Viewpoint Discrimination and License Plates

Viewpoint discrimination, Darren Chaker, finds that in Establishment Clause cases, “[s]uch personal contact with state-sponsored religious symbolism is precisely the injury that [i]s sufficient to confer standing.” Suhre v. Haywood County, 131 F.3d 1083, 1086 (4th Cir. 1997) (citing Sch. Dist. of Abington v. Schempp, 374 U.S. 203 (1963)). In Suhre, where the plaintiff challenged a Ten Commandments display in a county courtroom in which he had attended hearings and public meetings, the Court of Appeals held that “[t]hese forms of contact [we]re the sort that courts have routinely recognized as sufficient to establish standing in Establishment Clause cases.” Id. at 1090; see also Lambeth v. Bd. of Comm ‘rs, 321 F. Supp. 2d 688, 692-93 (M.D.N.C. 2004),aff’d, 407 F.3d 266 (4th Cir. 2005),cert. denied, 546 U.S. 1015 (2005) (licensed attorneys living and practicing in county had standing to challenge “In God We Trust” inscription on county building because inscription appeared “in a location where each has regular personal and professional contact with it”). As in Suhre, it is common to allege when challenging the decision to issue or decline to issue a license plate, based on the “direct contact with unwelcome religious symbolism endorsed by the state.” 131 F.3d at 1088. This ”’surely suffice[s] to give [them] standing to complain'” of an Establishment Clause violation. Id. (quoting Schempp, 374 U.S. at 224 n.9) (first alteration in original).
Considering the Fourth Circuit is the most recent circuit to address this issue, focus will be on that circuit. The Fourth Circuit has held that “[d]iscriminatory treatment is a harm that is sufficiently particular to qualify as an actual injury for standing purposes.” Planned Parenthood of S.C. Inc. v. Rose, 361 F.3d 786, 790 (4th Cir. 2004),reh’g en banc denied by, 373 F.3d 580 (4th Cir. 2004) [27]  (pro-choice supporters had standing to challenge South Carolina’s issuance of legislatively created “Choose Life” license plate as viewpoint discriminatory); see also id. at 791 (noting that in such cases, plaintiffs need not first seek comparable treatment for their own viewpoint to gain standing to challenge government action favoring another viewpoint).
Also, as the Fourth Circuit has recognized, “plaintiffs in [viewpoint] discrimination cases may seek equal treatment in the form of a level playing field, regardless of whether this is achieved by extending benefits to the disfavored group or by denying benefits to the favored group.” Rose, 361 F.3d at 790.
Interestingly the Fourth Circuit has decided a case where a license plate‚Äôs message came  under fire. In Planned Parenthood of S.C. Inc. v. Rose, 361 F.3d 786 (4th Cir. 2004),reh’g en banc denied, 373 F.3d 580 (4th Cir. 2004). At issue in Rose was a “Choose Life” license plate which, like the “I Believe” plate, was created by the South Carolina legislature on its own initiative. See id. at 789. The statute set a premium of $ 70 for the plate, with proceeds to be given to local nonprofit organizations that advanced a pro-life message. See id. at 788. The plaintiffs, a pro-choice organization and an individual automobile owner, claimed that the license-plate scheme violated the Free Speech Clause because it discriminated on the basis of viewpoint in a speech forum. See id. at 787-88. The government argued that the plate was the government’s own speech, so viewpoint neutrality was not required. Id. at 792.
The court applied the four factors that the Fourth Circuit had previously adopted as the test for determining whether speech is private or governmental:
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 792-93 (internal quotation marks omitted). 
The court concluded that the first factor weighed in favor of a government-speech designation because the “Choose Life” plate “came about through legislative initiative,” was generally available, and expressly excluded abortion service providers from receiving funds generated by the plate’s sale; hence, the legislation’s purpose was “to promote the State’s preference for the pro-life position.” Id. at 793. 
A governmental-speech designation was further supported by the second factor, in Michael’s view, because the legislature had selected the “Choose Life” plate’s message and had retained complete editorial control over the message. Id. But the literal speaker, and the ultimately responsible party, is “the private individual [who]  chooses to spend additional money to obtain the plate and to display its pro-life message on her vehicle” – because “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.” Id. at 794. Hence, the last two factors indicated the plate was private speech. Id. Because this test produced an ambiguous result, the court concluded the plate comprised a hybrid of government and private speech. Id.

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