PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PLANNED PARENTHOOD OF SOUTH 

CAROLINA INCORPORATED; RENEE

CARTER,

Plaintiffs-Appellees,

v.

B. BOYKIN ROSE, in his official

capacity as the Director of the

Department of Public Safety of the

State of South Carolina; JON E.

OZMINT, in his official capacity as

the Director of the Department of  No. 03-1118 Corrections of South Carolina; KIM

S. AYDLETTE, in her official capacity

as the Director of the Department of

Social Services of South Carolina,

Defendants-Appellants.

LIBERTY COUNSEL; LOUISIANA

LAWYERS FOR LIFE; LOUISIANA

FAMILY FORUM; LOUISIANA LAW &

JUSTICE FOUNDATION,

Amici Supporting Appellant. 

Appeal from the United States District Court

for the District of South Carolina, at Charleston.

Patrick Michael Duffy, District Judge.

William O. Bertelsman, Senior District Judge for the

Eastern District of Kentucky, sitting by designation.

(CA-01-3571-23-2)

Argued: September 23, 2003

Decided: March 22, 2004
Before LUTTIG, MICHAEL, and GREGORY, Circuit Judges.

Affirmed by published opinion. Judge Michael wrote a separate opinion and announced the judgment. Judge Luttig wrote an opinion concurring in the judgment. Judge Gregory wrote an opinion concurring

in the judgment. 

COUNSEL

ARGUED: Tracey Colton Green, Assistant Deputy Attorney General, OFFICE OF THE ATTORNEY GENERAL, Columbia, South

Carolina, for Appellants. Carrie Y. Flaxman, PLANNED PARENTHOOD FEDERATION OF AMERICA, New York, New York, for

Appellees. ON BRIEF: Henry McMaster, Attorney General, John W.

McIntosh, Chief Deputy Attorney General, OFFICE OF THE

ATTORNEY GENERAL, Columbia, South Carolina, for Appellants.

Roger Evans, Donna Lee, PLANNED PARENTHOOD FEDERATION OF AMERICA, New York, New York; Peter L. Murphy, LAW

OFFICES OF PETER L. MURPHY, Columbia, South Carolina;

Michael P. O’Connell, STIRLING & O’CONNELL, P.A., Charleston, South Carolina, for Appellees. Mathew D. Staver, Erik W. Stanley, Joel L. Oster, Anita L. Staver, Rena M. Lindevaldsen, LIBERTY

COUNSEL, Longwood, Florida, for Amicus Curiae Liberty Counsel.

J. Michael Johnson, ALLIANCE DEFENSE FUND, Shreveport, Louisiana, for Amici Curiae Lawyers for Life, et al. 

OPINION

MICHAEL, Circuit Judge, writing separately in parts I, II, and III and

announcing the judgment in part IV: 

South Carolina has a statute that authorizes a specialty license plate

imprinted with the words "Choose Life." A comparable plate with a

pro-choice message is not available. Planned Parenthood of South

Carolina, Inc. (PPSC) and Renee Carter have sued three South Caro2 PLANNED PARENTHOOD v. ROSE
lina officials on First Amendment grounds, claiming that the statute

authorizing the Choose Life plate amounts to viewpoint discrimination by the State. The district court agreed and declared the statute

unconstitutional. We affirm in three opinions, with Judge Luttig and

Judge Gregory each writing separately to concur in the judgment. 

I.

In 2001 the South Carolina legislature enacted a statute, see S.C.

Code Ann. § 56-3-8910 (the Act), that authorizes the issuance of a

specialty license plate bearing the message "Choose Life." The Act

directs the Department of Public Safety (DPS) to begin production of

the plate when it receives either 400 prepaid applications or a deposit

of $4000 from an interested individual or organization. S.C. Code

Ann. § 56-3-8910(C). Sale of the Choose Life plate is expected to

generate additional revenue for the State; the fee for the special plate

is seventy dollars every two years in addition to the regular fee. Id.

§ 56-3-8910(A). Proceeds from the sale of the Choose Life plate are

to be placed in a special account administered by the Department of

Social Services (DSS). Id. § 56-3-8910(B). The DSS may award

grants from this account to local, private nonprofit organizations that

provide "crisis pregnancy services," but grants may not go to "any

agency, institution, or organization that provides, promotes, or refers

for abortion." Id. The Act makes the Choose Life plate available to

any interested vehicle owner in the State. Id. § 56-3-8910(A). 

South Carolina also has a more general statute that authorizes the

issuance of specialty license plates to nonprofit organizations. Id.

§ 56-3-8000. An organization interested in obtaining a specialty plate

may apply to the DPS by submitting proof of its nonprofit status

along with 400 prepaid applications or a $4000 deposit, a design for

the plate, and a marketing plan for its sale that is subject to DPS

approval. The plate may bear only the "emblem, a seal or other symbol" of the organization that the DPS "considers appropriate," id.

§ 56-3-8000(A), and the DPS has the discretion to "alter, modify, or

refuse to produce" any organizational plate that "it deems offensive

or [that] fails to meet community standards," id. § 56-3-8000(H).

Finally, the plate is available only to certified members of the organization. 

PLANNED PARENTHOOD v. ROSE 3
Additional statutory provisions authorize various other specialty

plates, most of which recognize veterans or members of civic organizations; these plates can be issued only to the designated honorees or

organization members. See, e.g., id. § 56-3-3310 (recipients of Purple

Heart); § 56-3-2810 (volunteer firemen); § 56-3-5910 (Pearl Harbor

survivors); § 56-3-5350 (Normandy invasion survivors); § 56-3-7860

(Shriners). Other plates, such as those bearing messages of state pride,

are authorized for issuance to any vehicle owner. See, e.g., id. § 56-

3-3950 (authorizing the "Keep South Carolina Beautiful" plate). None

of these plates, however, bears a message on a politically controversial subject. 

PPSC never applied for an organizational plate (one with only an

emblem or symbol) under S.C. Code Ann. § 56-3-8000. However, in

2001, when a bill to authorize the Choose Life plate was being considered at a subcommittee hearing in the South Carolina House of

Representatives, a PPSC representative testified that the bill should be

amended to add a "provi[sion] for a license plate for automobile owners who wish to express [the pro-choice] view." J.A. 29-30. That bill

died in committee. A bill to authorize the Choose Life plate was also

introduced in the South Carolina Senate in 2001, but consideration of

the bill was blocked by parliamentary objections. Later on in the 2001

legislative session, a bill authorizing a NASCAR specialty license

plate was amended to provide for the Choose Life plate; the amended

bill passed both houses in June 2001 and was signed into law by the

Governor in September of that year. It does not appear that any prolife organization initiated the idea of a Choose Life plate. Rather, the

statutory provision for the plate (the Act) came about because of the

perseverance of two legislators who were acting on their own initiative. 

There are notable differences between the Act authorizing the

Choose Life plate and § 56-3-8000, which authorizes specialty plates

for nonprofit organizations. First, the Act authorizes a plate bearing

a specified message, but § 56-3-8000 authorizes plates bearing only

the symbol or emblem of an organization. Second, the Act authorizes

the issuance of the Choose Life plate to any interested person, but

§ 56-3-8000 authorizes the issuance of an organizational plate only to

certified members of an organization. Finally, § 56-3-8000 does not

automatically entitle an organization to its own plate; the section vests

4 PLANNED PARENTHOOD v. ROSE
certain discretion in the DPS to reject an application or to modify the

proposed symbol. S.C. Code Ann. § 56-3-8000(H). 

Within days after the Act went into effect, the plaintiffs (PPSC and

Carter) filed suit seeking declaratory and injunctive relief against the

state officials (the State) charged with administering the Choose Life

license plate program and with distributing the proceeds from the sale

of the plate. Plaintiff PPSC is an organization that provides family

planning services to women, including first-trimester abortions and

abortion referrals. Plaintiff Carter is a South Carolina resident who

owns a passenger car registered in that state. The plaintiffs claim,

among other things, that the Act violates the First Amendment

because it regulates access to a speech forum on the basis of viewpoint. Both sides moved for summary judgment on the merits, and the

State in addition claimed that the plaintiffs lacked standing to sue.

The district court concluded that the plaintiffs had standing and

granted their motion for summary judgment, holding that the Act discriminates based on viewpoint in violation of the First Amendment.

Planned Parenthood of S.C., Inc. v. Rose (PPSC), 236 F. Supp. 2d

564 (D.S.C. 2002). The State appeals, and our review is de novo. Higgins v. E.I. DuPont de Nemours and Co., 863 F.2d 1162, 1167 (4th

Cir. 1988). 

II.

The threshold question is whether the plaintiffs have standing to

challenge the Act. Standing doctrine is "an amalgam of prudential as

well as constitutional concerns." Finlator v. Powers, 902 F.2d 1158,

1162 (4th Cir. 1990). The constitutional concern about standing is

rooted in Article III, which limits federal court jurisdiction to actual

"cases" and "controversies." A justiciable case or controversy requires

a "plaintiff [who] has alleged such a personal stake in the outcome of

the controversy as to warrant his invocation of federal court jurisdiction and to justify exercise of the court’s remedial powers on his

behalf." Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 38 (1976).

Thus, to establish standing, a plaintiff must show (1) an actual or

threatened injury (2) that was caused by the putatively illegal conduct

of the defendant and (3) that is likely to be redressed by a favorable

decision. Heckler v. Mathews, 465 U.S. 728, 738 (1984); see also

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). 

PLANNED PARENTHOOD v. ROSE 5
One injury the plaintiffs allege is the discriminatory treatment they

suffer from the State’s use of the license plate forum to promote one

political viewpoint (pro-life) in the debate about abortion. The plaintiffs allege that the Act authorizing the Choose Life plate causes the

discriminatory treatment by allowing pro-life supporters, but not prochoice supporters, to express their viewpoint in the license plate

forum. They further assert that striking down the Act would redress

the discrimination even though this remedy would not grant them

access to the license plate forum. The plaintiffs are correct. 

Discriminatory treatment is a harm that is sufficiently particular to

qualify as an actual injury for standing purposes. Heckler, 465 U.S.

at 738; Baker v. Carr, 369 U.S. 186, 207 (1962). Moreover, plaintiffs

in discrimination cases may seek equal treatment in the form of a

level playing field, regardless of whether this is achieved by extending benefits to the disfavored group or by denying benefits to the

favored group. Heckler, 465 U.S. at 738-39. For instance, in Regents

of University of California v. Bakke, 438 U.S. 265, 281 n.14 (1978),

the Supreme Court explained that a medical school applicant who was

denied admission had standing to challenge the school’s race-based

admissions policy regardless of whether he showed "that he would

have been admitted in the absence of the [admissions policy]." The

applicant in Bakke met "the constitutional requirements" of standing

because he had been denied a chance to compete for admission on

equal terms. Id. Similarly, the Court said in Heckler v. Mathews that

it "frequently entertained attacks on discriminatory statutes or practices even when the government could deprive a successful plaintiff

of any monetary relief by withdrawing the statute’s benefits from both

the favored and the excluded class." 465 U.S. at 738. See also Orr v.

Orr, 440 U.S. 268 (1979) (male plaintiff had standing to challenge

discriminatory system of alimony payments even though the result of

the challenge might be to impose the burden of payment on both

women and men rather than to eliminate the burden of payment on

men). 

This level playing field analysis, though typically seen in equal

protection cases, also applies in First Amendment cases. Just as a

plaintiff claiming discrimination under the Fourteenth Amendment

has standing to seek a level playing field, so too does a plaintiff

claiming viewpoint discrimination under the First Amendment. See

6 PLANNED PARENTHOOD v. ROSE
Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 101-02 (1972); J.

Nowak & R. Rotunda, Constitutional Law, §§ 2.12, 16.11 (6th ed.

2000). In short, where, as here, plaintiffs challenge a law on the

ground that it promotes an opposing political viewpoint above their

own, they suffer a cognizable injury that can be redressed by the

invalidation of that law. 

The plaintiffs also allege as an injury their inability to obtain a prochoice license plate, but this does not entitle them to standing. The

plaintiffs have never been able to obtain a South Carolina license

plate that bears words with the pro-choice message. Thus, their inability to obtain a pro-choice plate was not caused by the enactment of

the Choose Life Act, nor would this alleged injury be redressed by

invalidating the Act. See Linda R.S. v. Richard D., 410 U.S. 614

(1973). Moreover, characterizing the relevant injury as the inability

to obtain a license plate obscures the constitutional nature of the harm

in this case. There are no doubt people in South Carolina who would

like to order a particular specialty plate that the legislature has not

seen fit to authorize. But this case is not about people seeking to

obtain license plates bearing the messages of their choice; it is about

whether, by enacting the Choose Life Act, the State has impermissibly favored one viewpoint over another. Therefore, the sounder

approach is to recognize discriminatory treatment as the actual injury

and to accord the plaintiffs standing on that basis. 

The State’s arguments against standing are not convincing. The

State first claims that the plaintiffs have suffered no injury because

the Act, though failing to authorize expression of the opposing viewpoint, does not prohibit it. This contention ignores the obvious.

Although the expression of the plaintiffs’ pro-choice viewpoint is not

explicitly prohibited, it is effectively prohibited. A person whose preferred plate is not authorized by the State cannot, as an alternative,

display a privately manufactured license plate that bears the message

of her choice. Specialty license plates are a state-controlled medium

of expression; whatever speech is not authorized by the State is therefore prohibited. See, e.g., S.C. Code Ann. §§ 16-21-50, 56-3-1370.

Further, the State fails to recognize that the plaintiffs need not show

an explicit prohibition on their speech in order to claim discriminatory

treatment. See Rosenberger v. Rectors and Visitors of Univ. of Va.,

515 U.S. 819, 828 (1995). In Rosenberger the Supreme Court made

PLANNED PARENTHOOD v. ROSE 7
clear that "government regulation may not favor one speaker over

another." Id. The plaintiffs may therefore base their claim of injury

on the State’s unequal treatment of two viewpoints in the abortion

debate, specifically, its promotion of only the pro-life view. 

The State also claims that the plaintiffs suffered no injury (that is,

no discriminatory treatment) because they failed to apply for a license

plate under § 56-3-8000, the law governing specialty plates for nonprofit organizations. The plaintiffs’ failure to apply for an organizational plate is not fatal to their standing to challenge the Act. Even

assuming that the plaintiffs would have been able to obtain an organizational plate, such a plate would not allow an expression that is

equivalent to the Choose Life plate. Under the current statutory

scheme, any pro-life South Carolina driver can display a plate bearing

the Choose Life message. In contrast, a pro-choice South Carolina

driver could, at best, display a plate bearing the emblem of a prochoice organization, assuming she was a certified member of that

organization. Therefore, the complained-of unequal treatment (or discrimination) would persist regardless of whether the plaintiffs actually

applied for or even obtained an organizational plate. 

Moreover, waiting for the plaintiffs to apply for a specialty plate

under the organizational statute would neither change the plaintiffs’

stake in the controversy nor sharpen the issues for review. We

addressed this sort of situation in Finlator v. Powers, where the plaintiffs challenged a discriminatory tax law without first protesting the

payment of the tax with the top state tax official. In that case we said

that requiring the plaintiffs to protest the tax and then refile their suit

would not improve the "parties’ advocacy . . . clarify the legal issues

presented for review . . . or . . . contribute in any way to our ability

to decide a question presented and contested by parties." Finlator,

902 F.2d at 1162. As a result, we concluded that the plaintiffs had

standing to bring a facial challenge to the law. For the same reason,

the plaintiffs in this case need not first apply for, and be denied, an

organizational plate in order to gain standing. 

Finally, a note on the prudential front: because the plaintiffs are a

pro-choice organization and an individual seeking a pro-choice

license plate, they are appropriate parties to challenge the Choose Life

Act. If we were to deny standing to the plaintiffs, it is unlikely that

8 PLANNED PARENTHOOD v. ROSE
anyone would have standing, and the Act would effectively be

immune from attack. See Orr, 440 U.S. at 272 (granting standing after

recognizing the possibility that a statute would otherwise be immune

from attack). 

In sum, the plaintiffs have alleged a sufficient personal stake in the

outcome of this controversy to warrant their invocation of federal

jurisdiction to challenge the Act. 

III.

A.

The First Amendment question before us is whether the State

engaged in impermissible viewpoint discrimination when it authorized, through the Act, a license plate with the Choose Life message.

The usual first step in answering such a question is to classify the relevant message as either government speech or private speech. See

Legal Servs. Corp. v. Velazquez, 531 U.S. 533 (2001); Sons of Confederate Veterans, Inc. v. Comm’r of Va. Dep’t of Motor Vehicles

(SCV), 288 F.3d 610, 616 (4th Cir. 2002); PPSC, 236 F. Supp. 2d at

570. This threshold inquiry is generally dispositive in viewpoint discrimination cases because of three common assumptions: first, that all

speech is either government speech or private speech; second, that

when the government speaks for itself and is not regulating the speech

of others, it may discriminate based on viewpoint; and third, that the

government may not discriminate based on viewpoint when it regulates private speech. As the Supreme Court explained in Rosenberger

v. Rectors and Visitors of University of Virginia, 515 U.S. 819, 833

(1995), when the government speaks for itself, it "may take legitimate

and appropriate steps to ensure that its message is neither garbled nor

distorted." In contrast, "[i]n the realm of private speech or expression,

government regulation may not favor one speaker over another." Id.

at 828. Not surprisingly, the State claims that the Choose Life message on the license plate is government speech; the plaintiffs claim

just the opposite. 

Our court recently grappled with whether speech was government

or private in another case involving a specialty license plate. See SCV,

288 F.3d 610. There we acknowledged that "[n]o clear standard has

PLANNED PARENTHOOD v. ROSE 9
yet been enunciated in our circuit or by the Supreme Court for determining when the government is ‘speaking’ and thus able to draw

viewpoint-based distinctions, and when it is regulating private speech

and thus unable to do so." Id. at 618. In SCV, the Sons of Confederate

Veterans (SCV), a nonprofit organization, applied under a Virginia

statute for a specialty license plate to be issued to its members.

Although the Commonwealth of Virginia authorized issuance of an

organizational plate to members of the SCV, it prohibited the plate

from bearing the SCV emblem because the emblem included the Confederate flag. We concluded that the restriction prohibiting display of

the organization’s emblem, though neutral on its face, was in fact discriminatory because it was aimed at the suppression of the SCV’s

viewpoint. Id. at 623-26. 

In deciding whether the affected speech was government speech or

private speech, we borrowed a four-factor test from other circuits that

examines: "(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." SCV, 288 F.3d at 618 (internal quotation marks omitted).

Applying these factors, we held that the affected speech — the plate

design and emblem of the Sons of Confederate Veterans — was private speech. Id. at 621. Therefore, we struck down the emblem

restriction as viewpoint discrimination against private speech within

the specialty license plate forum. Id. at 626-27. 

The plaintiffs argue that SCV controls the present case and dictates

a finding of private speech. The State, on the other hand, argues that

SCV is sufficiently distinguishable to warrant a finding of government

speech. The district court did not explicitly apply the four-factor SCV

test to this case; rather, it interpreted SCV as holding that "specialty

license plates embod[y] private, not government speech." PPSC, 236

F. Supp. 2d at 571. In doing so, the district court overlooked an

important difference between this case and SCV. In SCV the Commonwealth of Virginia acted as regulator of the existing specialty

license plate forum. In response to a private organization’s request for

its own plate, the Commonwealth authorized, but modified, the plate

to prevent the display of the Confederate flag. In this case, on the

10 PLANNED PARENTHOOD v. ROSE
other hand, the State acts as a covert speaker within the specialty

license plate forum, creating a license plate that promotes one viewpoint in the abortion debate at the expense of another. I draw the following two conclusions from this difference. First, I conclude that

applying the SCV test to this case produces an indeterminate result,

one suggesting that the Choose Life plate embodies a mixture of private and government speech. Second, I conclude that despite the element of government speech on the Choose Life plate, the Act violates

the First Amendment. My analysis follows. 

I begin by applying the SCV test to determine whether the speech

at issue can be characterized as either government or private speech.

First, I consider the purpose of the Act. The State argues that the

Act’s purpose is to promote the State’s preference for the pro-life

position, and I agree. The plate with the Choose Life message came

about through legislative initiative that culminated in a bill that was

passed by both houses and signed into law by the Governor. The Act

makes the Choose Life plate available to any interested vehicle owner

and provides that proceeds from the sale of the plate will be distributed to local pregnancy crisis organizations, but not to family planning organizations that provide or promote abortion services. S.C.

Code Ann. § 56-3-8910(B). Unlike in SCV, where the purpose of the

challenged law was to "produce revenue while allowing . . . for the

private expression of various views," SCV, 288 F.3d at 619, the purpose of the Choose Life Act is specifically to promote the expression

of a pro-life viewpoint. The first SCV factor therefore weighs in favor

of a government speech designation. 

When I analyze the second SCV factor, the degree of editorial control over the content of the plate, I conclude that here, too, the facts

are distinguishable from SCV. The SCV plate was sought and

designed by the plate’s private sponsor, the organization itself. Id. at

621. Here, the idea for a Choose Life plate originated with the State,

and the legislature determined that the plate will bear the message

"Choose Life." The State thus exercises complete editorial control

over the content of the speech on the Choose Life plate. As a result,

the second factor also weighs in favor of finding government speech.

Finally, I consider the third and fourth factors of the SCV test: the

"identity of the literal speaker" and "whether the government or the

PLANNED PARENTHOOD v. ROSE 11
private entity bears the ultimate responsibility" for the speech. SCV,

288 F.3d at 621. As to the third factor, I note, as our court did in SCV,

that the Supreme Court has held that even messages on standard

license plates are associated at least partly with the vehicle owners.

Id. at 621; Wooley v. Maynard, 430 U.S. 705, 717 (1977) (holding

that vehicle owner had First Amendment right to cover the "Live Free

or Die" motto on New Hampshire plate). This association is much

stronger when the vehicle owner displays a specialty license plate.

Although a specialty license plate, like a standard plate, is stateowned and bears a state-authorized message, the specialty plate gives

private individuals the option to identify with, purchase, and display

one of the authorized messages. Indeed, no one who sees a specialty

license plate imprinted with the phrase "Choose Life" would doubt

that the owner of that vehicle holds a pro-life viewpoint. 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 a bumper sticker message is the vehicle owner, not the producer of the bumper sticker. The same reasoning leads me to conclude

(under the fourth SCV factor) that the private individual bears the ultimate responsibility for the speech on the Choose Life plate. Although

the Choose Life plate was made available through state initiative, the

private individual chooses to spend additional money to obtain the

plate and to display its pro-life message on her vehicle. The last two

SCV factors thus weigh in favor of finding private speech. 

Although the district court concluded that the speech in this case

was private speech under SCV, I conclude that SCV’s four-factor test

indicates that both the State and the individual vehicle owner are

speaking. The State speaks by authorizing the Choose Life plate and

creating the message, all to promote the pro-life point of view; the

individual speaks by displaying the Choose Life plate on her vehicle.

Therefore, the speech here appears to be neither purely government

speech nor purely private speech, but a mixture of the two. See Sons

of Confederate Veterans, Inc. v. Comm’r of Va. Dep’t of Motor Vehicles, 305 F.3d 241, 244-45 (4th Cir. 2002) (suggesting that it is an

"oversimplification [to assume] that all speech must be either that of

a private individual or that of the government and that a speech event

cannot be both private and governmental at the same time.") (Luttig,

J., respecting the denial of rehearing en banc); L. Gielow Jacobs,

"Who’s Talking? Disentangling Government and Private Speech," 36

12 PLANNED PARENTHOOD v. ROSE
U. Mich. J.L. Ref. 35, 97 (2002)(observing that specialty license

plates contain "a mixture of government and private speech.").

Although our analysis in SCV anticipated a finding of either government or private speech, our opinion there does not preclude a finding

of mixed speech. See SCV, 288 F.3d at 618-19 (acknowledging that

the four factors do not "constitute an exhaustive or always-applicable

list"). My conclusion that the speech is mixed (both government and

private) does not end the discussion, however. I must go on to consider whether the State has engaged in viewpoint discrimination and

whether it may engage in viewpoint discrimination when the relevant

speech is both government and private.

B.

The State contends only in passing that the Act does not discriminate based on viewpoint. As I have indicated, the State’s primary

argument is that the license plate message, "Choose Life," is State

speech because the Act "is the most recent and apparently most visible expression in a long line of statements asserting the State’s clear

and oft-repeated preference for childbirth over abortion." Appellants’

Br. at 19. The State then argues that even if the Act does affect private

speech, it is not discriminatory "because [it] does not affirmatively

restrict the expression of plaintiffs’ preferred viewpoint." Id. at 24.

This is the argument the State made in opposition to standing, an

argument already rejected in part II, above. 

The Supreme Court has made clear that the "principal inquiry" in

assessing a claim of viewpoint discrimination "is whether the government has adopted a regulation of speech because of [agreement or]

disagreement with the message it conveys." Ward v. Rock against

Racism, 491 U.S. 781, 791 (1989). See also Turner Broad. Sys., Inc.

v. F.C.C., 512 U.S. 622, 645 (1994). A regulation can discriminate

based on viewpoint without affirmatively suppressing a certain viewpoint. Discrimination can occur if the regulation promotes one viewpoint above others, see Rosenberger, 515 U.S. at 828, and this is

precisely what has happened here. 

In the license plate forum, South Carolina has authorized the

expression of only one position in the abortion debate, thereby promoting the expression of one viewpoint (pro-life) while preventing

PLANNED PARENTHOOD v. ROSE 13
the expression of the other viewpoint (pro-choice). By granting access

to the license plate forum only to those who share its viewpoint,

South Carolina has provided pro-life supporters with an instrument

for expressing their position and has distorted the specialty license

plate forum in favor of one message, the pro-life message. See, e.g.,

Velazquez, 531 U.S. at 543; Police Dep’t of Chicago v. Mosley, 408

U.S. 92, 95-97 (1972). In short, as the district court correctly determined, the Act was adopted because of the State’s agreement with the

pro-life message. PPSC, 236 F. Supp. 2d at 571. South Carolina has

therefore discriminated based on viewpoint. See Rosenberger, 515

U.S. at 828.

C.

I next consider whether the State may engage in viewpoint discrimination when the relevant speech is both government and private.

Although the Supreme Court has not yet recognized that speech can

be governmental and private at the same time, its decisions on government speech and viewpoint discrimination provide instruction on

whether the State’s viewpoint discrimination in the license plate

forum can stand. See Rust v. Sullivan, 500 U.S. 173 (1991); Rosenberger, 515 U.S. 819; Velazquez, 531 U.S. 533. A review of these decisions persuades me that upholding the Act would require an

unwarranted extension of the government speech doctrine and of the

State’s power to promote some viewpoints above others. Although the

government may favor certain speech on the basis of viewpoint when

it creates and manages its own programs, what South Carolina has

done departs from this model in constitutionally significant ways.

First, the State has created a limited (license plate) forum for expression, not a government program such as one, for example, that would

be carried out through a school, museum, or clinic. Second, the State

has favored itself as a speaker within the license plate forum, giving

its own viewpoint privilege above others. Third, the State’s advocacy

of the pro-life viewpoint may not be readily apparent to those who see

the Choose Life plate, and this insulates the State’s advocacy from

electoral accountability. The government speech doctrine was not

intended to authorize cloaked advocacy that allows the State to promote an idea without being accountable to the political process. 

In Rust v. Sullivan, 500 U.S. 173, the Court considered regulations

restricting the use of funds by grantees under Title X of the Public

14 PLANNED PARENTHOOD v. ROSE
Health Act, 42 U.S.C. §§ 300-300a-6. Title X provided federal funds

to clinics that "offer[ed] a broad range of acceptable and effective

family planning methods and services," but prohibited the award of

funds to clinics with "programs where abortion is a method of family

planning." 42 U.S.C. § 300a-6. This meant that doctors at funded clinics could not counsel their patients on abortion matters. When the regulations that prohibited abortion counseling and referral were

challenged as viewpoint discrimination, the Court upheld them

because they were "designed to ensure that the limits of the federal

program are observed." Rust, 500 U.S. at 193. Because the Title X

grant program was designed "not for prenatal care, but to encourage

family planning," the Court reasoned, "[a] doctor who wished to offer

prenatal care to a project patient who became pregnant could properly

be prohibited from doing so because such a service is outside the

scope of the federally funded program." Id. After noting that the regulations were consistent with the statutory prohibition, the Court concluded that Congress had not restricted speech based on viewpoint,

but rather had "merely chosen to fund one activity to the exclusion of

another." Id. at 193. The Court further explained that "when the Government appropriates public funds to establish a program it is entitled

to define the limits of that program." Id. at 194. In Rust the Court "did

not place explicit reliance on the rationale that the counseling activities of the doctors . . . amounted to government speech; when interpreting the holding in later cases, however, [it] . . . explained Rust on

this understanding." Velazquez, 531 U.S. at 541. 

Rust stands for the principle that when the government creates and

manages its own program, it may determine the contents and limits

of that program. See, e.g., Rosenberger, 515 U.S. at 833; Velazquez,

531 U.S. at 541. There is no First Amendment problem, for example,

when a public school makes content-based decisions about its curriculum, see Rosenberger, 515 U.S. at 833, or when a public museum

decides to display one work of art as opposed to another, see R.

Bezanson & W. Buss, The Many Faces of Government Speech, 86

Iowa L. Rev. 1377, 1422 (2001). The government’s broad discretion

is justified in such instances because "[w]hen the government speaks

. . . to promote its own policies or to advance a particular idea, it is,

in the end, accountable to the electorate and the political process for

its advocacy." Bd. of Regents of Univ. of Wis. Sys. v. Southworth, 529

U.S. 217, 235 (2000). Further, "[i]f the citizenry objects, newly

PLANNED PARENTHOOD v. ROSE 15
elected officials later could espouse some different or contrary position." Id. See also Robert C. Post, "Subsidized Speech," 106 Yale L.J.

151, 164 (1996) ("Managerial domains are necessary so that a democratic state can actually achieve objectives that have been democratically agreed upon."). In short, government speech is necessary to

achieve the objectives approved through the ballot box, but the government must remain accountable to the citizenry for what it says. At

the same time, as the Supreme Court explains, "[n]either the latitude

[allowed] for government speech nor [the] rationale" for that latitude

applies to all cases where the government funds speech. Velazquez,

531 U.S. at 542. The Court made this clear in both Rosenberger and

Velazquez, two viewpoint discrimination cases. 

In Rosenberger a public university established a student activities

fund (SAF) to reimburse student organizations for the printing costs

of their publications. 515 U.S. at 823. The SAF was designed to support a broad range of extracurricular activities that related to the university’s educational purpose. The university, however, excluded

certain student activities, including religious activities, from receiving

SAF funds. Id. at 824-25. A Christian student organization that was

denied funding for the printing costs of its newspaper challenged the

funding exclusion, which the Supreme Court struck down. Id. at 825-

26. The Court determined that the university, by establishing the SAF,

had created a limited public forum for speech, albeit "a forum more

in a metaphysical than in a spatial or geographic sense." Id. at 830.

The university must abide by First Amendment principles, the Court

said, "even when the limited public forum is one of its own creation."

Id. at 829. Specifically, "[w]hen the government targets . . . particular

views taken by speakers on a subject, the violation of the First

Amendment is all the more blatant." Id. The Court therefore distinguished government regulation of a limited forum for speech from the

typical instance when the State may permissibly promote its viewpoint, such as when it "determines the content of the education it provides" or when (as in Rust) it "use[s] private speakers to transmit

specific information pertaining to its own program." Id. at 833. In

Rosenberger the student groups that applied for SAF funding were

not speaking for the university; they "[were] not the University’s

agents, [were] not subject to its control, and [were] not its responsibility." Id. at 835. Therefore, the Court held that the university could not

"silence the expression" of the viewpoints of the groups listed as inel16 PLANNED PARENTHOOD v. ROSE
igible for SAF funding. Id. Though the Court acknowledged that

"[t]he necessities of confining a forum to the limited and legitimate

purposes for which it was created" may justify certain restrictions on

its use, it emphasized that those restrictions must be viewpoint neutral

and must be reasonable in light of the forum’s purpose. Id. at 829-30.

In Velazquez the Court invalidated a funding restriction under the

Legal Services Corporation (LSC) Act that forbade recipients of LSC

funds from arguing for a change in existing welfare law. The funding

condition required an LSC-funded lawyer to withdraw from representing a client if it turned out that the representation would involve

challenging a welfare law. Velazquez, 531 U.S. at 539. The government, relying on Rust, attempted to justify the funding restriction as

"necessary to define the scope . . . of the federal program." Id. at 547.

The Court rejected this justification. It explained that "[t]he lawyer is

not the government’s speaker" and that when the government regulates a particular medium — lawyer advocacy in that case — the "accepted usage [of the medium must be considered] in determining

whether a particular restriction is necessary." Id. at 542, 543. In regulating the advocacy of LSC lawyers, the government had impermissibly attempted to "use an existing medium of expression and to

control it, in a class of cases, in ways which distort its usual functioning." Id. at 543. The Court further observed that "there is no programmatic message of the kind recognized in Rust," concluding that "[t]his

serves to distinguish [the challenged regulation] from any of the Title

X program restrictions upheld in Rust, and to place it beyond any congressional funding condition approved in the past by this Court." Id.

at 548. 

Based on Rosenberger and Velazquez, I conclude that in assessing

the Act, a court must focus not only on the character of the speech,

but also on the nature of the medium. The medium here — the speciality license plate scheme — is more like a limited forum for expression than it is like a school, museum, or clinic. Although the State

authorizes the sale of license plates with the Choose Life message, the

State does not enlist vehicle owners to convey the imprinted message

in the way that employees of a government-funded enterprise are

enlisted to carry out the programs of that enterprise. See Rosenberger,

515 U.S. at 833 (explaining that the government may selectively favor

speech based on viewpoint when it "enlists private entities to convey

PLANNED PARENTHOOD v. ROSE 17
its own message"). Rather, vehicle owners purchase and display the

Choose Life plate because they agree with the message. Thus,

because South Carolina has not created a program "of the kind recognized in Rust," it cannot justify the Act as "necessary to define the

scope and contours" of the license plate scheme. Velazquez, 531 U.S.

at 547. Instead, because the State has established a license plate forum

for the abortion debate, it cannot limit the viewpoints expressed in

that forum. See Rosenberger, 515 U.S. at 835. 

In addition to creating a limited forum for expression, the State has

entered that forum as a privileged speaker. South Carolina does not

merely approve or deny applications by private organizations for a

specialty plate; it has favored its own position by authorizing one

plate for those who share its view and by failing to authorize a comparable plate for those who oppose its view. The State thus acts as a

privileged speaker within a forum that it created and controls. The

Supreme Court has never suggested that the government speech rationale allows a State to dominate a forum in this way, even one of its

own creation. 

Moreover, the State’s role in promoting the Choose Life message

is obscured from the public. When a certain viewpoint dominates a

speech forum, it should be clear to the public whether that dominance

reflects the prevailing view or whether it results from a government

restriction. In this case, the pro-life position exclusively dominates the

abortion debate in the license plate forum, but the reason for that

dominance is not readily apparent to the ordinary citizen. Those who

see the Choose Life plate displayed on vehicles, and fail to see a comparable pro-choice plate, are likely to assume that the presence of one

plate and the absence of another are the result of popular choice. Specifically, they are likely to assume that there are pro-life residents in

South Carolina, but not pro-choice residents, who seek to express

their viewpoint in the license plate forum. The State can thereby mislead the public into thinking that it has already won support for the

position it is promoting. This possibility thwarts "the rationale behind

the government’s authority to draw otherwise impermissible viewpoint distinctions in the government speech context," namely, "the

accountability inherent in the political process." SCV, 288 F.3d at

618. 

18 PLANNED PARENTHOOD v. ROSE
It might be argued that South Carolina is not hiding its identification with the message on the Choose Life plate because the General

Assembly enacted the statute making the plate available. Voters, of

course, can always express their approval or disapproval of legislative

action through the political process. But this argument overlooks the

fact that continuing transparency is essential to accountability. Given

the array of specialty license plates available in South Carolina, a citizen is less likely to associate the plate messages with the State. South

Carolina authorizes license plates that express support for, among

other things, the National Wild Turkey Federation, S.C. Code Ann.

§ 56-3-3410; saltwater fishing, id. § 56-3-7300; adopting homeless

pets, id. § 56-3-9600; and NASCAR racing, id. § 56-3-8710. The

array of choices makes the license plate forum appear increasingly

like a forum for private speech. As the citizen becomes less likely to

associate specialty plate messages with the State, the State’s accountability for any message is correspondingly diminished. 

Of course, South Carolina could abolish the Choose Life license

plate Act that results in mixed speech and adopt "Choose Life" as its

state motto. Then the State’s identity as speaker would be readily

apparent, and the State would be accountable to the public for its support of a particular position. Residents displeased with the State’s

position could register their displeasure through the electoral process.

However, precisely because this is a case of mixed speech, and the

identity of the speaker of the Choose Life message is likely to be

unclear to viewers of the license plate, government accountability is

diminished. South Carolina has placed itself in a position to advocate

for a political position while disguising its advocacy as that of private

vehicle owners. See Jacobs, supra at 56-57. ("While the interest of

private individuals in speaking anonymously may outweigh listeners’

interest in knowing who they are, this same balance does not apply

when the government speaks. [The government] can skew the speech

market and the basis of its political support in unaccountable ways.")

Thus, the State both amplifies the pro-life message and evades scrutiny for its action. Therefore, I conclude that South Carolina has

impermissibly favored the pro-life viewpoint by authorizing the

Choose Life plate. 

I should point out that this result does not render South Carolina

powerless to regulate its specialty license plate forum. Because

PLANNED PARENTHOOD v. ROSE 19
license plates are publicly displayed and issued by the State, certain

restrictions on speech within this forum are reasonable and permissible. Velazquez, 531 U.S. at 543; Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 687 (1992). For instance, the State

may consider content in deciding whether to authorize issuance of a

particular plate and may, for example, prohibit patently offensive

speech from appearing on license plates. See, e.g., Perry v. McDonald, 280 F.3d 159 (2d Cir. 2001) (upholding Vermont’s restriction on

offensive scatological terms on vanity plates as viewpoint neutral and

reasonable). But South Carolina has not prohibited patent offensiveness here. The State has opened a limited forum for expression, then

entered that forum as a covert but dominant speaker, advocating for

one viewpoint in the abortion debate without political accountability

and without authorizing the expression of the opposing viewpoint. By

limiting access to a specialty license plate to those who agree with its

pro-life position, the State has distorted the forum in favor of its own

viewpoint. This it may not do. See, e.g., Mosley, 408 U.S. at 95. In

sum, South Carolina has engaged in viewpoint discrimination by

allowing only the Choose Life plate, and it has insulated itself from

electoral accountability by disguising its own pro-life advocacy. This

is prohibited by the First Amendment. 

IV.

The Act authorizing the Choose Life plate in South Carolina violates the First Amendment. Accordingly, the district court’s judgment

invalidating the Act is affirmed.

AFFIRMED

LUTTIG, Circuit Judge, concurring in the judgment: 

Based upon the reasoning and conclusions set forth in my opinion

respecting the denial of rehearing en banc in Sons of Confederate Veterans v. Commissioner of the Virginia Department of Motor Vehicles,

305 F.3d 241, 244 (4th Cir. 2002), I concur in the judgment reached

today. In Sons of Confederate Veterans, I outlined what I believed

were the factual and doctrinal necessities for recognition that some

speech acts constitute both private and government speech, notwithstanding that the Supreme Court of the United States had not at that

20 PLANNED PARENTHOOD v. ROSE
time (and as yet has not) recognized that a single communicative

event may be both private speech and government speech. See id. at

244-47. I concluded in that case that vanity license plates are quintessential examples of such hybrid speech. While recognizing that different circumstances may present themselves even in the single context

of the vanity license plate, I explained my view that at least where the

private speech component is substantial and the government speech

component less than compelling, viewpoint discrimination by the

state is prohibited. 

I expressed the expectation in Sons of Confederate Veterans that,

when the opportunity arose, this court would further refine its views

on the important question of whether a single communicative event

can be both private and government speech. Needless to say, I am

pleased that the court adopts today the view that speech can indeed

be hybrid in character. I believe that, with time, recognition of this

external and legal fact will be a contribution to the law, even if different questions must now be resolved over the implications of such a

holding. 

I am pleased in particular that Judge Gregory, who also wrote in

dissent from denial of rehearing en banc in Sons of Confederate Veterans, 305 F.3d at 252, concurs in the judgment reached today, for I

understood him to take a different position in his opinion in that case

than the one he takes today. In Sons of Confederate Veterans, in an

analysis which, if applied here, would permit the State of South Carolina to exclude the pro-choice message, he reasoned that the First

Amendment permitted the Commonwealth of Virginia to exclude the

Confederate flag from the state’s license plates, because the Commonwealth of Virginia bore the "ultimate responsibility" for the

speech at issue, id. at 251 n.2; the Commonwealth had a substantial

interest in not being compelled to speak by private citizens, id. at 252,

being no differently postured in this regard than the "objecting drivers

in Wooley v. Maynard," id. at n.4 (citation omitted); the "predominate

concern that motivated [the Commonwealth’s] enactment" of the statute excluding the Confederate flag was to avoid "speech by attribution," id. (citation omitted), which he believed to be a "substantial

government interest," id. at 252; and there remained open "reasonable

alternative avenues" for communication of the excluded message. Id.

I had been concerned that Judge Gregory would have believed himPLANNED PARENTHOOD v. ROSE 21
self bound by his reasoning in Sons of Confederate Veterans to come

to a different conclusion than does he and the court today, and to hold

that the State of South Carolina may, permissibly under the First

Amendment, exclude the pro-choice message from its license plates

because of the state’s expressed interest in avoiding association with

that message. 

Judge Gregory found the panel’s opinion deficient in Sons of Confederate Veterans in large part because of its "cursory" examination

of the factors bearing on the question of whether speech is that of the

government or that of private individuals. Id. at 251; see also id.

(describing panel’s application of test as "incomplete at best"). In particular, he believed that "there [was] more to be said about the test,

including how the factors relate to each other, and the relative weight

to be given each factor." Id. Judge Gregory does not identify the test

that he would apply or explain the details as to how he believes that

test would be applied in this case. I infer from his concurrence, however, that he no longer holds to the views expressed in his opinion in

Sons of Confederate Veterans, and that he has continued to refine his

thinking on the difficult issues presented in this case and in Sons of

Confederate Veterans, as have I and the other members of the court.

GREGORY, Circuit Judge, concurring in the judgment: 

In Sons of Confederate Veterans, Inc. v. Comm’r of Va. Dep’t of

Motor Vehicles, 288 F.3d 610, 613 (4th Cir. 2002), this Court was

asked to determine whether the State of Virginia had a right to disassociate itself from what many Americans, of all races and nationalities, view to be a symbol of racism and slavery—the Confederate flag

—by prohibiting the Sons of Confederate Veterans ("SCV") from displaying their organizational logo, which includes the Confederate

flag, on state owned and state issued license plates. The panel hearing

the case, in a unanimous decision, held that Virginia did not have

such a right. Id. at 614, 627. To reach this holding, the panel concluded, incorrectly in my view, that only private speech was implicated by Virginia’s vanity license plate program. Id. at 618-21.

Having so concluded, the panel held that Virginia’s attempt to balance its interest of not being associated with a highly divisive and

controversial symbol with the interest of the SCV in having an orga22 PLANNED PARENTHOOD v. ROSE
nizational license plate amounted to viewpoint discrimination and was

therefore unconstitutional. Id. at 622-27. 

In a six to five vote, this Court declined to rehear the case en banc.

Sons of Confederate Veterans, Inc. v. Comm’r of Va. Dep’t of Motor

Vehicles, 305 F.3d 241, 242 (4th Cir. 2002)(denying rehearing en

banc). In dissenting from that decision, I expressed my belief "that the

panel did not fully and adequately analyze the ‘government speech’

aspect of [the] case." Id. at 251 (Gregory, J., dissenting from the

denial of rehearing en banc). In doing so, I noted that "[w]hat is, and

what is not, ‘government speech’ is a nebulous concept, to say the

least," id., because there is a "blurry and sometimes overlapping line

between private and government speech." Id. at 252. I believe this is

especially true with "license plate programs [because they] . . . really

have elements of both private and government speech." Id.

Thus, while I continue to believe that Sons of Confederate Veterans

was wrongly decided, I am constrained to follow it because it is the

law of this Circuit. Accordingly, because I believe the judgment

reached today applies the factors set forth in Sons of Confederate Veterans in a manner that begins to recognize the government speech

interests that are implicated in the vanity license plate forum, I concur

in the judgment. 

PLANNED PARENTHOOD v. ROSE 23