In
ACLU of North Carolina v. Tennyson, (4th Cir., March 10, 2016), the U.S. 4th Circuit Court of Appeals in a 2-1 decision upheld North Carolina's decision to issue specialty "Choose Life" license plates even though the state refused to also issue a pro-choice specialty plate. The case was on remand from the U.S. Supreme Court with instructions to to the appeals court to reconsider the case in light of the Supreme Court's 2015 decision in
Walker v. Texas Division, Sons of Confederate Veterans, Inc. In reconsidering the case, the 4th Circuit's majority opinion said in part:
The specialty license plate program at issue here is substantively indistinguishable from that in Walker, and the Walker Court’s analysis is dispositive of the issues in this case. Accordingly, 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.
Judge Wynn dissenting said in part:
I refuse to believe that with Walker, the Supreme Court meant to force us to choose that the mule in this case is either a horse or a donkey. Instead, Walker’s holding, when narrowly understood, does not lead to the conclusion that the North Carolina specialty plate speech at issue here constitutes pure government speech. On the contrary ..., it presents mixed speech—with private speech components that prohibit viewpoint discrimination.
U.S. Law Week reports on the decision.
