IN THE DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
VS.
OPINION AND ORDER
BERTELSMAN, Senior District Judge1:
This case arises out of a dispute regarding
the constitutionality of a South Carolina statute authorizing the issuance of
special motor vehicle license plates bearing the words "Choose Life."
Before the court are the parties'
cross-motions for summary judgment. The court heard oral argument on these
motions on November 22, 2002.
The matter having been taken under
submission, the court now issues the following opinion addressing the merits of
the controversy.
A. The
South Carolina "Choose Life" License Plate Statute.
In 2001, the South Carolina General Assembly
enacted Section 56-3-8910 of the Code of Laws of South Carolina ("the
Act"). The Act requires the Department of Public Safety ("DPS")
special motor vehicle license plates with the words to interested vehicle
owners.2
The fee for a "Choose Life" to
issue "Choose Life" plate is $70 every two years, in addition to the
regular license fee. S.C. Code Ann. §56-3-8910(A)(Law. Co-op 2002). Proceeds
from the sale of the plates are to be deposited into a special account
administered by the state Department of Social Services ("DSS"). S.C.
Code Ann. §56-3-8910(B). Local private non-profit organizations that provide
"crisis pregnancy" programs may apply for grants from this special
fund. Id. However, grants may not be awarded to "any agency,
institution, or organization that provides, promotes, or refers for
abortion." Id.
The legislation that ultimately gave rise to
the "Choose Life" special license plate statute was promoted in the
South Carolina legislature by state Senator Michael L. Fair. (Affidavit of
Michael Fair ¶¶4, 8)(attached to Doc. #42) Fair championed the "Choose
Life" license plate legislation on his own initiative; it was not the
result of any formal petition by anyone seeking the issuance of such a plate. Id.
¶6.
B. South Carolina's Alternative License Plate
Program.
A separate, and preexisting, South Carolina
statute permits nonprofit organizations to apply for license plates promoting
their group. See S.C. Code Ann. §56-3-8000. This organizational plate
scheme differs in various respects from the "Choose Life" scheme. For
example, while the "Choose Life" plates were created and "preapproved"
by a special act of the state legislature, nonprofit organizations desiring a
plate for their group must apply to the DPS. Id. Organizational
applicants must submit proof of the group's nonprofit, tax-exempt status; 400
prepaid applications or a $4,000 deposit; camera-ready artwork; and a marketing
plan for the sale of the plate which must be approved by the DPS. See Form
DMVB-21, "Application for Non-Profit Organization Plate," available
at http://www.scdps.org/dmv/forms (last visited Dec. 18, 2002). Such plates
may bear only the "emblem, seal or other symbol" of the organization
that the Department of Public Safety "considers appropriate." S.C.
Code Ann. §56-3-8000(A). The DPS may "alter, modify, or refuse to produce"
any organizational plate that "it deems offensive or fails to meet
community standards." S.C. Code Ann. §56-3-8000(H).
In addition, while
"Choose Life" special license plates are available to any individual
who owns a private passenger vehicle registered in South Carolina, organizational
plates are available only to certified members of the non-profit organization.
S.C. Code Ann. §56-3-8000(D) .
Finally, Title 56 of the South Carolina Code
authorizes literally dozens of other specialty vehicle license plates, some
contingent upon organizational membership and some not. See, e.g., S.C.
Code Ann. §56-3-3310 (Purple Heart recipient plate); §56-3-3410 (National Wild
Turkey Federation); §56-3-3710 (college and university plates); §56-3-3950
("Keep South Carolina Beautiful"); §56-3-5200 ("First in
Golf"); §56-3-5350 (Normandy invasion survivor plate); §56-3-7610 (Square
and Round Dancers); §56-3-7860 (Shriners); §56-3-7910 (H.L. Hunley); §56-3-8200
(Rotary International); §56-3-8600 (Ducks Unlimited); §56-3-8710 (NASCAR plates).
This list is merely illustrative; the Code provides for other specialty plates.
C. The
Present Litigation.
Plaintiffs filed this action in September,
2001, in the United States District Court for the District of South Carolina at
Charleston. (Doc. #1)
Plaintiff Renee Carter owns an automobile
registered in South Carolina. Carter would like to purchase a special plate for
her automobile expressing her view that women should be permitted to choose
whether to have an abortion.
Plaintiff Planned Parenthood owns a
reproductive health organization that provides services to women in South
Carolina. Planned Parenthood also provides first-trimester abortions at its
clinics and refers patients for abortions at other facilities.
Defendants are the state officials charged
with administering the "Choose Life" license plate program. B. Boykin
Rose is the Director of the DPS of South Carolina, the agency charged with
processing applications for the plates. Gary D. Maynard is the Director of the
Department of Corrections of South Carolina, the department charged with
producing the plates. Elizabeth G. Patterson is the Director of the DSS of
South Carolina, the department charged with administering the special fund
created by fees from sale of the "Choose Life" plates. All individual
defendants are sued in their official capacities.
Plaintiffs allege that the Act suffers from a
variety of constitutional infirmities: that it infringes the First Amendment by
discriminating on the basis of viewpoint and by placing an unconstitutional
condition on the exercise of their constitutional rights; that it violates the
Fourteenth Amendment by placing an undue burden on Planned Parenthood's
patients' rights to choose an abortion; and that it infringes plaintiffs'
Fourteenth Amendment rights to equal protection and due process.
On November 20, 2001, United States District
Judge Patrick Michael Duffy granted plaintiffs' motion for a preliminary
injunction and temporarily enjoined enforcement of the Act. (Doc. #30) Judge
Duffy indicated a willingness to consolidate the preliminary injunction
proceeding with a decision on the merits, but defendants requested time for
additional briefing. Id. at 4.n.1.
Accordingly, the parties conducted limited
discovery and filed the cross-motions for summary judgment that are now ripe
for disposition.
After careful consideration, this court has
concluded that the plaintiffs have standing to mount a facial challenge to the
Act, and that the Act is void on its face because it violates well established
First Amendment principles governing public fora and/or the issuance of permits
to exercise free speech.
1. What
this case is not about.
This is a free speech case. It is not about
the merits of the ongoing national controversy between the pro-life and
pro-choice movements. In another case, in some other court, the position of the
parties with regard to some other state's issuance of a license plate could
well be reversed.
2. Standing.
The court must first address the issue of
standing, because this issue goes to the jurisdiction of the court. If a
plaintiff does not have standing, the matter before the court is not a
"case or controversy," as required by Article III of the Constitution
of the United States for subject matter jurisdiction to exist. Finlator v.
Powers, 902 F.2d 1158, 1160 (4th Cir. 1990).
Defendants cite Lujan v. Defenders of
Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), in support
of their argument that plaintiffs lack standing to assert their First Amendment
claims.3 There, the Supreme Court
lists the following three requisites for standing:
1. First,
the plaintiff must have suffered an "injury in fact" — — an invasion
of a legally protected interest which is (a) concrete and particularized, and
(b) actual or imminent.4
2. Second, there must be a causal
connection between the injury and the conduct complained of, i.e., the injury
has to be fairly traceable to the challenged action of the defendant.
3. Third, it must be likely that the injury
will be redressed by a decision favorable to the plaintiffs.
504 U.S. at 560-61, 112 S.Ct at 21326. “In the shorthand analysis of
standing, these three basic requirements are referred to as injury-in-fact,
causation and redressability." Finlator, 902 F.2d at 1160.
Here, the defendants particularly contend
that the third element is lacking. Defendants point out that a decision finding
the "Choose Life" statute unconstitutional will not result in the
issuance of a license plate expressing a slogan of plaintiffs' choice.
Defendants also argue that the case is not "ripe" in that the
plaintiffs have not petitioned the legislature for issuance of a plate of their
choice.
It appears that the only appellate decision
addressing standing in the context of a license plate is Henderson v.
Stalder, 287 F.3d 374 (5th Cir. 2002), cert. denied, _ U.S. _ , 71
U.S.L.W. 3283 (U.S. Dec. 2, 2002), which adopted these arguments with one judge
forcefully dissenting.
Judge Davis's dissent relies first on a
firmly established exception to the general rules of standing where First
Amendment rights are at issue. In such cases, an expanded rule of standing must
be used, especially where the actual or possible exercise of unbridled
discretion by public officials is at issue. City of Lakewood v. Plain
Dealer Publ'g Co. , 486 U.S. 750, 755-56, 108 S.Ct. 2138, 2143, 100 L.Ed.2d
771 (1988). The teaching of Lakewood has been summarized as
follows:
If a licensing statute allegedly vests
unbridled discretion in a government official over whether to permit or deny
expressive activity, one who is subject to the law may challenge it facially
without the necessity of first applying for, and being denied, a license. A facial challenge lies whenever a
licensing law gives to a government official or agency substantial power to
discriminate based on the context or viewpoint of speech by suppressing
disfavored speech or disliked speakers.
15 Moore's Federal Practice §101.61[5] [b] (ii)(3d ed. 2002),
(emphasis added)(citing Lakewood, supra).
Judge Davis's dissent also relies on another
line of Supreme Court cases addressing the "redressability"
requirement. In those cases, the Court holds that a person or group excluded
from benefits conveyed via an underinclusive statute has standing to challenge
the statute on constitutional grounds, even if the effect of striking down the
statute is to deny the benefit to the intended group and not extend it to the
plaintiffs. See Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 7-8, 109
S.Ct. 890, 895, 103 L.Ed.2d 1 (1989); Arkansas Writers' Project, Inc. v.
Ragland, 481 U.S. 221, 227, 107 S.Ct. 1722, 1726-27, 95 L.Ed.2d 209 (1987);
Orr v. Orr, 440 U.S. 268, 271-73, 99 S.Ct. 1102, 1107-09, 59 L.Ed.2d 306
(1978).
As did the judges of the Fifth Circuit,
disagreed with each other on whether or not other courts have a plaintiff has
standing to challenge a statute authorizing the issuance of a license plate
bearing a slogan or logo that is objectionable to a plaintiff.5
After careful consideration, this court
concludes that standing does exist under the doctrines discussed above whereby
enhanced standing is afforded to plaintiffs making facial First Amendment
challenges to licensing or underinclusive statutes.
In this regard, the Supreme Court's opinion
in City of Lakewood v. Plain Dealer Publ'g Co., supra, is noteworthy. In
Lakewood, the publisher of a newspaper challenged an ordinance which
gave the mayor of a city nearly total discretion in granting or denying permits
for locating news racks on public property.
Upholding the newspaper's standing to make a
facial challenge to the ordinance, the Court observed:
In the area of freedom of expression it is
well established that one has standing to challenge a statute on the ground
that it delegates overly broad licensing discretion to an administrative
office, whether or not his conduct could be proscribed by a properly drawn
statute, and whether or not he applied for a license.
486 U.S. at 756 (emphasis in original)(quoting Freedman v. Maryland,
380 U.S. 51, 56, 85 S.Ct. 734, 737, 13 L.Ed.2d 649 (1985)).
Pursuant to the above authorities, this court
respectfully disagrees with the Fifth Circuit majority in Henderson v.
Stalder, supra.
Moreover, the Supreme Court's reasoning in
those cases has been applied by the Fourth Circuit, whose decisions are binding
on this court. See Chesapeake B&M, Inc. v. Harford County, MD, 58
F.3d 1005, 1009-10 (4th Cir.)(applying Lakewood to find that plaintiffs
had standing to make facial First Amendment challenge to licensing law), cert.
denied, 516 U.S. 1010 (1995); Finlator v. Powers, 902 F.2d 1158,
1161-62 (4th Cir. 1990).
In Finlator, the sellers Fourth
Circuit held that book purchasers and had standing to challenge the
constitutionality of a North Carolina statute exempting from state tax the
proceeds from the sale of Bibles. The state argued that because the plaintiffs
had not taken any steps to "ensure" their standing — such as
contesting the tax prior to its payment, refusing to pay the tax, paying the
tax under protest, seeking a refund, or taking some other action to permit the
state to preclude or redress their injuries — they could not show any
particularized injury caused by the defendant. The Fourth Circuit rejected this
argument, with reasoning that bears quoting at length:
While there is some justification for the
Secretary's interpretation of Arkansas Writers" Project and Texas
Monthly, we decline to read such an implicit requirement into these
decisions absent a clear statement by the Supreme Court to that effect. Realistically,
if this court were to deny standing in this case, the appellants would simply
protest the payment and collection of the State's sales tax, and refile their
suit. We do not believe that this additional requirement would improve the
vigorousness or quality of the parties" advocacy, would enhance the
posture of this case, would strengthen the justiciability of the appellants'
claims, or would contribute in any way to our ability to decide a question
presented and contested by parties having a demonstrated interest and stake in
its resolution. Moreover, we conclude that the appellants did suffer actual
injury in this case as a result of the discriminatory treatment dispensed by
the Secretary - purchasers of "Holy Bibles" need not protest the
State's sales tax in order to claim the Exemption, while purchasers of other
texts, both sacred and non-sacred, must protest the sales tax in order to claim
the Exemption. . . . Finally, we believe that it would be an untenable
waste of judicial resources to deny the appellants standing in this case given
the patent unconstitutionality of the Exemption. As noted above, standing is an
amalgam of prudential as well as constitutional concerns, but none of the
prudential concerns of standing compels the denial of standing in this
case.
Id. at 1162
(emphasis added).
Moreover, in the opinion of this court, the
Fifth Circuit’s view in Henderson, supra, does not give sufficient
weight to the principle that it is the threat of having one's sacred
First Amendment rights subjected to arbitrary censorship that constitutes the
injury that is the basis of standing in this context:
The District Court's finding that in this
instance the Forsyth County administrator applied legitimate, content-neutral
criteria, even if correct, is irrelevant to this facial challenge. Facial
attacks on the discretion granted a decisionmaker are not dependent on the
facts surrounding any particular permit decision. See Lakewood v. Plain
Dealer Publishing Co. , 486 U.S. 750, 770, 108 S.Ct. 2138, 2151, 100
L.Ed.2d 771 (1988). " It is not merely the sporadic abuse of power by
the censor but the pervasive threat inherent in its very existence that
constitutes the danger to freedom of discussion. Thornhill v. Alabama, 310
U.S. 88, 97, 60 S.Ct. 736, 742, 84 L.Ed. 1093 (1940). Accordingly, the success
of a facial challenge on the grounds that an ordinance delegates overly broad
discretion to the decisionmaker rests not on whether the administrator has
exercised his discretion in a content-based manner, but whether there is
anything in the ordinance preventing him from doing so.
Forsyth County, Ga. v. Nationalist Movement, 505 U.S. 123, 133 n.10, 112 S.Ct. 2395,
2403 n.10, 120 L.Ed.2d 101 (1992)(emphasis added).
Further,
Proof of an abuse of power in the particular
case has never been deemed a requisite for attack on the constitutionality of a
statute purporting to license the dissemination of ideas. . . . The cases . . .
indicate that the rule [allowing standing for a facial challenge] is not
based on any assumption that application for the license would be refused . . .
. Rather it derives from an appreciation of the character of the evil
inherent in a licensing system.
Thornhill v. Alabama,
110 U.S. at 97, 60 S.Ct. at 741-42 (citations omitted).
Stated differently, "the plaintiffs are
injured by the government's promotion of one side of the debate on the abortion
rights issue in a speech forum, coupled with the lack of opportunity to present
their opposing view." Henderson, 287 F.3d at 387 (Davis, J.
dissenting).
In the case now before
this court, it is the legislature that has authorized the issuance of a
"Choose Life" license plate. This decision, by the nature of the
legislative process, was based on the discretion of the legislators,
uncontrolled by any standards. Equally significant, the plaintiffs allege that
the legislature has selected one viewpoint over all on a particular topic,
permitting it alone expression in a public forum.
Therefore, pursuant to authorities discussed
above, the plaintiffs here have standing to mount a facial challenge to the
statute without having applied for the issuance of a license plate bearing a
slogan their own choice.
3. The Merits.
A. Government versus private speech.
The first step in analyzing the merits of
plaintiffs' First Amendment claims is to determine whether the speech
implicated by the "Choose Life" license plates is
"government" or "private" speech. Sons of Confederate
Veterans, Inc. v. Griffin , 288 F.3d 610, 616-17 (4th Cir. 2002)(hereafter
"SCV").
Defendants argue that the "Choose
Life" license plate embodies government speech, rather than private
speech. Under this theory the government, of course, would be free to express
its own viewpoint on most issues without providing for the expression of
contrary views. Id.
However, defendants' argument is directly
contrary to the recent decision of the United States Court of Appeals for the
Fourth Circuit in SCV.
In SCV, the Fourth Circuit considered
a constitutional challenge to a Virginia statute that prohibited display of the
logo of the Sons of Confederate Veterans on its specialty organization license
plate. The state argued that any expressive content on the plate was a
"statement" by the state of Virginia, not private speech by the
organization's members. After setting forth and examining several factors it
deemed relevant, the Fourth Circuit concluded that the specialty license plates
embodied private, not government, speech. Id. at 621.
Therefore, this court must analyze the
validity of the statute challenged here under those First Amendment principles
applicable to private rather than governmental expression.
B. Forum
analysis.
As private expression, plaintiffs' claims may
be analyzed on the merits either under First Amendment principles governing
licensing or those concerned with access to public fora.
Whichever doctrine is invoked, clearly
established precedents require that plaintiffs prevail.
Forum analysis examines restrictions placed
on private speech that occurs on government property or with government participation.
SCV, 288 F.3d at 622. The three fora recognized traditional public fora,
such as streets, parks, and are: (1) sidewalk; (2) designated public fora; and
(3) nonpublic fora. Id. at 623 n.10 (citing Perry Educ. Ass'n v.
Perry Local Educators' Ass'n, 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d
794 (1983)). The latter two types of fora are created when the government
grants access to property or resources to private speakers. Id.
While the government's ability to regulate
private speech depends in part on the type of forum involved, viewpoint
discrimination is presumed impermissible in any forum under any analysis. Id.
at 622 (citing Rosenberger v. Rector and Visitors of University of
Virginia, 515 U.S. 819, 828, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995)). Thus,
the type of forum that exists is relevant only if the restriction is viewpoint
neutral. Id. at 623.
Defendants do not contend that the
"Choose Life" phrase is viewpoint neutral. Indeed, they affirmatively
state that the "Choose Life" license plate "is the most recent
and apparently most visible manifestation of the State's clear and oft-repeated
preference for childbirth over abortion." (Cross-Motion for Summary
Judgment at 17)(Doc. #42) See also Hildreth v. Dickinson, No.
99-583-CIV-J-21-A, 1999 U.S. Dist. LEXIS 22503, at *7 (M.D. Fla. Dec. 22,
1999)(“ ‘Choose Life' is a slogan which is generally associated with a social,
religious, or political view which espouses the sanctity of human life and
encourages adoption in lieu of abortion.").
In SCV, supra, the Fourth Circuit
employed forum analysis in the scrutiny of a special license plate. There, a
statute granted members of the Sons of to have issued to them specifically
provided, Confederate Veterans organization the right a special license plate.
The statute however, that no "logo or emblem of any description shall be
displayed or incorporated into the design of license plates issued under this
section." 288 F.3d at 613. Apparently, the legislature wished to prevent
the inclusion of a Confederate flag on the special plate. Id. at 623.
The court observed that the General Assembly
of Virginia had "created a program through which 'special' Virginia
license plates may be issued to members and supporters of various organizations
or groups." Id. at 614. Numerous special license plates had been
authorized at the behest of various groups and organizations pursuant to such
statutes. Only the Sons of Confederate Veterans had been forbidden to have
their logo on their special plate, however.
The court held that the special license plate
program in effect created a public forum and that the prohibition of a logo to
one organization accessing that forum was viewpoint discrimination. Id. at
626-27. The court reasoned:
In the realm of private speech or
expression, government regulation may not favor one speaker over another."
Similarly, "[t]he government must abstain from regulating speech when the
motivating ideology or the opinion or perspective of the speaker is the
rationale for the restriction." Thus, where an evaluation of a given
restriction and the surrounding circumstances indicates that one or more
speakers are favored over others, and further that the basis for the
restriction is in fact the message the disfavored speaker seeks to convey, the
restriction violates the First Amendment. Moreover, where restrictions or
regulations of speech discriminate on the basis of the content of speech, there
is an "inherent risk that the Government seeks not to advance a legitimate
regulatory goal, but to suppress unpopular ideas or information or manipulate
the public debate through coercion rather than persuasion . . ."-in other
words, to exercise viewpoint discrimination.
Id. at 624 (quoting Rosenberger
v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 828, 115 S.Ct. 2510,
132 L.Ed.2d 700 (1995)(citation omitted) and Turner Broadcasting Sys., Inc.
v. F.C.C. , 512 U.S. 622, 642-43, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994)).
On the basis of these clear and
well-established principles, this court must conclude that the statute at issue
here is a clear manifestation of viewpoint discrimination. "Choose
Life" is preferred over whatever motto or slogan the plaintiffs might
employ to promote their point of view.
Therefore, because defendants have failed to
articulate any compelling government interest for the statute at issue, or to
otherwise rebut the presumption of unconstitutionality that attaches to such
viewpoint discrimination, plaintiffs are entitled to summary judgment on their
claim that the statute violates the First Amendment under a public forum
analysis. Id. at 626.
C. Licensing
Analysis.
A licensing analysis
is closely tied to the public forum analysis in part B by the First Amendment's
abhorrence of the exercise of viewpoint discrimination in the regulation of
private speech by government officials.6
In the licensing context, the threat of such discrimination arises from the
lack of standards, opening the door to the exercise of uncontrolled discretion.
In the forum context, viewpoint discrimination can result from the application
of standards which prefer one viewpoint over another.
The same licensing case precedents which
gave the plaintiffs enhanced First Amendment standing also require this court
to hold that the Act is void on its face. Fewer principles are better
established in First Amendment law than the principle that exercise of the
right of free speech may not be subjected to the unlimited discretion of public
officials:
[I]n the area of free expression a licensing
statute placing unbridled discretion in the hands of a government official or
agency constitutes a prior restraint and may result in censorship. E.g.,
Shuttlesworth v. City of Birmingham, 394 U.S. 147, 151, 89 S.Ct. 935, 938, 22 L.Ed.2d 162 (1989); Cox v.
Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965); Staub v.
City of Baxley, 355 U.S. 313, 321-22, 78 S.Ct. 325, 95 L.Ed. 267
(1951); Saia v. New York, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574
(1948) . . . . IT]he mere existence of the licensor's unfettered discretion,
coupled with the power of prior restraint, intimidates parties into censoring
their own speech, even if the discretion and power are never actually abused. .
. .
As we said in Thornhill: . . .
"The power of the licensor . . . is pernicious not merely by reason of the
censure of particular comments but by the reason of the threat to censure
comments on matters of pubic concern.
City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S. at 757, 108 S.Ct. at 2144 (emphasis
added in part)(quoting Thornhill v. State of Alabama, 310 U.S. at 97, 60
S.Ct. at 741-42).
Thus, in a recent articulation of the
doctrine based on the above free speech principles, the Supreme Court held:
[A] law subjecting the exercise of First
Amendment freedoms to the prior restraint of a license" must contain
"narrow, objective, and definite standards to guide the licensing
authority." Shuttlesworth, 394 U.S. at 150-51, 89 S.Ct. at 938; see
also Niemotko v. Maryland, 340 U.S. 268, 271, 71 S.Ct. 325, 327, 95
L.Ed. 267 (1951). The reasoning is simple: If the permit scheme "involves
appraisal of facts, the exercise of judgment, and the formation of an opinion"
by the licensing authority, "the danger of censorship and of abridgement
of our precious First Amendment freedoms is too great" to be permitted.
Forsyth County v. Nationalist Movement, 505 U.S. at 134, 112 S.Ct. at 2401-02
(quoting Cantwell v. Connecticut, 310 U.S. 296, 305, S.Ct. 900, 904, 84
L.Ed. 1213 (1940) and Southeastern Promotions, Ltd. v. Conrad, 420 U.S.
546, 553, 95 S.Ct. 1239, 1244, 43 L.Ed.2d 448 (1975)).
Many other cases and authorities support this
fundamental principle.7
Pursuant to these authorities, this court
must conclude that the statute before it is void. The "Choose Life"
license plate was issued pursuant to the uncontrolled discretion of the
legislature, which was free to, and undoubtedly did, approve a license plate
with a slogan popular with its constituents. Indeed, this is the nature of the
legislative process. Defendants here make no argument that the fact that it is
the legislature, rather than a state official, that has exercised the
standardless discretion to issue the plate lends that exercise legitimacy.
Nor could they. In SCV, the license
plate logo restriction was held void in part because of viewpoint
discrimination by the legislature itself. 288 F.3d at 626. See also Leslie
Gielow Jacobs, Free Speech and the Limits of Legislative Discretion: The
Example of Specialty License Plates , 53 Fla. L. Rev. 419, 472 (2001) .
As in SCV, violation of First
Amendment principles by the legislature renders the statute void.
This decision does not deny Right to Life
advocates the opportunity to have their own South Carolina license plate. They
need only use the alternate licensing program, which vests the decision to
issue a desired specialty plate in an administrative official acting pursuant
to specified standards. That program appears, at least on its face, to be
viewpoint neutral.8
Plaintiffs or others
who agree with them may utilize that scheme as well.
There are inherent problems with the state
legislature issuing special plates on an ad hoc basis. As one
commentator has observed:
The current legislatively-run specialty
plate programs mix two constitutionally inconsistent commands. The first is for
legislators to enact laws that reflect the majority interests and values. The
second is for them to administer a private speech forum in a way that does not
discriminate according to viewpoint. The conflicting mandates render it almost
certain that the administration of a private speech forum by the legislature
will result in viewpoint discrimination. The legislature's broad discretion to
enact or fail to enact laws based upon its perception of the public interest
make it almost impossible for courts to determine if the constitutionally
prohibited viewpoint discrimination has occurred.
These observations lead to the conclusion
that a legislature cannot constitutionally run a private speech forum. Of
course states can choose to make specialty license plates available to their
citizens. To do so, however, they must remove administration of the program
from the legislature. With clear, non-viewpoint discriminatory standards,
administered consistently by an entity subject to meaningful judicial review, a
specialty license plate program can meet the Constitution's free speech
guarantee.
Jacobs, supra, at 473.
Therefore, for the reasons stated herein, it
is hereby ORDERED as follows:
(1) that defendants' motion for summary
judgment (Doc. #43) be, and is hereby, DENIED;
(2) that plaintiffs' motion for summary
judgment (Doc. #36) be, and is hereby, GRANTED; and
(3) that Section 56-3-8910 of the Code of
Laws of South Carolina be, and is hereby, declared unconstitutional under
the Constitution of the United States of America for reasons stated in this
opinion.
A separate judgment shall This 23rd day of December, enter in plaintiffs'
favor.
This 23rd day of December, 2002.
/s/WILLIAM O. BERTELSMAN, JUDGE
FOOTNOTES
1 Hon.
William O. Bertelsman, Senior United States District Judge for the Eastern
District of Kentucky, sitting by designation.
2 The
DPS must first receive 400 pre-paid applications for the special plate, or a
deposit of $4,000 from an interested individual or organization, before it may
begin production and distribution of the plates. S.C. Code Ann. §56-3-8910(C) .
3 Because
the court finds the resolution of plaintiffs' first cause of action dispositive
of the pending motions, it need not reach the merits of their other claims.
4 Here,
the plaintiffs allege they have been denied the ability to have a license plate
bearing a symbol or slogan of their choice.
5 Recognizing
standing: Henderson v. Stalder, 112 F.Supp.2d 589 (D. La. 2000), rev'd,
287 F.3d 374 (5th Cir. 2002), cert. denied, _ U.S. _ , 71 U.S.L.W.
3283 (U.S. Dec. 2, 2002); denying standing: Hildreth v. Dickinson, No.
99-583-CIV-J-21-A, 1999 U.S. Dist. LEXIS (M.D. Fla. Dec. 22, 1999); Women's
Emergency Network v. Dickinson, 214 F.Supp.2d 1308 (S.D. Fla. 2002).
6 A
recent opinion of the Seventh Circuit contains a thoughtful discussion of the
relationship between the "unbridled discretion" standard enunciated
by the Supreme Court in the licensing context and the First Amendment's
"viewpoint neutrality" mandate generally encountered in the public
forum context. See Southworth v. Board of Regents of the University of
Wisconsin System, 307 F.3d 566, 575-80 (7th Cir. 2002).
7 See
Thomas v. Chicago Park Dist., 534 U.S. 316, 323, 112 S.Ct. 775, 780, 151
L.Ed.2d 783 (2002); 11126 Baltimore Blvd., Inc. v. Prince George's County,
Md., 58 F.3d 988, 994 (4th Cir.), cert. denied, 516 U.S. i010
(1995); Chesapeake B&M, Inc. v. Harford County, MD, 58 F.3d 1005,
1009-10 (4th Cir.), cert. denied, 516 U.S. 1010 (1995) ; Chester James
Anteau, Modern Constitutional Law, §3.07 (1997) ; 4 Ronald D. Rotunda &
John E. Novak, Treatise on Constitutional Law, Substance and Procedure, §20.46
(3d ed. 1999) ; cf. Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct.
2294, 33 L.Ed.2d 222 (1972)(vagueness doctrine).
8 This
alternate statute is not before the court and no ruling is made thereon. Nor
does this court express any view on the funding issue presented by the Act,
which the court need not review.