Choose Life IL Inc v. White, Jesse ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-1349
C HOOSE L IFE ILLINOIS, INCORPORATED ,
R ICHARD B ERGQUIST, S UE B ERGQUIST, et al.,
Plaintiffs-Appellees,
v.
JESSE W HITE, Secretary of State
of the State of Illinois,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 C 4316—David H. Coar, Judge.
A RGUED N OVEMBER 27, 2007—D ECIDED N OVEMBER 7, 2008
Before M ANION, E VANS, and S YKES, Circuit Judges.
S YKES, Circuit Judge. Choose Life Illinois, Inc. (“CLI”),
collected more than 25,000 signatures from Illinois resi-
dents interested in purchasing a “Choose Life” specialty
license plate and applied to the Secretary of State for
issuance of the plate under 625 ILL. C OMP. S TAT. 5/3-600(a)
(amended effective 2008). That statute prohibits the
2 No. 07-1349
Secretary from issuing a new line of specialty plates unless
he has a minimum number of applications on file, and
CLI’s 25,000 signatures far exceeded the minimum. Since
1948, however, when Illinois authorized its first specialty
license plate, almost no specialty plate had been issued
without prior legislative approval. The Secretary referred
CLI to the General Assembly for enabling legislation.
CLI hit a roadblock in the General Assembly. Despite
the strong showing of support, the proposal for a “Choose
Life” license plate died in subcommittee. CLI turned to
federal court for relief, claiming that the Secretary was
authorized to issue the plates without legislative approval
once CLI met the statutory requirements and that his
failure to do so constituted impermissible viewpoint
discrimination in violation of the First Amendment. If
legislative approval was required, CLI claimed the
General Assembly’s refusal to adopt the “Choose Life”
license plate was viewpoint discrimination. The district
court accepted the first of these arguments and ordered
the Secretary to issue the “Choose Life” plate, but stayed
its judgment pending appeal.
In the meantime, the General Assembly resolved CLI's
first claim by amending 625 ILL. C OMP. S TAT. 5/3-600
to require express prior legislative approval before the
Secretary may issue new specialty plates. As to the
second claim, the Secretary now argues that the amend-
ment reinforces his position that the messages on
specialty license plates are the government’s own
speech—not private or a mixture of government and
private speech—and therefore no First Amendment
No. 07-1349 3
rights are implicated. We disagree, though we acknowl-
edge the question has divided other circuits.1
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 dif-
ference 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
1
Compare Ariz. Life Coal., Inc. v. Stanton, 515 F.3d 956, 965-68
(9th Cir. 2008) (private speech), Planned Parenthood of S.C., Inc. v.
Rose, 361 F.3d 786, 793-95, reh’g en banc denied, 373 F.3d 580 (4th
Cir. 2004) (mix of government and private speech), and Sons
of Confederate Veterans, Inc. v. Comm’r of the Va. Dep’t of Motor
Vehicles, 288 F.3d 610, 617-21, reh’g en banc denied, 305 F.3d 241
(4th Cir. 2002) (private speech), with Am. Civil Liberties Union
of Tenn. v. Bredesen, 441 F.3d 370, 378-79 (6th Cir. 2006) (gov-
ernment speech).
4 No. 07-1349
“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.
I. Background
A. Specialty License Plates in Illinois
For an extra fee, Illinois will permit a vehicle owner
to have a specialized license plate that, in addition to the
generic or personalized numbers and characters required
for license identification, also bears a specific message
or symbol. See 625 ILL. C OMP. S TAT. 5/3-600 et seq. Like
most other states, Illinois offers a broad selection of
specialty plates. Some denote that the vehicle owner is
an alumnus of a certain college or university (schools
in Illinois and contiguous states qualify) or a member of a
civic organization (e.g., the Knights of Columbus or the
Masons). Id. 5/3-629, 635. Others signify support for
a particular cause, such as a love of pets (“I am pet
friendly”); opposition to violence (the dove of peace
symbol); mammogram or organ-donor awareness (“Mam-
mograms Save Lives,” “Be An Organ Donor”); or pre-
vention of childhood cancer (“Stop Neuroblastoma”). 2
See id. 5/3-653, 630, 643, 646, 654.
2
Some specialty plates are issued at no extra charge to persons
who have achieved some noteworthy distinction, such as
being awarded the Silver Star, having served in World War II,
or holding a public office. 635 I LL . C OMP . S TAT . 5/3-642, 647, 639.
No. 07-1349 5
With insignificant historical exceptions, each specialty
license plate in Illinois has its own authorizing statute
describing the plate and establishing the required addi-
tional fee. These statutes typically allocate a portion of
the proceeds from the sale of the plates to the specific
state or local program that corresponds to the message
or to the not-for-profit or charitable organization that
sponsored the plate. (For example, proceeds from the
“Park District Youth” plate benefit local park and recre-
ational districts; the “Police Memorial” plate benefits the
Police Memorial Committee Fund. See id. 5/3-654, 644.)
Beyond their obvious utility as a means of promoting a
message or cause, specialty license plates thus also serve
a fundraising purpose for units of state and local gov-
ernment and for private organizations.
The basic requirements for issuance of a new specialty-
plate series are set forth in 625 ILL. C OMP. S TAT. 5/3-600,
enacted in 1990. Until recently, that statute provided
as follows:
(a) The Secretary of State shall not issue a series of
special plates unless applications, as prescribed by the
Secretary, have been received for 10,000 plates of that
series; except that the Secretary of State may prescribe
some other required number of applications if that
number is sufficient to pay for the total cost of design-
ing, manufacturing and issuing the special license
plate.
....
(c) This Section shall not apply to special license plate
categories in existence on the effective date of this
6 No. 07-1349
amendatory Act of 1990, or to the Secretary of State’s
discretion as established in Section 3-611 [relating to
specialty plates for specific categories of persons,
typically elected officials].
Id. (amended effective 2008). Although the statute spec-
ifies a default minimum of 10,000 applications, the Sec-
retary often required far less (approximately 800 appli-
cations) before issuing a new legislatively approved
specialty plate. That lesser number was usually enough
to make the program financially feasible from a man-
ufacturing standpoint. Illinois currently has about
60 specialty license plates available for purchase.
B. CLI’s Quest for a “Choose Life” Specialty License
Plate
CLI is a not-for-profit agency that promotes adoption
in the State of Illinois. In 2001 CLI embarked on an initia-
tive to obtain approval for a specialty license plate
bearing the words “Choose Life.” To that end CLI
collected more than 25,000 signatures from prospective
purchasers and applied to the office of Illinois Secretary
of State Jesse White for issuance of the plate. The Secretary
informed CLI that he could not issue a new specialty
plate that had not been approved by the General Assem-
bly. For the next several years, CLI waged a legislative
battle for approval of its “Choose Life” specialty license
plate, lining up support among sympathetic legislators. Its
efforts were thwarted, however—initially in the Illinois
Senate and later in the House. (The proposal died in a
House subcommittee.)
No. 07-1349 7
CLI and several individual plaintiffs then brought this
suit against the Secretary for violating their free-speech
rights. The parties filed cross-motions for summary
judgment. CLI first argued that the Secretary had
authority under section 5/3-600 to issue the “Choose Life”
plates without legislative approval, and his refusal to
do so constituted viewpoint discrimination within a
government-created forum for private speech. Alterna-
tively, CLI claimed that if legislative approval was re-
quired, it had been subjected to impermissible view-
point discrimination by the General Assembly. CLI also
claimed the specialty-plate program was facially unconsti-
tutional because the lack of any governing standards
invited discrimination against disfavored messages. CLI
asked the district court to order the Secretary to issue
the “Choose Life” plate or shut down the entire specialty-
plate program.
The Secretary argued that although section 5/3-600 was
silent on whether an enabling statute was required for a
new specialty-plate series, all specialty plates in Illinois
(other than those grandfathered under section 5/3-600(c))
had in fact been authorized by specific statutory enact-
ment. Accordingly, the Secretary argued, the messages
on specialty license plates were government speech, and
the free-speech rights of the plaintiffs as private speakers
were not implicated. The Secretary maintained in the
alternative that even if the specialty-plate program
amounted to a forum for private speech, it was a nonpublic
forum and the State’s decision to exclude the entire
subject of abortion from the forum was a reasonable
viewpoint-neutral restriction on content and was
therefore constitutionally permissible.
8 No. 07-1349
The district court granted summary judgment for CLI.
The court interpreted section 5/3-600 as permitting the
Secretary to issue new specialty license plates without
specific enabling legislation. Applying the four-factor test
from Sons of Confederate Veterans, Inc. v. Commissioner of the
Virginia Department of Motor Vehicles, 288 F.3d 610, 618 (4th
Cir. 2002), a Fourth Circuit license-plate case, the court
concluded that the Illinois specialty-plate program estab-
lished a forum for private speech and that the exclusion
of the “Choose Life” message from this forum was view-
point discrimination and could not withstand strict
scrutiny. The court ordered the Secretary to issue the
“Choose Life” license plates, but stayed its order
pending appeal.
In response to the district court’s decision, and while this
appeal was pending, the General Assembly amended
section 5/3-600 to include an explicit requirement of
legislative approval for any new specialty license plate.
Effective January 1, 2008, the statute provides: “The
Secretary of State shall issue only special plates that have
been authorized by the General Assembly.” Act of Aug. 23,
2007, Ill. Pub. Act No. 95-0359.
II. Analysis
Our standard of review is de novo. Metro. Life Ins. Co. v.
Johnson, 297 F.3d 558, 561-62 (7th Cir. 2002). The material
facts are undisputed. The question presented is whether
the messages on specialty license plates are the govern-
ment’s own speech or private speech, and if the latter,
whether the exclusion of CLI’s proposed “Choose Life”
No. 07-1349 9
plate from the “specialty-plate forum” violates the Free
Speech Clause of the First Amendment.3
3
We note that some specialty-license-plate cases in other
circuits have been dismissed on jurisdictional grounds, notably
for lack of standing or by application of the Tax Injunction Act,
28 U.S.C. § 1341. See Henderson v. Stalder, 407 F.3d 351, 358 (5th
Cir. 2005) (plaintiffs’ challenge to Lousiana’s “Choose Life”
license plate barred by the Tax Injunction Act); Women’s Emer-
gency Network v. Bush, 323 F.3d 937, 946-47 (11th Cir. 2003)
(holding that plaintiffs lacked standing to challenge Florida’s
“Choose Life” license plate under either the Establishment
Clause or the Free Speech Clause of the First Amendment);
Henderson v. Stalder, 287 F.3d 374, 382 (5th Cir. 2002) (plaintiffs
lacked standing to challenge Louisiana’s “Choose Life” license
plate on free-speech grounds). On the other hand, plaintiffs in
other circuits have successfully established standing and
prevailed on the argument that the Tax Injunction Act does not
apply. See Stanton, 515 F.3d at 963-64 (Tax Injunction Act does
not apply to plaintiff advocacy group’s claim that Arizona
committed viewpoint discrimination in denying its applica-
tion for a “Choose Life” license plate); Bredesen, 441 F.3d at 373-
74 (Tax Injunction Act does not bar plaintiffs’ claim that Tennes-
see’s “Choose Life” license plate violates the First Amendment);
Rose, 361 F.3d at 789-92 (plaintiffs have standing to challenge
South Carolina’s “Choose Life” license plate on viewpoint-
discrimination grounds). We are satisfied CLI and the
individual plaintiffs have standing; they have adequately
alleged an injury by reason of the exclusion of their “Choose
Life” message from Illinois’ specialty-plate program. And we
agree with the Ninth and Sixth Circuits that the Tax Injunction
Act does not apply.
10 No. 07-1349
A. The District Court’s Interpretation of the Unamended
Statute
A considerable amount of the parties’ initial briefing
concerned the proper interpretation of unamended 625 ILL.
C OMP. STAT. 5/3-600. The district court read the statute
to permit the Secretary to issue new specialty license
plates without a specific authorizing statute upon presenta-
tion of the minimum required number of applications.
There is reason to doubt this interpretation. The statute
is phrased not as a positive grant of authority to approve
a new plate series but as a limitation on the Secretary’s
authority to commence issuing plates in an approved
series. Id. (“The Secretary . . . shall not issue a series of spe-
cial plates unless applications . . . have been received
for 10,000 plates of that series.”). This begs the question
of who has the approval authority; nothing in the
Illinois Vehicle Code addresses the Secretary’s power to
approve new specialty license plates. In practice, the Sec-
retary has never issued specialty plates in a new series
without a specific statutory enactment creating the series.
We need not resolve this aspect of the appeal. 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.4 Act of Aug. 23, 2007, Pub. Act No. 95-
4
In addition to specifically challenging the rejection of
its “Choose Life” license plate, CLI also claims the Illinois
specialty-plate program is facially unconstitutional because it
lacks any articulated standards governing (1) the Secretary’s
(continued...)
No. 07-1349 11
0359 (amending 625 ILL. C OMP. S TAT. 5/3-600(a) to add
the following: “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 pro-
spective relief, there is no impediment to doing so retro-
actively. Landgraf v. USI Film Prods., 511 U.S. 244, 273 (1994)
(“[A]pplication of new statutes passed after the events
in suit is unquestionably proper in many situations.
When the intervening statute authorizes or affects the
propriety of prospective relief, application of the new
provision is not [impermissibly] retroactive.”).
B. Government Speech or Private Speech?
It is well established that when the government speaks,
“it is entitled to say what it wishes[,] . . . [and] it may take
legitimate and appropriate steps to ensure that its message
is neither garbled nor distorted.” Rosenberger v. Rector &
Visitors of the Univ. of Va., 515 U.S. 819, 833 (1995) (citations
4
(...continued)
discretion to authorize new plates (to the extent the Secretary
had that authority), or (2) the state legislature’s discretion to
authorize new plates. The amendment to section 5/3-600 moots
the first of these claims, and the second has no merit. It is
axiomatic that one legislature cannot bind a future legislature.
Vill. of Rosemont v. Jaffe, 482 F.3d 926, 937-38 (7th Cir. 2007)
(citing Reichelderfer v. Quinn, 287 U.S. 315, 318 (1932)). The
General Assembly is entitled to authorize specialty plates one
at a time. It is not required to—and cannot—adopt “standards”
to control its legislative discretion.
12 No. 07-1349
omitted); see also Johanns v. Livestock Mktg. Ass’n, 544 U.S.
550, 559-62 (2005); Bd. of Regents of Univ. of Wis. Sys. v.
Southworth, 529 U.S. 217, 229 (2000); Keller v. State Bar of
Cal., 496 U.S. 1, 12-13 (1990). “[U]nits of state and local
government are entitled to speak for themselves,” Hosty
v. Carter, 412 F.3d 731, 736 (7th Cir. 2005), and “[w]hen
the government speaks[,] . . . it is, in the end, accountable
to the electorate and the political process for its advocacy.”
Southworth, 529 U.S. at 235. “If the citizenry objects,
newly elected officials later could espouse some dif-
ferent or contrary position.” Id.
Accordingly, when the government is the speaker, it
may choose what to say and what not to say; it need not
be neutral. Subject to other constitutional limitations not
at issue here (such as the Establishment Clause), the
constraints on the government’s choice of message are
primarily electoral, not judicial. While it is true that the
government may not compel a person to “express a
message he disagrees with, imposed by the government”
(the “compelled speech” doctrine) or compel a person
to “subsidize a message he disagrees with, expressed by
a private entity” (the “compelled subsidy” doctrine), see
Johanns, 544 U.S. at 557, neither of these principles is
implicated here. (We will have more to say about Johanns
in a moment.) It follows, then, that if the messages on
specialty license plates in Illinois are the State’s own
speech, no private-speech rights are involved and CLI’s
remedy for the defeat of its “Choose Life” license plate
is at the ballot box.
If, on the other hand, the messages on specialty license
plates are not government speech, then the denial of
No. 07-1349 13
CLI’s application for a “Choose Life” specialty plate is
analyzed under the Supreme Court’s “speech forum”
doctrine. “The government violates the Free Speech
Clause of the First Amendment when it excludes a
speaker from a speech forum the speaker is entitled to
enter.” Christian Legal Soc’y v. Walker, 453 F.3d 853, 865
(7th Cir. 2006) (citing Rosenberger, 515 U.S. at 829-30;
Hosty, 412 F.3d at 737). Judicial scrutiny in this context
varies depending on the nature of the forum, and speech
fora come in three basic varieties: traditional public,
designated public, and nonpublic.
We will return to forum analysis later; the predicate
question is whether the messages on specialty license
plates are government speech, private speech, or a combi-
nation of the two. Other circuits are divided on the ques-
tion. The Fourth and Ninth Circuits have held that mes-
sages on specialty license plates are private or hybrid
speech; the Sixth Circuit has held that messages on spe-
cialty license plates are government speech. Compare
Ariz. Life Coal., Inc. v. Stanton, 515 F.3d 956, 968 (9th Cir.
2008) (messages on specialty license plates in Arizona are
private speech), Planned Parenthood of S.C., Inc. v. Rose,
361 F.3d 786, 794 (4th Cir. 2004) (“Choose Life” message
on South Carolina specialty license plate is a mixture of
government and private speech), and Sons of Confederate
Veterans, 288 F.3d at 621 (messages on Virginia specialty
license plates are private speech), with Am. Civil Liberties
Union of Tenn. v. Bredesen, 441 F.3d 370, 376 (6th Cir. 2006)
(“Choose Life” message on Tennessee specialty license
plate is government speech).
14 No. 07-1349
The Fourth Circuit was the first to weigh in. In Sons
of Confederate Veterans, the court was confronted with a
First Amendment challenge to a Virginia statute authoriz-
ing a specialty license plate for an organization of descen-
dants of Confederate Army veterans. The statute differed
from others authorizing specialty plates for private organi-
zations because it specifically prohibited the group’s
logo—which included the Confederate flag—from being
displayed on the plate. 288 F.3d at 613-14. The Sons of
Confederate Veterans cried foul, alleging viewpoint
discrimination in violation of the First Amendment.
Virginia argued in response that the specialty plate was
government speech or, if it was not, that the restriction on
the display of the Confederate flag was a reasonable
content-based, not viewpoint-based, restriction.
The Fourth Circuit began its analysis by adapting an
approach developed by the Tenth Circuit in a case involv-
ing a First Amendment challenge to a holiday display
featuring joint public and private sponsorship. Id. at 618
(citing Wells v. City & County of Denver, 257 F.3d 1132, 1141
(10th Cir. 2002)). To determine whether the speech at
issue was governmental or private, the court weighed
the following 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 govern-
ment or the private entity bears the “ultimate responsi-
bility” for the content of the speech . . . .
Id. (quoting Wells, 257 F.3d at 1141).
No. 07-1349 15
Applying this framework, the court noted that
Virginia’s specialty-plate program had dual purposes: the
collection of revenue for the State and the facilitation of
expression by private organizations and their members.
Id. at 620-21. The court also observed that the State gener-
ally exercised minimal editorial control over the content
of specialty license plates because it usually accepted
the designs submitted by the sponsoring organizations.
Id. at 621. Finally, the court noted that although specialty
license plates (like other license plates) were technically
the property of the State, the owners of the vehicles on
which they were mounted were the “literal speakers” and
bore “ultimate responsibility” for the messages con-
tained on the plates. Id. at 621-22. The court concluded
that the messages on Virginia’s specialty license plates
were predominantly private rather than government
speech. Id. The court went on to hold that the Virginia
statute’s logo restriction amounted to viewpoint dis-
crimination within a forum for private speech. Id. at 626.
The Fourth Circuit returned to this subject just two
years later in Rose, a case involving a challenge to South
Carolina’s “Choose Life” specialty license plate. The statute
at issue provided that proceeds from the sale of the
“Choose Life” plate were to be distributed to local private
crisis pregnancy agencies—but not to those that per-
formed or promoted abortion services. Rose, 361 F.3d at
788. Planned Parenthood of South Carolina challenged
the statute shortly after it was adopted. The Fourth
Circuit consulted the factors identified in Sons of Confeder-
ate Veterans but fine-tuned its analysis. Rejecting South
Carolina’s argument that its “Choose Life” specialty plate
was government speech, the court determined that the
16 No. 07-1349
plate “embodie[d] a mixture of private and government
speech.” Id. at 793.
The indicators of government speech were more
strongly present in Rose than in Sons of Confederate Veterans.
For example, South Carolina’s “Choose Life” license
plate had its origins in the state legislature rather than
a private sponsoring organization; two lawmakers
acting on their own had initiated the legislative effort.
Other factors, however—notably that individual vehicle
owners became the “literal speakers” with “ultimate
responsibility” for the speech when they purchased and
displayed the “Choose Life” plate on their vehicles—led
the court to conclude that the license-plate message was
a form of hybrid speech, both governmental and private.
Id. at 793-94. The private-speech attributes of the
specialty plate were substantial enough to analyze the
case under nonpublic forum doctrine, testing for view-
point neutrality. Id. at 798. The “Choose Life” plate
flunked. See id. at 799 (“South Carolina has impermissibly
favored the pro-life viewpoint by authorizing the Choose
Life plate.”).
The following year the Supreme Court decided Johanns,
elaborating on the government-speech doctrine in the
context of an alleged “compelled subsidy.” Johanns was
a First Amendment challenge by a group of beef producers
to a special federal assessment imposed on heads of
cattle and used to fund a promotional campaign encourag-
ing the consumption of beef. The advertising featured,
among other things, the catchy “Beef. It’s What’s for
Dinner” slogan. Johanns, 544 U.S. at 553-55. The com-
plaining ranchers argued that the federal government
No. 07-1349 17
could not constitutionally compel them to subsidize a
private message.
The Supreme Court held that the assessment did not
amount to a compelled subsidy of a private message
because the promotional campaign was entirely the govern-
ment’s speech. Id. at 560-62. Congress had established the
framework for the promotional program in the Beef
Promotion and Research Act of 1985 and directed the
Secretary of Agriculture to implement it via a Cattlemen’s
Beef Promotion and Research Board, whose members
were appointed by and answerable to the Secretary. Id. at
553-54. The Beef Board, in turn, convened an Operating
Committee composed of Beef Board members and repre-
sentatives appointed by a federation of state beef councils.
Id. The ranchers argued that the advertising could not be
considered government speech because it was actually
developed by the Operating Committee, some of whose
members were private beef-industry representatives. Id.
at 560.
The Court disagreed, holding that “[t]he message set out
in the beef promotions is from beginning to end the
message established by the Federal Government.” Id. The
program was established by Congress, and the Secretary
of Agriculture implemented and retained ultimate
control over it. Id. at 561. “When, as here, the govern-
ment sets the overall message to be communicated and
approves every word that is disseminated, it is not pre-
cluded from relying on the government-speech doctrine
merely because it solicits assistance from nongovern-
mental sources in developing specific messages.” Id. at 562.
18 No. 07-1349
Relying almost entirely on Johanns, a divided panel of
the Sixth Circuit broke with the Fourth Circuit and held in
Bredesen that Tennessee’s “Choose Life” specialty license
plate was government speech, implicating no speech rights
of private speakers whatsoever. 441 F.3d at 380. The
Bredesen majority thought Johanns established a new test
for government speech, applicable in all contexts, and on
this basis declined to follow the Fourth Circuit’s lead in
Rose. “The Johanns standard,” the court held, “classifies
the ‘Choose Life’ message [on Tennessee’s specialty plate]
as government speech.” Id.
The Court’s conclusion in Johanns had been driven by
the federal government’s pervasive and complete
control—“from beginning to end”—over the beef-promo-
tion message. 544 U.S. at 560. The Sixth Circuit believed the
same total governmental control was evident in Bredesen.
The Tennessee legislature had consulted with New Life
Resources, a private, nonprofit pregnancy-assistance
organization, on the design of the “Choose Life” plate; the
statute authorizing the plate also directed that New Life
was to receive half the profits from its sale. Bredesen, 441
F.3d at 372. But because the Tennessee legislature “chose
the ‘Choose Life’ plate’s overarching message and ap-
proved every word to be disseminated,” the court held
that “Johanns supports classifying ‘Choose Life’ on spe-
cialty license plates as the State’s own message.” Id. at 376.
That specialty license plates involve additional private
speakers—the individual vehicle owners who carry the
messages on their cars—did not alter the Sixth Circuit’s
analysis. On this point, the court distinguished Wooley v.
No. 07-1349 19
Maynard, 430 U.S. 705 (1977), a “compelled speech” case
involving a New Hampshire vehicle owner who repeatedly
obliterated the state’s motto, “Live Free or Die,” from his
license plate. After multiple convictions and a jail term
for violating the State’s vehicle code, the vehicle owner
sought and obtained a federal-court injunction against
further enforcement of the State’s license-plate statute.
The Supreme Court affirmed, noting that the State’s
license-plate statute “in effect requires that [vehicle
owners] use their private property as a ‘mobile billboard’
for the State’s ideological message or suffer a penalty.” Id.
at 715. This, the Court held in Wooley, was a form of
coerced speech, impermissible under the First Amend-
ment. Id. at 716-17.
Not so in Bredesen, said the Sixth Circuit; no vehicle
owner is compelled to carry Tennessee’s “Choose Life”
message. 441 F.3d at 377-78. From this unremarkable
observation the court extrapolated the following con-
clusion: Because display of a specialty license plate is
voluntary, not compulsory, Tennessee had not created a
forum for private speech. Id. at 378. This strikes us as a
non sequitur. As Judge Martin noted in dissent, if
messages on license plates implicated no private-speech
interests at all, then Wooley (among other cases) would have
come out differently. See id. at 386 (Martin, J., dissenting).
Judge Martin also noted that the First Amendment harm
in the “compelled speech” or “compelled subsidy” context
is the compulsion—in the former, being compelled against
one’s conscience to utter the government’s preferred
message, and in the latter, being compelled to subsidize
someone else’s private message. See id. at 385-86. The
20 No. 07-1349
First Amendment harm in the specialty-plate context, on
the other hand, is “being denied the opportunity to
speak on the same terms as other private citizens within
a government sponsored forum.” Id. at 386. We think
Judge Martin has it exactly right.
The Ninth Circuit did, too, in Arizona Life Coalition, Inc. v.
Stanton, a case very much like our own. The Arizona
License Plate Commission denied the Arizona Life Coali-
tion’s application for a “Choose Life” specialty license
plate, and the group sued, alleging a violation of its mem-
bers’ free-speech rights and asking the court to order
the Commission to issue the plate. The Ninth Circuit
viewed the Sixth Circuit’s decision in Bredesen as a mis-
application of Johanns and declined to follow it. Stanton,
515 F.3d at 964-65.
The court found Johanns instructive, however, in that
the Supreme Court had focused on some of the same
factors the Fourth Circuit had identified as important in
Sons of Confederate Veterans. Applying the Fourth Circuit’s
four-factor test, the court in Stanton concluded that mes-
sages on specialty license plates in Arizona were not
government speech; instead, as in Sons of Confederate
Veterans and Rose, messages on specialty license plates
in Arizona should be treated as private speech and sub-
jected to forum analysis. See id. at 968. The court held that
the forum was a limited one (more precisely, a nonpublic
forum), meaning that “any access restriction must be
viewpoint neutral and reasonable in light of the pur-
pose served by the forum.” Id. at 971. Finally, the court
concluded that the Commission’s exclusion of the “Choose
No. 07-1349 21
Life” message was viewpoint discriminatory and ordered
the Commission to approve the plate. Id. at 971-73.
We will come back to this last point in a moment. For
now, we pause to note that what emerges from this trip
through license-plate caselaw is that the Sixth Circuit
stands alone in holding that specialty license plates
implicate no private-speech rights at all. We think this
conclusion is flawed for the reasons we have noted and
instead find the approach of the Fourth and Ninth
Circuits more persuasive. Their multi-factor test can be
distilled (and simplified) by focusing on the following
inquiry: Under all the circumstances, would a reasonable
person consider the speaker to be the government or a
private party? Factors bearing on this analysis include,
but are not limited to, the degree to which the message
originates with the government, the degree to which
the government exercises editorial control over the mes-
sage, and whether the government or a private party
communicates the message.
Applying this approach here, we arrive at the same
conclusion as in Sons of Confederate Veterans, Rose, and
Stanton: Messages on specialty license plates cannot be
characterized as the government’s speech. Like many
states, Illinois invites private civic and charitable organi-
zations to place their messages on specialty license
plates. The plates serve as “mobile billboards” for
the organizations and like-minded vehicle owners to
promote their causes and also are a lucrative source of
funds. Editorial control over the message is shared be-
tween the sponsoring organization and the State; the
22 No. 07-1349
organization typically develops the plate design, subject
to the State’s authority to modify it. The most obvious
speakers in the specialty-plate context are the individual
vehicle owners who choose to display the specialty
plates and the sponsoring organizations whose logos or
messages are depicted on the plates. The State can rea-
sonably be viewed as having approved the message; it
is commonly understood that specialty license plates
require State authorization. Nonetheless, specialty-plate
messages are most closely associated with drivers and
the sponsoring organizations, and the driver is the ulti-
mate communicator of the message. In short, we agree
with the Fourth and Ninth Circuits that there are
enough elements of private speech here to rule out
the government-speech doctrine; the messages on
Illinois specialty license plates are not government
speech. Because private-speech rights are implicated,
we proceed to First Amendment forum analysis.
C. What Kind of Forum?
As we have already noted, the Supreme Court has
identified three types of speech fora: traditional public,
designated public, and nonpublic. “In an open or tradi-
tional public forum, state restrictions on speech get strict
scrutiny.” Christian Legal Soc’y, 453 F.3d at 865 (citing
Good News Club v. Milford Cent. Sch., 533 U.S. 98, 106 (2001);
Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S.
384, 391 (1993); Widmar v. Vincent, 454 U.S. 263, 269-79
(1981); Hosty, 412 F.3d at 736-37). Speakers may be ex-
cluded from an open or traditional public forum only when
No. 07-1349 23
“necessary to serve a compelling state interest” and when
the exclusion is “narrowly drawn to achieve that interest.”
Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S.
788, 800 (1985); see also Christian Legal Soc’y, 453 F.3d at
865. A traditional public forum is public property that “by
long tradition or by government fiat . . . has been devoted
to assembly and debate,” such as a public street or
square. Perry Educ. Ass’n v. Perry Local Educators’ Ass’n,
460 U.S. 37, 45 (1983). Government creates a “designated
public forum” when it “intentionally open[s] a nontradi-
tional forum for public discourse.” Cornelius, 473 U.S. at
802; see also Christian Legal Soc’y, 453 F.3d at 865. Strict
scrutiny applies here as well. Christian Legal Soc’y, 453
F.3d at 865 (citing Ark. Educ. Television Comm’n v. Forbes,
523 U.S. 666, 667 (1998)).
All other government property is considered under the
rubric of “nonpublic forum”—property that “is not by
tradition or design a forum for public communication.”
Perry Educ. Ass’n, 460 U.S. at 46; see also Good News Club,
533 U.S. at 106. Restrictions on speech within a
nonpublic forum must not discriminate on the basis of
viewpoint and “must be reasonable in light of the
forum’s purpose.” Good News Club, 533 U.S. at 106-07
(citing Cornelius, 473 U.S. at 806); Forbes, 523 U.S. at
682; Rosenberger, 515 U.S. at 829; Lamb’s Chapel, 508 U.S.
at 392-93.
Specialty license plates are an unusual species of
forum—certainly not a traditional public forum, and we
think not a designated public forum, either. Illinois hasn’t
opened this particular property for general public dis-
24 No. 07-1349
course and debate. “[T]he government need not permit
all forms of speech on property that it owns and controls,”
Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672,
678 (1992), and it “does not create a public forum by
inaction or by permitting limited discourse, but only by
intentionally opening a nontraditional forum for public
discourse,” Cornelius, 473 U.S. at 802. Relevant factors
in the analysis include “the policy and practice of the
government” and “the nature of the property and its
compatibility with expressive activity.” Id.
These factors weigh against a conclusion that specialty
license plates are a designated public forum. License
plates in Illinois, as elsewhere, are heavily regulated by
policy and practice. See 625 ILL. C OMP. S TAT. 5/3-100 et seq.,
5/3-400 et seq., 5/3-600 et seq. Their primary purpose is
to identify the vehicle, not to facilitate the free exchange
of ideas. License plates are not by nature compatible
with anything more than an extremely limited amount
of expressive activity. We conclude that specialty
license plates are a forum of the nonpublic variety, which
means that we review CLI’s exclusion from that forum
for viewpoint neutrality and reasonableness.
D. Viewpoint Neutrality and Reasonablness
Within a nonpublic forum, the Supreme Court has
recognized “a distinction between, on the one hand,
content discrimination, which may be permissible if it
preserves the purposes of th[e] limited forum, and on the
other hand, viewpoint discrimination, which is presumed
impermissible when directed against speech otherwise
No. 07-1349 25
within the forum’s limitations.” Rosenberger, 515 U.S. at
829-30. Distinguishing between a permissible content-
based restriction and an impermissible viewpoint-based
restriction is not always easy. Id. at 831 (acknowledging
that the distinction between content and viewpoint dis-
crimination “is not a precise one”).
The difference between content and viewpoint discrimi-
nation was more readily apparent in Sons of Confederate
Veterans and Rose than it is here. Excluding the Confederate
flag from a specialty-plate design (Sons of Confederate
Veterans) and authorizing a “Choose Life” specialty plate
without permitting a plate for those who wish to espouse
the pro-choice viewpoint (Rose) were fairly obvious
instances of discrimination on account of viewpoint.
Virginia was not imposing a “no flags” rule; it was prohib-
iting the display of a specific symbol commonly under-
stood to represent a particular viewpoint. South Carolina
was favoring one viewpoint on the subject of abortion
over any other.
Here, in contrast, Illinois has excluded the entire
subject of abortion from its specialty-plate program. The
Secretary argues this is a content-based but viewpoint-
neutral restriction. We agree. Illinois has not favored one
viewpoint over another on the subject of abortion (Rose) or
prohibited the display of a viewpoint-specific symbol
(Sons of Confederate Veterans). Instead, the State has re-
stricted access to the specialty-plate forum on the basis
of the content of the proposed plate—saying, in effect,
“no abortion-related specialty plates, period.” This is a
permissible content-based restriction on access to the
26 No. 07-1349
specialty-plate forum, not an impermissible act of dis-
crimination based on viewpoint.
We noted earlier that the Ninth Circuit came to the
opposite conclusion in Stanton, and our disagreement
with this aspect of its analysis requires some explanation.
Like the Secretary here, Arizona’s License Plate Commis-
sion argued in Stanton that it had rejected the “Choose
Life” specialty plate not because of the viewpoint it
expressed but because the State did not wish to entertain
specialty plates on any aspect of the abortion debate.
Because the State had no specialty license plates expressing
any view on the abortion issue, the Commission main-
tained that its rejection of the “Choose Life” plate was a
viewpoint-neutral restriction on access to the specialty-
plate forum. The Ninth Circuit rejected this argument:
“Preventing Life Coalition from expressing its viewpoint
out of a fear that other groups would express opposing
views seems to be a clear form of viewpoint discrimina-
tion.” Stanton, 515 F.3d at 972.
The Ninth Circuit’s conclusion on this point relied
heavily on a passage from Rosenberger in which the
justices in the majority were responding to an argument
made by the dissent. At issue in Rosenberger was a
public university’s exclusion of a faith-based student
newspaper from student activity funding in accordance
with a university policy that prohibited the funding of
organizations that “primarily promote[ ] or manifest[ ] a
particular belie[f] in or about a deity or an ultimate real-
ity.” 515 U.S. at 823. The Supreme Court held this was
impermissible viewpoint discrimination within a speech
No. 07-1349 27
forum in violation of the First Amendment. The dissenting
justices argued that the university’s policy was not view-
point discriminatory because it excluded all religious
speech. Id. at 892-96 (Souter, J., dissenting). The Court
responded as follows:
The dissent’s assertion that no viewpoint discrimina-
tion occurs because the Guidelines discriminate
against an entire class of viewpoints reflects an insup-
portable assumption that all debate is bipolar and
that antireligious speech is the only response to reli-
gious speech. Our understanding of the complex and
multifaceted nature of public discourse has not em-
braced such a contrived description of the market-
place of ideas. If the topic of debate is, for example,
racism, then exclusion of several views on that
problem is just as offensive to the First Amendment
as exclusion of only one. It is as objectionable to ex-
clude both a theistic and an atheistic perspective on
the debate as it is to exclude one, the other, or yet
another political, economic, or social viewpoint.
Id. at 831.
This passage actually undermines the Ninth Circuit’s
conclusion. Excluding a faith-based publication from a
speech forum because it is faith based is indeed viewpoint
discrimination; where all other perspectives on the
issues of the day are permitted, singling out the religious
perspective for exclusion is discrimination based on
viewpoint, not content. In contrast, here (and in Stanton,
too), the State has effectively imposed a restriction on
access to the specialty-plate forum based on subject
28 No. 07-1349
matter: no plates on the topic of abortion. It has not
disfavored any particular perspective or favored one
perspective over another on that subject; instead, the
restriction is viewpoint neutral. 5
This leaves the question of reasonableness. We have
no trouble accepting the Secretary’s argument that the
restriction is reasonable. Although the messages on
specialty license plates are not government speech, they
are reasonably viewed as having the State’s stamp of
approval. License plates are, after all, owned and issued
by the State, and specialty license plates in particular
cannot come into being without legislative and guber-
natorial authorization. To the extent that messages on
specialty license plates are regarded as approved by the
State, it is reasonable for the State to maintain a position
of neutrality on the subject of abortion.
Our conclusion is consistent with a decision of the
Second Circuit in the related context of vanity license
plates. In Perry v. McDonald, 280 F.3d 159 (2d Cir. 2001), the
court was confronted with a First Amendment challenge
by a Vermont vehicle owner whose vanity license plate,
“SHTHPNS,” was rejected by the State Department of
Motor Vehicles. The Vermont statute governing vanity
5
We note in addition that Stanton’s conclusion is in tension
with Rose. The Fourth Circuit said in Rose that it is viewpoint
discrimination to allow a “Choose Life” specialty plate in the
absence of a pro-choice plate. 361 F.3d at 795. The Ninth Circuit
said in Stanton that it is viewpoint discrimination to disallow
a “Choose Life” specialty plate even when there is no
pro-choice plate. 515 F.3d at 972.
No. 07-1349 29
license plates barred any arrangement of letters and
numbers that produced an offensive message, and
“SHTHPNS” was deemed offensive. The Second Circuit
concluded that Vermont’s vanity-license-plate program
was a nonpublic forum and the State’s rejection of
this license plate was both viewpoint neutral and reason-
able. Id. at 167-70. “Vermont’s restriction on scatological
terms—what the Vermont statute describes as ‘offen-
sive’—reasonably serves legitimate governmental inter-
ests.” Id. at 169. Because license plates are governmental
property and “inevitably . . . will be associated with the
state that issues them,” the State has a legitimate interest
in not communicating “offensive scatological terms.” Id.
Vermont did not prohibit the plate because it
represented the view “ ‘Shit happens (so don’t let life’s
problems drive you to drink),’ ” but because the vehicle
owner used “a combination of letters that stands in part
for the word ‘shit.’ ” Id. at 170.
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 R EVERSE the judgment of the district court,
V ACATE its order directing the Secretary to issue the
“Choose Life” plate, and R EMAND with instructions to
enter judgment for the Secretary.
30 No. 07-1349
M ANION, Circuit Judge, concurring. I agree with the
court’s conclusion that Illinois’ specialty plate program,
as set forth in amended 625 Ill. Comp. Stat. 5/3-600, does
not constitute government speech. 6 I also agree with the
court’s conclusion that Illinois’ specialty plate program
is most aptly characterized as a non-public forum. As
such, any restriction on speech must not discriminate on
the basis of viewpoint and must be reasonable in light of
the forum’s purpose. See Opinion at 24. I write
separately, however, to stress three points.
First, the court in its opinion concludes that it is undis-
puted that Illinois decided to exclude “the entire subject
of abortion from its specialty-plate program.” Opinion
at 25 (emphases added). However, I have some reserva-
tions with this conclusion. This is nothing more than the
Illinois legislature rejecting efforts to approve a single
specialty license plate, “Choose Life.” As the court noted,
those efforts were thwarted initially in the Illinois
Senate and later in the House (the proposal died in a
House subcommittee). By rejecting a “Choose Life” plate,
it is not clear to me that the legislature decided to exclude
“the entire subject of abortion.” Nevertheless, with that
assumption I would then agree that the exclusion of the
entire subject is a content-based restriction and not one
based on viewpoint.
6
I likewise agree that the amendment by the Illinois legislature
effectively moots the district court’s opinion by expressly
requiring legislative approval of any license plate message
before the Secretary of State may issue new specialty plates.
No. 07-1349 31
Second, I disagree with the district court’s (and other
courts’) characterization of the “choose life” message as
simply a pro-life statement. It is more than that. The
message acknowledges both choice and life, so most
people who claim to be pro-life and a large number of
people who claim to be pro-choice but personally
opposed to abortion should be comfortable with this
message that is directed at pregnant women who are
contemplating abortion. This petition expressly recog-
nizes that it is the woman’s choice. But at the same time
it recognizes that the life of the developing baby is also
at stake.
Although there are extremes on both sides of the abor-
tion issue, the “choose life” message covers a much
broader middle ground. Many, if not most (especially
politicians, as this issue comes up every election season)
who claim to be pro-choice also frequently and I presume
sincerely claim to be personally opposed to abortion. Yet
they recognize that for a woman faced with an unwanted
pregnancy, whether or not to terminate will be an ex-
tremely difficult decision. For whatever reason they are
personally opposed to abortion, they want the final
decision to be with the woman. Still, it seems that these
people want to at least greatly reduce the number of
abortions and even make them “rare.” Additionally, many
proclaim strong support for adoption. But before there
is adoption, someone has to intervene and be an
advocate for the unborn child in order to encourage
the mother to carry her baby to term. Most people who
claim to be pro-life recognize that the Supreme Court
has created a right of privacy that engulfs the right to
choose to have an abortion. With that in mind, most pro-
32 No. 07-1349
life people would want to do whatever is possible to
encourage the woman to choose life for her unborn baby.
Thus it would seem to be a natural combination for
people who are pro-choice but personally opposed to
abortion, and those who are pro-life but recognize that
ultimately it’s the woman’s decision, to join together and
encourage women in that difficult position to choose life.
While Illinois has decided to exclude the choose-life
subject from its specialty plate program, other states
might recognize the combined forces of people who are
pro-choice but personally opposed, and people who are
pro-life but who acknowledge that legally it is the
mother’s choice. This combination of people would be
willing to accept a “Choose Life” plate, as such a plate
does not express any opinion on the legality of abortion.
There are organizations that counsel pregnant women
who are questioning whether or not to have an abortion.
These counselors provide genuine compassion and con-
cern for the woman with an unexpected or even unwanted
pregnancy. Their hope is that, with expert counseling,
state of the art ultrasounds, prenatal care, and many
other services, the pregnant woman would make an
informed final decision for her developing child. Support
for the mother and baby after birth could include baby
cribs, parenting classes, and other follow-up services. All
of this would be the hoped-for result for those who are pro-
life, as well as those who are pro-choice but personally
opposed to abortion.
The bottom line is that the “choose life” message can be
placed on two sides of the same coin, which includes
concern and compassion for the expectant mother and
No. 07-1349 33
concern for the future life of her unborn baby. Illinois has
chosen to exclude this subject from its specialty plate
program. However, for states that choose to include the
issue, the “choose life” combination is one that a solid
legislative majority could comfortably approve.
Third and finally, it is important to stress that for those
states which have approved a “Choose Life” plate, that, by
itself, does not demonstrate viewpoint discrimination
based on the absence of other specialty plates related to
the topic of abortion. A “Choose Life” plate does not
speak to whether abortion should be legal, but instead
recognizes that under our legal system only pregnant
women can choose whether or not to have an abortion.
The message simply recommends that a woman con-
templating abortion choose life for her unborn child. But
rather than devolve into the contentious debate about
viewpoints concerning the legality of abortion, a state
could reasonably seek to promote a common middle
ground—shared by both those who support and those
who object to the Supreme Court’s decision to legalize
abortion. States which find the “Choose Life” plate pro-
vides a positive non-confrontational area of shared consen-
sus act reasonably in that conclusion and do not engage
in viewpoint discrimination. On the other hand, for now,
Illinois can reasonably conclude that it does not want
its license plates to mention anything related to abortion.
For these reasons, I concur.
11-7-08