the government may not discriminate against a speaker based on his viewpoint.13 The Fourth Circuit applied this principle to license plates in Sons of Confederate Veterans v. Commissioner of the Virginia Department of Motor Vehicles (SCV).14 The logo of the plaintiff group (the SCV) contained a Confederate flag. The Virginia legislature created a specialty plate for the SCV but banned the display of any logo. The court held that this restriction constituted viewpoint discrimination.15 No other organization was barred from displaying either the flag or a logo. Even other groups "with distinct viewpoints in political or social debate," such as union supporters, had freely obtained plates.16 Thus, the controversial view of the SCV was singled out for unequal treatment in the license plate forum.
In addition to denial of forum access, as in SCV, a state may also engage in viewpoint discrimination by vesting with unbridled discretion the officials who control access to the forum. In City of Lakewood v. Plain Dealer Publishing Co., the Supreme Court struck down a city ordinance enabling the mayor to grant or deny permits for newsstands on government property.17 Without "explicit limits" on his discretion, the risk of discrimination was itself unconstitutional, "even if the discretion and power [were] never actually abused."18
"Choose Life" in the Courts
The most recent circuit to consider the merits in a "Choose Life" dispute affirmed the constitutionality of the plates, holding them to be government speech outside a forum. In ACLU v. Bredesen, the Sixth Circuit considered Tennessee's "Choose Life" program.19 The plate originated at the initiative of state legislators. The state prescribed the words "Choose Life" and designated half of the proceeds to pro-life organizations. Plate design would be "deter mined by the commissioner," with a pro-life beneficiary assisting in the process.20 Tennessee retained the right to "withdraw authorization."21 The Sixth Circuit concluded, by the reasoning of Johanns, that "Choose Life" was a message "crafted" by Tennessee. The state not only "set the overall message" of the plates but also detailed its words. Moreover, the state retained "final approval authority" in the commissioner's supervision and in the state's prerogative to reject the plates.22 Thus, despite private assistance with design, "Choose Life" was "Tennessee's own message."23
The Bredesen court further concluded that "Choose Life" was not spoken in a forum, which would require viewpoint neutrality regarding abortion. Rejecting the American Civil Liberties Union's (ACLU) argument that Tennessee had created a forum by using unpaid drivers to spread a message, the court invoked Rust.24 The government did not create a forum in Rust by hiring doctors to disseminate its pro-childbirth message. Even had the doctors volunteered to participate in the program, they would still have been required to promote childbirth.25 Thus, volunteer dissemination of government speech did not create a forum.
The implications of holding that volunteer dissemination created a forum also troubled the Bredesen court. A large amount of "long-accepted," privately-disseminated government speech would become unconstitutional unless neutralized by speech from the opposite viewpoint.26 The "unstated distinction" -- that "Choose Life" is controversial -- is "entirely indefensible as a matter of First Amendment law."27
In Bredesen, the Sixth Circuit consciously split from an earlier Fourth Circuit decision. Like that of Tennessee, the South Carolina legislature initiated a "Choose Life" plate, designating proceeds for pregnancy resource centers, and concurrently allowed a pro-abortion counterpart to die in committee.28 In Planned Parenthood v. Rose, the Fourth Circuit ruled that South Carolina's "Choose Life" plate was "hybrid" speech and unconstitutionally discriminated against the pro-abortion viewpoint.29
To determine if the plate constituted government or private speech, the Rose court employed a four-factor test.30 The first two factors, the plate's "purpose" and the state's "degree of editorial control," pointed to government speech.31 A motivating "preference for the pro-life position" was indicated by the plate's origin in legislative initiative and its benefit to pro-life organizations.32 By specifying the words "Choose Life," South Carolina retained "complete editorial control" over the plate's message.33
Analyzing the third and fourth factors together, the court concluded that the individual driver was both the "literal speaker" and "bore ultimate responsibility" for the message.34 Drawing on the idea in Wooley that a license plate is "associated with" a driver, the court reasoned that a specialty plate bears a stronger association because it is selected for display at additional cost.35 With evenly balanced factors, the court concluded that the "Choose Life" plate was "hybrid," acknowledging that such speech had not been recognized by the Supreme Court.36
The Rose court further ruled that South Carolina had created a forum for the abortion debate and discriminated against the pro-abortion view by failing to offer a supportive plate. Distinguishing Rust, the court found that the "Choose Life" plate was not a government "program."37 Unlike the federal government hiring doctors in Rust, South Carolina did not "enlist" drivers to display the plate.38 Instead, drivers selected the plate out of agreement with its message. This distinction was the mark of a forum.39 By denying access to the license plate forum, South Carolina unconstitutionally discriminated against the pro-abortion viewpoint.
While no other circuit has yet fully considered the merits of the "Choose Life" constitutional debate, a decision of the District Court of Arizona is currently pending on appeal.40 In Arizona Life Coalition, Inc. v. Stanton, the court held that Arizona's denial of a "Choose Life" plate was government speech and did not equal viewpoint discrimination.41 In Arizona, specialty plates are issued according to a statutorily prescribed process.42 Organizations apply to the Department of Motor Vehicles and may propose "indicia" for the plate.43 Those with enough members or which agree to bear costs are then considered by the License Plate Commission (the Commission). The Commission is charged with authorizing plates for organizations whose primary activities meet basic statutory criteria, including contribution to the welfare of others.44 A plate will not be issued unless an organization has collected the required fees in advance.45
Life Coalition, a group of about 40 nonprofit, pro-life organizations, applied for a "Choose Life" plate according to this process.46 Its application proposed the words "Choose Life" and a logo, the faces of two children.47 The Commission denied Life Coalition's application. It did not advise of any failure to meet the basic statutory criteria.48
Applying the four-factor analysis of Rose, the district court found that the denial was government speech. Essentially, Arizona's control over organizational qualifications, including size, primary activities, and upfront fees, demonstrated the governmental purpose of the specialty plate program, the state's editorial control over the plates, and the state's ultimate responsibility for the plates.49 Thus, according to the district court, three of the four factors indicated government speech.
The court then concluded that the denial did not constitute discrimination against the pro-life view, although it took place in a license plate forum. No plate related to the abortion debate had been issued. Also, "most" specialty plates expressed "non-partisan" messages.50 Thus, Arizona had chosen to remain neutral on contentious issues, including abortion. Moreover, the Commission did not have unbridled discretion to reject plates. No evidence indicated that it had "engaged in the sporadic abuse of power" by denying the "Choose Life" plate.51
Contrasting Facts and Legal Approaches
The above cases illustrate the significantly varying processes by which "Choose Life" plates are created. Comparing the struggle in Arizona with that in Tennessee and South Carolina highlights two key differences. First, state legislatures may play different roles in the origin of the plates. The Arizona legislature laid out beforehand the process by which organizations could qualify to receive a plate. Life Coalition then initiated the idea of a "Choose Life" plate and followed the statutory process. By contrast, the South Carolina and Tennessee legislatures proposed a "Choose Life" plate on their own initiatives.52
Second, states differ in their degree of control over the plates' content. In Arizona, the Commission had no say regarding the content of the requested plate's message -- it did not design or approve the plate. The Commission reviewed only the organization's activities. Tennessee and South Carolina, by contrast, specified the plate's words, and Tennessee retained the right to withdraw authorization upon disapproval.
Not only do states vary in their treatment of "Choose Life" plates, but courts also take contrasting approaches to the constitutional questions. The Fourth Circuit in Rose, followed by the Arizona District Court in Stanton, employed the four-factor test from SCV to discern government speech. The Sixth Circuit in Bredesen relied on the two components of Johanns, a case decided after Rose.53
These circuits also split in their treatment of a driver's voluntary decision to display a "Choose Life" plate. The Rose court reasoned that this decision distinguished "Choose Life" plates from a program in which the government hired individuals to spread a message. Offering the plates created a forum, requiring neutrality toward abortion. The Bredesen court viewed the driver's decision as volunteer dissemination of a government message and found it analogous to paid dissemination. Neither created a forum for private speech.
In Stanton, the Arizona District Court split from the Fourth Circuit's analysis of viewpoint discrimination in SCV.54 The SCV court found that Virginia discriminated by banning the SCV's logo while allowing other controversial groups to obtain plates without restriction. The Stanton court acknowledged that most of Arizona's specialty plates displayed generally accepted messages. However, it did not consider whether admitting into the license plate forum at least one other group with a "distinct viewpoint in political or social debate" would require the state to admit the abortion debate.
Lessons for the Future
The constitutional track record of "Choose Life" plates suggests three basic questions that pro-life organizations or states facing future litigation should consider:
- Should we argue for government speech or private speech?
When a "Choose Life" plate is challenged by the pro-abortion side, the pro-life side should argue for government speech (outside a forum). When the plate is denied by a state legislature or agency, the pro-life side should argue for private speech. It can also argue that even if the denial was government speech, it took place in a forum, requiring viewpoint neutrality.
- How do the facts surrounding the offer or denial of a "Choose Life" plate indicate government or private speech?
Key facts center on the legislature's action (or lack thereof) on the "Choose Life" plate: 1) whether the legislature or a private group initiated the plate; 2) whether the legislature or a private group designed the plate; and 3) whether the legislature had approval authority over the plate. The facts should be related both to the analysis of Johanns (in Bredesen) and the four SCV factors (in Rose). Both approaches are important because it is not certain that other circuits will follow the Sixth Circuit's interpretation of Johanns.
- If a plate was denied, what types of viewpoint discrimination are possible?
Consider if: 1) a pro-abortion plate has been offered; 2) another politically controversial plate has been offered (as in SCV); or 3) a government body has been granted unbridled discretion to reject specialty plates. For example, in the Stanton appeal, Life Coalition can argue that the Commission possessed unbridled discretion because no standards limited its determination of which organizations contribute to the welfare of others. Given the vehement opposition to pregnancy resource centers,55 this could create a risk of viewpoint discrimination, unconstitutional before it actually occurs (as in Lakewood).56
"Choose Life" license plates are an effective and constitutional way to support pregnancy resource centers, increasing their ability to reach pregnant women in need. Whether a plate has been challenged or denied, states and organizations on the side of life can marshal winning constitutional arguments.
Endnotes
1 These are Alabama, Arkansas, Connecticut, Florida, Georgia, Hawaii, Indiana, Kentucky, Louisiana, Maryland, Mississippi, Montana, Ohio, Oklahoma, Pennsylvania, South Dakota, and Tennessee. Of these, eight states (Arkansas, Florida, Hawaii, Indiana, Louisiana, Maryland, Ohio, and Oklahoma) specifically preclude agencies and organizations that counsel or refer for abortions from receiving any proceeds from the program. Under Kentucky's program, a voluntary contribution can be made to CPCs in the state when a motorist applies for or renews the specialty plate; however, a motorist can receive the plate without making a contribution. See also map.
2 See Sons of Confederate Veterans v. Va. Comm'r of the Dep't of Motor Vehicles (SCV), 288 F.3d 610, 618 (4th Cir. 2002) ("[T]he government can speak for itself.") (quoting Bd. of Regents of Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 229 (2000)); see also ACLU v. Bredesen, 441 F.3d 370, 375-76 (6th Cir. 2006).
3 See SCV, 288 F.3d at 623 n.10. A forum may exist due to the nature of the property (such as streets and parks) or arise by intentional government action in offering its resources. The government's freedom to restrict individual access and subjects expressed varies with the type of forum, but in no forum may it discriminate by viewpoint on a subject. Id.
4 See Planned Parenthood v. Rose, 361 F.3d 786, 798 (4th Cir. 2004).
5 See ACLU v. Bredesen, 126 S. Ct. 2972 (June 26, 2006); Planned Parenthood v. Rose, 543 U.S. 1119 (2005).
6 430 U.S. 705 (1977).
7 Id. at 715 n.15.
8 554 U.S. 550 (2005).
9 Id. at 562.
10 Id. at 561.
11 500 U.S. 173 (1991).
12 Id. at 198-99.
13 See Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 393-94 (1993) (holding that school district discriminated against church's "religious perspective" by denying access to district property for a child-rearing presentation where other community groups were able to access it for similar purposes).
14 288 F.3d 610 (4th Cir. 2002).
15 Id. at 626.
16 Id.
17 486 U.S. 750 (1988).
18 Id. at 769, 757.
19 441 F.3d 370 (6th Cir. 2006).
20 Id. at 376 (quoting Tenn. Code Ann. § 55-4-202(b)(2) (2005)).
21 Id.
22 Id. at 375-76.
23 Id. at 376.
24 Id. at 378.
25 Id.
26 Id. at 380. For example, government-produced pins advocating "Register and Vote" would be invalid unless accompanied by "Don't Vote" pins. Id. at 379.
27 Id.
28 Rose, 361 F.3d at 788-89 (citing S.C. Code Ann. § 56-3-8910 (2003)). South Carolina's "Choose Life" law was "nearly identical" to that of Tennessee. Bredesen, 441 F.3d at 380.
29 Rose, 361 F.3d at 788-89. The court's rationale was fractured. By far the lengthiest, Judge Michael's opinion is discussed in the text.
30 This test was formulated by the Fourth Circuit in SCV, combining the analysis of other circuits and explaining that the Supreme Court had not articulated a "clear standard" for distinguishing government and private speech. SCV, 288 F.3d at 618-19.
31 Rose, 361 F.3d at 793.
32 Id.
33 Id.
34 Id. at 793-94.
35 Id. at 794 (quoting Wooley, 430 U.S. at 717).
36 Id. at 794-95.
37 Id. at 798.
38 Id.
39Id. ("[T]he specialty license plate scheme...is more like a limited forum for expression than it is like a school, museum, or clinic.").
40 Four other circuits have considered "Choose Life" cases, with three circuits dismissing the cases without reaching the question of constitutionality. In Henderson v. Stalder, 407 F.3d 351 (5th Cir. 2005), cert. denied, 126 S. Ct. 2967 (June 26, 2006), the Fifth Circuit ruled that the Tax Injunction Act (TIA) deprived it of subject-matter jurisdiction to hear a challenge to Louisiana's "Choose Life" plate. The court held that the premium Louisiana charged for the plate was a "tax" for purposes of the TIA. Id. at 355. The Eleventh Circuit dismissed for lack of standing pro-choice plaintiffs' suit to enjoin Florida's issuance of a "Choose Life" plate. In Women's Emergency Network v. Bush (WEN), 323 F.3d 937 (11th Cir. 2003), the court found the plaintiffs lacking in two elements of standing: injury-in-fact and redressability. Also, in a footnote, the court commented that it did not find "sufficient government attachment" to any of the state's specialty plates to render them government speech. Id. at 946 n.9. In Children's First Found. v. Martinez, 2006 U.S. App. LEXIS 5830 (2nd Cir. Mar. 6, 2006), the Second Circuit issued an unpublished opinion dismissing a "Choose Life" appeal on procedural grounds. In the fourth case, Hill v. Kemp, 478 F.3d 1236 (10th Cir. 2007), the Tenth Circuit dismissed the first four alleged counts under the TIA. The last two counts, challenging the distribution of the license plate proceeds, were originally dismissed by the district court as precluded by the Eleventh Amendment. Id. Those counts have been remanded and remain pending. A petition for certiorari has been filed with the USSC.
41 2005 U.S. Dist. LEXIS 21960 (D. Ariz. Sept. 26, 2005). This case has been appealed to the Ninth Circuit. Ariz. Life Coal., Inc. v. Stanton, No. 05-1697.
42 Ariz. Rev. Stat. § 28-2404.
43 Id. at § 28-2404(a).
44 Id. at § 28-2404(b).
45 Id. at § 28-2404(c).
46 Stanton, 2005 U.S. Dist. LEXIS 21960, at **2-4.
47 Id. at **2-3.
48 Id at **4-5.
49 Id. at **9-17. The third factor was inconclusive because the court decided that the license plate itself was the "literal speaker." Id. at *14.
50 Id. at **25-26.
51 Id. at *27.
52 There are other possibilities as well. For example, in Florida, private organizations apply to an administrative department, which measures the applications against basic criteria and then forwards qualifying applications to the legislature. WEN, 323 F.3d at 941. The legislature has complete discretion to enact or to reject the plate. Id.
53 The Sixth Circuit found the Rose analysis "in tension with the intervening case of Johanns." Bredesen, 441 F.3d at 380.
54 See discussion of SCV, supra nn.14-16 and accompanying text.
55 Patti Caldwell, President of Planned Parenthood of Southern Arizona, declared, in opposition to a "Choose Life" plate in Arizona, "Although they hold themselves out as legitimate facilities, they actually don't offer legitimate health care services." Jennifer Reardon, "Choose Life" Plates Not a Choice in Arizona (Sept. 29, 2005) available at: http://www.kvoa.com/Global/story.asp?S=3917511&nav=menu216_7 (last visited Sept. 28, 2007).
56 See discussion of Lakewood, supra nn.17-18 and accompanying text.