* The Thomas More Society isn’t giving up its quest to force Illinois to issue “Choose Life” license plates. A three-judge federal appeals panel recently shot down their case, but the group wants a rehearing and is threatening to take their argument all the way to the US Supreme Court if necessary.
A bit of history…
Secretary of State Jesse White claimed he did not have power to approve the plate himself, and when the federal trial court ruled that he did have such authority under the wording of the license plate statute, the General Assembly passed a new bill that required legislative approval for every new specialty plate.
So, now we have a law on the books that specifically requires General Assembly approval of all new specialty plates, but a conservative group wants to overturn state legislative rights? I’m not sure I get it…
“Our US Constitution, especially the First Amendment’s free speech clause, must be held to mean the same thing in all parts of our country, and it makes no sense that specialty plates that say ‘Choose Life’ whose proceeds support the cause of adoption are permitted in so many other states, yet outlawed here,” said Brejcha. “This is a classic case of what federal courts always have condemned as ‘viewpoint discrimination’ and it must be stopped.”
Brejcha warned that Supreme Court authority would be sought in the event that rehearing is not granted or enough votes are not won to overturn the panel’s decision.
* OK, but this is what the appellate court actually ruled…
Specialty license plates implicate the speech rights of private speakers, not the government-speech doctrine. This triggers First Amendment “forum” analysis, and we conclude specialty plates are a nonpublic forum. Illinois may not discriminate on the basis of viewpoint, but it may control access to the forum based on the content of a proposed message—provided that any content-based restrictions are reasonable. The distinction between content and viewpoint discrimination makes a difference here.
It is undisputed that Illinois has excluded the entire subject of abortion from its specialty-plate program; it has authorized neither a pro-life plate nor a pro-choice plate. It has done so on the reasonable rationale that messages on specialty license plates give the appearance of having the government’s endorsement, and Illinois does not wish to be perceived as endorsing any position on the subject of abortion. The State’s rejection of a “Choose Life” license plate was thus content based but viewpoint neutral, and because it was also reasonable, there is no First Amendment violation. We reverse the judgment of the district court.
That seems reasonable to me.
* More on the General Assembly’s role…
The amendment to section 5/3-600(a) makes explicit what the Secretary had argued was implicit: that the authority to approve new specialty license plates resides with the General Assembly… (”The Secretary of State shall issue only special plates that have been authorized by the General Assembly.”). We ordinarily apply the law in effect on appeal, and where (as here) a party requests only prospective relief, there is no impediment to doing so retroactively. […]
Because the General Assembly’s rejection of the “Choose Life” specialty plate was viewpoint neutral and reasonable, there was no First Amendment violation here, and the district court improperly entered judgment for CLI. We REVERSE the judgment of the district court, VACATE its order directing the Secretary to issue the “Choose Life” plate, and REMAND with instructions to enter judgment for the Secretary.