FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ARIZONA LIFE COALITION INC., an 

Arizona nonprofit corporation;

GARY PAISLEY, an individual,

Plaintiffs-Appellants,

v.

STACEY STANTON, Arizona License

Plate Commission Chair, in her

personal capacity; MICHAEL FRIAS,

Arizona License Plate Commission

member, in his personal capacity;

BRIAN LANG, Arizona License

Plate Commission member, in his

personal capacity; JOHN SPEARMAN, No. 05-16971

Arizona License Plate Commission D.C. No.

member, in his personal capacity;  CV-03-01691-PGR

JACKIE ALLGOOD, Arizona Motor OPINION Vehicle Division legislative

liaison, in her personal capacity;

TERRY CONNOR, individually and in

his capacity as an Arizona License

Plate Commission member;

WILLIAM A. ORDWAY, in his

official capacity as an Arizona

License Plate Commission

member; LELA STEFFEY, in her

official capacity as an Arizona

License Plate Commission

member,

Defendants-Appellees. 

Appeal from the United States District Court

for the District of Arizona

Paul G. Rosenblatt, District Judge, Presiding

1279
Argued and Submitted

October 15, 2007—San Francisco, California

Filed January 28, 2008

Before: David R. Thompson and Richard C. Tallman,

Circuit Judges, and Kevin Thomas Duffy,*

Senior United States District Judge.

Opinion by Judge Tallman

*The Honorable Kevin Thomas Duffy, Senior United States District

Judge for the Southern District of New York, sitting by designation. 

1280 ARIZONA LIFE COALITION v. STANTON
COUNSEL

Jeffrey A. Shafer (argued), Alliance Defense Fund, Washington, D.C.; Benjamin W. Bull, Alliance Defense Fund, Scottsdale, Arizona; Peter A. Gentala, The Center for Arizona

Policy, Scottsdale, Arizona; Gary S. McCaleb, Alliance

Defense Fund, Scottsdale, Arizona, for the plaintiffsappellants. 

Daniel P. Schaack (argued), Assistant Attorney General,

Phoenix, Arizona; James R. Morrow, Assistant Attorney General, Liability Management Section, Phoenix, Arizona, for the

defendants-appellees. 

Denise M. Burke, Women’s Choice Pregnancy Clinic, Chicago, Illinois, for the amicus curiae. 

OPINION

TALLMAN, Circuit Judge: 

Arizona Life Coalition (“Life Coalition”) appeals a summary judgment in favor of Stacey Stanton and other members

of the Arizona License Plate Commission (collectively the

“Commission”). Life Coalition contends that the Commission

violated its First Amendment right to free speech and Fourteenth Amendment right to equal protection by arbitrarily

denying its application for a special Arizona organization

license plate that would portray its message “Choose Life.”

We agree that the Commission violated Life Coalition’s First

Amendment right to free speech and therefore do not reach its

equal protection argument. 

Messages conveyed through special organization plates—

although possessing some characteristics of government

speech—represent primarily private speech. Through its spe1284 ARIZONA LIFE COALITION v. STANTON
cial organization license plate program, Arizona has created

a limited public forum for all nonprofit organizations that

meet the State’s statutory requirements. Because the Commission denied Life Coalition’s application on grounds not specified in the statute or related to the limited purpose of the

license plate forum, we reverse the district court’s grant of

summary judgment in favor of the Commission. 

I

The parties do not dispute the facts, and there is no material

issue of fact to prevent summary judgment from being

entered. Life Coalition is an Arizona nonprofit corporation

that provides “compassionate care . . . to persons who are considering abortion, or who are affected by abortion.” In June

2002, Life Coalition resubmitted an application for a speciality plate that would “display Life Coalition’s official logo, a

small graphic of two children’s faces and the motto, ‘Choose

Life.1 The Arizona Department of Transportation (“Department”) certified that Life Coalition met the requirements of

Arizona Revised Statute section 28-2404(G)(2)2 and submitted Life Coalition’s request for its special license plate to the

Commission.3

1Life Coalition had previously submitted an application in January

2002; however, that application was either not received by the Commission or lost. 

2Arizona Revised Statute section 28-2404(G)(2) defines “organization”

as 

an entity that is organized as a nonprofit corporation pursuant to

title 10, chapters 24 through 40 and that either: (a) Certifies to the

department that the organization has at least two hundred members[; or] (b) If the organization has fewer than two hundred

members, agrees to pay the production and program costs of the

special organization plate as determined by the commission. 

(Footnote omitted). 

3Arizona Revised Statute section 28-2404(A) provides that if the

Department “determines the organization meets the requirements of an

organization as defined in [section 28-2404(G)(2)], the [D]epartment shall

submit the request for a special organization plate to the license plate commission.” 

ARIZONA LIFE COALITION v. STANTON 1285
Upon receiving a request, section 28-2404(B) provides that

[t]he [C]ommission shall authorize a special organization plate if the organization meets the following

requirements: 

(1) The primary activity or interest of the

organization serves the community, contributes to the welfare of others and is not

offensive or discriminatory in its purpose,

nature, activity or name[;] 

(2) The name of the organization or any

part of the organization’s purpose does not

promote any specific product or brand

name that is provided for sale[;] and 

(3) The purpose of the organization does

not promote a specific religion, faith or

antireligious belief. 

(Emphasis added). 

The Commission first considered Life Coalition’s application in August 2002. Members of the Commission raised concerns over whether the general public would believe Arizona

had endorsed the message of the “Choose Life” license plate,

as well as concerns over whether groups with differing viewpoints would file applications. To obtain legal advice, the

Commission tabled Life Coalition’s application without taking action. 

To alleviate the Commission’s concerns, Life Coalition

filed a revised application on September 27, 2002. In this

application Life Coalition proposed including its name on the

plate design. The Commission considered Life Coalition’s

revised application in an August 2003 meeting. During the

meeting, Gary Paisley, Chairman of Life Coalition, explained

1286 ARIZONA LIFE COALITION v. STANTON
how Life Coalition served the community: (1) it organized a

diaper drive, after which Life Coalition donated thousands of

diapers to the Arizona Diaper Bank; (2) “Life Coalition’s purpose is to provide compassionate services to those people that

are considering or have been affected by abortion including

pregnancy tests, pregnancy counseling, and relationship counseling”; and (3) Life Coalition “established a hotline for

women who are pregnant.” Paisley also told the Commission

that Life Coalition’s membership included approximately 40

organizations and 100,000 individuals. Paisley then confirmed

that a person or organization must subscribe to Life Coalition’s statement of principles to become a member.4

Initially, the Commission declined to take action on Life

Coalition’s application. After Paisley implored the Commission to explain what statutory requirements Life Coalition

failed to satisfy, a member of the Commission moved to formally deny the application, which passed by voice vote.

Chairwoman Stanton replied to Paisley’s request for an explanation by stating that “the action of the Commission is final”

and that she did not believe “now is an opportunity for[ ] further debate, or for further info that [Life Coalition] could put

on additional applications.” 

Life Coalition filed suit in the United States District Court

for the District of Arizona on September 2, 2003. It filed its

First Amended Verified Complaint on December 10, 2003.

Pertinent to this appeal, Life Coalition moved for summary

judgment on November 30, 2004, and the Commission crossmoved for summary judgment on January 1, 2005. The district court denied Life Coalition’s motion for summary judgment, and granted the Commission’s cross-motion for

summary judgment. Life Coalition timely appealed. We

reverse. 

4Life Coalition’s members must adhere to its stated secular principles.

For example, one of Life Coalition’s principles is to “believe in the sanctity of every innocent human life, from conception to natural death,

regardless of age, gender, disability, or degree of dependence.” 

ARIZONA LIFE COALITION v. STANTON 1287
II

We review de novo a grant of summary judgment. Balint

v. Carson City, 180 F.3d 1047, 1050 (9th Cir. 1999). The Tax

Injunction Act (“TIA”), 28 U.S.C. § 1341, imposes a jurisdictional limitation on federal courts. Hoohuli v. Ariyoshi, 741

F.2d 1169, 1176 (9th Cir. 1984), overruled on other grounds

as recognized by Arakaki v. Lingle, 477 F.3d 1048, 1062 (9th

Cir. 2007). We are required to raise jurisdictional issues sua

sponte, id., and we note the TIA’s application in the special

organization plate context has been raised by our sister circuits. Compare Am. Civil Liberties Union of Tenn. v.

Bredesen, 441 F.3d 370, 373 (6th Cir. 2006) (rejecting the

argument that the TIA barred suit because the extra payments

for special organization plates resemble “payments for simple

purchases from the government” and are not taxes), with Henderson v. Stalder, 407 F.3d 351, 356 (5th Cir. 2005) (concluding that the additional charges for speciality plates are taxes

because they “sustain[ ] the essential flow of revenue to the

government,” are “imposed by a state or municipal legislature,” and are “designed to provide a benefit for the entire

community”). Therefore, although neither party questions

whether the TIA precludes jurisdiction in this case, we nonetheless address it here. 

[1] The TIA provides that “[t]he district courts shall not

enjoin, suspend or restrain the assessment, levy or collection

of any tax under State law where a plain, speedy and efficient

remedy may be had in the courts of such State.” 28 U.S.C.

§ 1341. In Arizona, drivers must pay an additional twentyfive dollar fee to obtain a special organization plate. The issue

is whether the money paid to obtain a special organization

plate constitutes a tax to which the TIA would apply. 

[2] We find persuasive the Sixth Circuit’s analysis in

Bredesen and hold the extra fee is not a tax. The transaction

between a state’s vehicle owner and the issuing authority is

more akin to a contractual debt than a state imposed tax. Ari1288 ARIZONA LIFE COALITION v. STANTON
zona has not coerced a sale attendant to the requirement that

cars bear license plates to assist in identifying their owners,

but has instead induced willing purchasers to agree to pay a

certain extra sum of money in return for the right to bear a

special message on an organizational license plate. See

Bredesen, 441 F.3d at 374; see also Women’s Res. Network

v. Gourley, 305 F. Supp. 2d 1145, 1154 (E.D. Cal. 2004)

(“[The additional payments are] voluntarily paid by a limited

group of motorists who wish to both support a [special cause],

and presumably desire to display that support on their license

plate.”). 

[3] The Sixth Circuit’s reasoning is supported by our decision in Bidart Brothers v. California Apple Commission, 73

F.3d 925 (9th Cir. 1996). There, we recognized that the additional charge does not have to be characterized as a “tax” or

a regulatory “fee.” Id. at 933. In determining whether the TIA

applies, the “ultimate question remains whether an assessment

is a ‘State tax.’ ” Id. Because the additional charges for a special organization plate are more akin to a contractual payment

than a tax, we hold that the TIA does not apply to Life Coalition’s suit. We therefore retain jurisdiction to hear its federal

constitutional claim. 

III

A

1

[4] We must decide whether, by authorizing a specialty

license plate sought by a nonprofit organization to display its

message and the message of the organization’s members, the

State of Arizona has adopted that speech as its own. It is

undeniable that “when the government speaks for itself, it

‘may take legitimate and appropriate steps to ensure that its

message is neither garbled nor distorted.’ ” Planned Parenthood of S.C. Inc. v. Rose, 361 F.3d 786, 792 (4th Cir. 2004)

ARIZONA LIFE COALITION v. STANTON 1289
(plurality) (quoting Rosenberger v. Rector and Visitors of

Univ. of Va., 515 U.S. 819, 833 (1995)); see also Sons of Confederate Veterans, Inc. v. Comm’r of Va. Dep’t of Motor Vehicles, 288 F.3d 610, 616 (4th Cir.), reh’g en banc denied, 305

F.3d 241 (4th Cir. 2002) (“It is well established that ‘the government can speak for itself.’ ” (quoting Bd. of Regents of

Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 229 (2000)).

However, when the government regulates private speech, we

must conduct a traditional First Amendment analysis. Rose,

361 F.3d at 792; see also PMG Int’l Div., L.L.C., v. Rumsfeld,

303 F.3d 1163, 1169 (9th Cir. 2002). 

There is some question as to what standard we should apply

in differentiating between private and government speech. In

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

the Court addressed whether a federal program that requires

beef producers to finance promotional messages to support

the beef industry—“Beef. It’s What’s for Dinner”—violated

the First Amendment. Id. at 554. The Court held that “[w]hen

. . . the government sets the overall message to be communicated and approves every word that is disseminated,” it is

government speech. Id. at 561-62. And, because “[t]he message set out in the beef promotions is from beginning to end

the message established by the Federal Government,” “Congress . . . directed the implementation of a ‘coordinated program’ of promotion, ‘including paid advertising, to advance

the image and desirability of beef and beef products,’ ” and

the Secretary of Agriculture “exercise[d] final approval

authority over every word used in every promotional campaign,” the beef promotional messages represented government speech. Id. at 560-61. 

In Bredesen, 441 F.3d 370, the Sixth Circuit relied on

Johanns to hold that the Tennessee statute authorizing a specialty license plate with a “Choose Life” logotype did not violate the First Amendment, despite the fact that the legislature

refused to make available license plates with a “pro-choice”

or “pro-abortion” message. Id. at 372. In doing so, the Sixth

1290 ARIZONA LIFE COALITION v. STANTON
Circuit rejected—on nearly identical facts—the Fourth Circuit’s reasoning in Rose, 361 F.3d 786, in part because the

Fourth Circuit had relied on the “pre-Johanns four-factor

test.” See Bredesen, 441 F.3d at 380. 

[5] Prior to Johanns, the Fourth, Eighth, and Tenth circuits

had adopted a nonexhaustive list of four factors to differentiate between the two types of speech. Those factors are:

(1) the central “purpose” of the program in which the

speech in question occurs; (2) the degree of “editorial control” exercised by the government or private

entities over the content of the speech; (3) the identity of the “literal speaker”; and (4) whether the government or the private entity bears the “ultimate

responsibility” for the content of the speech, in analyzing circumstances where both government and a

private entity are claimed to be speaking. 

Sons of Confederate Veterans, Inc., 288 F.3d at 618-19 (citing

Wells v. City and County of Denver, 257 F.3d 1132, 1141

(10th Cir. 2001); Knights of the Ku Klux Klan v. Curators of

the Univ. of Mo., 203 F.3d 1085, 1093-94 (8th Cir. 2000)).5

5Although we have not yet expressly adopted the four-factor test, we

relied on similar factors in Downs v. Los Angeles Unified School District,

228 F.3d 1003 (9th Cir. 2000). There, we addressed whether messages

conveyed through school bulletin boards constituted government speech.

Id. at 1011. We discussed various factors, including: (1) “who actually

was responsible for the speech”; (2) who had access to the school bulletin

boards; (3) who maintained editorial control over the bulletin boards; and

(4) the purpose of the school bulletin boards. Id. at 1011-12. While recognizing that Downs cites similar factors, other circuits have declined to rely

on its reasoning because of the special circumstances related to the school

setting. See Wells, 288 F.3d at 1141 (stating that, “[d]ue to the ‘special

characteristics of the school environment,’ [the court will] rely primarily

on the four factors articulated in Knights of the [Ku Klux Klan]” (citation

omitted)); Sons of Confederate Veterans, Inc., 288 F.3d at 619 n.7 (same).

ARIZONA LIFE COALITION v. STANTON 1291
As noted by Judge Martin in his dissenting opinion in

Bredesen, Johanns is factually distinguishable from these specialty license plate cases. 441 F.3d at 385 (Martin, J., dissenting). Johanns involved a government-compelled subsidy of

government speech. Johanns, 544 U.S. at 557. Specialty

license plate programs do not raise issues regarding

“compelled-speech” or a “compelled-subsidy.” See id. (discussing the difference between “compelled-speech” cases and

“compelled-subsidy” cases); see generally Paramount Land

Co. v. Cal. Pistachio Comm’n, 491 F.3d 1003 (9th Cir. 2007)

(applying Johanns in a compelled-speech case). In Johanns,

the individual harm was “being forced to give the government

money to pay for someone else’s message.” Bredesen, 441

F.3d at 385 (Martin, J., dissenting). In specialty license plate

cases, private individuals choose to pay the price for obtaining

a particular specialty license plate. The First Amendment

harm “is being denied the opportunity to speak on the same

terms as other private citizens within a government sponsored

forum.” Id. at 386. Moreover, “specialty plate programs are

not part of a larger governmental scheme to encourage some

private activity, like beef consumption.” Andy G. Olree, Specialty License Plates: Look Who’s Talking in the Sixth Circuit, 68 Ala. Law. 213, 214 (May 2007). In light of these

differences, Judge Martin believed that “[t]he government

speech doctrine, as it is used in Johanns” is inapplicable to

specialty license plate cases such as this. Bredesen, 441 F.3d

at 385. 

[6] Although we agree with Judge Martin in that Johanns

is factually distinguishable, we believe that Johanns is

instructive when determining whether the message constitutes

government or private speech. In concluding that the beef program represented government speech, the Court relied on factors similar to those set forth in the four-factor test. It

considered who controlled the speech, 544 U.S. at 560-61, the

purpose of the program, id. at 561, and the fact that the Secretary of Agriculture exercised final editorial control over the

promotional campaign, id. We therefore adopt the Fourth Cir1292 ARIZONA LIFE COALITION v. STANTON
cuit’s four-factor test—supported by the Supreme Court’s

decision in Johanns—to determine whether messages conveyed through Arizona’s special organization plate program

constitute government or private speech. 

2

i

The Commission argues that the “primary function of Arizona license plates—including special plates—is the State’s

need to identify a vehicle and its owner.” It cites Kahn v.

Department of Motor Vehicles, 16 Cal. App. 4th 159 (Cal. Ct.

App. 1993), where the California Court of Appeal stated:

A vehicle license plate is a state-imposed display of

registered vehicle identification. That the state permits license holders, for an additional fee, to vary

minimally their vehicle identification from the prescribed form by selecting letter and/or number combinations which may reflect an individual’s personal

or professional identity, or possibly express a

thought or idea, is purely incidental to the primary

function of vehicle identification. 

Id. at 166. Life Coalition argues that the speciality license

plates offer something more: “the opportunity to identify

themselves with individualized messages via these specialized

plates” as well as “the opportunity to benefit worthy organizations financially.” 

We agree with Life Coalition. While the primary purpose

of any vehicle license plate is vehicle identification and registration, we are not concerned with the general validity of Arizona’s licensing requirements. Cf. Rose, 361 F.3d at 793

(stating that the primary purpose of a South Carolina statute

authorizing a specialty license plate with the words “Choose

Life” was “to promote the State’s preference for the pro-life

ARIZONA LIFE COALITION v. STANTON 1293
position”); Sons of Confederate Veterans, Inc., 288 F.3d at

619-20 (stating that the primary purpose of Virginia’s special

plate program is to collect revenue); Choose Life Illinois, Inc.

v. White, 2007 WL 178455, *5 (N.D. Ill. Jan. 19, 2007) (concluding that the purpose of the Illinois specialty plate program

is to “raise revenue for the state as well as to allow for some

private expression”). Rather, we must address Arizona’s speciality license plate program as a whole. See Sons of Confederate Veterans, Inc., 288 F.3d at 619. 

[7] By allowing organizations to obtain speciality license

plates with their logo and motto, Arizona is providing a forum

in which philanthropic organizations, see Ariz. Rev. Code

§ 28-2404(B), can exercise their First Amendment rights in

the hopes of raising money to support their cause. See Ariz.

Rev. Code § 28-2402(1) (setting the fee for specialty license

plates at twenty-five dollars); id. § 28-2404(F) (stating that

eight dollars of the fee is a specialty plate administration fee

and seventeen dollars is an annual donation to the organization). As in Sons of Confederate Veterans, Inc., the fee structure for Arizona speciality plates suggests the program’s

revenue-producing aim. See 288 F.3d at 619. Before obtaining

approval from the Department, the organization must certify

that it either has 200 members or that it will agree to pay the

production and program costs for the special organization

plate. Ariz. Rev. Code § 28-2404(G)(2); cf. Sons of Confederate Veterans, Inc., 288 F.3d at 620 (“The very structure of the

program [—requiring 350 prepaid applicants—] ensures that

only special plate messages popular enough among private

individuals to produce a certain amount of revenue will be

expressed.”). 

[8] The revenue raising purpose of the Arizona special

organization plate program supports a finding of private

speech. 

ii

[9] The Commission’s de minimis editorial control over the

plate design and color does not support a finding that the mes1294 ARIZONA LIFE COALITION v. STANTON
sages conveyed by the organization constitute government

speech. The Arizona legislature has chosen to limit the license

plate forum to only those organizations that “serve[ ] the community, contribute[ ] to the welfare of others and [are] not

offensive or discriminatory in [their] purpose, nature, activity

or name.” Ariz. Rev. Stat. § 28-2404(B). In addition, the organizations cannot “promote a specific religion, faith or antireligious belief.” Id. 

However, as Life Coalition notes in its brief, the statutory

requirements address who may speak, not what they may say.

For instance, in Rose, the “Choose Life” license plate “originated with the State, and the legislature determined that the

plate will bear the message ‘Choose Life.’ ” 361 F.3d at 793.

Therefore, the state exercised control over the substantive

content of the speech. Cf. Sons of Confederate Veterans, Inc.,

288 F.3d at 621 (noting that Virginia’s license plate design

criteria “do[ ] not contain guidelines regarding the substantive

content of the plates or any indication of reasons, other than

failure to comply with size and space restrictions”); see also

Johanns, 544 U.S. at 561 (noting that the Secretary’s role in

the beef campaign extended beyond granting final approval or

rejection; government officials “also attend[ed] and participat[ed] in the open meetings at which proposals [we]re developed” (emphasis added)). 

[10] In this case, the idea of a “Choose Life” license plate

originated with Life Coalition. While the Commission determined whether Life Coalition met the statutory guidelines for

gaining access to the license plate forum, Life Coalition determined the substantive content of their message. Cf. Wells, 257

F.3d at 1142 (concluding that this factor weighed in favor of

government speech because “there [wa]s no indication that

any of the [private speakers] even knew about the Happy Holidays sign, much less exercised any editorial control over its

design or content”); Choose Life Illinois, 2007 WL 178455,

at *6 (stating that this factor weighed in favor of private

speech because “the idea and message of the Choose Life

ARIZONA LIFE COALITION v. STANTON 1295
plate originated with a private organization, Choose Life Illinois, not the legislature”). 

[11] Therefore, this factor weighs in favor of private

speech. 

iii

[112] “[O]wnership of the means of communication [i]s a

valid consideration in determining whether [the license plate]

contained government speech.” Sons of Confederate Veterans,

Inc., 288 F.3d at 621; Wells, 257 F.3d at 1142. Therefore, the

fact that Arizona owns the special organization plates supports a finding that the State is the literal speaker. However,

in Wooley v. Maynard, 430 U.S. 705 (1997), the Supreme

Court indicated that messages conveyed through license

plates “implicate private speech interests because of the connection of any message on the plate to the driver or owner of

the vehicle.” Sons of Confederate Veterans, Inc., 288 F.3d at

621 (discussing Wooley, 430 U.S. at 714-15); see also

Johanns, 544 U.S. at 557 (“[In Wooley,] we held that requiring a New Hampshire couple to bear the State’s motto, ‘Live

Free or Die,’ on their cars’ license plates was an impermissible compulsion of expression.”).6

 Relying on Wooley, most

6

In a letter of supplemental authority filed after oral argument, the Commission directs us to the following statement from Pacific Gas & Electric

Co. v. Public Utilities Commission of Cal., 475 U.S. 1 (1986): 

In Wooley v. Maynard, we held that New Hampshire could not

require two citizens to display a slogan on their license plates and

thereby “use their private property as a ‘mobile billboard’ for the

State’s ideological message.” The “private property” that was

used to spread the unwelcome message was the automobile, not

the license plate. 

Id. at 17 (citation omitted). That statement does not undermine the sentiment, taken from Wooley, that license plate messages implicate private

speech. See Johanns, 544 U.S. at 557. We have no doubt that New Hampshire’s motto, “Live Free or Die,” constitutes government speech. Nevertheless, it still implicated private speech interests because private

individuals were being compelled to spread that message through the use

of their vehicle. Here, however, the question is whether the message displayed on the license plate is itself private speech. 

1296 ARIZONA LIFE COALITION v. STANTON
courts that have addressed vanity plates have concluded the

messages are private speech. Sons of Confederate Veterans,

Inc., 288 F.3d at 621 & n.9; see also Rose, 361 F.3d at 794

(“The literal speaker of the Choose Life message on the specialty plate therefore appears to be the vehicle owner, not the

State, just as the literal speaker of the bumper sticker message

is the vehicle owner, not the producer of the bumper sticker.”); Perry v. McDonald, 280 F.3d 159, 166 (2d Cir. 2001)

(stating that a restriction on vanity plates “concern[ed] private

individuals’ speech on government-owned property”); Lewis

v. Wilson, 253 F.3d 1077, 1079 (8th Cir. 2001) (characterizing

a restriction on vanity plates as a restriction on private

speech); Choose Life Illinois, 2007 WL 178455, *6 (concluding that a private individual is the literal speaker with specialty plates because they pay an extra fee to express a certain

message). 

[13] This factor has characteristics of both private and government speech. Nevertheless, in this situation, where Life

Coalition’s logo depicting the faces of two young children

will also be displayed on the license plate supporting the message “Choose Life,” we conclude that it weighs in favor of

finding this to be primarily private speech. 

iv

[14] The question of who bears “ultimate responsibility”

for the “Choose Life” license plate is very similar to the question of who is the literal speaker. See Rose, 361 F.3d at 794;

Sons of Confederate Veterans, Inc., 288 F.3d at 621.

“[P]rivate individual[s] choose[ ] to spend additional money

to obtain the plate and to display its pro-life message[s] on

[their] vehicle.” Rose, 361 F.3d at 794. Here, Life Coalition

submitted its motto to be placed on a speciality license plate

that would also identify the organization by name. Life Coalition controlled the message of its special organization plate,

and the individual members who choose to purchase the plate

voluntarily choose to disperse that message. Cf. Johanns, 544

ARIZONA LIFE COALITION v. STANTON 1297
U.S. at 561 (noting that Congress directed implementation of

the promotional plan and that Congress and the Secretary

determined what the promotional campaigns shall contain);

Rose, 361 F.3d at 794 (finding that the drivers bore ultimate

responsibility for the “Choose Life” license plate authorized

by the State legislature). 

It is true that, like the Secretary in Johanns, Arizona developed the program that allows nonprofit organizations such as

Life Coalition to obtain specialty license plates. However, in

Johanns the beef producers had no choice but to support the

beef ad. In comparison, there is nothing in the record to even

suggest that Arizona intended to adopt the message of each

special organization plate as its own state speech. Instead, the

burden is on the nonprofit organization. If it wants to convey

a certain message through the Arizona specialty plate program, it must take the affirmative step of submitting an application. This suggests that it is Life Coalition, rather than the

State of Arizona, that bears ultimate responsibility for the

content of the speech. 

[15] We therefore hold that the “Choose Life” message displayed through a speciality license plate if issued by Arizona

would constitute private speech. 

B

1

Having determined that the “Choose Life” message would

represent private speech, we must now determine whether the

Commission has acted appropriately under the First Amendment. The first step in assessing a First Amendment claim

relating to private speech on government property is to “identify the nature of the forum, because the extent to which the

Government may limit access depends on whether the forum

is public or nonpublic.” Sammartano v. First Judicial Dist.

Court, 303 F.3d 959, 965 (9th Cir. 2002) (quoting Cornelius

1298 ARIZONA LIFE COALITION v. STANTON
v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 797

(1985)). In defining the forum, we must focus “on the access

sought by the speaker. When speakers seek general access to

public property, the forum encompasses that property. In

cases in which limited access is sought, [the Supreme Court’s]

cases have taken a more tailored approach to ascertain[ ] the

perimeters of a forum within the confines of the government

property.” Cornelius, 473 U.S. at 801 (citation omitted). Here,

the forum is Arizona license plates. Cf. Lehman v. City of

Shaker Heights, 418 U.S. 298, 300 (1974) (treating the advertising spaces on city owned buses as the forum). 

[16] “[A] public forum may be created by government designation of a place or channel of communication for use by

the public at large for assembly and speech, for use by certain

speakers, or for the discussion of certain subjects.” Cornelius,

473 U.S. at 802. In a designated public forum, speakers cannot be excluded unless it is “necessary to serve a compelling

state interest” and the exclusion is “narrowly drawn to

achieve that interest.” Sammartano, 303 F.3d at 965 (internal

quotation marks omitted). We have further refined the concept of “designated” public forum by carving out a subcategory we call a “limited” public forum. See Hopper v. City

of Pasco, 241 F.3d 1067, 1074 (9th Cir. 2001) (“[A] limited

public forum is a sub-category of a designated public forum

that ‘refer[s] to a type of nonpublic forum that the government

has intentionally opened to certain groups or to certain topics.’ ” (alteration in original) (quoting DiLoreto v. Downey

Unified Sch. Dist. Bd. of Educ., 196 F.3d 958, 965 (9th Cir.

1999))). The government may restrict speech in limited public

fora so long as the restrictions are “viewpoint neutral and reasonable in light of the purpose served by the forum.” Id. at

1075 (internal quotation marks omitted). 

The designated and limited public forum classifications

“ha[ve] been the source of much confusion.” Id. at 1074. A

limited public forum exists when the government intentionally opens a nonpublic forum to expressive activity by a cerARIZONA LIFE COALITION v. STANTON 1299
tain class of speakers to address a particular class of topics.

Cogswell v. City of Seattle, 347 F.3d 809, 814 (9th Cir. 2003)

(citing Kaplan v. County of Los Angeles, 894 F.2d 1076, 1080

(9th Cir. 1990) (finding a limited public forum when “California created the [voters’] pamphlets for the specific purpose of

allowing a limited class of speakers, the candidates, to address

a particular class of topics, statements concerning the personal

background qualifications of each candidate”)). 

[17] We have no trouble concluding that Arizona’s purpose

was to open up its license plate forum to a certain class of

organizations for expressive activity. Cf. Faith Ctr. Church

Evangelistic Ministries v. Glover, 480 F.3d 891, 908 (9th Cir.

2007) (stating that the County intended to open its library

meeting room to expressive activity when it allowed all

“[n]on-profit and civic organizations, for-profit organizations,

schools and governmental organizations” to use the meeting

room for “meetings, programs, or activities of educational,

cultural or community interest”) (internal quotation marks

omitted). As the Commission correctly notes in its brief,

“[h]istorically, Arizona’s license plates have served the purely

governmental function of vehicle and vehicle owner identification and have been a nonpublic forum.” However, Arizona

took the affirmative step by passing its special license plate

legislation of allowing limited access to license plates publicly displayed for expressive conduct as vehicles are driven

throughout the state. See Sons of Confederate Veterans, Inc.

v. Holcomb, 129 F. Supp. 2d 941, 948 (W.D. Va. 2001) (stating, in dicta, that “allowing groups to place various slogans

and designs on license plates represents the Commonwealth’s

intentional action to open up a nontraditional forum for public

discourse”). 

Arizona’s speciality plate program encompasses a wide

range of philanthropic organizations with community based

programs/ideals. Section 28-2404(B) states that the Commission shall authorize a speciality license plate to all nonprofit

organizations that (1) “serve[ ] the community, contribute[ ]

1300 ARIZONA LIFE COALITION v. STANTON
to the welfare of others and [are] not offensive or discriminatory in [their] purpose, nature, activity or name”; (2) has an

organizational name or purpose that “does not promote any

specific product or brand name . . . provided for sale”; and (3)

the organizations do not “promote a specific religion, faith, or

antireligious belief.” 

Applying this statutory mandate, the Commission has

authorized, and the Department has issued, the following special organization plates: (1) The University of Phoenix

Alumni Network (bearing the University’s identifier, “Univ.

of Phoenix”); (2) Associated Fire Fighters of Arizona (bearing

the Union’s motto, “Professional Fire Fighters”); (3) Fraternal

Order of Police (bearing the Order’s identifier, “Fraternal

Order of Police”); (4) Legion of Valor (bearing the Legion’s

identifier, “Legion of Valor”); and (5) Wildlife Conservation

Council (bearing the Council’s motto, “Conserving Wildlife”).7

In addition, the Commission has authorized six additional

license plates, but at the time of briefing this appeal we were

told the Department had yet to issue them because of factors

unrelated to this appeal: (1) Civil Air Patrol; (2) Arizona

Association of Future Farmers of America; (3) Rotary International; (4) Arizona Hospice Palliative Care Organizations;

(5) Red Means Stop Coalition; and (6) Arizona Historical

Society. 

Nevertheless, “[a] policy with a broad purpose . . . is not

dispositive of an intent to create a public forum by designation.” Faith Ctr. Church Evangelistic Ministries, 480 F.3d at

909. We must therefore look closely at the Commission’s policy and practice to determine whether Arizona intended the

speciality plate forum to be “open for indiscriminate use.” Id.

In other words, if Arizona intended only to open the forum to

“certain groups or to certain topics,” it has created only a lim7The parties stipulated to this fact in filings before the district court. We

do not know whether, since the inception of this appeal, the Commission

has authorized the making of any other speciality license plates. 

ARIZONA LIFE COALITION v. STANTON 1301
ited public forum. Cogswell, 347 F.3d at 814 (internal quotation marks omitted). For instance, despite Contra Costa

County’s broad purpose in opening its library meeting room

to public use, we held in Faith Center Church Evangelistic

Ministries that the County created a limited public forum

because the “County’s policy excludes schools from using the

meeting room ‘for instructional purposes as a regular part of

the curriculum’ and organizations who wish to engage in

‘religious services.’ ” 480 F.3d at 909. In addition, “the policy

requires a potential user to submit an application describing

the intended use and identifying the applicant,” and the “application must be reviewed and approved in advance by the

County.” Id. 

[18] Similarly, Arizona by statute restricts its speciality

license plate program to only nonprofit organizations with

community driven purposes that do not promote a specific

religion, faith or antireligious belief. Ariz. Rev. Stat. § 28-

2404(B). To gain access, the nonprofit organization must have

its application reviewed and approved by the Commission. Cf.

Cornelius, 473 U.S. at 803; Perry, 280 F.3d at 168 (citing the

fact that Vermont vehicle owners must obtain permission to

receive vanity plates to support its finding of a nonpublic

forum). These are not abstract policy statements, but are definite and unambiguous restrictions on gaining access to the

forum. See Hopper, 241 F.3d at 1077 (citing Christ’s Bride

Ministries, Inc. v. Se. Pa. Transp. Auth., 148 F.3d 242 (3d Cir.

1998)). 

[19] From the record before us, it is also clear that the

Commission has consistently applied the access restrictions

when reviewing pending applications. See Faith Ctr. Church

Evangelistic Ministries, 480 F.3d at 909 (citing Hopper, 241

F.3d at 1076 (“[C]onsistency in application is the hallmark of

any policy designed to preserve the non-public status of a

forum.”)). In addition to Life Coalition’s application, the

Commission has denied two other applications for speciality

license plates. The Commission unanimously denied Interna1302 ARIZONA LIFE COALITION v. STANTON
tional Dark Sky Society’s application because its suggested

“dark blue sky” motif would replace the standard Arizona

license plate motif in violation of other statutory requirements. See Ariz. Rev. Stat. § 28-2403(a)(2). The Commission

also denied an application submitted by Embry-Riddle Aeronautical University, explaining that Arizona universities had

to obtain legislative plates, whereas only alumni associations

may obtain the special organization license plates. In comparison to the city in Hopper, through the License Plate Commission, Arizona has retained some substantive control over the

content of its speciality license plate program. See 241 F.3d

at 1078 (stating that the city failed to consistently enforce its

“non-controversy” policy as it “neither pre-screened submitted works, nor exercised its asserted right to exclude works”).

[20] Finally, we note that the nature of the forum also supports a conclusion that Arizona intended only to create a limited public forum. See Faith Center Church Evangelical

Ministries, 480 F.3d at 910. As the Second Circuit noted in

Perry, the primary purpose in issuing license plates in general

is to aid in vehicle identification. 280 F.3d at 167. However,

one of the primary purposes in issuing vanity license plates

(and, in turn, special organization plates) is to raise revenue.

Id. Nevertheless, given the general overarching purpose of

aiding in vehicle identification, expression through vanity

plates (and, in turn, special organization plates) is subject to

numerous restrictions with the general public having only limited access. Id. We therefore conclude that Arizona’s speciality license plate program is a limited public forum, and that

any access restriction must be viewpoint neutral and reasonable in light of the purpose served by the forum. See Faith

Center Church Evangelical Ministries, 480 F.3d at 910 (citing

Cornelius, 473 U.S. at 806). 

2

i

The distinction between viewpoint discrimination and

content-based discrimination is not precise. Rosenberger, 515

ARIZONA LIFE COALITION v. STANTON 1303
U.S. at 831. The Commission contends that it did not engage

in viewpoint discrimination because it “did not grant a special

organization plate to a group with a viewpoint in opposition

to Life Coalition’s” and therefore, “[n]either side of the

‘Choose Life’ issue is represented by a special organization

plate.” The Supreme Court rejected a similar argument in

Rosenberger, where it found a First Amendment violation

when a public university withheld funding to a student publication because its paper “primarily promote[d] or manifest[ed] a particular belie[f] in or about a deity or an ultimate

reality.” 515 U.S. at 823 (internal citations omitted; alterations in original). The dissent argued that the University did

not engage in viewpoint discrimination because it limited all

religious speech, both theistic and atheistic. Id. at 831. The

majority rejected this argument, stating 

The dissent’s assertion that no viewpoint discrimination occurs because the Guidelines discriminate

against an entire class of viewpoints reflects an

insupportable assumption that all debate is bipolar

and that antireligious speech is the only response to

religious speech. Our understanding of the complex

and multifaceted nature of public discourse has not

embraced such a contrived description of the marketplace of ideas. If the topic of debate is, for example,

racism, then exclusion of several views on that problem is just as offensive to the First Amendment as

exclusion of only one. It is as objectionable to

exclude both a theistic and an atheistic perspective

on the debate as it is to exclude one, the other, or yet

another political, economic or social viewpoint. 

Id.

[21] Unlike the University system in Rosenberger, the Arizona statutes do not expressly prohibit abortion-related speech

in the license plate forum. Cf. id. (stating that the Guidelines

prohibit religious activity). Rather, the State has opened this

1304 ARIZONA LIFE COALITION v. STANTON
forum to all organizations that serve the community and contribute to the welfare of others in a nondiscriminatory way.

Ariz. Rev. Stat. § 28-2404(B)(1). The Commission does not

argue that Life Coalition failed to meet this statutory requirement. Instead, the only justification the Commission can give

for denying Life Coalition’s application is that it chose not to

enter the Choose Life/Pro-Choice debate. And “where the

government is plainly motivated by the nature of the message

rather than the limitations of the forum or a specific risk

within that forum, it is regulating a viewpoint rather than a

subject matter.” Sammartano, 303 F.3d at 971; see also

Choose Life Illinois, Inc., 2007 WL 178455, *8 (stating in

dicta that the denial of an application for a “Choose Life”

license plate because it is “controversial” amounts to viewpoint discrimination). 

Moreover, during the August 2002 hearing, the Commissioners expressed concerns that, if they granted Life Coalition’s application, groups with opposing viewpoints would

file applications for their own special organization plate. Preventing Life Coalition from expressing its viewpoint out of a

fear that other groups would express opposing views seems to

be a clear form of viewpoint discrimination. As we previously

stated in Hopper, “[a] ban on ‘controversial [speech]’ may all

too easily lend itself to viewpoint discrimination.” 241 F.3d

at 1079. Restrictions based on community standards of

decency must be based on “objective criteria set out in

advance.” Id. at 1080. 

Admittedly, this is a difficult issue. “The line between an

acceptable subject matter limitation and unconstitutional

viewpoint discrimination is not a bright one.” Cogswell, 347

F.3d at 815. One thing is clear, “once the government has

chosen to permit discussion of certain subject matters, it may

not then silence speakers who address those subject matters

from a particular perspective.” Id. 

[22] Arizona has created a limited public forum for nonprofit organizations. The only substantive restriction is that

ARIZONA LIFE COALITION v. STANTON 1305
the license plate cannot promote a specific product for sale,

or a specific religion, faith, or antireligious belief. Nowhere

does the statute create objective criteria for limiting “controversial” material, and nowhere does the statute prohibit

speech related to abortion. Cf. Cogswell, 347 F.3d at 815

(finding restriction prohibiting candidates from discussing

their opponents’ views viewpoint neutral because the limited

public forum was limited to candidate self-discussion and the

submitted material included subject matter not included in the

limited public forum). Consequently, because abortion-related

speech falls within the boundaries of Arizona’s limited public

forum, and because the Commission clearly denied the application based on the nature of the message, we conclude the

Commission’s actions were viewpoint discriminatory. 

ii

We also hold that the Commission acted unreasonably by

denying Life Coalition’s application for reasons not statutorily based or related to the purpose of the limited public

forum. “The reasonableness of a governmental restriction limiting access to a nonpublic forum must be assessed ‘in light

of the purpose of the forum and all of the surrounding circumstances.’ ” Id. at 817 (quoting Cornelius, 473 U.S. at 789).

“The reasonableness analysis emphasizes the consistency of

the limitation in the context of the forum’s intended purpose.”

Id.

[23] The Commission, in fulfilling the legislature’s intent

to allow nonprofit organizations a means to promote their

community-based cause to the public in the hopes of raising

awareness and revenue, regulates access to the forum to preserve its community-based function and protect the primary

function of license plates: to aid in vehicle identification. The

Commission does not dispute that Life Coalition has met each

of the statutory requirements. It is an organization that benefits the community without promoting the sale of a product or

any religious, faith, or antireligious belief. Nor does the Com1306 ARIZONA LIFE COALITION v. STANTON
mission contend that Life Coalition’s special organization

plate will interfere with vehicle identification. In other words,

it fits within the program’s purpose. When an organization

meets the requirements, the statute provides that “[t]he

[C]ommission shall authorize a special organization plate.”

Ariz. Rev. Stat. § 28-2404(B) (emphasis added). By denying

Life Coalition’s application, although the organization and its

message complied with the limited public forum’s purpose as

it is currently defined under Arizona law, the Commission

ignored its statutory mandate and acted unreasonably in violation of the First Amendment to the United States Constitution.8

IV

We recognize that Arizona has a legitimate interest in regulating controversial material displayed publicly on government property. Nevertheless, we are mindful of potential

constitutional problems when government officials are given

unbridled discretion in regulating speech, even in limited public fora. Arizona has defined the outer limits of its speciality

license plate program, and Life Coalition fits within those

statutory boundaries. Because the Commission denied Life

Coalition’s application on a ground not expressly related to

the forum’s purpose by discriminating on the basis of the

viewpoint contained in its proposed message, we conclude

that the Commission acted in violation of the First Amendment. We therefore reverse the district court’s grant of summary judgment in favor of the Commission. The cause is

remanded for entry of judgment in favor of Arizona Life

Coalition on its First Amendment claim and such further proceedings as are necessary to ensure that its specialty license

8Given our holding, we will not address Life Coalition’s claim that the

Commission also violated its equal protection rights under the Fourteenth

Amendment, or that section 28-2404 is unconstitutionally vague. ACLU of

Nev. v. City of Las Vegas, 466 F.3d 784, 797 n.15 (9th Cir. 2006) (declining to address equal protection arguments after finding the ordinance violated the First Amendment); Cinevision Corp. v. City of Burbank, 745

F.2d 560, 571 n.11 (9th Cir. 1984) (same). 

ARIZONA LIFE COALITION v. STANTON 1307
plate application is approved by the Arizona License Plate

Commission. 

REVERSED and REMANDED. 

1308 ARIZONA LIFE COALITION v. STANTON