Planned Parenthood SC v. Rose

PUBLISHED
Filed: June 28, 2004
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
PLANNED PARENTHOOD OF SOUTH 
CAROLINA INCORPORATED; RENEE
CARTER,
Plaintiffs-Appellees,
v.
B. BOYKIN ROSE, in his official
capacity as the Director of the
Department of Public Safety of the
State of South Carolina; JON E.
OZMINT, in his official capacity as
the Director of the Department of
Corrections of South Carolina; KIM  No. 03-1118
S. AYDLETTE, in her official capacity
as the Director of the Department of
Social Services of South Carolina,
Defendants-Appellants.
LIBERTY COUNSEL; LOUISIANA
LAWYERS FOR LIFE; LOUISIANA
FAMILY FORUM; LOUISIANA LAW &
JUSTICE FOUNDATION,
Amici Supporting Appellant.

ORDER
Appellants filed a petition for rehearing and rehearing en banc.
Judge Luttig, Judge Michael, and Judge Gregory voted to deny the
petition for rehearing.
2 PLANNED PARENTHOOD v. ROSE
On the poll requested by a member of the court on the petition for
rehearing en banc, Judge Widener, Judge Niemeyer, Judge Williams,
Judge Traxler, and Judge Shedd voted to grant rehearing en banc.
Chief Judge Wilkins, Judge Wilkinson, Judge Luttig, Judge Michael,
Judge Motz, Judge King, Judge Gregory, and Judge Duncan voted to
deny rehearing en banc.
The petition for rehearing is denied, and because the poll of judges
in active service failed to produce a majority in favor of rehearing en
banc, the petition for rehearing en banc is also denied. Judge Wilkin-
son wrote an opinion concurring in the denial of rehearing en banc.
Judge Shedd wrote an opinion, joined by Judge Williams, dissenting
from the denial of rehearing en banc.
Entered for the Court,
/s/ Patricia S. Connor
CLERK
WILKINSON, Circuit Judge, concurring in the denial of rehearing en
banc:
At issue here is a South Carolina statute allowing citizens to opt for
specialty license plates bearing the message "Choose Life." See S.C.
Code Ann. § 56-3-8910. No specialty license plate with the opposite
message is similarly available. Planned Parenthood of South Carolina,
Inc. and Renee Carter have challenged the statute authorizing the
"Choose Life" plates. 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.
I vote to deny rehearing en banc. I simply do not believe the state
should use license plates to practice viewpoint discrimination. See
Sons of Confederate Veterans, Inc. v. Comm’r of Va. Dep’t of Motor
Vehicles, 305 F.3d 241, 242 (Wilkinson, C.J., concurring in the denial
of rehearing en banc). That is plainly what is happening here. 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 sim-
PLANNED PARENTHOOD v. ROSE 3
ilar outlet to express their disagreement with it. This is a presidential
election year. May a 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 vis-
tas. 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.
The state would argue that its viewpoint discrimination is permissi-
ble, because its license plates constitute pure government speech. But
the speech here only becomes speech by virtue of a citizen’s choice.
When speakers mount a soapbox or hoist a placard, one presumes
they are free to create their own messages. I am not convinced that
the mere presence of a license plate allows the state unlimited author-
ity to channel would-be speakers into privileged categories of expres-
sion of the state’s own choosing.
Just as I considered Sons of Confederate Veterans "a free speech
case, not . . . a Confederate flag case," id. at 242, this to me is a First
Amendment case, not a case about abortion. "It will not do to decide
the same question one way between one set of litigants and the oppo-
site way between another." Benjamin N. Cardozo, The Nature of the
Judicial Process 33 (1921). The fact that Americans have deep differ-
ences of opinion on subjects such as these is all the more reason to
recognize the unifying force of the First Amendment principle —
namely, that none of us has the right to compel assent to our views,
but that all of us have the right to express them. The state’s failure
to be neutral on the right to speak about our most divisive issues will
give rise to great resentment. The confidence that all are treated
equally with respect to belief, conscience, and expression enables
Americans to transcend difference and to make "e pluribus unum" the
lasting legacy of our nation.
SHEDD, Circuit Judge, dissenting from the denial of rehearing en
banc:
According to the panel, the South Carolina General Assembly may
enact a statute declaring "Choose Life" the official motto of the state,
and that message may be printed on every standard license plate
issued to vehicle owners in the state, but the General Assembly may
4 PLANNED PARENTHOOD v. ROSE
not take the less intrusive step of enacting a statute authorizing a spe-
cialty license plate bearing precisely the same message for interested
vehicle owners willing to pay a higher fee. Not only is this result
bizarre on its face, but it also reflects a misapplication of our recent
decision in Sons of Confederate Veterans, Inc. v. Commissioner of the
Virginia Department of Motor Vehicles, 288 F.3d 610 (4th Cir. 2002)
("SCV"). Because the panel’s decision unduly restricts the ability of
elected officials to express the views of their constituents on any
issue, however controversial, I dissent from the denial of rehearing en
banc.1
I.
South Carolina issues a license plate to the owner of every vehicle
registered in and licensed by the State. S.C. Code Ann. § 56-3-1210.
The State owns every license plate, but state law requires that the
plate be displayed on the vehicle. Id. There are two basic methods by
which South Carolina permits issuance of specialty license plates.
One method for obtaining a specialty plate is by application to the
Department of Public Safety ("DPS") pursuant to the administrative
approval process described in S.C. Code Ann. § 56-3-8000. Under
this statute, a certified nonprofit organization (or a member of such
organization) desiring a specialty plate must apply to DPS and submit
four hundred prepaid applications or a $4,000 deposit, as well as a
marketing plan for sale of the plate. Id. § 56-3-8000(A)-(B). DPS has
discretion to "alter, modify, or refuse to produce" any organizational
specialty plate that it deems "offensive" or that "fails to meet commu-
nity standards." Id. § 56-3-8000(H). Once approved, a specialty plate
under this section is available only to certified members of the rele-
vant organization. Id. § 56-3-8000(D). Revenues generated by sales of
such a plate may be spent only to defray the costs of producing non-
profit organizational plates pursuant to this section. Id. § 56-3-
8000(F).
1
It is important to note that the panel’s analysis applies equally to all
messages printed on specialty license plates, not just messages concern-
ing abortion. Given the wide variety of messages currently appearing on
specialty plates in South Carolina, see discussion infra, the implications
of this decision are far-reaching indeed.
PLANNED PARENTHOOD v. ROSE 5
A second method for obtaining a specialty plate is by direct action
in the General Assembly. The General Assembly has enacted separate
statutes authorizing issuance of specialty plates to members of certain
organizations. See, e.g., S.C. Code Ann. § 56-3-3410 (National Wild
Turkey Federation); id. § 56-3-3800 (American Legion); id. § 56-3-
7100 (Shriners); id. § 56-3-8200 (Rotary International); id. § 56-3-
8400 (Lions Club); id. § 56-3-8600 (Ducks Unlimited). Likewise, the
General Assembly has authorized specialty plates recognizing organi-
zations for issuance to any interested vehicle owner. See, e.g., id.
§ 56-3-3600 (South Carolina Nurses); id. § 56-3-4100 (South Caro-
lina Elks Association); id. § 56-3-90 (Sertoma International). In addi-
tion, the General Assembly has approved specialty plates for disabled
veterans, id. § 56-3-1120; former prisoners of war, id. § 56-3-1150;
Medal of Honor recipients, id. § 56-3-1850; Purple Heart recipients,
id. § 56-3-3310; Normandy Invasion survivors, id. § 56-3-5350; Pearl
Harbor survivors, id. § 56-3-5920; and World War II veterans and
their spouses, id. § 56-3-8800, among others. The General Assembly
has even approved a specialty plate commemorating the introduction
of the "Shag" as South Carolina’s state dance. Id. § 56-3-3910.
The General Assembly does not authorize specialty plates merely
to recognize certain individuals, organizations, and the official dance.
Some authorizing statutes earmark revenues generated from sales of
specialty plates to support identified programs. See, e.g., id. § 56-3-
5010 (earmarking a portion of the fees generated by the "Public Edu-
cation: A Great Investment" plate for the purchase of computers in
identified school districts); id. § 56-3-7300 (requiring fees collected
for sales of a Saltwater Fishing plate to be deposited into a special
account for management and conservation of the state’s marine
resources); id. § 56-3-7910 (requiring fees collected for sales of the
H.L. Hunley submarine plate to be distributed to the Fund to Save the
Hunley for continued curation efforts); id. § 56-3-9100 (earmarking
proceeds from sales of the South Carolina Technology Alliance plate
for development of high technology programs and businesses); id.
§ 56-3-930 (earmarking proceeds from sales of "United We Stand"
plates for deposit into a fund created to establish rewards for the cap-
ture of terrorists); id. § 56-3-9500 (designating proceeds from sales of
"God Bless America" plates for use by the South Carolina National
Guard for homeland security purposes); id. § 56-3-9600 (designating
6 PLANNED PARENTHOOD v. ROSE
proceeds from sales of "No More Homeless Pets" plates for animal
spaying and neutering programs).
On rare occasions, the General Assembly takes the unusual step of
prescribing the message that appears on a specialty plate. For
instance, the Nongame Wildlife and Natural Areas Fund plate must
bear the message "South Carolina Protects Endangered Species," id.
§ 56-3-4510, and another plate must bear the message "Public Educa-
tion: A Great Investment," id. § 56-3-5010. The General Assembly
has authorized specialty plates bearing the messages "Conserve South
Carolina," id. § 56-3-2540; "Keep South Carolina Beautiful," id. § 56-
3-3950; "In God We Trust," id. § 56-3-9200; "United We Stand," id.
§ 56-3-9300; and "God Bless America," id. § 9500, among others.2
In 2001, the General Assembly enacted a separate statute authoriz-
ing the issuance of a specialty plate bearing the message "Choose
Life." Id. § 56-3-8910. This plate is available to all interested vehicle
owners in the State. Id. § 56-3-8910(A). Purchasers of the "Choose
Life" plate must pay a $70 fee every other year in addition to the
basic fee for license plates, and proceeds from sales of this plate are
earmarked for a special account from which the South Carolina
Department of Social Services makes grants to support crisis preg-
nancy programs. Id. § 56-3-8910(A)-(B). The statute specifically pro-
vides that such grants "may not be awarded to any agency, institution,
or organization that provides, promotes, or refers for abortion." Id.
§ 56-3-8910(B). Under the "Choose Life" statute, production of the
specialty plate could commence once the South Carolina Department
of Motor Vehicles received four hundred prepaid applications or a
$4,000 deposit; in this respect, the "Choose Life" statute is identical
to other specialty license plate statutes that support special programs
and prescribe particular messages. See, e.g., id. § 56-3-4410; id. § 56-
2
The panel erroneously asserts that South Carolina does not authorize
specialty plates bearing messages concerning "politically controversial"
subjects. Planned Parenthood of S.C. Inc. v. Rose, 361 F.3d 786, 788
(4th Cir. 2004). Not only does this assertion ignore the fact that environ-
mental policy, education policy, and government-sponsored references to
God often generate public controversy, but it erroneously suggests that
the degree of controversy surrounding a particular message affects the
status of that message vis-a-vis the First Amendment.
PLANNED PARENTHOOD v. ROSE 7
3-5200; id. § 56-3-7300; id. § 56-3-7910; id. § 56-3-9100; id. § 56-3-
9200; id. § 56-3-9300; id. § 56-3-9500; id. § 56-3-9600.
II.
The outcome of this case depends upon the proper characterization
of the statutorily prescribed "Choose Life" message as private speech
or government speech.3 If the "Choose Life" message is properly
labeled private speech, then the government has preferred one private
message over other messages based upon the viewpoints of those
messages. The First Amendment ordinarily does not permit such
viewpoint discrimination. SCV, 288 F.3d at 622 (citing Arkansas
Educ. Television Comm’n v. Forbes, 523 U.S. 666, 677 (1998), and
Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 828
1995)). If, on the other hand, the "Choose Life" message is properly
labeled government speech, then the ordinary prohibition against
viewpoint discrimination is inapplicable and the statute survives First
Amendment scrutiny. The government can speak for itself, and it can
take measures designed to ensure that its message is not distorted.
SCV, 288 F.3d at 616-17 (citing Board of Regents of Univ. of Wis.
Sys. v. Southworth, 529 U.S. 217, 229 (2000), and Griffin v. Depart-
ment of Veterans Affairs, 274 F.3d 818, 822 (4th Cir. 2001)). As we
noted in SCV, "[t]he rationale behind the government’s authority to
draw otherwise impermissible viewpoint distinctions in the govern-
ment speech context is the accountability inherent in the political pro-
cess." 288 F.3d at 618 (citing Southworth, 529 U.S. at 235).4
3
The State sought reconsideration of the standing issue as well as the
substantive First Amendment issue. At the very least, the panel’s stand-
ing analysis should have reckoned with contrary decisions from the Fifth
and Eleventh Circuits in the only other federal appellate cases involving
"Choose Life" license plates. See Henderson v. Stalder, 287 F.3d 374
(5th Cir.), cert. denied, 123 S. Ct. 602 (2002); Women’s Emergency Net-
work v. Bush, 323 F.3d 937 (11th Cir. 2003). Indeed, the Eleventh Cir-
cuit found standing lacking even where the plaintiffs had attempted, but
failed, to obtain enactment of a statute authorizing pro-choice specialty
plates. Women’s Emergency Network, 323 F.3d at 946 n.12. No such
effort was made in this case.
4
Drawing distinctions between private speech and government speech
can be a difficult task in the context of license plates. Since the govern-
8 PLANNED PARENTHOOD v. ROSE
In determining whether a particular message constitutes private
speech or government speech, we consider four separate, but closely
related, factors: (1) the purpose of the program in which the speech
occurs, (2) the degree of editorial control over the speech by the gov-
ernment, (3) the identity of the literal speaker, and (4) which party —
the government or a private party — bears ultimate responsibility for
the speech. SCV, 288 F.3d at 618-19.
The speech at issue in SCV was the background logo of the Sons
of Confederate Veterans, which included a representation of the Con-
federate flag. Although the Virginia legislature approved a specialty
plate for the group, the authorizing statute included a unique restric-
tion that prohibited the use of any symbol or emblem on the plate. We
invalidated this logo restriction on the ground that it impermissibly
discriminated against private speech based upon the viewpoint
expressed by inclusion of the Confederate flag in the Sons of Confed-
erate Veterans’ logo. Id. at 626, 629.
In reaching this conclusion, we noted that the purpose of the pro-
gram in which the speech occurred was to "produce revenue while
allowing, on special plates authorized for private organizations, for
the private expression of various views." Id. at 619. Moreover, the
ment produces the plate, issues the plate for identification purposes, and
actually owns the plate, it may always be said that the government
speaks whatever message appears on a particular plate; at the same time,
since a private individual or entity owns the vehicle on which the plate
is displayed, there is a very real sense in which that private party may
be said to speak the message that appears on the plate. See Planned Par-
enthood, 361 F.3d at 794; Sons of Confederate Veterans v. Commissioner
of Va. Dep’t of Motor Vehicles, 305 F.3d 241, 245-46 (4th Cir. 2002)
("SCV II") (Luttig, J., respecting denial of reh’g en banc); id. at 252
(Gregory, J., dissenting from denial of reh’g en banc). Nevertheless,
while the "private speech" and "government speech" categories are
imprecise when applied to messages printed on license plates, they
remain useful in describing the degree of government involvement in
creating and speaking particular messages. The bottom-line question,
then, is whether the government speech component to the "Choose Life"
message is so substantially greater than the private speech component
that the message may fairly be characterized as "government speech."
PLANNED PARENTHOOD v. ROSE 9
state exercised "little, if any" editorial control over the content of spe-
cialty license plates. Id. at 621. Citing Wooley v. Maynard, 430 U.S.
705 (1977), for the proposition that "license plates . . . implicate pri-
vate speech interests because of the connection of any message on the
plate to the driver or owner of the vehicle," we concluded that the lit-
eral speaker was the vehicle owner rather than the government and
that the vehicle owner bore ultimate responsibility for the message
conveyed by the Sons of Confederate Veterans logo. SCV, 288 F.3d
at 621. As a result, we held that the background logo on the Sons of
Confederate Veterans specialty plate was private speech rather than
government speech. Id.
The statutory scheme at issue here differs in material respects from
the scheme at issue in SCV, and I believe that the four-factor analysis
yields a different result. With respect to the first factor, there can be
no doubt that the primary purpose of the "Choose Life" statute is to
express the General Assembly’s current position on the abortion
issue. A secondary purpose of the statute is to generate revenues for
crisis pregnancy programs, specifically programs that do not provide
or promote abortions. As the panel correctly recognized, this statute
was intended to make a statement about the General Assembly’s pref-
erence for the pro-life position. Planned Parenthood, 361 F.3d at 793.
It is equally clear that the General Assembly exercised complete
editorial control over the "Choose Life" plate. The General Assembly
created and codified the particular message that appears on the plate.
Unlike the statute at issue in SCV — and unlike most other specialty-
plate statutes in South Carolina — the "Choose Life" statute actually
mandates the message that appears on the plate.
To this point in the analysis, the "Choose Life" message is plainly
government speech. The government intended to express its own
viewpoint, and it created a message to achieve that objective. The
panel concedes this much. Planned Parenthood, 361 F.3d at 793. At
this point, however, the panel takes a turn toward private speech that
I find unwarranted. While I do not disagree that the vehicle owner is
a literal speaker with respect to the "Choose Life" message, the
panel’s analysis too quickly dismisses the government’s role as the
predominant speaker.
10 PLANNED PARENTHOOD v. ROSE
The panel begins with the modest proposition that messages on
license plates "are associated at least partly with the vehicle owners."
Planned Parenthood, 361 F.3d at 794 (citing Wooley, 430 U.S. at
717). Indeed, Wooley goes no further than that. At issue in Wooley
was a New Hampshire statute making it a misdemeanor knowingly to
obscure the figures or letters on a license plate, including the state’s
motto, "Live Free or Die." The Supreme Court held that New Hamp-
shire could not punish vehicle owners who registered their objections
to the state motto by obscuring that message on their license plates.
Id. at 717. More broadly, a state cannot "require an individual to par-
ticipate in the dissemination of an ideological message by displaying
it on his private property in a manner and for the express purpose that
it be observed and read by the public." Id. at 713. Because there is
nothing in this case remotely akin to compelled speech, Wooley is of
little use here. For present purposes, Wooley suggests that (1) the gov-
ernment can speak its messages through the medium of license plates
but (2) vehicle owners may choose to reject the government’s mes-
sages. Thus, Wooley recognizes that both the government and the
vehicle owner are literal speakers, to varying degrees, with respect to
messages printed on license plates. To decide this case (and any spe-
cialty license plate case), we must ask whether any peculiar circum-
stance surrounding the specialty plate so diminishes the government’s
role as a literal speaker or highlights the vehicle owner’s role as a lit-
eral speaker that one or the other party must be deemed the sole
speaker.
The panel concludes that the vehicle owner should be treated as the
literal speaker of the message on a specialty license plate because "the
specialty plate gives private individuals the option to identify with,
purchase, and display one of the [State’s] authorized messages."
Planned Parenthood, 361 F.3d at 794. I disagree. By giving interested
citizens the option to endorse its message, the State has not lost its
place as the literal speaker of that message. The proper question is
whether the private citizen "engages the government to publish his
message" or the government "engages the private citizen to publish
its message." SCV II, 305 F.3d at 246 (Luttig, J.). The Virginia statute
at issue in SCV called for a specialty plate to be issued only upon
application by an organization, with the design of that plate proposed
by the organization. Thus, the message was created by private citi-
zens, and it was left to the government to approve or disapprove that
PLANNED PARENTHOOD v. ROSE 11
message. By contrast, under South Carolina’s "Choose Life" statute,
the government expresses its message on its own initiative, and pri-
vate citizens are invited to take that message or leave it. Private citi-
zens do not suggest the message, nor do they compose it. On their
own, they cannot change the message. The vehicle owner’s purchas-
ing the specialty plate signifies his endorsement of the State’s mes-
sage, not his engaging the State to speak his own message.
Just as the State should be deemed the literal speaker of the
"Choose Life" message, so the State will bear ultimate responsibility
for that message. The General Assembly alone created the message,
and it wrote that message into state law for the watching electorate
to see. Assuming that the panel correctly perceives the divisiveness
of the abortion issue in South Carolina, that fact would suggest a
heightened awareness by voters of the General Assembly’s role in
authorizing the "Choose Life" plate. I can think of no more transpar-
ent act of government than the enactment of a statute that says in
plain terms what it purports to do. I can think of no clearer demonstra-
tion of political accountability than for citizens opposed to this
"Choose Life" license plate to turn out the current government and
replace it with a government that will amend or repeal the statute and
perhaps even replace it with a statute calling for pro-choice specialty
plates. See Southworth, 529 U.S. at 235 ("When the government
speaks . . . it is, in the end, accountable to the electorate and the politi-
cal process for its advocacy. If the citizenry objects, newly elected
officials later could espouse some different or contrary position.").
According to the factors set out in SCV, South Carolina’s "Choose
Life" license plate is properly characterized as government speech,
not private speech, and is therefore permissible under the First
Amendment.
III.
The "Choose Life" statute does not create a forum for private
expression so much as it supports an established government pro-
gram. The Supreme Court in Rust v. Sullivan, 500 U.S. 173 (1991),
approved the federal government’s policy of offering federal funds to
private health clinics on the condition that those clinics not counsel
or provide abortions. Id. at 193. Answering the argument that the fed-
eral government was restricting private physicians’ speech based
12 PLANNED PARENTHOOD v. ROSE
upon viewpoint, the Court stated that "[t]he Government can, without
violating the Constitution, selectively fund a program to encourage
certain activities it believes to be in the public interest, without at the
same time funding an alternative program which seeks to deal with
the problem in another way. In so doing, the Government has not dis-
criminated on the basis of viewpoint; it has merely chosen to fund one
activity to the exclusion of the other." Id. In other words, when the
government establishes a program, it is permitted to define the con-
tours of that program as it sees fit. Rust, 500 U.S. at 194. The govern-
ment may refuse to fund speech that is inconsistent with the program
thus defined. Id. at 194-95.
The "Choose Life" statute is analogous to the federal regulations
at issue in Rust. The "Choose Life" statute earmarks revenues gener-
ated from sales of this specialty plate for a government grant program
established to fund crisis pregnancy services that specifically do not
counsel abortion. In furtherance of this identified program, the statute
offers the plates for sale to private persons who wish to support the
"Choose Life" message and the crisis pregnancy grant program. Just
as in Rust, the government has created a program and enlisted willing
participants to support that program. As in Rust, "we have not here
the case of a general law singling out a disfavored group on the basis
of speech content, but a case of the Government refusing to fund
activities, including speech, which are specifically excluded from the
scope of the project funded." Id. If the government can actually
restrict private entities’ speech in furtherance of an established gov-
ernment program, as it did in Rust, then surely it can speak its own
message — without restricting anyone else’s speech — in furtherance
of such a program. See 500 U.S. at 193 (stating that "[t]here is a dif-
ference between direct state interference with a protected activity and
state encouragement of an alternative activity consonant with legisla-
tive policy").
Perhaps even more troubling are the panel’s contentions that "the
State’s role in promoting the Choose Life message is obscured from
the public" and that the "Choose Life" statute represents "cloaked
advocacy" that insulates the General Assembly from criticism and
electoral retribution. Planned Parenthood, 361 F.3d at 795-96, 798.
Nothing but the panel’s conjecture supports such conclusions.
PLANNED PARENTHOOD v. ROSE 13
According to the panel, ordinary South Carolinians will likely be
misled into believing that the presence of the "Choose Life" plate and
the absence of an opposing plate "are the result of popular choice."
Id. at 798. Likewise, the panel worries that ordinary citizens might be
misled into thinking that the State "has already won support for the
position it is promoting." Id. The panel offers no justification for its
suspicion that the government of South Carolina — the General
Assembly and the governor — misrepresented popular sentiments
when it enacted the "Choose Life" statute. In any event, whether or
not a majority of South Carolina voters approve the "Choose Life"
message, a majority of their elected representatives did approve that
message in open session and on a public record. If those duly elected
representatives misjudged their constituents’ opinions, then they will
be held accountable for their error; if the abortion issue is as contro-
versial in South Carolina as the panel asserts, then a legislator’s vote
on the "Choose Life" statute will surely be noticed. We ought not
short-circuit regular political processes based upon speculation that
the citizens of South Carolina cannot discern what role their elected
representatives played in enacting the "Choose Life" statute.
The mere fact that the General Assembly has authorized a myriad
of specialty license plates does not diminish its accountability for the
"Choose Life" message. First, it is the rare specialty plate for which
the General Assembly actually writes the message — an act more
conspicuous when it happens than the simple approval of an organiza-
tion’s suggested design. Second, if the panel is correct that abortion
is an especially divisive issue in South Carolina, then the General
Assembly’s taking the extraordinary step of authoring the "Choose
Life" message would be expected to draw extraordinary public atten-
tion. Under the panel’s view, merely allowing issuance of plates other
than the standard plate so confuses ordinary citizens that they cannot
be expected to know when their legislature takes sides in an important
debate.5
5
The panel’s suggestion that the General Assembly scrap the "Choose
Life" statute and replace it with a new statute making "Choose Life" an
official motto of the State is dubious at best. Under the panel’s own rea-
soning, the problem here is the medium: Specialty license plates do not
readily identify the literal speaker of the message, such that ordinary citi-
zens cannot hold their elected leaders accountable for their role in speak-
14 PLANNED PARENTHOOD v. ROSE
IV.
"It is inevitable that government will adopt and pursue programs
and policies within its constitutional powers but which nevertheless
are contrary to the profound beliefs and sincere convictions of some
of its citizens." Southworth, 529 U.S. at 229. Indeed, the General
Assembly has adopted and pursued a policy concerning abortion that
is contrary to some South Carolinians’ sincere convictions. The ques-
tion here is not whether the General Assembly has expressed the cor-
rect position, or even the more popular position; rather, the question
is whether the General Assembly may express any position on a spe-
cialty license plate. The panel says it may not, even though there is
no danger that vehicle owners who object to the "Choose Life" mes-
sage will be compelled to display this plate and even though the Gen-
eral Assembly (unlike the Virginia legislature in SCV) has not in any
way singled out a group or message for unfavorable treatment. This
holding unduly restricts the ability of state governments to express the
views of their constituents on matters of public importance.
It is important to note that the panel’s holding affects much more
than the "Choose Life" plate alone. The General Assembly has taken
similar action with respect to environmental conservation, S.C. Code
Ann. § 56-3-3950; public education, id. § 56-3-5010; and even the
war on terror, id. § 56-3-9300. The messages expressed on these top-
ics may be described as ideological and even controversial. Like the
"Choose Life" plate, the specialty plates approved in these statutes are
the creatures of ordinary political processes; their messages are pre-
scribed by the legislature itself; and they are made available to any
interested vehicle owner willing to pay an extra fee. Like the "Choose
Life" plate, these plates generate revenues earmarked for specific
government programs. Under the panel’s analysis, these plates and
others like them must be discontinued unless the General Assembly
also provides for plates bearing contrary messages. In other words,
ing that message. Planned Parenthood, 361 F.3d at 798-99. If the
problem is the medium, then it should make no difference at all whether
"Choose Life" is designated an official motto. By the panel’s logic, no
message appearing on a specialty license plate can be treated as govern-
ment speech because the medium obscures the State’s role as a speaker.
PLANNED PARENTHOOD v. ROSE 15
the State cannot speak through specialty license plates unless it dilutes
or distorts its own message. Cf. Legal Servs. Corp. v. Velazquez, 531
U.S. 533, 541 (2001) (noting that when the government speaks, it can
take steps to ensure that its message is not "garbled or distorted").
We have come a long way from Wooley’s instruction that a State
may not conscript private vehicles to serve as "mobile billboards" for
its messages. The objectors in Wooley expressed their rejection of the
State’s message by covering that message with tape. Now it seems
that the State, before it speaks, must anticipate the objection of a citi-
zen and place the tape over its own message. In the end, the panel’s
decision muzzles everyday political action based on the mistaken
belief that reasonable citizens cannot tell that their government is
speaking when it enacts a specific statute calling for production of a
specialty license plate bearing a particular message. If a government
cannot be deemed to speak through such a statute, then I wonder how
it can speak at all.
Judge WILLIAMS joins in this opinion.