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Friday, November 07, 2008

Ind. Decisions - 7th Circuit rules on Illinois "Choose Life" License Plate Issue

No Indiana decisions today from the 7th Circuit, but an interesting decision in the case of Choose Life, Illinois v. Jesse White, Sec. of State. Judge Sykes writes the opinion, and Judge Manion has a concurring opinion. From Judge Sykes:

[T]he Secretary now argues that the amendment 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 rights are implicated. We disagree, though we acknowledge the question has divided other circuits.

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 difference 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 “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. * * *

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 REVERSE the judgment of the district court, VACATE its order directing the Secretary to issue the “Choose Life” plate, and REMAND with instructions to enter judgment for the Secretary.

Posted by Marcia Oddi on November 7, 2008 12:14 PM
Posted to Ind. (7th Cir.) Decisions