Choose Life Illinois, Inc. v. White

• Decision Date: 07 November 2008
• Docket Number: No. 07-1349.,07-1349.
• Citation: 547 F.3d 853
• Parties: CHOOSE LIFE ILLINOIS, INCORPORATED, Richard Bergquist, Sue Bergquist, et al., Plaintiffs-Appellees, v. Jesse WHITE, Secretary of State of the State of Illinois, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

547 F.3d 853

CHOOSE LIFE ILLINOIS, INCORPORATED, Richard Bergquist, Sue Bergquist, et al., Plaintiffs-Appellees, v. Jesse WHITE, Secretary of State of the State of Illinois, Defendant-Appellant.

No. 07-1349.

United States Court of Appeals, Seventh Circuit.

Argued November 27, 2007.

Decided November 7, 2008.

Damon Taaffe (argued), Robbins, Russell, Englert, Orseck & Untereiner, Washington, DC, Thomas L. Brejcha, Jr., Chicago, IL, for Plaintiffs-Appellees.

Paul Berks, Office of the Attorney General, Richard S. Huszagh (argued), Office of the Attorney General Civil Appeals Division, Chicago, IL, for Defendant-Appellant.

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.

I. Background

A. Specialty License Plates in Illinois

For an extra fee, Illinois will permit a vehicle owner to have a specialized license plate that, in addition to the generic or personalized numbers and characters required for license identification, also bears a specific message or symbol. See 625 ILL. COMP. STAT. 5/3-600 et seq. Like most other states, Illinois offers a broad selection of specialty plates. Some denote that the vehicle owner is an alumnus of a certain college or university (schools in Illinois and contiguous states qualify) or a member of a civic organization (e.g., the Knights of Columbus or the Masons). Id. 5/3-629, 635. Others signify support for a particular cause, such as a love of pets ("I am pet friendly"); opposition to violence (the dove of peace symbol); mammogram or organ-donor awareness ("Mammograms Save Lives," "Be An Organ Donor"); or prevention of childhood cancer ("Stop Neuroblastoma").² See id. 5/3-653, 630, 643, 646, 654.

With insignificant historical exceptions, each specialty license plate in Illinois has its own authorizing statute describing the plate and establishing the required additional fee. These statutes typically allocate a portion of the proceeds from the sale of the plates to the specific state or local program that corresponds to the message or to the not-for-profit or charitable organization that sponsored the plate. (For example, proceeds from the "Park District Youth" plate benefit local park and recreational districts; the "Police Memorial" plate benefits the Police Memorial Committee Fund. See id. 5/3-654, 644.) Beyond their obvious utility as a means of promoting a message or cause, specialty license plates thus also serve a fundraising purpose for units of state and local government and for private organizations.

The basic requirements for issuance of a new specialty-plate series are set forth in 625 ILL. COMP. STAT. 5/3-600, enacted in 1990. Until recently, that statute provided as follows:

(a) The Secretary of State shall not issue a series of special plates unless applications, as prescribed by the Secretary, have been received for 10,000 plates of that series; except that the Secretary of State may prescribe some other required number of applications if that number is sufficient to pay for the total cost of designing, manufacturing and issuing the special license plate.

. . . .

(c) This Section shall not apply to special license plate categories in existence on the effective date of this amendatory Act of 1990, or to the Secretary of State's discretion as established in Section 3-611 [relating to specialty plates for specific categories of persons, typically elected officials].

Id. (amended effective 2008). Although the statute specifies a default minimum of 10,000 applications, the Secretary often required far less (approximately 800 applications) before issuing a new legislatively approved specialty plate. That lesser number was usually enough to make the program financially feasible from a manufacturing standpoint. Illinois currently has about 60 specialty license plates available for purchase.

B. CLI's Quest for a "Choose Life" Specialty License Plate

CLI is a not-for-profit agency that promotes adoption in the State of Illinois. In 2001 CLI embarked on an initiative to obtain approval for a specialty license plate bearing the words "Choose Life." To that end CLI collected more than 25,000 signatures from prospective purchasers and applied to the office of Illinois Secretary of State Jesse White for issuance of the plate. The Secretary informed CLI that he could not issue a new specialty plate that had not been approved by the General Assembly. For the next several years, CLI waged a legislative battle for approval of its "Choose Life" specialty license plate, lining up support among sympathetic legislators. Its efforts were thwarted, however—initially in the Illinois Senate and later in the House. (The proposal died in a House subcommittee.)

CLI and several individual plaintiffs then brought this suit against the Secretary for violating their free-speech rights. The parties filed cross-motions for summary judgment. CLI first argued that the Secretary had authority under section 5/3-600 to issue the "Choose Life" plates without legislative approval, and his refusal to do so constituted viewpoint discrimination within a government-created forum for private speech. Alternatively, CLI claimed that if legislative approval was required, it had been subjected to impermissible viewpoint discrimination by the General Assembly. CLI also claimed the specialty-plate program was facially unconstitutional because the lack of any governing standards invited discrimination against disfavored messages. CLI asked the district court to order the Secretary to issue the "Choose Life" plate or shut down the entire specialty-plate program.

The Secretary argued that although section 5/3-600 was silent on whether an enabling statute was required for a new specialty-plate series, all specialty plates in Illinois (other than those grandfathered under section 5/3-600(c)) had in fact been authorized by specific statutory enactment. Accordingly, the Secretary argued, the messages on specialty license plates were government speech, and the free-speech rights of the plaintiffs as private speakers were not implicated. The Secretary maintained in the alternative that even if the specialty-plate program amounted to a forum for private speech, it was a nonpublic forum and the State's decision to exclude the entire subject of abortion from the forum was a reasonable viewpoint-neutral restriction on content and was therefore constitutionally permissible.

The district court granted summary judgment for CLI. The court interpreted section 5/3-600 as permitting the Secretary to issue new specialty license plates without specific enabling legislation. Applying the four-factor test from Sons of Confederate Veterans, Inc. v. Commissioner of the Virginia Department of Motor Vehicles, 288 F.3d 610, 618 (4th Cir.2002), a Fourth Circuit license-plate case, the...