American Civil Liberties Union v. Conti
835 F. Supp. 2d 51
E.D.N.C.2011Background
- NC enacted Session Law 2011-392 authorizing multiple specialty license plates, including Choose Life; plate costs $25/year with $15 to Carolina Pregnancy Care Fellowship; funds barred from abortion-related entities; 300 applications trigger plate development; plaintiffs allege the process creates private viewpoint speech in a government forum; court granted preliminary injunction prohibiting Choose Life plate distribution.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the plate constitutes government speech or private speech | Rose factors show private speech, not pure government speech | Choose Life is government speech due to state control | Plaintiffs show private/hybrid speech, not pure government speech |
| Whether the State engaged in viewpoint discrimination by not offering a pro-choice plate | State rejection of pro-choice plate discriminates against viewpoint | No violation if government speech rationale applies | Court finds impermissible viewpoint discrimination |
| Whether preliminary injunction is appropriate given likelihood of success and irreparable harm | Likely success on First Amendment grounds; irreparable harm | No likelihood of success or irreparable harm shown | Injunction granted; irreparable harm and public interest satisfied |
Key Cases Cited
- Rose, Sons of Confederate Veterans, Florida Div., Inc. v. Atwater, 361 F.3d 786 (4th Cir. 2004) (four-factor test for private vs. government speech; private speech restrictions invalid)
- Sons of Confederate Veterans, Inc. v. Virginia Dep’t of Motor Vehicles, 288 F.3d 610 (4th Cir. 2002) (hybrid speech analysis; private speech interests protectable)
- Johanns v. Livestock Marketing Ass’n, 544 U.S. 550 (U.S. 2005) (government speech test; concludes government can sponsor private speech in certain contexts)
- Summum v. City of Pleasant Grove, 555 U.S. 460 (U.S. 2009) (monument as government speech; control and identity factors discussed)
- Wooley v. Maynard, 430 U.S. 705 (U.S. 1977) (license plate private speech rights; association with owner of vehicle)
- Turner v. City Council of Fredericksburg, 534 F.3d 352 (4th Cir. 2008) (recognizes SCV framework for government/private speech)
- Bredesen v. Board of Governors, 441 F.3d 374 (6th Cir. 2006) (Johanns limits; government speech vs. private speech considerations)
- White v. Illinois, 547 F.3d 853 (7th Cir. 2008) (private speech in state-sponsored plate contexts; private speaker identity factors)