Fourth Circuit OKs “Choose Life” license plates [UPDATED]

The opinion has not yet posted, but I will write more on it soon. For now, this is from WRAL:

The 4th U.S. Circuit Court of Appeals ruled Thursday that “Choose Life” license plates state lawmakers approved in 2011 are constitutional, reversing a decision the same court made two years ago.

After the court found in 2014 that the plates represented “viewpoint discrimination” because North Carolina doesn’t offer similar plates supporting abortion rights, the U.S. Supreme Court ordered a new hearing last year based on its ruling in a Texas license plate case. In that case, the high court ruled that Texas could refuse to issue plates bearing the Confederate battle flag without violating anyone’s free-speech rights.

Read more here, and I will post more analysis after I get the opinion. [UPDATE]: The opinion is here.

Interestingly, this decision concludes that the plates are “government speech” and that the state therefore can accept or reject any license plat it wants. The Fourth Circuit had previously decided that this same issue implicated private speech rights of individuals, but the intervening Texas confederate flag case at the Supreme Court changed the thinking.

Judge Wynn dissented from the opinion, writing in part:

In Walker v. Texas Division, Sons of Confederate Veterans, Inc., 135 S. Ct. 2239 (2015), the Supreme Court majority did not address, much less overrule, this Circuit’s common-sense recognition that speech can be “mixed”—i.e., that it can have elements of both government and private speech. Insisting otherwise is tantamount to “insisting that a mule must be either a horse or a donkey.” David A. Anderson, Of Horses, Donkeys, and Mules, 94 Tex. L. Rev. See Also 1, 4 (2015).

Donkeys and Mules aside, he goes on to argue that, the state’s authorization of the “Choose Life” plate and rejection of a “Respect Choice” plate is not pure government speech.

He applies the factors from Walker, and concludes that the state did, in fact, violate the First Amendment. He looks at the legislative history of the law, which made clear that the intent was to allow voluntary speech by individuals. He looks at the messages themselves to see if their is an association between the message and the government, e.g.:

A person who sees a North Carolina “I’d Rather Be Shaggin’” specialty plate during Monday morning rush hour surely does not routinely and reasonably believe that such a plate embodies the State of North Carolina’s credo.

Finally, he looks at the means of control, which is identical to the Walker case. The state controls the message because the plate can’t be printed without their permission. He argues that this alone should not be the end of the analysis.

He concludes:

North Carolina invited its vehicle owners to “[m]ake a statement” and “promote themselves and/or their causes”—but only if they were on the government’s side of a highly divisive political issue. This, North Carolina may not do. Because the specialty plate speech at issue is not pure government speech, North Carolina’s allowing a “Choose Life” plate while rejecting a pro-choice plate constitutes viewpoint discrimination in violation of the First Amendment. For this reason, I would affirm the district court’s ruling in Plaintiffs’ favor and must respectfully dissent.