By Elizabeth DeFrance

On March 10, 2016 the Fourth Circuit Court of Appeals issued a published opinion in the civil case, American Civil Liberties Union of North Carolina v. Tennyson. The ACLU of North Carolina and several vehicle owners filed suit against Nicholas J. Tennyson, in his official capacity as Secretary of the North Carolina Department of transportation; and Kelly J. Thomas, in his official capacity as Commissioner of the North Carolina Division of Motor Vehicles alleging that North Carolina’s specialty license plate program violated the First and Fourteenth Amendments. The State offers a “Choose Life” license plate, but has repeatedly rejected requests for a pro-choice license plate option.

Earlier Opinion Vacated and Remanded Based on Walker Holding 

In the Fourth Circuit’s previous opinion in this case, the Court held that North Carolina’s specialty license plate program violated the First Amendment. In its appeal of the district court’s decision, the State argued that the message conveyed by the specialty license plates constituted government speech, and as such, the State was permitted to discriminate based on viewpoint. The Court rejected the State’s argument, reasoning that specialty license plates implicated private speech rights, and that the State’s offering a “Choose Life” plate without also providing a pro-choice option was viewpoint discrimination in violation of the First Amendment.

The Supreme Court granted certiorari and vacated the Fourth Circuit’s decision. The case was remanded for reconsideration in light of the Supreme Court’s decision in Walker v. Texas Division of the Sons of Confederate Veterans.

Specialty License Plates are a form of Government Speech

In Walker, the Supreme Court held that specialty license plate designs constitute government speech, and thus States are permitted to discriminate based on viewpoint within these programs.

North Carolina’s Specialty Plate Program was Indistinguishable from that in Walker

The Fourth Circuit reasoned that North Carolina’s specialty license plate program was “substantively indistinguishable from that in Walker, and the Walker Court’s analysis is dispositive of the issues in this case.”

North Carolina is Free to Reject Messages it Disagrees With

The Court held that North Carolina’s specialty license plates amount to government speech, and as such, the State is free to reject any proposed design whose message it disagrees with. Accordingly, the Court reversed the district court’s decision in favor of the plaintiffs, and remanded with instructions to enter judgment for the State.

Circuit Judge Wynn issued a dissenting opinion in which he determined that Walker’s holding did not require the Court to conclude that North Carolina’s specialty plates constituted purely government speech. He reasoned that the specialty plates constituted “mixed” speech with elements of both government and private speech. Because private speech rights were implicated, the State’s refusal to offer a pro-choice plate in addition to its “Choose Life” plate constituted viewpoint discrimination in violation of the First Amendment.

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