9th Circuit: State’s refusal to approve “Choose Life” license plates violates organization’s free speech rights

Yesterday the U.S. Court of Appeals for the Ninth Circuit decided Arizona Life Coalition, Inc. v. Stanton (pdf, 27 pages). If nothing else, the case well and truly illustrates the perils inherent in a state giving private organizations broad access to its motor vehicle registration system.

Arizona Life Coalition (“ALC”) is an anti-abortion nonprofit corporation that claims some forty organizations and 100,000 individuals as members. Arizona law provides that any nonprofit with 200 or more members may apply for a “special organizational” license plate. By statute, the Arizona License Plate Commission must approve the application if three criteria are met:

(1) The primary activity or interest of the organization serves the community, contributes to the welfare of others and is not offensive or discriminatory in its purpose, nature, activity or name[;]

(2) The name of the organization or any part of the organization’s purpose does not promote any specific product or brand name that is provided for sale[;] and

(3) The purpose of the organization does not promote a specific religion, faith or antireligious belief.

ALC submitted an application for a specialty plate that would display the organization’s logo and its “Choose Life” motto:

For reasons not at all clear, everyone agreed that the plate met all the statutory criteria quoted above. Yet the Commission denied ALC’s application.

Surprisingly enough, the Commission did not base its decision on the design being simply too retarded to appear on a license plate. The Commission’s action was instead based on concern that the state would appear to be sanctioning ALC’s message.

ALC sued the Commissioners in federal court, alleging violations of the Speech Clause of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. The trial court dismissed the lawsuit and ALC appealed.

A three-judge panel of the Ninth Circuit ruled unanimously that the Commission’s action violated ALC’s First Amendment rights. Along the way the court of appeals held that: (1) authorizing the plates would not constitute government speech, i.e., government endorsement of the “Choose Life” message; (2) Arizona’s specialty license plate program established a “limited public forum” for First Amendment purposes, such that “any access restriction must be viewpoint neutral and reasonable in light of the purpose served by the forum”; and (3) the Commission’s decision to deny ALC’s applications for reasons other than those spelled out in the statute was unreasonable in light of the forum’s purpose, namely “to allow nonprofit organizations a means to promote their community-based cause to the public in the hopes of raising awareness and revenue . . . .”

In view of its First Amendment ruling, the court declined to address ALC’s equal protection argument.

The Alliance Defense Fund, founded in 1994 by renowned theocrats James Dobson, the late D. James Kennedy and Campus Crusade for Christ founder Bill Bright, represents ALC in this case. ADF’s website trumpets another victory in a “Choose Life” license plate case, this one brought in a Missouri federal court. ADF’s heavy involvement in these cases renders the notion that ALC’s Arizona license plate “does not promote a specific religion [or] faith” more than a little suspect, IMO, but Arizona didn’t press the issue.

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