With the U.S. Supreme Court’s decision not to hear an appeal of a ban on South Carolina’s issuance of license plates with pro-life messages, this either does or does not increase the chances that Louisiana’s version will finally be issued.
It does because the 5th Circuit Court of Appeals may wish to go in a different direction than the 4th which upheld the ban. The cases are slightly different; the 5th Circuit directed plaintiffs two years ago that the only challenge it would accept was one against all specialty plates, so it is a broader case based on a process. It doesn’t because the Court may be signaling it accepts the 4th Circuit’s argument that government’s permission to have such plates constitutes a lack of neutrality in government support of speech.
Louisiana’s argument has been that the issuance of such a plate was part of a political process, producing state speech. The monies collected go to organizations that then use the funds for their causes; government merely acts as a conduit without coercing anybody into paying the extra $25 for the specialty plate. Thus, the 5th Circuit was correct in saying the constitutional question here revolved around the right of the state to have such a program.
Opponents, however, argue this still is private speech. But the flaws in that argument become apparent in two ways. First, it’s an all-or-nothing proposition: either every of the 148 causes is private speech or none are, so where were the merchants of death that comprise the abortion lobby when the “Save the Black Bear” plate was first offered? You can’t pick and choose what’s “private” and what’s “state” just on the basis of the content of the causes.
So, if opponents must accept it’s the process that is of questionable constitutionality, then they would have to demonstrate how the process was rigged in favor of particular viewpoints, which brings up their second flaw: it isn’t. They cannot demonstrate that the Louisiana governmental policy-making process has built into it a bias favoring pro-life preferences. That was brought home when a move was made to create a “Choose Choice” (more accurate would have been “Choose Death”) in 2002 failed; it followed the identical process that brought about the pro-life plates but did not have the political support.
State speech portraying a particular preference occurs all of the time. For example, the state has a whole bureaucracy set up, which disseminates through various media a particular viewpoint, on drug usage in schools. No doubt here are those out there who advocate legalization, for example, of marijuana. Can they sue the state to shut down the speech activities of the Governor’s Safe and Drug Free Schools and Communities Program? And what about those who want to shoot every black bear in sight until extinction, can they prevent the state from issuing a plate begging us to save these creatures (the state animal)?
Of course not; the political process has made the reduction of drug usage of students part of state policy and speech. The same applies to the question of the state acting as a conduit to solicit and transfer funds to pro-black bear, or pro-life groups, unconnected with the state. The outcomes of the process of the specialty license plate need not be neutral only that the process is. And, the 5th Circuit should find this to be the case.
The secret, of course, is that those who oppose “Choose Life” plates do so because they know they are on the low road on the issue. They don’t want these license plates to be out there reminding them that they support infanticide, that they don’t have the courage to want to protect the most vulnerable members of our society from the selfishness that lies behind most decisions to abort and to terminate human lives as a result. That’s not any justification to overturn this law.
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