Illinois' Choose Life License Plate

Oral argument of the Secretary of State's appeal of our trial court victory in Choose Life, Inc. v. Jesse White is scheduled for Tuesday, November 27, at 9:00 am before the U.S. Court of Appeals for the Seventh Circuit.  Last January, 2007, Judge David Coar ruled for our side, granting our motion for "summary judgment" (i.e., the case was decided on paper, as there were no material factual disputes between the parties and thus the case could be, and was, resolved strictly on legal issues).

udge Coar ruled that Secretary of State White himself had been given authority by the Illinois statutes to approve and issue specialty license plates. 

Over 25,000 Illinois citizens had signed petitions for issuance of these plates.  If each "choose life" plate would yield a modest premium of $10 to $25 for the benefit of adoption agencies in our state, renewable annually, you can see that a great deal is hanging in the balance — in terms of promoting adoption in Illinois as well as in political and financial terms.

Illinois Attorney General Lisa Madigan's office has been handling the appeal for Secretary of State White.  On appeal, the State has argued that the messages on Illinois specialty license plates are "government speech," not private speech, and therefore that the government — the State of Illinois — is free to advocate in favor of some causes and to reject advocacy in favor of others.  Here, the Attorney General argues, the State has decided against involvement in "controversial" topics, such as the "choose life" plate.

Also, the State argues that the statutory scheme does not vest authority in the Secretary of State to make the final decision on approval and issuance of specialty plates.  That decision is reserved for the General Assembly, which must pass a specific law approving each and every specialty plate — as has been the practice for many years.

Moreover, the State has cited a new bill that was passed at the last session of the General Assembly and which went into effect last summer when the deadline passed without the Governor signing it.  This new law now provides that the General Assembly must approve each plate.  The Secretary has written the Court a letter urging that this new law confirms its position as it clarifies the legislative intent behind the license plate statutes at the time when Judge Coar handed down its decision.

On our side of the argument, we insist that specialty license plates rather obviously involve "private speech" — just as if a private speaker were standing on a soapbox in Daley Plaza , advocating a point of view.  No government — city, state or federal — may censor that speaker on account of the content of his or her views absent some compelling government interest and then only when government narrowly tailored its restrictive rule to serve on that specific compelling interest — except, of course, in cases where private speech is either obscene or an incitement to imminent, lawless violence or 'fighting words' (a category that many argue has been undermined by later free speech precedents).  Here, the Secretary's practice of 'passing the buck' to the General Assembly allowed blatant "viewpoint discrimination" against this specific pro-adoption message in defiance of fundamental First Amendment principles.  The State has made license plates into a public forum, letting all variety of private groups promote their favored causes — from the environmental bird to the peace dove, and so forth.  The alleged avoidance of 'controversial' subjects is transparently bogus as so many of the plates that have been approved and in production and use all over our  Illinois highways are 'controversial.'

As for the new law, we say this only confirms our position as adopted by the Court below, namely, that the Illinois statutes had vested full authority in the Secretary of State to approve specialty license plates.  If this were not so, why then would there be any need to pass this new law?  In fact, given that the Secretary's passing the buck to the legislature had been ruled unconstitutional by the district court, isn't passage of this law akin to illicit state refusal to remedy a federal constitutional violation?  That is, doesn't this put Illinois in a role similar to that of Governor Faubus and Governor Wallace who refused federal orders to integrate schools in obedience to Brown v. Board of Education and other federal decisions banning race discrimination by state law and ordering integration of the public schools?  Such resistance to Judge Coar's federal decree only exacerbates the constitutional violation that was committed here.