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.
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