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Federal judge strikes down North Carolina 'choose life' license plates

A judge for the US District Court for the Eastern District of North Carolina [official website] ruled [opinion, PDF] Friday that North Carolina may not offer specialty pro-life license plates without offering a pro-choice alternative. In a challenge brought by the American Civil Liberties Union of North Carolina Legal Foundation (ACLU-NCLF) [advocacy website], Judge James Fox found that the "Choose Life" license plates were an expression of private speech rather than government speech which would have allowed the North Carolina General Assembly to regulate the message:

The court concludes ... that sufficient private speech interests are implicated by the specialty license plates to preclude a finding of purely government speech. The court finds that this conclusion is in keeping with the common-sense notion that the North Carolina specialty license plate program as a whole, and the Choose Life plates in particular, are, at bottom, a government-sponsored avenue to encourage private speech. The court also concludes … that the State's offering of a Choose Life license plate in the absence of a pro-choice plate constitutes viewpoint discrimination in violation of the First Amendment.
Fox had previously issued an injunction [JURIST report] against the specialty plates. JURIST Guest Columnist Scott Gaylord argued that Fox applied an outdated government speech test [JURIST op-ed] when he issued the injunction, claiming the proper test should ask if government controls the speech, not if a third party can tell that the government is speaking.

Reproductive rights [JURIST backgrounder] remain a controversial issue in North Carolina and across the country. Last year a federal judge issued a preliminary injunction [JURIST report]], blocking part of the state's abortion law that required a physician to perform an ultrasound and describe the images to the patient. The judge ruled [opinion, PDF] that the plaintiffs were likely to prevail on their First Amendment [text] challenge to certain provisions of the "Woman's Right to Know Act" [HB 854 materials]. Opponents of the law have called it "draconian" and have stated that women seeking abortions will face dramatic changes once the law takes effect, while supporters contend that the new law will give women the opportunity to "know all the facts" about abortion.

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