PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-1030

AMERICAN CIVIL LIBERTIES UNION OF NORTH CAROLINA; DEAN 

DEBNAM; CHRISTOPHER HEANEY; SUSAN HOLLIDAY, CNM, MSN; MARIA 

MAGHER,

Plaintiffs - Appellees,

v.

ANTHONY J. TATA, in his official capacity as Secretary of 

the North Carolina Department of Transportation; JAMES L. 

FORTE, in his official capacity as Commissioner of the North 

Carolina Division of Motor Vehicles, 

Defendants – Appellants,

and

MICHAEL GILCHRIST, in his official capacity as Colonel of 

the North Carolina State Highway Patrol,

Defendant.

------------------------

NATIONAL LEGAL FOUNDATION,

Amicus Supporting Appellants.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Raleigh. James C. Fox, Senior 

District Judge. (5:11-cv-00470-F) 

Argued: October 30, 2013 Decided: February 11, 2014
2

Before TRAXLER, Chief Judge, WYNN, Circuit Judge, and George L.

RUSSELL, III, United States District Judge for the District of 

Maryland, sitting by designation.

Affirmed by published opinion. Judge Wynn wrote the opinion, in 

which Chief Judge Traxler and Judge Russell joined.

ARGUED: Kathryne Elizabeth Hathcock, NORTH CAROLINA DEPARTMENT 

OF JUSTICE, Raleigh, North Carolina, for Appellants. 

Christopher Anderson Brook, AMERICAN CIVIL LIBERTIES UNION OF 

NORTH CAROLINA LEGAL FOUNDATION, Raleigh, North Carolina, for 

Appellees. ON BRIEF: Roy Cooper, North Carolina Attorney 

General, Neil Dalton, Special Deputy Attorney General, NORTH 

CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for 

Appellants. Steven W. Fitschen, THE NATIONAL LEGAL FOUNDATION, 

Virginia Beach, Virginia, for Amicus Supporting Appellants.
3

WYNN, Circuit Judge:

The First Amendment prohibits the making of any law

“abridging the freedom of speech . . . .” U.S. Const. amend. I. 

“Premised on mistrust of governmental power, the First Amendment 

stands against attempts to disfavor certain subjects or 

viewpoints.” Citizens United v. Fed. Election Comm’n, 558 U.S. 

310, 340 (2010). Chief amongst the evils the First Amendment 

prohibits are government “restrictions distinguishing among 

different speakers, allowing speech by some but not others.” 

Id.

In this case, North Carolina seeks to do just that: 

privilege speech on one side of a hotly debated issue—

reproductive choice—while silencing opposing voices. 

Specifically, though North Carolina invites citizens to “[m]ake 

a statement,”1 and “promote themselves and/or their causes”2 with 

specialty license plates, it limits this invitation to only

those citizens who agree with North Carolina’s “Choose Life”

stance. North Carolina contends that it may so discriminate 

because specialty plate messages constitute pure government 

speech free from First Amendment viewpoint-neutrality 

constraints. With this, we cannot agree.

 1 http://www.ncdot.gov/dmv/vehicle/plates/. 2 http://www.ncdot.gov/dmv/online/.
4

The Supreme Court and this Court have recognized individual 

speech interests in license plate messages. And in this case, 

too, the specialty plate speech at issue implicates private 

speech rights, and thus First Amendment protections apply. 

Because issuing a “Choose Life” specialty license plate while 

refusing to issue a pro-choice specialty plate constitutes

blatant viewpoint discrimination squarely at odds with the First 

Amendment, we affirm the district court’s grant of summary 

judgment and a permanent injunction in Plaintiffs’ favor.

I.

In June 2011, the North Carolina General Assembly passed,

and the North Carolina Governor signed into law, House Bill 289 

(“HB 289”). The resulting law, “An Act to Authorize the 

Division of Motor Vehicles to Issue Various Special Registration 

Plates,” authorizes the North Carolina Division of Motor 

Vehicles (“NC DMV”) to issue, among other specialty license 

plates, a “Choose Life” plate. 2011 N.C. Sess. Laws 392.

By contrast, this law authorizes no pro-choice specialty 

license plate. Id. In fact, plates bearing slogans such as 

“Respect Choice” were suggested but repeatedly rejected by the 

North Carolina General Assembly. J.A. 61-62.

A “Choose Life” plate, like many other specialty license 

plates, costs a vehicle owner an additional $25 per year. N.C. 
5

Gen. Stat. § 20-79.7(a1). Of the $25, $15 go to the Carolina 

Pregnancy Care Fellowship, a private organization that supports 

crisis pregnancy centers in North Carolina.3 N.C. Gen. Stat. §§

20-79.7(b), 20-81.12(b84). The remaining $10 go to the North 

Carolina Highway Fund, as is the case with other specialty 

plates. N.C. Gen. Stat. § 20-79.7(b). Further, the funds 

collected from “Choose Life” plates are expressly prohibited 

from “be[ing] distributed to any agency, organization, business, 

or other entity that provides, promotes, counsels, or refers for 

abortion . . . .” N.C. Gen. Stat. § 20-81.12(b84). 

To develop a specialty license plate, NC DMV must receive 

three hundred applications from individuals interested in that 

plate. Id. Once the NC DMV issues the plate, any interested 

vehicle owner registered in North Carolina may purchase it. 

Over two hundred specialty plates are available, and North 

Carolina invites vehicle owners to “find the plate that fits 

you” and “[m]ake a statement with a specialized or personalized 

license plate.” http://www.ncdot.gov/dmv/vehicle/plates/.

According to North Carolina, its specialty plate program “allows 

citizens with common interests to promote themselves and/or 

their causes.” http://www.ncdot.gov/dmv/online/.

 3 The Carolina Pregnancy Care Fellowship also serves as the 

official state contact for Choose Life, Inc., a national 

organization devoted to getting “Choose Life” license plates on 

the road in all fifty states.
6

Because North Carolina refused to allow a specialized plate 

to promote their cause, North Carolina vehicle owners who wanted 

a pro-choice specialty plate, along with the ACLU, brought this 

lawsuit in the United States District Court for the Eastern 

District of North Carolina. They sued the North Carolina 

Department of Transportation (“NC DOT”) and the NC DMV 

(collectively called “North Carolina”) for First and Fourteenth 

Amendment violations.

In December 2011, the district court granted a preliminary 

injunction blocking North Carolina from issuing the “Choose 

Life” plate. Am. Civil Liberties Union of N.C. v. Conti, 835 F. 

Supp. 2d 51 (E.D.N.C. 2011). One year later, in December 2012, 

the district court granted summary judgment and permanently 

enjoined the “Choose Life” plate. Am. Civil Liberties Union of 

N.C. v. Conti, 912 F. Supp. 2d 363 (E.D.N.C. 2012). The 

district court held, among other things, that “sufficient 

private speech interests are implicated by the specialty license 

plates to preclude a finding of purely government speech[,]” and 

that “the State’s offering of a Choose Life license plate in the 

absence of a pro-choice plate constitutes viewpoint 

discrimination in violation of the First Amendment.” Id. at 

375. North Carolina appealed, and our review is de novo. 

Planned Parenthood of S.C. Inc. v. Rose, 361 F.3d 786, 789 (4th 

Cir. 2004).
7

II.

At the outset, we note that North Carolina does not deny 

that it engaged in viewpoint discrimination by approving the 

“Choose Life” plate while refusing to allow a pro-choice plate. 

Instead, North Carolina contends that it was free to 

discriminate based on viewpoint because the license plate speech 

at issue was solely its own. And under the government speech 

doctrine, when the government speaks for itself, it can say what 

it wishes. Plaintiffs disagree, arguing that the license plate 

speech at issue implicates private speech and all its attendant 

First Amendment protections, including the prohibition on

viewpoint discrimination. Determining whether the “Choose Life” 

specialty plate embodies pure government speech or something 

else is therefore at the heart of this case.

A.

“Premised on mistrust of governmental power,” Citizens 

United, 558 U.S. at 340, the First Amendment bars the government 

from abridging freedom of private speech. U.S. Const. amend. I; 

see also, Gitlow v. New York, 268 U.S. 652 (1925) (incorporating 

the freedom of speech against the states). “It is axiomatic 

that the government may not regulate speech based on its 

substantive content or the message it conveys. Other principles 

follow from this precept. In the realm of private speech or 

expression, government regulation may not favor one speaker over 
8

another. Discrimination against speech because of its message 

is presumed to be unconstitutional.” Rosenberger v. Rector &

Visitors of Univ. of Va., 515 U.S. 819, 828 (1995) (citations 

omitted). 

“[T]he violation of the First Amendment is all the more 

blatant” when the government targets not simply subject matter, 

but particular viewpoints speakers take on a subject. Id. at

829. Indeed, the Supreme Court has called viewpoint 

discrimination “an egregious form of content discrimination” and 

has held that “[t]he government must abstain from regulating 

speech when the specific motivating ideology or the opinion or 

perspective of the speaker is the rationale for the 

restriction.” Id. at 829.

By contrast, if the government engages in its own 

expressive conduct, then the Free Speech Clause and its 

viewpoint neutrality requirements have “no application.” 

Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 467 (2009). 

Indeed, under the “relatively new, and correspondingly 

imprecise” government speech doctrine, Johanns v. Livestock 

Mktg. Ass’n, 544 U.S. 550, 574 (2005) (Souter, J., dissenting), 

“[a] government entity has the right to speak for itself. It is 

entitled to say what it wishes, and to select the views that it 

wants to express.” (quotation marks, citations, and alterations 

omitted). 
9

Although the Supreme Court has not yet recognized that 

speech may be not purely government or private but instead 

implicate both, this Court has. In Sons of Confederate 

Veterans, Inc. ex rel. Griffin v. Commissioner of the Virginia 

Department of Motor Vehicles (“SCV I”), this Court held that 

Virginia’s barring the Sons of Confederate Veterans from 

obtaining a specialty license plate with a confederate flag logo 

constituted unconstitutional viewpoint discrimination. 288 F.3d 

610 (4th Cir. 2002). While the panel opinion deemed the speech 

at issue private only, Judge Luttig, in a separate opinion 

regarding the denial of rehearing en banc, presciently 

recognized that “speech in fact can be, at once, that of a 

private individual and the government.” Sons of Confederate 

Veterans, Inc. v. Comm’r of Va. Dep’t of Motor Vehicles (“SCV 

II”), 305 F.3d 241, 245 (4th Cir. 2002) (Luttig, J.). He noted 

that specialty plates were perhaps the “quintessential example 

of speech that is both private and governmental because the 

forum and the message are essentially inseparable, the 

consequence being that it is difficult if not impossible to 

separate sufficiently what is indisputably the speech act by the 

private speaker from what is equally indisputably the speech act 

by the government.” Id. 
10

Two years later, in Rose, this Court embraced the notion of 

mixed speech. 361 F.3d at 794.4 In Rose, a case strikingly 

similar to this one, South Carolina had authorized the issuance 

of a “Choose Life” specialty license plate but no plate bearing 

a pro-choice message. Id. at 787–88. The plaintiffs in Rose, 

as here, alleged that in doing so, the state engaged in 

unconstitutional viewpoint discrimination. Id. Deeming the 

specialty plate speech at issue mixed speech implicating private 

speech rights, we agreed. Id. We held that the speech at issue 

there “appears to be neither purely government speech nor purely 

private speech, but a mixture of the two.” Id. at 794. We 

applied a forum analysis, which the Supreme Court has instructed 

courts to use when private speech occurs on government property, 

noted that the government may not viewpoint-discriminate in any 

forum, and held that South Carolina’s allowing a pro-life plate 

but no pro-choice plate constituted viewpoint discrimination in 

violation of the First Amendment. Id. at 795-99.

 4 While each member of the Rose panel wrote a separate 

concurring opinion, Judge Michael authored the only opinion 

laying out the Court’s analytical framework, and the other panel 

members, Judge Luttig and Judge Gregory, essentially embraced

it. See, e.g., Rose, 361 F.3d at 800 (Luttig, J.) (“Needless to 

say, I am pleased that the court adopts today the view that 

speech can indeed be hybrid in character.”); Rose, 361 F.3d at 

801 (Gregory, J.) (“[B]ecause 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 in the vanity license plate forum, I concur in 

the judgment.”). 
11

B.

To determine whether speech is that of the government, 

private parties, or both, this Court looks to “instructive”

factors laid out in SCV I:

(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[.]”

288 F.3d at 618 (quotation marks omitted).

North Carolina argues that this Court abandoned the SCV

factors with Page v. Lexington County School District One, 531 

F.3d 275 (4th Cir. 2008). According to North Carolina, in Page

we lopped off several of the SCV factors in favor of an

exclusive focus on control of the message in question to 

determine whose message it is. We disagree.

First, we note that “a panel of this court cannot overrule, explicitly or implicitly, the precedent set by a prior 

panel of this court. Only the Supreme Court or this court 

sitting en banc can do that.” United States v. Brooks, 524 F.3d 

549, 559 n.17 (4th Cir. 2008) (quotation marks omitted). Page, 
12

which is neither a Supreme Court nor an en banc decision, thus 

did not supplant SCV I. 

Second, Page does not suggest any attempt to overthrow the 

SCV factors in favor of a single-factor control test. Instead, 

in Page, a case about a school district’s speech, we cited to, 

and considered, several factors—specifically, who disseminates 

the speech, as well as who “establishes” and “controls” the 

speech. Page, 531 F.3d at 281. Our flexible approach in Page

is not surprising, given our express acknowledgment in SCV I

itself that the four factors identified there are “instructive” 

but neither “exhaustive” nor always uniformly applicable. SCV

I, 288 F.3d at 619. Therefore even Page does not support our 

having embraced a single-factor approach to determining who is 

speaking.

Further, in opinions postdating Page, we explicitly 

employed the SCV factors to identify the pertinent speaker. 

See, e.g., Turner v. City Council of City of Fredericksburg, 

Va., 534 F.3d 352, 354 (4th Cir. 2008) (noting that the “Fourth 

Circuit has adopted a four-factor test for determining when 

speech can be attributed to the government,” listing the SCV

factors, and “[a]pplying these factors, . . . [to] conclude that 

the legislative prayer at issue . . . is governmental speech”). 

Clearly, then, this Circuit has not recognized Page as having 

displaced SCV I. 
13

North Carolina nonetheless presses that the Supreme Court 

implicitly overruled our SCV test with Johanns, 544 U.S. 550, 

and Summum, 555 U.S. 460. Specifically, North Carolina contends 

that those cases instruct us to consider only “the level of 

control the government exercises over the speech, not on who a 

reasonable observer views as the literal speaker.” Appellants’

Br. at 7. Again, we disagree with North Carolina’s argument and 

thus decline its invitation to “follow the ‘control’ test for 

government speech set forth in Johanns and affirmed in Summum.” 

Id. at 14.

Looking first at Johanns, we agree with the Ninth Circuit 

that the case is factually distinguishable from specialty 

license plate cases. “Johanns involved a government-compelled 

subsidy of government speech. . . . In Johanns, the individual 

harm was being forced to give the government money to pay for 

someone else’s message.” Ariz. Life Coal. Inc. v. Stanton, 515 

F.3d 956, 964 (9th Cir. 2008) (quotation marks omitted). In 

specialty license plate cases, by contrast, “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. (quotation marks 

omitted).
14

Further, the Supreme Court itself limited its holding to 

compelled subsidies, expressly declining to address as not on 

point even compelled speech arguments. Johanns, 544 U.S. at 

564-65.5 While doing so, the Supreme Court recognized the 

continued validity of Wooley v. Maynard, in which the Court held 

that vehicle owners had a First Amendment right to cover the 

“Live Free or Die” state motto on their New Hampshire license 

plates. Johanns, 544 U.S. at 565 n.8 (citing and distinguishing 

Wooley, 430 U.S. 705 (1977)). The Supreme Court also recognized 

the continued validity of West Virginia State Board of Education 

v. Barnette, in which the Court held a law requiring all 

schoolchildren to recite the Pledge of Allegiance and salute the 

American flag unconstitutional under the First Amendment. 

Johanns, 544 U.S. at 565 n.8 (citing and distinguishing 

Barnette, 319 U.S. 624 (1943)). Yet if North Carolina were 

correct in its assertion that government control of the message 

is all that matters, both Wooley and Barnette would have been 

 5 We recognize that, upon closer consideration, government 

subsidies may look more like government regulation than courts 

have generally been willing to admit. See, e.g., Joseph 

Blocher, Viewpoint Neutrality and Government Speech, 52 B.C. L. 

Rev. 695, 721 (2011) (noting, among other things, that funding 

one group effectively singles out disfavored, unsubsidized 

groups and thus looks like viewpoint-based regulation). We do 

not resolve that quandary here. We simply conclude that Johanns

did not overrule the four-factor framework this Court 

established in SCV I and has applied repeatedly since to 

determine who is speaking in cases like this one.
15

wrongly decided—and they surely would not have been cited in 

Johanns as good compelled speech law.

Indeed, Summum underscores that the Supreme Court did not 

espouse a myopic “control test” in Johanns. Specifically, in 

Summum, the Supreme Court held that placement of permanent 

monuments, including those designed and donated by private 

entities, in a city park constitutes government speech. 555 

U.S. at 481. As in Johanns, the Supreme Court considered the 

“control” factor, observing that the city “‘effectively 

controlled’ the messages sent by the monuments in the [p]ark by 

exercising ‘final approval authority’ over their selection.” 

Summum, 555 U.S. at 473 (quoting Johanns, 544 U.S. at 560–61). 

Importantly, however, the Supreme Court also focused on the 

perceived identity of the speaker. The Court noted that 

monuments installed on property are “routinely—and reasonably—

interpret[ed] as conveying some message on the property owner’s 

behalf.” Id. at 471. Accordingly, the Court concluded that 

“there is little chance that observers will fail to appreciate 

the identity of the speaker” as the property owner. Id. 

Additionally, context mattered in Summum. The Supreme 

Court focused on the fact that “public parks can accommodate 

only a limited number of permanent monuments.” Id. at 478. As 

the Court noted, “[s]peakers, no matter how long-winded, 

eventually come to the end of their remarks[,]” while “monuments 
16

. . . endure.” Id. at 479. We cannot square the Supreme 

Court’s multi-faceted, context-specific reasoning in Summum with 

North Carolina’s blanket contention that all that matters is who 

controls the message.6

The third Supreme Court case upon which North Carolina 

seeks to rely—Hurley v. Irish-American Gay, Lesbian & Bisexual 

Group of Boston—has absolutely no bearing on this one. 515 U.S. 

557 (1995). North Carolina cites to Hurley for the proposition 

that “[u]nder the government speech doctrine, North Carolina can 

claim the ‘fundamental rule of protection under the First 

Amendment, that a speaker has the autonomy to choose the content 

of his own message.’” Appellants’ Br. at 4 (quoting Hurley, 515 

U.S. at 573). But Hurley had nothing to do with the government 

speech doctrine—which, by its very nature, does not implicate 

the First Amendment. See, e.g., Summum, 555 U.S. at 467-68 

(noting that if the government engages in its “own expressive 

conduct, then the Free Speech Clause has no application” because 

“it does not regulate government speech”). Instead, that case 

centered on private parties’ free speech rights, holding that 

requiring private parade organizers to include amongst their

 6 The Supreme Court also noted “the legitimate concern that 

the government speech doctrine not be used as a subterfuge for 

favoring certain private speakers over others based on 

viewpoint.” Summum, 555 U.S. at 473. We do not take this 

concern lightly.
17

marchers a group whose message they opposed violated the 

organizers’ First Amendment rights. Hurley, 515 U.S. at 559. 

If anything, Hurley hurts North Carolina’s cause, not least due 

to its recognition that government regulation may not “interfere 

with speech for no better reason than promoting an approved 

message or discouraging a disfavored one, however enlightened 

either purpose may strike the government.” Id. at 579.

In sum, for over a decade, this Circuit has found the SCV

factors instructive in determining whether speech is that of the 

government, private parties, or both. Sometimes considering 

those factors has led us to conclude that speech implicated both 

government and private expression. See, e.g., WV Ass’n of Club 

Owners & Fraternal Servs., Inc. v. Musgrave, 553 F.3d 292, 299-

300 (4th Cir. 2009); Rose, 361 F.3d at 794. In other cases, 

considering the SCV factors led to the conclusion that the 

speech at issue was purely government (see, e.g., Turner, 534 

F.3d at 354) or purely private (see SCV I, 288 F.3d at 621). 

But regardless of our conclusion in any particular case, we have 

repeatedly looked to the SCV factors to help us identify the 

pertinent speaker. And neither an en banc decision from this 

Court, nor one from the Supreme Court, has implicitly, much less 

explicitly, suggested that to do so was to err. 
18

C.

Having concluded that the “instructive” factors we 

identified in SCV remain appropriate tools for evaluating 

whether speech is government, private, or both, we turn to 

applying those factors here.

1. The Central Purpose Of The Program In Which The Speech 

In Question Occurs

The first SCV factor, the central purpose of the program in 

which the speech in question occurs, may—or may not—be readily 

apparent. SCV I, 288 F.3d at 619. To divine the central 

purpose, this Court has considered, e.g., revenue generation and 

allocation and legislative intent. See, e.g., id.; Rose, 361 

F.3d at 793. 

Here, we must conclude that the purpose of the specialty 

license plate program, including the “Choose Life” plate, is to 

allow North Carolina drivers to express their affinity for 

various special interests, as well as to raise revenue for the 

state.7

 First, the legislative history of HB 289 indicates that 

 7 In his Rose opinion, Judge Michael focused exclusively on 

the “Choose Life” specialty plate and its authorizing 

legislation, rather than on South Carolina’s specialty plate 

program more broadly. That narrow focus does not square with 

SCV I’s instruction to look to the central purpose “of the 

program in which the speech in question occurs.” SCV I, 288 

F.3d at 618 (emphasis added). See also Am. Civil Liberties 

Union of Tenn. v. Bredesen, 441 F.3d 370, 389-90 (6th Cir. 2006) 

(Martin, J., dissenting) (“If we think of each individual 

license plate in a vacuum, each one can be reasonably 

(Continued)
19

the specialty license plate program was intended to be a forum 

for private expression of interests. See, e.g., Remark of 

Representative Tim Moore to the North Carolina House Fin. Comm. 

(June 2, 2011), J.A. 19 ¶ 33 (stating that specialty license 

plates constitute “voluntary speech that people are making by 

purchasing the license plate”). Fittingly, then, North Carolina 

expressly invites its vehicle owners to “[m]ake a statement with 

a specialized or personalized license plate” and to “find the 

plate that fits you.” http://www.ncdot.gov/dmv/vehicle/plates/. 

It describes its specialty plate program as “allow[ing] citizens 

with common interests to promote themselves and/or their 

causes.” http://www.ncdot.gov/dmv/online/. By contrast, 

nothing before us suggests that North Carolina has ever 

communicated to the public that the specialty plate program is

 

characterized as a government message. But, in order to 

properly characterize the specialty license plate program for 

First Amendment purposes, we cannot view each license plate in 

isolation. I suggest that when opening one’s eyes to the 

license plate program as a whole, it is evident that the 

government has created a program to encourage a diversity of 

views and messages from private speakers.”). Even were we to 

focus on the authorizing legislation alone, as did Judge 

Michael, the North Carolina law at issue here authorized a wide 

array of specialty plates, on topics ranging from wild turkeys 

to stock car racing. We therefore could not conclude here that 

the purpose of the authorizing law “is specifically to promote 

the expression of a pro-life viewpoint[,]” as opposed to 

legislation “allowing . . . for the private expression of 

various views[.]” Rose, 361 F.3d at 793 (quotation marks and 

citation omitted). 
20

government-only speech or that it seeks volunteers to help 

disseminate a government-only message. 

The specialty license plate program also has a significant

revenue-raising component. The NC DMV is authorized to develop 

a specialty license plate only after it has received three 

hundred applications from North Carolina drivers interested in 

the plate. N.C. Gen. Stat. § 20-81.12(b84). The specialty 

plate costs a vehicle owner an additional $25 per year. N.C. 

Gen. Stat. § 20-79.7. And $10 of that annual fee go to the 

North Carolina Highway Fund. Id. As we noted in SCV I: 

If the General Assembly intends to speak, it is 

curious that it requires the guaranteed collection of 

a designated amount of money from private persons 

before its ‘speech’ is triggered. It is not the case, 

in other words, that the special plate program only 

incidentally produces revenue for the [government]. 

The very structure of the program ensures that only 

special plate messages popular enough among private 

individuals to produce a certain amount of revenue 

will be expressed.

SCV I, 288 F.3d at 620 (footnote omitted).

Finally, the large number and wide array of specialty 

plates also weigh in favor of private speech. North Carolina 

drivers may choose from over two hundred specialty plates. And 

the subjects of those plates range from the controversial (Sons 

of Confederate Veterans, whose confederate flag logo many “view 

to be a symbol of racism and slavery,” Rose, 361 F.3d at 801

(Gregory, J., concurring)), to the religious (Knights of 
21

Columbus, a civic organization “which requires members to be 

practicing Catholics,” Roach v. Stouffer, 560 F.3d 860, 868 (8th 

Cir. 2009)), to the seemingly irrelevant to any conceivable 

North Carolina government interest (e.g., out-of-state 

universities). It defies logic, and may in fact create other 

problems (such as Establishment Clause issues in the case of the 

Knights of Columbus) to suggest that all of these plates 

constitute North Carolina’s—and only North Carolina’s—message.

In sum, the first SCV factor, the central purpose of the 

program in which the speech in question occurs, weighs in favor 

of finding the speech at issue here private.

2. The Degree Of Editorial Control Exercised By The 

Government Or Private Party Over The Content 

The second factor, “the degree of editorial control 

exercised by the government or private entities over the content 

of the speech,” weighs in favor of the government. The 

legislature determined, and the governor approved, the “Choose 

Life” message. 2011 N.C. Sess. Laws 392 (“The plate shall bear 

the phrase ‘Choose Life.’”). And the parties themselves agree 

that “complete editorial control” rests with North Carolina. 

Appellees’ Br. at 12.

3. The Identity Of The Literal Speaker

The third SCV factor, the identity of the literal speaker, 

weighs in favor of private speech. In coming to that 
22

conclusion, we first consider Wooley, in which the Supreme Court 

held that New Hampshire residents had a First Amendment right to 

cover the “Live Free Or Die” state motto on the standard state

license plate. 430 U.S. 705. Significantly, the Supreme Court 

there declared that New Hampshire’s citizens found themselves

“faced with a state measure” that “invades the sphere of 

intellect and spirit which it is the purpose of the First 

Amendment to our Constitution to reserve from all official 

control.” Id. at 715 (quotation marks omitted). In other 

words, the Supreme Court deemed license plates a sphere of 

private “intellect and spirit” that “implicat[es] First 

Amendment protections” from government control. Id.8

Moreover, any argument that the state alone is the literal 

speaker is substantially weaker here than it was in Wooley. In 

Wooley, the slogan at issue was the state motto, and it appeared 

on all non-commercial New Hampshire plates, “a fact presumably 

apparent to anyone driving in New Hampshire.” SCV II, 305 F.3d 

at 244 (Williams, J.). “A fortiori must it be the case that 

 8 North Carolina suggests that Wooley—which predates the 

Supreme Court’s recognition of the government speech doctrine 

and the “control test” North Carolina contends flows from 

Johanns and Summum—is no longer good law. Yet that contention 

flies in the face of Johanns itself, in which the Supreme Court 

majority recognized the continued validity of, and 

distinguished, Wooley. Johanns, 544 U.S. at 565 n.8. Clearly, 

the Supreme Court did not view Wooley as passé. Neither do we.
23

speech placed on a license plate by the government for a fee at 

the request of a private organization or individual is at a 

minimum partly the private speech of that organization or 

individual.” Id. at 246 (Luttig, J.). 

Indeed, to any reasonable observer, the literal speaker of 

a message on a specialty plate that the observer knows the 

vehicle owner selected is surely the vehicle owner. Messages on 

some specialty license plates, such as the dance plate “I’d 

Rather Be Shaggin,” N.C. Gen. Stat. 20-79.4(b)(203) (emphasis 

added), or the plate depicting a dog and cat and stating “I

care,” N.C. Gen. Stat. 20-79.4(b)(12) (emphasis added), make the 

connection explicit. 

We do not deny that specialty license plates are state 

property. Nor do we deny that even specialty plates, which must 

be authorized by state law, to some extent bear North Carolina’s

imprimatur. Nevertheless, the copious specialty license plates, 

including “Choose Life,” available to North Carolina drivers 

constitute “voluntary speech that people are making . . . .” 

Remark of Representative Tim Moore to the North Carolina House 

Fin. Comm. (June 2, 2011), J.A. 19 ¶ 33. Specialty plates are 

closely associated with the drivers who select and pay for them. 

And the driver, on whose car the special message constantly 

appears for all those who share the road to see, is the ultimate 
24

communicator. The third factor, the identity of the literal 

speaker, thus weighs in favor of private speech. 

4. Whether The Government Or The Private Party Bears 

Ultimate Responsibility For The Speech’s Content 

Finally, we must conclude that the fourth factor, the 

ultimate responsibility for the speech, weighs in favor of 

private speech. “When a special license plate is purchased, it 

is really the private citizen who engages the government to 

publish his message,” not the other way around. SCV II, 305 

F.3d at 246 (Luttig, J.). Indeed “‘but for’” the private 

individual’s action, the specialty license plate would never

exist. Id. North Carolina drivers must apply for the specialty 

plate, which is issued only after at least three hundred seek 

the plate. Further, those private individuals must pay for the 

specialty plate “over and above the cost exacted for a standard 

license plate.” Id.

In sum, applying SCV’s instructive factors to the facts at 

hand, we conclude that three of the four factors indicate that 

the specialty plate speech at issue is private, while one 

suggests that the specialty plate speech is government. In 

other words, we agree with the district court “that sufficient 

private speech interests are implicated by the specialty license 

plates to preclude a finding of purely government speech.” 

Conti, 912 F. Supp. 2d at 375.
25

Our conclusion is in line with those reached by our Sister 

Circuits in similar cases. With only one exception, all 

Circuits to have addressed the issue have held that specialty 

license plates implicate private speech rights and cannot 

properly be characterized as solely government speech. Roach, 

560 F.3d 860; Stanton, 515 F.3d 956; Choose Life Ill., Inc. v. 

White, 547 F.3d 853 (7th Cir. 2008); Women’s Emergency Network 

v. Bush, 323 F.3d 937 (11th Cir. 2003); cf. Perry v. McDonald, 

280 F.3d 159 (2d Cir. 2001). The sole outlier, the Sixth 

Circuit, held in Bredesen that Tennessee’s “Choose Life” 

specialty plate constituted pure government speech. 441 F.3d 

370. For the many reasons discussed above, we must agree with 

the Seventh Circuit that “this conclusion is flawed . . . .” 

White, 547 F.3d at 863. We have no hesitation in holding that 

the “Choose Life” plate at issue here implicates private speech 

rights and cannot correctly be characterized as pure government 

speech. 

D.

On appeal, North Carolina argues only that because its 

specialty plates are government speech, North Carolina can

viewpoint-discriminate free from First Amendment constraints. 

North Carolina did not argue, for example, that even if we were 

to deem specialty plates mixed speech, North Carolina still 

wins. North Carolina did not challenge in any way the district 
26

court’s conclusion that, upon finding private speech rights 

implicated, “the State’s offering of a Choose Life license plate 

in the absence of a pro-choice plate constitutes viewpoint 

discrimination in violation of the First Amendment.” Conti, 912 

F. Supp. 2d at 375. That conclusion, which is supported by 

Rose, therefore stands. See Rose, 361 F.3d at 799 (“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.”).

North Carolina nevertheless laments that if it has created 

a forum, it “must allow all viewpoints to be heard via specialty 

plates.” Appellants’ Br. at 30. This complaint seems at odds 

with North Carolina’s contention that its vast array of 

specialty plates “celebrat[es]” the “diversity of its citizen’s 

interests . . . .” Id. at 18, 41. Apparently, North Carolina 

wishes to celebrate only some interests of some of its citizens—

namely those with which it agrees. This, it may not do.

North Carolina then sounds the death knell for specialty 

plates, predicting a “flood” of “Kill The Sea Turtles” and 

“Children Last” plates that will force it to end its specialty 

plate program. Appellants’ Br. at 27-29. Melodrama aside, our 

ruling today “does not render [North] Carolina powerless to 

regulate its specialty license plate forum.” Rose, 361 F.3d at 

799. But it must do so in a viewpoint-neutral fashion—which it 
27

already does, to some extent, by requiring three hundred 

applicants before issuing a new specialty plate. Surely such a 

requirement can filter out “frivolous license plate proposals” 

and prevent the roads from being inundated with “license plates 

advocating reckless pet breeding.” Bredesen, 441 F.3d at 391 

(Martin, J., dissenting). 

Another alternative: North Carolina can choose to avoid

the reproductive choice debate altogether. Illinois, for 

example, “excluded the entire subject of abortion from its 

specialty-plate program.” White, 547 F.3d at 865. The Seventh 

Circuit upheld that viewpoint-neutral restriction, noting that 

“the State has effectively imposed a restriction on access to 

the specialty-plate forum based on subject matter: no plates on 

the topic of abortion. It has not disfavored any particular 

perspective or favored one perspective over another on that 

subject; instead, the restriction is viewpoint neutral.” Id. at 

866. But see Stanton, 515 F.3d 956. After all, “[i]t is one 

thing for states to use license plates to celebrate birds and 

butterflies . . . . It is quite another for the state to 

privilege private speech on one side-and one side only-of a 

fundamental moral, religious, or political controversy.”

Planned Parenthood Of S.C. Inc. v. Rose, 373 F.3d 580, 581 (4th 

Cir. 2004) (Wilkinson, J., voting to deny rehearing en banc).
28

III.

In sum, North Carolina invites its vehicle owners to 

“[m]ake a statement” and “promote themselves”—but only if they 

are on the government’s side of a highly divisive political 

issue. This, North Carolina may not do. Because the specialty 

plate speech at issue implicates private speech rights and is 

not pure government speech, North Carolina’s authorizing a 

“Choose Life” plate while refusing to authorize a pro-choice 

plate constitutes viewpoint discrimination in violation of the 

First Amendment.

AFFIRMED