In the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United States

PHIL BERGER, PRESIDENT PRO TEMPORE OF THE NORTH

CAROLINA SENATE, ET AL.,Petitioners,

v.

AMERICAN CIVIL LIBERTIES UNION OFNORTH CAROLINA, ET AL.,

Respondents.

On Petition for a Writ of Certiorari to theUnited States Court of Appeals for the Fourth Circuit

BRIEF OF AMICI CURIAE CHOOSE LIFEWISCONSIN, INC., ILLINOIS CHOOSE LIFE,

INC., AND CHOOSE LIFE AMERICA, INC., INSUPPORT OF PETITIONERS

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

STEPHEN M. CRAMPTON

Counsel of RecordSPECIAL COUNSEL

THOMAS MORE SOCIETY

P.O. Box 4506Tupelo, MS 38803(662) 255-9439smcrampton@hotmail.com

Counsel for Amicus Curiae

NO. 14-35

THOMAS L. BREJCHA

PETER BREEN

JOCELYN FLOYD

THOMAS MORE SOCIETY

19. S. Lasalle St., Suite 603Chicago, IL 60603(312) 782-1680

MICHAEL D. DEAN

FIRST FREEDOMS FOUNDATION

P.O. Box 2545Brookfield, WI 53007(262) 798-8044

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TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . ii

INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . 3

REASONS FOR GRANTING THE WRIT . . . . . . . . 6

I. Certiorari Should be Granted to Resolve theConflicts Among the Circuits on the Issue ofGovernment Speech versus Private Speech inthe Context of Specialty License Plates . . . . 6

A. Government Speech vs. Private Speech . . 6

B. The Appropriate Analytical Framework . 8

C. Private Speech vs. Hybrid Speech . . . . . . 9

D. Content-based vs. Viewpoint-basedDiscrimination . . . . . . . . . . . . . . . . . . . . . 11

E. The Limits of the Government SpeechDoctrine . . . . . . . . . . . . . . . . . . . . . . . . . . 12

II. Certiorari Should be Granted to Resolve theConflict in the Circuits Concerning theApplicability of the Tax Injunction Act toSpecialty License Plate Litigation . . . . . . . . 18

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

ii

TABLE OF AUTHORITIESCases

ACLU of N.C. v. Tata, 742 F.3d 563 (4th Cir. 2014) . . . . . . . . . . . passim

ACLU of Tenn. v. Bredesen, 441 F.3d 370 (6th Cir. 2005) . . . . . . . . . . . passim

Ariz. Life Coal., Inc. v. Stanton, 515 F.3d 956 (9th Cir. 2008) . . . . . . . . . . . passim

Burt v. Blumenauer, 699 P.2d 168 (Or. 1985) . . . . . . . . . . . . . . . . . . . 17

Children First Found., Inc. v. Martinez, 829 F. Supp. 2d 47 (N.D.N.Y. 2011) . . . . . . . . . 11

Choose Life Illinois v. White, 2007 WL 178455 (N.D. Ill. 2007) . . . . . . . . . . . . . 2

Choose Life Illinois v. White, 547 F.3d 853 (7th Cir. 2008) . . . . . . . . . . . passim

Corder v. Lewis Palmer Sch. Dist. No. 38, 566 F.3d 1219 (10th Cir. 2009) . . . . . . . . . . . . . 15

County of Allegheny v. ACLU Greater PittsburghChapter, 492 U.S. 573 (1989) . . . . . . . . . . . . . . . . . . . . . . 15

Griswold v. Driscoll, 616 F.3d 53 (1st Cir. 2010) . . . . . . . . . . . . . . . . 12

Henderson v. Stalder, 407 F.3d 351 (5th Cir. 2005) . . . . . . . . . . . . . 5, 18

Hibbs v. Winn, 542 U.S. 88 (2004) . . . . . . . . . . . . . . . . . . . . . . . 19

iii

Johanns v. Livestock Marketing Ass’n, 544 U.S. 550 (2005) . . . . . . . . . . . . . . . . . . passim

Kidwell v. City of Union, 462 F.3d 620 (6th Cir. 2006) . . . . . . . . . . . . . . . 15

NARAL Pro-Choice Ohio v. Taft, No. 1:05 CV 1064, 2005 U.S. Dist. LEXIS 21394(N.D. Ohio 2005) . . . . . . . . . . . . . . . . . . . . . . 5, 18

Page v. Lexington Cnty. Sch. Dist. One, 531 F.3d 275 (4th Cir. 2008) . . . . . . . . . . . . . . . 15

Pleasant Grove City v. Summum, 555 U.S. 460 (2009) . . . . . . . . . . . . . . . . . . passim

Roach v. Stouffer, 560 F.3d 860 (8th Cir. 2009) . . . . . . . . . . . passim

Rosenberger v. Rector & Visitors of the Univ. of Va.,515 U.S. 819 (1995) . . . . . . . . . . . . . . . . . . . . . . 12

Sons of Confederate Veterans, Inc. v. Comm’r of Va.Dep’t of Motor Vehicles, 305 F.3d 241 (4th Cir. 2002) . . . . . . . . . . . . . 9, 10

Sons of Confederate Veterans, Inc. v. Comm’r of theVa. Dept. of Motor Vehicles, 288 F.3d 610 (4th Cir. 2002) . . . . . . . . . . . . . . . . 7

Summers v. Adams, 669 F. Supp. 2d 637 (D.S.C. 2009) . . . . . . . . . . 15

Sutliffe v. Epping Sch. Dist., 584 F.3d 314 (1st Cir. 2009) . . . . . . . . . . . . . . . 14

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Tex. Div., Sons of Confederate Veterans v.Vandergriff, __ F.3d __, 2014 WL 3558001 (5th Cir. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

United States v. United Foods, 533 U.S. 405 (2001) . . . . . . . . . . . . . . . . . . . . . . 16

Women’s Emergency Network v. Bush, 323 F.3d 937 (11th Cir. 2003) . . . . . . . . . . . . . . 19

Statutes

Tax Injunction Act, 28 U.S.C. § 1341 . . . . . . . . . . . . . . . . . . . . . . . 5, 18

Va. Code Ann. § 57-1 . . . . . . . . . . . . . . . . . . . . . . . . 16

Other Authorities

A Bill for Establishing Religious Freedom, in 5 TheFounders’ Constitution, No. 37 (P. Kurland & R.Lerner eds. 1987) . . . . . . . . . . . . . . . . . . . . . . . . 16

Randall Bezanson and William Buss, The ManyFaces of Government Speech, 86 Iowa L. Rev.1377 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

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INTEREST OF AMICI CURIAE1

Amici curiae are non-profit entities that willdisburse funds generated by “Choose Life” licenseplates to benefit at risk and disadvantaged mothersand children, should amici succeed in gaining access tothe forum. Accordingly, amici have a strong interest inensuring that such plates are available in NorthCarolina as well as in other states. Amici alsorepresent drivers who wish to purchase “Choose Life”plates and place them on their vehicles in order toexpress their personal views about an important moralissue. Amici and the pregnancy resource centers theysupport are deeply committed to the well-being ofmothers and children by providing resources to supporthealth, wellness and development opportunities, andby encouraging and increasing public awareness ofadoption alternatives and the value of each individualhuman life from conception through natural death.

Amicus Choose Life Wisconsin, Inc. applied forpermission to create a “Choose Life” specialty plateduring the 2013-14 legislative session. Although theAssembly passed the legislation and the SenateTransportation Committee passed it, the full Senatefailed to bring it up for a vote, effectively killing it.

1 Counsel for a party did not author this brief in whole or in part,and no such counsel or party made a monetary contribution to fundits preparation or submission. No person or entity other thanamici curiae or their counsel made a monetary contribution to thepreparation and submission of this brief. Counsel for amici curiaehas provided all parties with 10 days’ notice of the filing of thisbrief and all parties have timely consented to the filing of thisbrief.

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While Choose Life Wisconsin anticipates successfullitigation securing the right to communicate itsviewpoint on subjects previously approved by the statelegislature for inclusion on specialty plates, action bythis Court would clarify First Amendment protectionsthe Seventh Circuit currently recognizes and wouldalso secure additional protections which other circuitsrecognize but the Seventh Circuit does not.

Beginning in 2001, amicus Illinois Choose Life, Inc.(“CLI”), gathered over 25,000 signatures from citizenswishing to display a “Choose Life” license plate. Itsrepeated efforts to persuade the General Assembly toapprove the plate were rebuffed, however. CLI thenfiled suit. The trial court ruled in favor of CLI, holdingthat the state’s refusal to allow a “Choose Life” licenseplate constituted viewpoint discrimination. See ChooseLife Illinois v. White, 2007 WL 178455 (N.D. Ill. 2007).

On appeal, the Seventh Circuit reversed. See ChooseLife Illinois v. White, 547 F.3d 853 (7th Cir. 2008). Itfound that the forum was nonpublic, and that theIllinois legislature had excluded the entire subject ofabortion, so therefore engaged not in impermissibleviewpoint discrimination, but instead in permissiblecontent-based discrimination because thediscrimination was reasonable. Id. at 865. CLIpetitioned for certiorari, but this Court declined to takethe case. Choose Life Illinois v. White, 558 U.S. 816(2009).

Amicus Choose Life America, Inc., has dedicateditself as a volunteer consultant to helping individualsand groups all across America to see that “Choose Life”license plates are issued in their states. The first effortby its founders began in 1996 in Florida, in hopes of

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seeing license plate sales help fund efforts for pre-natalcare for women considering adoption services and tohelp pro-life pregnancy centers and other life affirmingagencies get services to women who needed them. The“Choose Life” plate was made available for sale inFlorida on August 11, 2000. Since that time, ChooseLife America has seen the interest mushroom in stateafter state. “Choose Life” license plates are nowavailable in 29 states and the District of Columbia. Over 900,000 plates have been sold or renewed, raisingover $20,000,000 for the causes of life and adoption. Ofthe states that have not yet succeeded in obtaining a“Choose Life” plate, only three have no group currentlyworking to obtain permission to issue the licenseplates. In every other state, efforts are ongoing.

Amici continue to desire to offer a “Choose Life”license plate to willing buyers in Illinois and Wisconsinas well as other states where efforts to pass a bill havethus far been unsuccessful. Given amici’s stronginterest in the issues presented and the fact that theirconcerns differ from Petitioners’ in several respects,amici suggest that this brief may be helpful to theCourt.

SUMMARY OF ARGUMENT

The specialty license plate arena has generatedsignificant litigation to date, and many more cases arestill to come. Yet the law governing speech in thisvenue remains a confusing mass of contradictions inthe lower courts. Amici curiae offer this brief tohighlight the inconsistencies and the urgent need forthis Court to resolve the conflicts among the circuitsand to clarify the methodologies for deciding futurecases.

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Lower courts have identified three types of speechfor specialty license plates: pure government speech,see ACLU of Tenn. v. Bredesen, 441 F.3d 370 (6th Cir.2005), pure private speech, see Ariz. Life Coal., Inc. v.Stanton, 515 F.3d 956 (9th Cir. 2008), and a hybrid ofboth government and private speech, see ACLU of N.C.v. Tata, 742 F.3d 563 (4th Cir. 2014).

Further, the lower courts have used variedmethodologies to arrive at these conclusions. The SixthCircuit strictly applied Johanns v. Livestock MarketingAssociation, 544 U.S. 550 (2005), to find that specialtylicense plates constitute government speech. Bredesen,441 F.3d 370. Other circuits have found Johannsfactually distinguishable, and adopted a four-factor testto determine the type of speech. See, e.g., Tata, 742F.3d 563 (finding a mix of both government and privatespeech); but see Stanton, 515 F.3d 956 (using the sametest to find purely private speech). Still others havedistilled the four factors into a general “reasonableobserver” test. See, e.g., Roach v. Stouffer, 560 F.3d860 (8th Cir. 2009) (finding private speech).

Additionally, where private speech is found, lowercourts divide even further on the application ofviewpoint-discrimination doctrine. The Ninth Circuitfound denial of a “Choose Life” specialty plate to beimpermissible viewpoint discrimination, Stanton, 515F.3d 956, while the Seventh Circuit found the oppositein Choose Life Illinois v. White, 547 F.3d 853 (7th Cir.2008).

Finally, the courts have also divided on the issue ofstanding to sue in specialty license plate cases. TheFifth Circuit has determined that fees for purchase ofa specialty plate constitute a tax, which in turn triggers

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application of the Tax Injunction Act, 28 U.S.C. § 1341,resulting in a denial of standing. Henderson v. Stalder,407 F.3d 351 (5th Cir. 2005); NARAL Pro-Choice Ohiov. Taft, No. 1:05 CV 1064, 2005 U.S. Dist. LEXIS 21394(N.D. Ohio 2005) (same). Other courts have disagreed,finding the fees not a tax at all. E.g., Bredesen, 441F.3d at 373-74; Stanton, 515 F.3d at 963-64.

These cases raise the question, then, of where thethreshold lies for how much government involvementand oversight must occur to warrant invocation of thegovernment speech doctrine. Stated differently, whatindicia of private speech must be present before FirstAmendment protections are afforded?

This Court should accept certiorari to resolve thesedifficult and recurring questions, especially in light ofthe dangers posed by an expansive interpretation of thegovernment speech doctrine. Unless the governmentspeech doctrine is carefully restrained to articulatedand defined limits, it presents a risk of harming theFirst Amendment and inhibiting a robust culture offree speech. With specialty license plates in particular, blurring the line separating government speech fromprivate speech opens the way for savvy legislaturesmanipulating their plate approval schemes to squelchdisfavored viewpoints.

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REASONS FOR GRANTING THE WRIT

I. Certiorari Should be Granted to Resolve theConflicts Among the Circuits on the Issue ofGovernment Speech versus Private Speech inthe Context of Specialty License Plates.

As Petitioners demonstrate (Pet. 10-18), severalcircuit courts of appeal have addressed the issue of theconstitutionality of specialty license plates, most oftenin cases involving “Choose Life” messages. The courtshave differed widely, however, as to the properanalytical framework under which the cases should beresolved, and as a result have reached differentoutcomes. One court has considered the messages to begovernment speech, some have concluded it is privatespeech, and some have considered it a hybrid betweenthe two. Of those analyzing the speech as protected bythe First Amendment, some have applied a four-parttest and some have applied a “reasonable observer”test. The result of these varied approaches results inconfusion in the public, difficulty in the courts, and patchwork case law. This Court should accept certiorarito resolve the conflicts.

A. Government Speech vs. Private Speech.

In a 2-1 decision issued shortly after this Courtdecided Johanns v. Livestock Marketing Association,544 U.S. 550 (2005), a panel of the Sixth Circuitdetermined that the “Choose Life” plate adopted by theTennessee legislature constitutes government speechunder Johanns. ACLU of Tenn. v. Bredesen, 441 F.3d370 (6th Cir. 2005). It therefore held that the state didnot violate the First Amendment by refusing toauthorize a “Pro-Choice” plate. The dissent, however,

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found Johanns distinguishable on its facts, as it was acompelled subsidy/compelled speech case and there wasno compulsion in the specialty plate realm. Accordingly, the dissent would have found the state’srefusal to issue a pro-choice specialty plate a violationof the First Amendment prohibition against viewpointdiscrimination.

The Fourth Circuit, on the other hand, reached theopposite conclusion here, holding that North Carolina’sspecialty license plates constituted a mix betweengovernment speech and private speech, but implicatedsufficient private speech to warrant First Amendmentanalysis. ACLU of N.C. v. Tata, 742 F.3d 563 (4th Cir.2014). The court employed a four-factor test (whichwas itself distilled from the analysis of sister circuits)developed in a prior specialty plate case, Sons ofConfederate Veterans, Inc. v. Comm’r of the Va. Dep’t ofMotor Vehicles, 288 F.3d 610 (4th Cir. 2002) (“SCV”), todetermine whether the speech was government orprivate.

Under the SCV test, which has become thedominant test in these cases, the court considers: “(1)the central ‘purpose’ of the program in which thespeech in question occurs; (2) the degree of editorialcontrol exercised by the government or private entitiesover the content of the speech; (3) the identity of theliteral speaker; and (4) whether the government or theprivate entity bears the ultimate responsibility for thecontent of the speech.” Tata, 742 F.3d at 569 (internalquotation marks and citations omitted). Because thestate conceded it had discriminated against the pro-choice viewpoint, the court held that the refusal toauthorize a “Respect Choice” plate after authorizing a

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“Choose Life” specialty plate amounted tounconstitutional viewpoint discrimination.

The Fifth, Seventh, Eighth, and Ninth Circuits havealigned with Tata in finding the speech on specialtylicense plates to be private speech rather thangovernment speech. See Tex. Div., Sons of ConfederateVeterans v. Vandergriff, __ F.3d __, 2014 WL 3558001(5th Cir. July 14, 2014) (2-1, with a strong dissent);Roach v. Stouffer, 560 F.3d 860 (8th Cir. 2009); ChooseLife Illinois v. White, 547 F.3d 853 (7th Cir. 2008), cert.denied, 558 U.S. 816 (2009)(“CLI”); Ariz. Life Coal., Inc.v. Stanton, 515 F.3d 956 (9th Cir. 2008), cert. denied,555 U.S. 815 (2008).

B. The Appropriate Analytical Framework.

The courts also differ as to the appropriateanalytical framework for deciding these cases. TheFourth and Ninth Circuits continue to employ the four-part SCV test to discern whether speech on a specialtylicense plate is that of the government or the privateactor. Tata, 742 F.3d 563; Stanton, 515 F.3d 956(finding SCV test consistent with this Court’s decisionin Johanns). The Seventh and Eighth Circuits have“distilled” that four-part test into a “reasonableobserver” test for determining whether speech on aspecialty license plate is that of the government or theprivate actor. CLI, 547 F.3d 853; Roach, 560 F.3d 860.

In a very recent opinion, the Fifth Circuit alsoadopted a “reasonable observer” test, although thatcourt relied primarily on Pleasant Grove City v.Summum, 555 U.S. 460 (2009), as support rather thana distillation of the SCV four-part test. Vandergriff, 2014 WL 3558001, *5. And of course the Sixth Circuit

9

uses the Johanns test, notwithstanding the factualdifferences which have led every other courtconsidering the issue to distinguish Johanns. ACLU ofTenn. v. Bredesen, 441 F.3d 370 (6th Cir. 2005).

These diverse and often inconsistent methodologiescan and do lead to inconsistent outcomes, resulting inconfusion for the courts and infringement ofconstitutional rights for the people. This Court shouldtherefore accept certiorari and clarify the proper meansof analysis in this important area of the law.

C. Private Speech vs. Hybrid Speech.

The Fourth Circuit below, after considering the fourSCV factors, recognized that the message on specialtyplates consisted of a mix of both government speechand private speech, but concluded that it should not betreated as pure government speech: “We have nohesitation in holding that the ‘Choose Life’ plate atissue here implicates private speech rights and cannotcorrectly be characterized as pure government speech.” Tata, 742 F.3d at 575. Other courts have likewisenoted that the issue does not present a binaryproposition. See, e.g., Sons of Confederate Veterans,Inc. v. Comm’r of Va. Dep’t of Motor Vehicles, 305 F.3d241, 245 (4th Cir. 2002) (Luttig, J., concurring in denialof rehearing en banc) (“speech in fact can be, at once,that of a private individual and the government”);Vandergriff, 2014 WL 3558001, *18 (Smith, J.,dissenting) (arguing that the majority’s analysis“presents a false dichotomy” of either governmentspeech or private speech), but see id. at *8 n.4(disagreeing with dissent’s criticism, andacknowledging that “the reasonable observer test

10

implicitly recognizes that specialty plates may haveelements of both government and private speech”).

By contrast, the Eighth and Ninth Circuits appearto have concluded that the speech on specialty licenseplates is pure private speech: “Therefore, we concludethat the messages communicated on specialty platesare private speech, not government speech.” Roach,560 F.3d at 868; see also Stanton, 515 F.3d at 967.

This Court has noted that “[t]here may be situationsin which it is difficult to tell whether a governmententity is speaking on its own behalf or is providing aforum for private speech.” Summum, 555 U.S. at 470. The specialty license plate cases appear to present justsuch difficult situations. As Judge Luttig of the FourthCircuit observed, specialty plates may be the“quintessential example of speech that is both privateand governmental because the forum and the messageare essentially inseparable.” Sons of ConfederateVeterans, 305 F.3d at 245 (Luttig, J., concurring indenial of rehearing en banc).

These cases raise the questions, then, how muchgovernment involvement and oversight is enough towarrant invocation of the government speech doctrine? Should the analysis now recognize a third category ofspeech, a “hybrid speech” doctrine? Stated differently,what indicia of private speech must be present beforeFirst Amendment protections are afforded? This Courtshould accept certiorari to resolve these difficult andrecurring questions.

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D. Content-based vs. Viewpoint-basedDiscrimination.

Yet another conflict these cases present, assumingthat the First Amendment applies, is whether denial ofa “Choose Life” license plate constitutes permissiblecontent-based discrimination or impermissibleviewpoint-based discrimination. The Ninth Circuit hassquarely determined that such denial constitutesimpermissible viewpoint discrimination; the SeventhCircuit has determined precisely the opposite. Compare Stanton, 515 F.3d 956, with Choose LifeIllinois v. White, 547 F.3d 853. Other courts have beenquick to find viewpoint discrimination as well, albeitunder different factual settings. See, e.g., Tata, 742F.3d 563 (viewpoint discrimination where state allows“Choose Life” plate but disallows “Respect Choice”plate); Vandergriff, 2014 WL 3558001 (viewpointdiscrimination where state denied Sons of ConfederateVeterans the right to have its plate issued withappropriate logo when it allowed other veterans groupsto have their own plates); Roach, 560 F.3d 860(viewpoint discrimination where state denied “ChooseLife” plate and statutory scheme provided no protectionagainst exercise of unbridled discretion); see alsoChildren First Found., Inc. v. Martinez, 829 F. Supp.2d 47 (N.D.N.Y. 2011) (analyzing cases and concludingthat Seventh Circuit erred in finding content-basedrather than viewpoint-based discrimination by virtueof exclusion of entire subject of abortion, and opiningthat Second Circuit would agree with the New Yorkdistrict court).

Given this Court’s observations that the distinctionbetween content and viewpoint discrimination “is not

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a precise one,” Rosenberger v. Rector & Visitors of theUniv. of Va., 515 U.S. 819, 831 (1995), and thatviewpoint discrimination is but an “egregious form ofcontent discrimination,” id. at 829, together with theseconfusing and conflicting circuit court decisions, it isincumbent upon the Court to accept certiorari andresolve the conflict.

E. The Limits of the Government SpeechDoctrine.

“The government speech doctrine is ‘recentlyminted,’” Vandergriff, 13-50411, 2014 WL 3558001, *4(quoting Pleasant Grove City v. Summum, 555 U.S.460, 481 (2009) (Stevens, J., concurring)), and“correspondingly imprecise.” Johanns v. LivestockMarketing Assn, 544 U.S. 550, 574 (2005) (Souter, J.,dissenting). As Justice Souter wrote after leaving theHigh Court, “the doctrine is still at an adolescent stageof imprecision.” Griswold v. Driscoll, 616 F.3d 53, 59n.6 (1st Cir. 2010) (Souter, J.) (declining to undertakea government speech analysis). Further complicatingthe matter, this Court’s most recent decisionsaddressing the doctrine, Johanns and Summum, werepluralities involving six (6) and five (5) differentopinions, respectively, which examined unusual factpatterns and provided limited practical guidance.

Not surprisingly, the doctrine has been illunderstood and inconsistently applied. In the specialtylicense plate arena alone it has been used to justifyboth government speech and private speech under verysimilar factual circumstances. Compare Bredesen, 441F.3d 370 (Johanns dictates that specialty license platesare government speech) with Stanton, 515 F.3d 956(Johanns analysis is consistent with four-part SCV

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test; therefore holding that Arizona specialty platesconstitute private speech).

Petitioners here argue that the Fourth Circuit erredin holding that under the specific facts of this case andthe program in place in North Carolina, the “ChooseLife” license plate message was not government speech. Amici take no position on the merits of that argumentunder the facts presented in Tata.

Amici suggest, however, that should this Courtaccept certiorari, regardless of the outcome in Tata,articulation of the applicability of the governmentspeech doctrine and its limitations is a matter of greatand far-reaching consequences.

Unless the government speech doctrine is carefullyrestrained, there is a risk that it will do harm to theFirst Amendment and restrict rather than preserveand protect free speech. For example, absent clear andspecific parameters, savvy legislatures may retool theirspecialty plate schemes in a manner calculated todiscriminate against disfavored viewpoints by thesimple expedient of reserving final veto authority inthe legislature. Amici are concerned that the specialtylicense plate programs may be politicized, and the FirstAmendment victimized.

Further, absent the adoption of explicit limits on thegovernment speech doctrine, the specialty license plateprograms could turn government into a super-censorbecause there appears to be no principled distinctionbetween specialty plates, which permit customizedmessages requested by groups and organizations, andvanity plates, which permit customized messagesrequested by individuals. A government that permits

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an individual to order a “CHUZ LIF” vanity platecannot rationally claim that the plate is transformedfrom private into government speech when a group ofcitizens request issuance of “CHOOSE LIFE” plates. Put differently, a doctrine is indefensible that purportsto justify government censoring of an individual vanityplate displaying “CHUZ LIF” while permitting avirtually infinite number of other topics and messages.

At a minimum, any expansion of the governmentspeech doctrine in the context of specialty license platesshould be limited to those states where the legislatureexercises a far greater degree of control and takes anactive role in selecting, designing and approving everyaspect of the specialty plate. Merely reserving vetopower over the final design and message whiledelegating administrative oversight over the vastmajority of the process is not enough.

Outside the narrow confines of specialty licenseplates, the government speech doctrine has alreadybeen applied to give government officials extraordinaryadvantages in expressing their own viewpoints onordinary issues of public policy and debate whileexcluding those of private citizens—advantagesincluding the imprimatur of “official” approval,exclusive control of powerful channels ofcommunication paid for from public coffers, andisolation from salutary scrutiny in the marketplace ofideas: for example, to protect links on a governmentwebsite to private groups supporting one side of a hotlycontested issue of public concern, but not to the otherside, Sutliffe v. Epping Sch. Dist., 584 F.3d 314 (1st.Cir. 2009) (selection of links to place on town website isgovernment speech under Summum); use of a public

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school website, e-mail, and other forms ofcommunication to urge opposition to a legislative billthat proposed tax credits for private and homeschooling, Page v. Lexington Cnty. Sch. Dist. One, 531F.3d 275 (4th Cir. 2008) (finding that schooldistribution system was not public forum and thatcampaign was government speech); governmentcampaign propaganda against a ballot referendum,Kidwell v. City of Union, 462 F.3d 620, 626 (6th Cir.2006) (stating that “[t]he needs of effective governancecommand that the bar limiting government speech behigh”); and even valedictorian speech at a high schoolgraduation ceremony, e.g., Corder v. Lewis Palmer Sch.Dist. No. 38, 566 F.3d 1219 (10th Cir. 2009) (mandatedreview of student speech converted it into “school-sponsored” speech).

Notwithstanding the infringement on free speechrights, the government speech doctrine may also workto further limit the free exercise of religion in thepublic square, given this Court’s repeated admonitionthat “‘government may not promote or affiliate itselfwith any religious doctrine or organization.’” Summersv. Adams, 669 F. Supp. 2d 637, 639 (D.S.C. 2009)(quoting County of Allegheny v. ACLU GreaterPittsburgh Chapter, 492 U.S. 573, 590 (1989), andholding that “I Believe” license plate was governmentspeech amounting to a state endorsement of religion inviolation of the Establishment Clause).

In short, the government speech doctrine poses therisk of becoming the proverbial child who devoured itsmother. As the doctrine insulates one communicationforum after another from public debate, “official”speech resembles more and more the propaganda of

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totalitarian masters and less and less the informativecommunication of democratically authorized publicservants. As this Court warned in the predecessor toJohanns: “First Amendment values are at serious riskif the government can compel a particular citizen, or adiscrete group of citizens, to pay special subsidies forspeech on the side that it favors . . . .” United States v.United Foods, 533 U.S. 405, 411 (2001); see alsoJohanns, 544 U.S. at 572 (Souter, J., dissenting, joinedby Stevens and Kennedy, JJ.) (repeating quote fromUnited Foods and adding Thomas Jefferson’s oft-quotedadmonition that “to compel a man to furnishcontributions of money for the propagation of opinionswhich he disbelieves . . . is sinful and tyrannical”)(citing A Bill for Establishing Religious Freedom, in 5The Founders’ Constitution, No. 37, p. 77 (P. Kurland& R. Lerner eds. 1987), codified in 1786 at Va. CodeAnn. § 57-1 (Lexis 2003))).

Amici would add that whether or not citizens arecompelled to pay special subsidies, government speechof a partisan nature poses a grave risk to thefundamental freedoms upon which this great nationwas founded. Even when the government happens toagree with “our side” of a disputed issue, the effect ofgovernment occupation of larger areas of the debate onissues of public concern usually means governmentdomination of the debate.

It is axiomatic that the First Amendment isinapplicable to government speech; thus, asgovernment speech on a contested issue increases,private speech on that issue decreases in relativeproportion. At the very least, private citizens opposedto the government’s position are placed at a decided

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disadvantage, because the government’s resources andchannels of communication dwarf those of the privatecitizen. As the government leviathan inexorably growslarger and larger, so the invocation of the governmentspeech doctrine will also increase, causing acorresponding and inevitable decrease in the FirstAmendment rights of American citizens.

The Supreme Court of Oregon presciently cautionedalmost 30 years ago: “[G]overnment propaganda for itschosen policies can be criticized for denying equalchances to proponents of competing policies . . . or for‘drowning out’ the free speech of opposing voices . . . .” Burt v. Blumenauer, 699 P.2d 168, 176 (Or. 1985)(internal citations omitted); see also, Randall Bezansonand William Buss, The Many Faces of GovernmentSpeech, 86 Iowa L. Rev. 1377, 1502 (2001) (“If thegovernment can claim to act as a First Amendmentright holder, the First Amendment loses coherence, forin such situations there is nothing for the FirstAmendment to act on or constrain.”). Indeed, whetheror not the government’s right to speak is rooted in theFirst Amendment (it is not), it threatens to loosen theFirst Amendment from its constitutional moorings.

Born under unusual circumstances as a narrowexception to traditional First Amendment principles,unless clearly and decisively cabined by this Court, thegovernment speech doctrine risks becoming an all-encompassing means for accomplishing the tyrannyagainst which Jefferson warned.

This Court should act now to address these issuesof grave concern to the continued vitality of the FirstAmendment.

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II. Certiorari Should be Granted to Resolve theConflict in the Circuits Concerning theApplicability of the Tax Injunction Act toSpecialty License Plate Litigation.

In addition to the conflicting circuit court decisionsconcerning government speech or private speech andviewpoint- or content-based discrimination, the circuitshave also split on the question of standing and theapplicability of the Tax Injunction Act, 28 U.S.C.§ 1341. That Act provides: “The district courts shallnot enjoin, suspend or restrain the assessment, levy orcollection of any tax under State law where a plain,speedy and efficient remedy may be had in the courtsof such State.” Id.

The Fifth Circuit has held that the Tax InjunctionAct barred a challenge to Louisiana’s specialty licenseplate program brought when the state issued a “ChooseLife” plate but refused to allow a pro-choice plate. Henderson v. Stalder, 407 F.3d 351 (5th Cir. 2005)(holding that the fee for a specialty plate was a taxrather than a regulatory fee, and that there was aplain, speedy, and efficient remedy available in thestate courts); see also NARAL Pro-Choice Ohio v. Taft,No. 1:05 CV 1064, 2005 U.S. Dist. LEXIS 21394 (N.D.Ohio 2005) (same). The panel decision was reheard enbanc, resulting in an even 8-8 split. Henderson v.Stadler, 434 F.3d 352, 354 (5th Cir. 2005). The dissentargued that the fee was not a tax at all, and thereforethe Tax Injunction Act simply did not apply.

The Sixth, Seventh and Ninth Circuits, on the otherhand, have determined that the Tax Injunction Actdoes not apply in the specialty license plate context. Moreover, in Texas Division, Sons of Confederate

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Veterans v. Vandergriff, __ F.3d __, 13-50411, 2014 WL3558001 (5th Cir. July 14, 2014), the Fifth Circuitdistinguished Henderson on the basis that the reliefplaintiffs were seeking in Vandergriff would actuallyenrich the state coffers rather than deplete them, andtherefore the suit fit within the exception to the TaxInjunction Act carved out by this Court under Hibbs v.Winn, 542 U.S. 88 (2004). In ACLU of Tennessee v.Bredesen, 441 F.3d 370, 373-74 (6th Cir. 2005), theSixth Circuit found the payments for specialty licenseplates were “most closely analogous to payments forsimple purchases from the government” rather thantaxes. Similarly, the Seventh Circuit in Choose LifeIllinois v. White, 547 F.3d 853, 858 n.3 (7th Cir. 2008),cert. denied, 558 U.S. 816 (2009) and the Ninth Circuitin Arizona Life Coalition, Inc. v. Stanton, 515 F.3d 956,963-64 (9th Cir.), cert. denied, 555 U.S. 815 (2008)concluded that the Tax Injunction Act did not apply inthis context.

The Eleventh Circuit has also denied standing to agroup challenging a specialty plate program, but ongrounds of lack of injury and redressability. Women’sEmergency Network v. Bush, 323 F.3d 937 (11th Cir.2003). The Eleventh Circuit’s redressability analysis,while not applied in any of the other license platecases, is particularly insightful, noting that whereplaintiffs seek not the right to have their own plateissued but instead to enjoin issuance of another’s plate,as has frequently been the case, it does not directlybenefit the plaintiffs at all, and so raises significantredressability concerns.

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The inconsistent rulings on standing are yetanother reason why this Court should accept certiorariin this case.

CONCLUSION

For all of the foregoing reasons, this Court shouldgrant the petition for certiorari.

Respectfully submitted,

Thomas L. BrejchaPeter BreenJocelyn FloydThomas More Society19 S. LaSalle StreetSuite 603Chicago, IL 60603ph: 312-782-1680

Stephen M. CramptonCounsel of Record

Special CounselThomas More SocietyP.O. Box 4506Tupelo, MS 38803ph: 662-255-9439smcrampton@hotmail.com

Michael D. DeanFirst Freedoms FoundationP.O. Box 2545Brookfield, WI 53008ph: 262-798-8044

August 12, 2014