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The Legal Battle For NC’s “Choose Life” Plates

Family Policy Matters / NC Family Policy
The Truth Network Radio
August 16, 2014 12:00 pm

The Legal Battle For NC’s “Choose Life” Plates

Family Policy Matters / NC Family Policy

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August 16, 2014 12:00 pm

NC  Family  president John Rustin talks with Scott Gaylord, professor of law at Elon University School of Law in Greensboro, NC, and an allied attorney with Alliance Defending Freedom (ADF), about the ongoing legal battle over North Carolina’s “Choose Life” specialty license plates.

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This is family policy matters program is produced by the North Carolina family policy Council of profamily research and education organization dedicated to strengthening and preserving the family and elf in the studio.

Here's John Rushton, president of the North Carolina family policy Council, thank you for joining us this week. Profamily policy matters. It is our pleasure to have Prof. Gaylord with us on the program. Scott is professor of law at the Elon University school of Law in Greensboro North Carolina and he is also an Allied attorney with alliance defending freedom and expert on constitutional law professor Gaylord was recently retained by the leadership of the North Carolina Gen. assembly to represent the state in its ongoing efforts to defend North Carolina's choose life specialty license plates in July, Prof. Gaylord, along with alliance defending freedom attorneys petition the US Supreme Court away in all North Carolina's legal battle over the cheeselike license plates and will be talking with Prof. Gaylord about that petition as well as the lawsuit challenging North Carolina's choose life plates and the important issue. The Supreme Court is being asked to consider in this case Prof. Gaylord.

Thanks so much for being with us like your program.well we appreciate and appreciate all the efforts that you are making on behalf of the state of North Carolina now in the summer of 2011, the North Carolina Gen. assembly is a matter of background pass legislation authorizing the development of 70 additional specialty license plates in North Carolina, bringing the total number of authorized specialty license plates to close to hundred and 50 in our state. These tags allow North Carolina motorists to express their support for colleges and universities for NASCAR drivers for sea turtles for watermelon and even shack dancing, and square dancing. Among the 70 additional plates that were approved by the Gen. assembly was one including the message. Choose life. Apparently this pro-life message was so offensive to some, that they felt a lawsuit was necessary and as a result, about a significant legal battle has ensued over this Prof. Gaylord as we get started, tell us briefly about the cheeselike license plates and where the money raised from the sale of these plates would go. Certainly, as you probably know North Carolina's July specialty plate marked the culmination of a lot of hard work by a lot of different people in North Carolina and across the country noted the North Carolina Gen. assembly must approve each specialty plate the background pictures and wording of the cheeselike plate was approved of the non-first in flight plate. So instead of having the typical Wright brothers playing the person played on it. Instead it had a distinctive picture of two small kids water and the mountains in the background and the words cheeselike across the top of the legislature. Also, determine how much each plate will cost and where that money will go as you suggest in the choose life plate would cost $25 extra above what you normally pay for Standard Edition plate and $15 of that would go to the Carolina pregnancy care, fellowship, a private organization that funds and supports our crisis pregnancy centers in North Carolina under the terms of the legislation.

None of the money raised for the choose life plates could quote be distributed to any agency, organization, business, or other entity that provides, promotes, councils, or refers to abortion" bus, North Carolina with hope and the public to promote childbirth, and from a pro-life message due to the message on the plate as well as approved funding of the Carolina pregnancy care Fellowship and shortly after the license plate provision was passed in September 2011, the American Civil Liberties Union or ACLU filed a lawsuit challenging the constitutionality of the cheeselike plates was the basis of the ACLU's argument in that lawsuit. The lawsuit basically asked the federal courts to enjoyment. That is to stop the production and distribution of the choose life specialty plate affect the youth of that North Carolina could not issue a cheeselike plate unless it also issued a respect choice plate or some similar pro-choice alternative. The basic argument deals with the First Amendment to the United States Constitution enough. The central point of been argued throughout this whole process. You contends that when cortical reasonable person looks at a specialty license plate, she would think that the driver is the person endorsing or promoting the message on the plate and not the government. As result, the speech is considered without private speech in the government is limited in its ability to restrict private speech on such important issues that we want to govern going around being able to silence people in the discussion is important part of our society and in our government. Moreover, given the number and variety of speculators you mentioned about approaching 150 or more of the ADO you argue that North Carolina actually created what's called off forum for private speech, that is, it allowed all these different groups to come in and express their message. Therefore North Carolina cannot restrict other messages. You can't screen a picture on viewpoint on a given subject. As result if North Carolina is going to lower cheeselike plate that it must also permit other views on abortion, such as respect choice is important to note that they never asked federal courts to require North Carolina at issue, respect, choice plate, only that if North Carolina had the one choose life. It must also have the other. The end result is that David usually seeking defenses North Carolina's choose life message which we know we are using consistent with the purpose of the First Amendment which is to protect the not essential to limit speech also considering all the attention that North Carolina has received in this legal action and so forth. We must of been on the cutting edge in the first study to consider cheeselike plates them. Is that correct you know if an ongoing struggle or battle across the country a lot of different federal courts have looked at and analyze what's going on with choose life plates I think of what we've seen, though, is that those courts are not consistent in how they decided those. And so that's will be the issue here, the Fourth Circuit Court of Appeals, which governs North Carolina, South Carolina, Virginia, and a couple other states should be opinion and that becomes the law of the land follow that opinion is inconsistent with some other jurisdictions. So what we end up with is the sort of mix of different decisions, not really clear what the proper standard is and were asking the state Supreme Court to step in and clarify that well and I appreciate your clarification on that. I wasn't trying to set you up.

It's just ironic that there are cheeselike license plates that are currently legal in 29 states across the country and as you alluded to the US Court of Appeals for the Sixth Circuit and almost an identical case out of Tennessee ruled that Tennessee's cheeselike plate was actually constitutional. And so, as you said, we have different federal appeals courts that have viewed this issue differently tell us as far as the North Carolina litigation is concerned.

When we stand from a legal standpoint at this time.

Yet this point, we had is a series of decision striking down or enjoining the North Carolina plate so that a federal district court originally entered a preliminary jump injunction and that a permanent injunction thing you can't do it North Carolina through the Atty. Gen. appeal back to the Fourth Circuit Court of Appeals mentioned and the Fourth Circuit affirmed the Fourth Circuit applied for factor test of its own creation attest that the United State Supreme Court has never considered. In fact, Fourth Circuit expressly, the courts never looked at this test that were using, but they applied that test and determine that the speech was private speech and dimension as result of that North Carolina was involved in what's called viewpoint information allowing a pro-life message but not a pro-choice message and therefore struck down and said you can't do it if you want to have a cheeselike plate fine, but you also have to lower respect choice plate that I know that you and ADF became involved in this case at the request of the new Carolina Gen. assembly.

You believe led the leaders of the Gen. assembly to want to intervene in this case to defend the stage cheeselike license plates water wanting to what a draft of the Fourth Circuit issued its opinion. The state has roughly 90 days, three months to decide whether or not it wanted to ask United States Supreme Court to hear the case and this is what they file a petition for writ of certiorari. His wife called Nancy by way of saying would you please hear the case.

We want you to take it. On appeal, near the end of that three months.

The Atty. Gen.'s office informed the Gen. assembly that it would not pursue review of the Fourth Circuit decision until the very near the end of the filing deadline.

If you miss that deadline, you can do anything. I think at that point the Gen. assembly wherever the internal conversations were decided know what we want to step in and intervene in the litigation to protect North Carolina's right to defend its duly enacted legislation that is the choose life plates North Carolina sought to safeguard its ability to say what it wants to respectfully plates without being forced to carry messages with which you disagree.

At that point to life-threatening freedom of myself that I got involved, and offered our assistance and expertise to support issue of the Fourth Circuit Court of Appeals granted their motion to intervene, so that they became official parties after the Atty. Gen. said it would not defend and then the Supreme Court granted an extension of time running out were so close to the deadline. Chief Justice Roberts granted an extension of time were able to file the petition and will go from there. What were so glad that you are involved in this and really appreciate all legislative leaders taking that role in intervening in this case. Why is North Carolina's battle over choose life specialty license plates worthy of review by the US Supreme Court.

In your opinion, what determinations will the Supreme Court make as it's reviewing this petition and determining whether or not it's good to hear this case.

Important question is what happens is Supreme Court has broad discretion when deciding what cases to hear there very few cases that it must here so it is called the rule of four NAFTA get four justices who are interested in who a vote to take on a particular case. Another no exhaustive list of factors that the court will consider but it frequently considers the following three things.

First whether there is a circuit split that is, whether other federal circuit courts across the country have reached contradictory conclusions. Second, whether the case raises a novel and important issue of federal constitutional law and then finally impaired. Whether the lower court decision conflicts with existing precedent. I think in this case, we argue and believe that all those factors are mad as you mentioned this idea of what plates of been heard in different circuits across the country. To date, the seventh circuit courts that have considered challenges to choose life or other special plates have reached at least five different decisions circuits have refused to hear the case at all. Under special grounds.

Imagine the Fourth Circuit apply the four factor test seventh and eighth circuits apply a single factor that you mention. The Sixth Circuit says nope you can have such a device like this place in their form of government, speech, and in the Fifth Circuit Court of Appeals just provided another specialty plate case last month in which the majority was up to one decision expressly stated that the sprinkler has not articulated the standard in this area.

It ultimately adopted a single factor test in the seventh and eighth circuits.

I think it set up nicely that we have a circuit split.

We have a mixed speech test of the Fourth Circuit of four factor test of the spring court has never applied and is an inconsistency which we argue in the defendant.

Fifth Circuit argues with prior sprinkler precedent village about 15 minutes for the benefit of our listeners to the ACLU's general argument in this case that the state should be forced really to offer motorist a pro-abortion license plate if it offers the option of a pro-life license plate.

Is this a valid legal argument in your opinion you talk to the court to our petition. There is a lot of confusion among the courts are not surprisingly the deal you relied heavily on prior decisions of the Fourth Circuit Court of Appeals, and therefore factor test. The problem is though that the Fourth Circuit's test is inconsistent so we argue with recent Supreme Court decisions that really give a level of government control to be the key feature when deciding whether the government is speaking of inventions and call the government speech doctrine. The government has to have the right to speak for self and expressed the view that wants to express any part of governing.

In setting policy and making statements in a variety of areas that needs to have that right. This case really man challenges the ability of third parties to force the government to convey messages with with with with which they disagree right. That's exactly what's going on in this counsel, we argue right there trying to force North Carolina. The issue respect choice plate problem is right. If this is correct that North Carolina can be forced to issue all sorts of license plates that contradicts desired message and it may be another context as well to issue statements and policy positions with which you disagree having acute in God we trust, support our troops and kids first plate under the Fourth Circuit analysis by Nortel not enough to be forced to issue something like terminal and APs and we trust under minor troops. Kids last those types of play for you given the cheeselike in respect choice and I don't believe viewpoint on abortion.

North Carolina could be required. Issue plates expressing America views on abortion. Pro-life, pro-abortion, antilife, antiabortion fetuses or persons not perfect and I can imagine what going on and on. The First Amendment does not allow third parties to control and dictate the government's message, whereas in North Carolina the legislature has complete effective control over that message. In those situations of the government don't like what the court is that before the need to vote for new legislators break the power of the vote and important power and you need to exercise that if you disagree you can't just use the First Amendment speech, but we will certainly wait with great anticipation to hear what the court decides on that. Unfortunately, we are nearly out of town for this week.

I know that you have written a law review article on the cheeselike license plate if you can tell us if you would where our listeners can go to read the article is called kill the sea turtles and other things that you can't make the article was published in the Washington and Lee Longview can look on and search for Scott Gaylord and that will take you to this article and some other articles I've written on religious liberty and some other things. Excellent Prof. Scott Gaylord. Thank you so much for being with us today on family policy matters and for your great work defending North Carolina's choose life specialty points. Thank you so much since family policy matters is information and analysis feature of the North Carolina family policy Council join us weekly discussion on policy issues affecting the family. If you have questions or comments.

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