A three justice panel of the U.S. 4th Circuit of Appeals has held 2 to 1 that it is perfectly OK for the government to ignore the First Amendment while engaging in viewpoint discrimination. The decision affirmed that the state of North Carolina can issue specialty vehicle license plates with anti-abortion slogans while refusing to also produce tags that offer pro-abortion rights views.
The North Carolina General Assembly passed legislation in 2011 allowing motorist’s requests for specialty license plates advocating anti-abortion expression while rejecting all requests from abortion rights advocates to also issue tags saying "Respect Choice" or similar abortion-rights phrases.
It’s like the government issuing specialty license plates with the message: “Democrats Rule” while refusing to issue similar plates promoting Republicans.
Ironically, the very same court only two years ago came to the exact opposite conclusion, holding then that North Carolina was unconstitutionally discriminating against differing viewpoints.
When governments issue specialty license plates they are engaging in government speech. So said the U.S. Supreme Court in a Texas case last year allowing that state to reject proposals for tags featuring a Confederate battle flag.
"We now conclude that specialty license plates issued under North Carolina's program amount to government speech and that North Carolina is therefore free to reject license plate designs that convey messages with which it disagrees," says the 4th Circuit of Appeals new opinion.
In short, according to this court, if the majority of a state’s lawmakers are Democrats, it can pass laws issuing specialty license plates with messages promoting Democrat political positions while denying the same type of requests to promote Republican political positions.
Well, at least one of the three justices got it right in a dissenting opinion observing that his colleagues had misread the implications of the Supreme Court's Texas case. Expressions on license plates aren't purely the government's expression of messages it approves, he rightly said. Legislators themselves recognized that the tags were intended to be a forum for private expression by the people who buy them.
"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," he wrote. "Nor is it likely that a North Carolina Libertarian who applies for a "Don't Tread On Me" specialty plate is motivated by a desire to convey to the public the government's seal of approval."
The Supreme Court's decision must have recognized that allowing officials alone to determine government speech would allow it "to discriminate against disfavored speakers and messages at will," he continued. It's implausible that "the Supreme Court meant to force us to choose that the mule in this case is either a horse or a donkey."
In other words, says the dissenter, and I wholeheartedly agree: it is still considered unconstitutional for a state legislature to engage in choosing blatant government viewpoint discrimination in violation of the First Amendment.