7th Circuit rules against Illinois “Choose Life” license platesChoose Life Illinois, Inc. v. White, 07-1349 (7th Cir. Nov. 7, 2008) Before MANION, EVANS, and SYKES, Circuit Judges. SYKES, Circuit Judge. Choose Life Illinois, Inc. (“CLI”), collected more than 25,000 signatures from Illinois residents interested in purchasing a “Choose Life” specialty license plate and applied to the Secretary of State for issuance of the plate under 625 ILL. COMP. STAT. 5/3-600(a) (amended effective 2008). That statute prohibits the Secretary from issuing a new line of specialty plates unless he has a minimum number of applications on file, and CLI’s 25,000 signatures far exceeded the minimum. Since 1948, however, when Illinois authorized its first specialty license plate, almost no specialty plate had been issued without prior legislative approval. The Secretary referred CLI to the General Assembly for enabling legislation. CLI hit a roadblock in the General Assembly. Despite the strong showing of support, the proposal for a “Choose Life” license plate died in subcommittee. CLI turned to federal court for relief, claiming that the Secretary was authorized to issue the plates without legislative approval once CLI met the statutory requirements and that his failure to do so constituted impermissible viewpoint discrimination in violation of the First Amendment. If legislative approval was required, CLI claimed the General Assembly’s refusal to adopt the “Choose Life” license plate was viewpoint discrimination. The district court accepted the first of these arguments and ordered the Secretary to issue the “Choose Life” plate, but stayed its judgment pending appeal. In the meantime, the General Assembly resolved CLI’s first claim by amending 625 ILL. COMP. STAT. 5/3-600 to require express prior legislative approval before the Secretary may issue new specialty plates. As to the second claim, the 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.1 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. _____________________ The Thomas More Society has issued this press release in connection with the ruling: November 7, 2008 IMMEDIATE RELEASE Contact: Tom Brejcha, Thomas More Society 312-782-1680, 312-590-3408 (cell) Tom Ciesielka, TC Public Relations 312-422-1333
U.S. Supreme Court May Be Next Stop for Illinois “Choose Life” Specialty License Plates
Statement from Thomas Brejcha regarding today’s decision by federal appeals court that the Illinois Secretary of State’s offices does not have to issue specialty license plates bearing the slogan “Choose Life”
We are very disappointed that the 7th Circuit U.S. Court of Appeals in Chicago has reversed the decision handed down on January 22, 2007, by U.S. District Court Judge David Coar. Coar affirmed that Illinois violated the First Amendment rights of more than 25,000 Illinois citizens who signed petitions for Illinois’ approval and issuance of ‘Choose Life’ specialty license plates. Proceeds were to be dedicated to funding adoptions throughout Illinois.
Illinois has approved an entire variety of other specialty plates for pet friendly, pro-organ donation, environmental issues and peace birds. No one ever sought approval or issuance of a “Pro-Choice” plate; we would have no objection to such a plate if sufficient persons signed petitions for it.
The court’s decision today is in direct conflict with decisions of many other federal appellate and trial courts. We intend to ask for a rehearing, and failing that rehearing, we will pursue a review of the decision before the U.S. Supreme Court.
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Thomas Brejcha is president and chief counsel at Chicago’s Thomas More Society, a public interest law firm representing the non-profit group, Choose Life Illinois, Inc., which is advocating for these specialty plates.
Contacts for the Media
Tom Brejcha, Thomas More Society of Chicago: 312-782-1680, 312-590-3408 (cell) Tom Ciesielka, TC Public Relations: 312-422-1333
Tom Ciesielka 312-422-1333, 312-403-1333 mobile
TC Public Relations
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