Am. Civil Liberties Union of N.C. v. Tata

742 F.3d 563

AMERICAN CIVIL LIBERTIES UNION OF NORTH CAROLINA; Dean Debnam; Christopher Heaney; Susan Holliday, CNM, MSN; Maria Magher, Plaintiffs–Appellees,

v. Anthony J. TATA, in his official capacity as Secretary of the North Carolina Department of Transportation; James L. Forte, in his official capacity as Commissioner of the North Carolina Division of Motor Vehicles, Defendants–Appellants,andMichael Gilchrist, in his official capacity as Colonel of the North Carolina State Highway Patrol, Defendant.National Legal Foundation, Amicus Supporting Appellants.

No. 13–1030.

United States Court of Appeals, Fourth Circuit.

Argued: Oct. 30, 2013.

Decided: Feb. 11, 2014.

Held Unconstitutional

West's N.C.G.S.A. §§ 20–79.4(b)(41), 20–79.7(a1), (b), 20–81.12(b84)ARGUED: Kathryne Elizabeth Hathcock, North Carolina Department of Justice, Raleigh, North Carolina, for Appellants. Christopher Anderson Brook, American Civil Liberties Union of North Carolina Legal Foundation, Raleigh, North Carolina, for Appellees. ON BRIEF:Roy Cooper, North Carolina Attorney General, Neil Dalton, Special Deputy Attorney General, North Carolina Department of Justice, Raleigh, North Carolina, for Appellants. Steven W. Fitschen, The National Legal Foundation, Virginia Beach, Virginia, for Amicus Supporting Appellants.

Before TRAXLER, Chief Judge, WYNN, Circuit Judge, and GEORGE L. RUSSELL, III, United States District Judge for the District of Maryland, sitting by designation.

Affirmed by published opinion. Judge WYNN wrote the opinion, in which Chief Judge TRAXLER and Judge RUSSELL joined.

WYNN, Circuit Judge:

The First Amendment prohibits the making of any law “abridging the freedomof speech....” U.S. Const. amend. I. “Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints.” Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 340, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010). Chief amongst the evils the First Amendment prohibits are government “restrictions distinguishing among different speakers, allowing speech by some but not others.” Id.

In this case, North Carolina seeks to do just that: privilege speech on one side of a hotly debated issue—reproductive choice—while silencing opposing voices. Specifically, though North Carolina invites citizens to “[m]ake a statement,” ¹ and “promote themselves and/or their causes” ² with specialty license plates, it limits this invitation to only those citizens who agree with North Carolina's “Choose Life” stance. North Carolina contends that it may so discriminate because specialty plate messages constitute pure government speech free from First Amendment viewpoint-neutrality constraints. With this, we cannot agree.

The Supreme Court and this Court have recognized individual speech interests in license plate messages. And in this case, too, the specialty plate speech at issue implicates private speech rights, and thus First Amendment protections apply. Because 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, we affirm the district court's grant of summary judgment and a permanent injunction in Plaintiffs' favor.

I.

In June 2011, the North Carolina General Assembly passed, and the North Carolina Governor signed into law, House Bill 289 (“HB 289”). The resulting law, “An Act to Authorize the Division of Motor Vehicles to Issue Various Special Registration Plates,” authorizes the North Carolina Division of Motor Vehicles (“NC DMV”) to issue, among other specialty license plates, a “Choose Life” plate. 2011 N.C. Sess. Laws 392.

By contrast, this law authorizes no pro-choice specialty license plate. Id. In fact, plates bearing slogans such as “Respect Choice” were suggested but repeatedly rejected by the North Carolina General Assembly. J.A. 61–62.

A “Choose Life” plate, like many other specialty license plates, costs a vehicle owner an additional $25 per year. N.C. Gen.Stat. § 20–79.7(a1). Of the $25, $15 go to the Carolina Pregnancy Care Fellowship, a private organization that supports crisis pregnancy centers in North Carolina. ³N.C. Gen.Stat. §§ 20–79.7(b), 20–81.12(b84). The remaining $10 go to the North Carolina Highway Fund, as is the case with other specialty plates. N.C. Gen.Stat. § 20–79.7(b). Further, the funds collected from “Choose Life” plates are expressly prohibited from “be[ing] distributed to any agency, organization, business, or other entity that provides, promotes, counsels, or refers for abortion....” N.C. Gen.Stat. § 20–81.12(b84).

To develop a specialty license plate, NC DMV must receive three hundred applicationsfrom individuals interested in that plate. Id. Once the NC DMV issues the plate, any interested vehicle owner registered in North Carolina may purchase it. Over two hundred specialty plates are available, and North Carolina invites vehicle owners to “find the plate that fits you” and “[m]ake a statement with a specialized or personalized license plate.” http:// www. ncdot. gov/ dmv/ vehicle/ plates/. According to North Carolina, its specialty plate program “allows citizens with common interests to promote themselves and/or their causes.” http:// www. ncdot. gov/ dmv/ online/.

Because North Carolina refused to allow a specialized plate to promote their cause, North Carolina vehicle owners who wanted a pro-choice specialty plate, along with the ACLU, brought this lawsuit in the United States District Court for the Eastern District of North Carolina. They sued the North Carolina Department of Transportation (“NC DOT”) and the NC DMV (collectively called “North Carolina”) for First and Fourteenth Amendment violations.

In December 2011, the district court granted a preliminary injunction blocking North Carolina from issuing the “Choose Life” plate. Am. Civil Liberties Union of N.C. v. Conti, 835 F.Supp.2d 51 (E.D.N.C.2011). One year later, in December 2012, the district court granted summary judgment and permanently enjoined the “Choose Life” plate. Am. Civil Liberties Union of N.C. v. Conti, 912 F.Supp.2d 363 (E.D.N.C.2012). The district court held, among other things, that “sufficient private speech interests are implicated by the specialty license plates to preclude a finding of purely government speech [,]” and that “the State's offering of a Choose Life license plate in the absence of a pro-choice plate constitutes viewpoint discrimination in violation of the First Amendment.” Id. at 375. North Carolina appealed, and our review is de novo. Planned Parenthood of S.C. Inc. v. Rose, 361 F.3d 786, 789 (4th Cir.2004).

II.

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.

A.

“Premised on mistrust of governmental power,” Citizens United, 558 U.S. at 340, 130 S.Ct. 876, the First Amendment bars the government from abridging freedom of private speech. U.S. Const. amend. I; see also, Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138 (1925) (incorporating the freedom of speech against the states). “It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys. Other principles follow from this precept. In the realm of private speech or expression, government regulation may not favor one speaker over another. Discrimination against speech because of its message is presumed to be unconstitutional.” Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 828, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) (citations omitted).

“[T]he violation of the First Amendment is all the more blatant” when the government targets not simply subject matter, but particular viewpoints speakers take on a subject. Id. at 829, 115 S.Ct. 2510. Indeed, the Supreme Court has called viewpoint discrimination “an egregious form of content discrimination” and has held that “[t]he government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.” Id. at 829, 115 S.Ct. 2510.

By contrast, if the government engages in its own expressive conduct, then the Free Speech Clause and its viewpoint neutrality requirements have “no application.” Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 467, 129 S.Ct. 1125, 172 L.Ed.2d 853 (2009). Indeed, under the “relatively new, and correspondingly imprecise” government speech doctrine, Johanns v. Livestock Mktg. Ass'n, 544 U.S. 550, 574, 125 S.Ct. 2055, 161 L.Ed.2d 896 (2005) (Souter, J., dissenting), “[a] government entity has the right to speak for itself. It is entitled to say what it wishes, and to select the views that it wants to express.” (quotation marks, citations, and alterations omitted).

Although the Supreme Court has not yet recognized that speech may be not purely government or private but instead implicate both, this Court has. In Sons of Confederate Veterans, Inc. ex rel. Griffin v. Commissioner of the Virginia Department of Motor Vehicles ( “SCV I ”), this Court held that Virginia's barring the Sons of Confederate Veterans from obtaining a specialty license plate with a confederate flag logo constituted unconstitutional viewpoint discrimination. 288 F.3d...