American Civil Liberties Union of North Carolina et al v. Conti, Jr. et al
Filing
36
ORDER granting 8 Motion for Preliminary Injunction. Counsel is reminded to read the order in its entirety for critical deadlines and information. Signed by Senior Judge James C. Fox on 12/8/2011. (Edwards, S.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No.5: ll-CV-470-F
AMERICAN CIVIL LIBERTIES UNION
OF NORTH CAROLINA,
DEAN DEBNAM,
CHRISTOPHER HEANEY,
SUSAN HOLLIDAY, CNM, MSN, and
MARIA MAGHER,
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Plaintiffs,
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v.
ORDER
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EUGENE A. CONTI, JR., in his official
capacity as Secretary of North Carolina
Department of Transportation, MICHAEL
ROBERTSON, in his official capacity as
Commissioner of the North Carolina
Division of Motor Vehicles, and
MICHAEL GILCHRIST, in his official
capacity as Colonel of the North Carolina
State Highway Patrol,
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Defendants.
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This matter came before the undersigned for a hearing on the Motion for Preliminary
Injunction [DE-8] filed by Plaintiffs American Civil Liberties Union of North Carolina ("the
ACLU-NC"), Dean Debnam, Christopher Heaney, Susan Holliday, CNM, MSN and Maria
Magher (collectively, "Plaintiffs"). In the motion, Plaintiffs seek a preliminary injunction
prohibiting Defendants from implementing, enforcing, or otherwise carrying out the program of
administration for the issuance of "Choose Life" license plates, as provided for in Session Law
2011-392. At the hearing, Plaintiffs were represented by Katherine Lewis Parker. Defendants
Eugene A. Conti and Michael Robertson, sued in their official capacities as Secretary of the
North Carolina Department of Transportation and Commissioner of the North Carolina Division
of Motor Vehicles, respectively, (collectively, "the State" or "Defendants") were represented by
Special Deputy Attorney General Neil Dalton.! The hearing concluded with the undersigned
allowing Plaintiffs' Motion for Preliminary Injunction. This order memorializes and clarifies the
ruling.
I. FACTUAL BACKGROUND
On June 18,2011, the North Carolina General Assembly passed House Bill 289, entitled
"AN ACT TO AUTHORIZE THE DIVISION OF MOTOR VEHICLES TO ISSUE VARIOUS
SPECIAL REGISTRATION PLATES" (hereinafter, "the Act"). Governor Beverly Perdue
signed the bill into law on June 30, 2011. See N.C. Sess. Law 2011-392. The Act authorizes
many new specialty license plates, including a plate bearing the message "Choose Life." See
N.C. Sess. Law 2011-392 §1(bl)(39). The Act brings the total of specialty license plates
authorized by the North Carolina legislature to well over 100. N.C. Sess. Law 2011-392 §(b)(1);
N.C. Gen. Stat. § 20-79.4(b).2
Unlike many other States, North Carolina does not have a general statutory or
administrative mechanism through which organizations or individuals can propose or obtain
Plaintiffs also named Michael Gilchrist, in his official capacity as Colonel of the North Carolina
Highway Patrol, as a defendant in the Verified Complaint [DE-I]. Plaintiffs later filed a Notice of
Voluntary Dismissal [DE-33] as to Defendant Gilchrist.
I
2 The specialty plates authorized by the North Carolina General Assembly convey a broad range of
messages, from support of the Buddy Pelletier Surfing Foundation and shag dancing to litter
prevention and awareness ofsharing the roads with bicyclists and pedestrians. See N.C. Gen. Stat.§
20-79.4(b)(23), (121), (122); N.C. Gen. Stat. § 20-81.12(bI5).
2
specialty plates. 3 Rather, the only specialty plates available are those specifically authorized by
the North Carolina General Assembly. See N.C. Gen. Stat. § 20-79 et seq.
The "Choose Life" license plate at issue in this suit would cost $25.00 annually in
addition to the regular yearly registration fees. See N.C. Sess. Law 2011-392 §4(a). From this
price, $15.00 of every plate sold would go to the Carolina Pregnancy Care Fellowship, a private
organization which funds and supports crisis pregnancy centers in North Carolina. N.C. Sess.
Law 2011-392 §§ 5, 7(b84). The funds to be collected from the "Choose Life" plate are
expressly prohibited from "be[ing] distributed to any agency, organization, business, or other
entity that provides, promotes, counsels, or refers to abortion." N.C. Sess. Law 2011-392 §
7(b84).
Under the provisions of the Act, if the Division of Motor Vehicles has received 300
applications for plates bearing the "Choose Life" message, it may develop the plate. N.C. Sess.
Law 2011-392 § 7(b84). Plaintiffs allege that in practice, the applications are received through
the Carolina Pregnancy Care Fellowship, the sole recipient of a portion of the funds from the sale
of the "Choose Life" plate. Verified Compi. [DE-I]
~
25. Plaintiffs allege, upon information
The exceptions to this general rule include specialty plates for certain civic organizations and for
plates bearing collegiate insignia. See N.C. Gen. Stat. § 20-79(b)(27)(providing for specialty plates
"[i]ssuable to a member of a nationally recognized civic organization whose member clubs in the
State are exempt from State corporate income tax," provided that the Division of Motor Vehicles
receives 300 applications for a specific civic club plate); N.C. Gen. Stat. § 20-81.12 (allowing
specialty plates bearing collegiate insignia provided that the Division of Motor Vehicles receives at
least 300 applications for a particular college or university's plate). The latter provision has resulted
in North Carolina plates bearing the insignia ofout-of-state colleges and universities, including some
which could be considered academic or athletic rivals of North Carolina colleges and universities.
See NORTH CAROLINA DIVISION OF MOTOR VEHICLES, Collegiate Plates,
https://edmv-sp.dot.state.nc.us/sp/SpeciaIPlatesList?category=collegiate (last visited November 28,
2011)(offering license plates bearing the insignia ofClemson University, Perdue University, Virginia
Tech, and University of Florida, among others).
3
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and belief, that the Carolina Pregnancy Care Fellowship has received or will soon receive the
requisite 300 applications. Id.
~
26. Once the Division of Motor Vehicles issues the "Choose
Life" plate, it would be available to any interested vehicle owner in the State of North Carolina.
During the 2011 Legislative Session, various legislators proposed amendments to House
Bill 289 to include another specialty plate stating: "Respect Choice" or "Trust Women. Respect
Choice." Verified CompI.
~~
28-31. In all, legislators made six attempts to amend the Act,
accompanied by rancorous debate. Verified CompI.
~
32; Ex. C (recordings of various
committee meetings wherein House Bill 289 and the amendments were discussed). All six of
those attempts were rejected by the General Assembly.
Plaintiffs thereafter initiated this action by filing a Verified Complaint, Motion for
Temporary Restraining Order, and Motion for Preliminary Injunction. The Individual Plaintiffs
are registered automobile owners in the State of North Carolina who desire to purchase a license
plate bearing a message expressing support for a woman's right to reproductive choice, such as
"Respect Choice" or "Trust Women. Respect Choice." Verified CompI.
~~
9-12. The ACLU
NC is a non-profit membership organization with the mission of defending individual freedoms
embodied in the United States and North Carolina Constitutions. Verified CompI.
~
8. The
Plaintiffs contend that by authorizing the "Choose Life" plate while rejecting a pro-choice license
plate, the State has opened a state-created forum for private speech to one viewpoint alone in the
public debate over abortion, in violation of Plaintiffs' rights under the First and Fourteenth
Amendments to the United States Constitution. Verified CompI.
4
~
3.
II. STANDARD OF REVIEW
A preliminary injunction is an extraordinary interlocutory remedy, the purpose of which
is to protect the status quo and prevent irreparable harm during the pendency of a lawsuit. In re
Microsoft Corp Antitrust Litig., 333 F.3d 517,524-25 (4th Cir. 2003). A court, in its discretion,
may issue a preliminary injunction only if the moving party clearly establishes the following
factors: (1) he is likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the
absence of preliminary relief; (3) the balance of equities tips in his favor, and (4) an injunction is
in the public interest. Winter v. Natural Res. De! Council, Inc., 555 U.S. 7,20 (2008); West
Virginia Ass'n o/Club Owners & Fraternal Servs., Inc. v. Musgrave, 553 F.3d 292, 298 (4th Cir.
2009).
III. ANALYSIS
Plaintiffs contend that a preliminary injunction must issue because the State, by
authorizing the "Choose Life" plate while rejecting a pro-choice license plate, has engaged in
impermissible viewpoint discrimination in violation of the First and Fourteenth Amendments,
and this discrimination will result in irreparable harm. The State, however, argues that Plaintiffs
cannot show a likelihood of success on the merits, and the motion for preliminary injunction
should be denied. For the reasons stated below, the court finds that Plaintiffs have carried their
burden in showing that the preliminary injunction should issue.
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A. Plaintiffs have shown a likelihood of success on the merits
The parties agree that the dispositive issue 4 in determining whether Plaintiffs have shown
a likelihood of success on the merits is whether the "Choose Life" license plate constitutes
government speech. Government speech is not subject to scrutiny under the Free Speech Clause
of the First Amendment. Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 467-68
(2009)(explaining that "[t]he Free Speech Clause restricts government regulation of private
speech; it does not regulate government speech" and therefore "[a] government entity has the
right to speak for itself' and "is entitled to say what it wishes and to select the views that it wants
to express" (internal quotation marks and citations omitted)). Government regulation ofprivate
speech, however, is subject to the Free Speech Clause of the First Amendment. See id. at 469-70
(explaining that government speech restrictions of private speech in a traditional public forum, a
designated public forum, or a limited public forum must be viewpoint neutral). Moreover,
government restriction of hybrid speech-speech that is both private and governmental at the
same time-also must be viewpoint neutral. See Rose, 361 F.3d at 795-99 (Michael, C. J., writing
separately and concurring in judgment); id. at 800 (Luttig, C. J., writing separately and
concurring in judgment). Accordingly, if the "Choose Life" plate at issue is government speech,
Plaintiffs have no claim under the First Amendment.
Defendants do not contest that Plaintiffs have standing and this court has jurisdiction over this
matter. For the reasons stated in Judge Michael's opinion in Planned Parenthood ofSouth Carolina,
Inc. v. Rose, 361 F.3d 786, 789-92 (4th Cir. 2004), the court concludes that Plaintiffs have standing
to challenge the provisions of Session Law 2011-392 relating to the "Choose Life" plate. The court
also is satisfied that the Tax Injunction Act, 28 U.S.C. § 1341, does not deprive the court of
jurisdiction. See Choose Life Illinois, Inc. v. White, 547 F.3d 853, 858 n.3 (7th Cir. 2008); Arizona
Life Coalition, Inc. v. Stanton, 515 F.3d 956, 962 (9th Cir. 2008); American Civil Liberties Union
ofTenn. v. Bredesen, 441 F.3d 370, 374 (2006).
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6
Plaintiffs argue that the "Choose Life" plate is not pure government speech, and contend
that the decisions of the Fourth Circuit Court of Appeals in Rose and Sons ofConfederate
Veterans, Inc. v. Comm'r of Virginia Dep 't ofMotor Vehicles, 288 F.3d 610 (4th Cir.) reh 'g en
bane denied, 305 F.3d 241 (4th Cir. 2002), cert. denied 543 U.S. 1119 (2005)("SCV") control the
outcome here. In SCV, the speech at issue concerned the logo of the organization, Sons of
Confederate Veterans ("SCV"), which contains the Confederate flag. The Virginia General
Assembly passed a statute authorizing the issuance of a special license plate to members of the
SCV, but the statute specifically prohibited the plates from bearing the emblem of the SCV
because it contained the Confederate flag. Id. at 613. Notably, no other Virginia statute
authorizing an organizational license plate contained any emblem or logo restriction. In
determining whether the speech was private speech or government speech, the Fourth Circuit
adopted a test which examines four non-exhaustive factors:
(1) the central purpose of the program in which the speech in question occurs; (2)
the degree of editorial control exercised by the government or private entities over
the content of the speech; (3) the identity of the literal speaker; and (4) whether
the government or the private entity bears the ultimate responsibility for the
content of the speech.
Id. at 618 (internal quotation marks omitted). Applying those factors, the Fourth Circuit found
that the purpose of Virginia's specialty license plate program as a whole "primarily is to produce
revenue while allowing, on special plates authorized for private organizations, for the private
expression of various views." Id. at 619. The Fourth Circuit also noted that Virginia rarely
exercised editorial control over specialty plates, and that license plates implicate the private
speech rights of individual vehicle owners. Id. at 621. Accordingly, the Fourth Circuit
concluded the speech at issue-the SCV emblem to be displayed on a special license plate-was
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private speech and therefore the logo restriction aimed at suppressing the SCV's viewpoint was
impermissible discrimination in violation of the Free Speech Clause. Id. at 622-29.
In Rose, the Fourth Circuit again confronted the question of whether speech on a specialty
license plate constitutes private or government speech. The facts in Rose, as both parties
concede, are substantially similar to the case at bar: the South Carolina legislature enacted a
statute authorizing a specialty license plate bearing the words "Choose Life" without authorizing
a plate with a pro-choice message. 361 F.3d at 789. 5 Like the Act in the instant case, the South
Carolina statute in Rose provided that proceeds from the sale of the "Choose Life" plate were to
be distributed to the local private crisis pregnancy agencies, but not to those that performed or
promoted abortion. The panel, with each judge writing separately to concur in the judgment,
agreed that the South Carolina "Choose Life" plates involved aspects of both government and
private speech, or in other words, were "hybrid speech." 361 F.3d at 794 (Michael, J.); id. at 800
(Luttig, J.); id. at 801 (Gregory, J.). The panel concluded that the private speech interests were
substantial enough that viewpoint discrimination was prohibited.
Judge Michael, writing Rose's most detailed opinion, examined each of SCV's four
factors, and found that the first two-the purpose ofthe statute and the degree of editorial control
exercised by the government-favored government speech. He noted that the purpose ofthe
South Carolina statute was "specifically to promote the expression of a pro-life viewpoint" and
contrasted it with SCV "where the purpose of the challenged law was to produce revenue while
allowing for the private expression of various views." 361 F.3d at 793 (internal quotation marks
5 The statute at issue in Rose only provided for the issuance of a "Choose Life" plate. The Act in
the instant case provides for numerous other specialty license plates.
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and alterations omitted). He also observed that unlike in SCV-where the license plate was sought
and designed by a private organization-the "Choose Life" plate was proposed and pursued by
two legislators. Id. This, in Judge Michael's view, amounted to complete editorial control by the
State.
He found however, that the last two factors-the identity of the literal speaker and who
bears ultimate responsibility for the plate-weighed in favor of private speech. As he explained:
I note, as our court did in SCv, that the Supreme Court has held that even
messages on standard license plates are associated at least partly with the vehicle
owners. [288 F.3d] at 621; Wooley v. Maynard, 430 U.S. 705, 717, 97 S. Ct. 1428,
51 L. Ed.2d 752 (1977) (holding that vehicle owner had First Amendment right to
cover the "Live Free or Die" motto on New Hampshire plate). This association is
much stronger when the vehicle owner displays a specialty license plate. Although
a specialty license plate, like a standard plate, is state-owned and bears a state
authorized message, the specialty plate gives private individuals the option to
identify with, purchase, and display one of the authorized messages. Indeed, no
one who sees a specialty license plate imprinted with the phrase "Choose Life"
would doubt that the owner of that vehicle holds a pro-life viewpoint. The literal
speaker of the Choose Life message on the specialty plate therefore appears to be
the vehicle owner, not the State, just as the literal speaker of a bumper sticker
message is the vehicle owner, not the producer of the bumper sticker. The same
reasoning leads me to conclude (under the fourth SCV factor) that the private
individual bears the ultimate responsibility for the speech on the Choose Life
plate. Although the Choose Life plate was made available through state initiative,
the private individual chooses to spend additional money to obtain the plate and to
display its pro-life message on her vehicle.
Rose, 361 F.3d at 794.
Defendants acknowledge the holding in Rose, but argue that it is no longer binding
precedent because the Supreme Court's decision in Johanns v. Livestock Marketing Association,
544 U.S. 550 (2005) effectively announced a new test for identifying government speech. In
Johanns, a group of beef producers challenged, on First Amendment grounds, a special federal
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assessment imposed on heads of cattle and used to fund a promotional campaign encouraging the
consumption of beef (featuring the slogan "Beef. It's What's for Dinner."). The beef producers
argued the federal government could not compel them to subsidize a private message, noting that
the campaign was designed by private parties in the beef industry.
The Supreme Court rejected the producers' challenge, observing that "[t]he message set
out in the beef promotions is from beginning to end the message established by the Federal
Government." 544 U.S. at 560-61. The Court noted that the promotional program was
established by Congress, and the Secretary of Agriculture implemented the program and retained
ultimate authority over it. Id. at 561. Accordingly, the Court concluded: "When, as here, the
government sets the overall message to be communicated and approves every word that is
disseminated, it is not precluded from relying on the government-speech doctrine merely because
it solicits assistance from nongovernmental sources in developing specific messages." Id. at 562.
Defendants suggest that after Johanns, the degree of ultimate government control over a message
is the test for what is government speech.
The court disagrees. First, the Fourth Circuit has not viewed Johanns as overruling SCV
or Rose. It is true that in one case the Fourth Circuit stated that Johanns "distilled" the SCV
factors into focusing on (l) the government's establishment of a message and (2) its effective
control over the content and dissemination of the message. Page v. Lexington County School
District One, 531 F.3d 275, 281 (4th Cir. 2008). Later opinions, however, indicate that the
Fourth Circuit does not believe that the SCV factors are dead. In an opinion issued one month
after Page, the Fourth Circuit explicitly utilized the SCV factors. See Turner v. City Council of
the City ofFredericksburg, 534 F.3d 352, 356 (4th Cir. 2008)(explaining that the Fourth Circuit
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had adopted the four-factor SCV test to detennine whether speech may be attributed to the
government).6 Shortly thereafter, the Fourth Circuit in another opinion cited favorably to both
SCVand Rose as support for the idea that the identity of the literal speaker is a factor supporting
the finding of private or hybrid speech. Musgrave, 553 F.3d at 298-300 (4th Cir.
2009)(explaining that "[a]s this court recognized in [Rose], some speech is 'mixed' speech
because it has aspects of both private speech and government speech" and noting that the identity
of the literal speaker is one of four factors to consider).
Second, Defendants overlook the factual differences between the beef promotion program
in Johanns and the specialty license plate program at bar. Johanns concerned a compelled
subsidy: the mandatory assessment each beef producer was forced to pay to support the
advertising encouraging beef consumption. The beef program was part of a government scheme
to further an ostensible communal purpose. As other courts have observed, the alleged hann in
Johanns was "being forced to give the government money to pay for someone else's message."
Bredesen, 441 F.3d at 385 (Martin, J., dissenting). See also White, 547 F.3d at 863; Stanton, 515
F.3d at 964. Here, however, as in other specialty license plate cases, "private individuals choose
to pay the price for obtaining a particular specialty license plates." Stanton, 515 F.3d at 964.
The hann that arises in the specialty license plate context is "'being denied the opportunity to
speak on the same tenns as other private citizens within a government sponsored forum. '" White,
6 The unanimous decision in Turner was authored by retired Associate Justice Sandra Day
O'Connor, who sat on the panel by designation. Notably, Justice O'Connor voted with the majority
of justices in Johanns. 544 U.S. at 552. Her opinion in Turner does not suggest that Johanns
articulated a new catch-all test for government speech; indeed, the opinion does not cite once to
Johanns.
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547 F.3d at 863 (quoting Bredesen, 441 F.3d at 386 (Martin, J., dissenting)). As such, this court
is of the opinion-shared by most of the other courts to consider the issue-that this factual
distinction prevents Johanns from being wholly applicable in the specialty license plate context.
See Roach v. Stouffer, 560 F.3d 860, 867 (8th Cir. 2009); White, 547 F.3d at 863; Stanton, 515
F.3d at 965; Sons a/Confederate Veterans, Florida Div., Inc. v. Atwater, No. 6:09-cv-134-0rl
28KRS, 2011 WL 1233091 at *6 (M.D. Fla. March 30, 2011). But see Bredesen, 441 F.3d at 374
("Johanns stands for the proposition that when the government determines an overarching
message and retains the power to approve every word disseminated at its behest, the message
must be attributed to the government for First Amendment purposes.").
Third, even if this court assumes that Johanns somehow changes the analysis used in this
circuit to determine whether a message is government speech, the court does not believe a
different result from Rose is warranted. Defendants have not suggested how to square their
argument that the "Choose Life" plate constitutes pure government speech with the Supreme
Court's holding in Wooley v. Maynard, 403 U.S. 705 (1977), where the Court held that New
Hampshire violated the First Amendment rights of an objecting driver when it required him to
display the state's motto "Live Free or Die" on his license plate. Id. at 717. If, as Wooley
suggests, standard license plates implicate private speech rights because of their association with
the driver of a vehicle, then specialty plates provide an even closer association. Rose, 361 F.3d at
794 (Michael, J.)("[T]he Supreme Court has held that even messages on standard license plates
are associated at least partly with the vehicle owners" and "[t]his association is much stronger
when the vehicle owner displays a specialty license plate."). See also Choose Life Illinois, 547
F.3d at 862-64(observing that specialty-plate messages are most closely associated with the
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drivers of vehicles which bear them); Stanton, 515 F.3d at 956-57 (observing that most courts
rely on Wooley to conclude that messages on license plates are private speech); SCV, 288 F.3d at
621 ("Importantly ... the special plates are mounted on vehicles owned by private persons, and
the Supreme Court has indicated that license plates, even when owned by the government,
implicate private speech interests because of the connection of any message on the plate to the
driver or owner of the vehicle."). Cf Bredesen, 441 F.3d at 386(Martin, J., dissenting)(observing
that an argument similar to the one advanced by the Defendants in the instant case would likely
result in a different outcome in Wooley). Despite Defendants' arguments to the contrary, this
court is of the opinion that the strong connection between a license plate and an individual
owner-what may be characterized as the identity of the speaker-is still a relevant factor in
determining whether the message is private or government speech.
This court's view that the identity of the speaker still remains relevant after Johanns is
supported by the Supreme Court's latest opinion on government speech. In Summum,7 the
Supreme Court held that the placement of a permanent monument, designed and donated by a
private entity, in a city park is a form of government speech. 555 U.S. 481. As in Johanns, the
Court in Summum found the "control" factor to be important, observing that the city "'effectively
controlled' the messages sent by the monuments in the [p]ark by exercising 'final approval
authority' over their selection." 555 U.S. at 473 (quoting Johanns, 544 U.S. at 560-61). The
majority opinion in Summum, however, did not focus solely on the city's editorial control over
the monument. Rather, the Court also considered that monuments installed on property are
Curiously, neither party addressed Summum in the briefs filed with this court, nor did they have
much to say about Summum at the hearing.
7
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"routinely-and reasonably-interpret[ed] as conveying some message on the property owner's
behalf" and accordingly, "there is little chance that observers will fail to appreciate the identity of
the speaker" as the property owner. Id. at 471. In light of Summum, this court does not view the
identity of the speaker to be an irrelevant consideration.
The court also notes that the State's argument that "control" is the sole determining
factor, if taken to its logical end, would allow for the State to authorize license plates bearing
messages endorsing a political candidate. 8 When questioned about this proposition at the hearing
in this matter, the attorney for the State replied that such license plates most likely would not be
proper under the First Amendment. This, of course, begs the question of why a plate expressing
a viewpoint on a sharply divisive and deeply emotional moral or religious controversy constitutes
pure government speech but a plate endorsing a political candidate does not. The State could not
articulate any rationale supporting the distinction between the two plates. The implication,
nevertheless, is that some factor other than government control is relevant to the determination of
whether a message is government speech. The court submits that other factor is the literal
Judge Wilkinson raised the same hypothetical in his concurrence in the denial ofrehearing en banc
in Rose:
The state is saying that its citizens may express one view on a profound controversy
but not the other. Citizens are permitted to express their agreement with the officially
sanctioned policy, but they have no similar outlet to express their disagreement with
it. This is a presidential election year. Maya state issue plates touting one candidate,
but not another? It is one thing for states to use license plates to celebrate birds and
butterflies, military service, historical events and scenic vistas. It is quite another for
the state to privilege private speech on one side-and one side only-of a fundamental
moral, religious, or political controversy.
8
373 F.3d at 581.
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speaker of the message-in this case, the individual owner of a vehicle who makes the decision to
purchase and display the license plate containing the message.
In sum, the court is of the opinion that Rose remains good law. For the reasons stated in
the Judge Michael's opinion in Rose, this court preliminarily concludes that the "Choose Life"
specialty license plate implicates sufficient private speech rights so as not to constitute pure
government speech. See Rose, 361 F.3d at 794 (Michael, J.). The court also preliminarily
concludes that by authorizing the "Choose Life" plate without also offering a pro-choice
alternative, the State has engaged in impermissible viewpoint discrimination in violation of the
First Amendment. See id. at 361 F.3d at 799-800. Consequently, this court finds that Plaintiffs
have met their burden in establishing a likelihood of success on the merits. 9
B. Plaintiffs have shown a likelihood of irreparable harm
It is well-settled that a determination of likelihood of success on the merits in First
Amendment cases supports a finding of irreparable harm. See Elrod v. Burns, 427 U.S. 347, 373
(1976)("The loss of first amendment freedoms, for even minimal periods of time, unquestionably
constitutes irreparable injury."); Johnson v. Bergland, 586 F.2d 993,995 (4th Cir.
1978)("Violations of first amendment rights constitute per se irreparable injury."). Having
concluded that Plaintiffs have shown a likelihood of success on the merits, the court also finds
that Plaintiffs have met their burden in showing irreparable harm.
Given the nature of this controversy, the court stresses that this case, and the court's ruling, is
based on the First Amendment. "The statute's message could be reversed and the plaintiffs' position
could be pro-life, not pro-choice, but the principles that govern this case would remain the same."
Rose, 373 F.3d at 581 (Wilkinson, J., concurring in the denial of rehearing en banc).
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C. Plaintiffs have shown the balance of equities favors issuing the injunction
This court also must "balance the competing claims of injury and must consider the effect
on each party of the granting or withholding of the requested relief." Winter, 555 U.S. at 24
(internal quotation omitted). As the court noted at the hearing, the main harm to Defendants is
the temporary loss of revenue of $10 per Choose Life plate sold. After weighing this temporary
loss of revenue against the constitutional harms Plaintiffs will suffer if the preliminary injunction
is not issued, the court finds that the balance of equities decidedly tips in favor of issuing the
injunction.
D. Plaintiffs have shown the public interest is served by issuing the injunction
Finally, Plaintiffs must show that the requested preliminary relief would be in the public
interest. Winter, 555 U.S. at 23. The court finds that Plaintiffs have met their burden. First, as
Plaintiffs argue, the public interest is served by preventing the implementation of legislation
which may infringe upon their First Amendment rights. Second, the public interest is served by
avoiding potentially unnecessary administrative costs to the State and purchasing vehicle owners
if the Choose Life plates are issued and sold but later deemed unconstitutional.
E. Scope of the preliminary injunction
Plaintiffs' Motion for Preliminary Injunction seeks an order "prohibiting Defendants from
implementing, enforcing, or otherwise carrying out the program of administration provided by
Session Law 2011-392 Sec. 1(bl)(39), Sec. 4(a), Sec. 5(b), Sec. 7(b84)(House bill 289), or
issuing the "Choose Life" plate. That is, Plaintiffs, seek to enjoin only the portions of Session
Law 2011-392 related to the "Choose Life" plate.
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The court may enjoin discrete provisions of a statute if those provisions are severable, a
question that is answered by referring to state law. SCV, 288 F.3d at 627 (citing Department of
Treas. v. Fabe, 508 U.S. 491, 509-10 (1983)). With regard to North Carolina law, the North
Carolina Supreme Court has stated:
In determining whether an unconstitutional part of a statute should be severed and
the rest of the statute enforced, we look first at the intention of the General
Assembly. If the legislature intended that the constitutional part of the statute be
enforced after the other part has been declared unconstitutional, and if the separate
parts of the statute are not so interrelated and mutually dependent that one part
cannot be enforced without reference to another, the offending part must be
severed and the rest of the statute enforced.
Fulton Corp. v. Faulkner, 345 N.C. 419, 421-22, 481 S.E.2d 8, 9 (1997).
Although there is no definitive evidence before the court-such as a severability
provision-the court nevertheless finds that Session Law 2011-392, read as a whole, shows that
the General Assembly intended for the remaining provisions of the law to be enforced. Session
Law 2011-392 provides for approximately 70 new specialty license plates, as well as the eventual
development of a standardized format for all specialty license plates. N.C. Sess. Law 2011-392
§§ 3. Common sense dictates a finding that the General Assembly intended for the vast majority
of Session Law 2011-392, which is not dependent in any way upon the provisions providing for
the "Choose Life" plate, to stand.
IV. CONCLUSION
For the foregoing reasons and for the reasons stated in open court, the court finds that
Plaintiffs have met their burden in showing that the preliminary injunction must issue. The
court, therefore, ALLOWS Plaintiffs' Motion for Preliminary Injunction [DE-8]. It is hereby
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ORDERED that:
(l) Defendants Eugene A. Conti, Michael Robertson, and their officers, agents, and
employees are ENJOINED from implementing, enforcing, or otherwise carrying out the program
of administration provided by Session Law 2011-392 Sec. 1(bl)(39), Sec. 4(a), Sec. 5(b), Sec.
7(b84)(House bill 289) or issuing the "Choose Life" plate;
(2) Plaintiffs shall post a $50,000 bond as security pursuant to Federal Rule of Civil
Procedure 65(c) on or before Friday, December 16,2011.
The Clerk of Court is DIRECTED to continue the management of this case.
SO ORDERED.
This the ~ay of December, 2011.
es C. Fox
Senior United States District Judge
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