PUBLISHED
`
`Filed: June 28, 2004
`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
`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.
`
`No. 03-1118
`
`ORDER
`
`Appellants filed a petition for rehearing and rehearing en banc.
`
`Judge Luttig, Judge Michael, and Judge Gregory voted to deny the
`petition for rehearing.
`
`(cid:252)
`(cid:253)
`(cid:254)
`

`
`2
`
`PLANNED PARENTHOOD v. ROSE
`
`On the poll requested by a member of the court on the petition for
`rehearing en banc, Judge Widener, Judge Niemeyer, Judge Williams,
`Judge Traxler, and Judge Shedd voted to grant rehearing en banc.
`Chief Judge Wilkins, Judge Wilkinson, Judge Luttig, Judge Michael,
`Judge Motz, Judge King, Judge Gregory, and Judge Duncan voted to
`deny rehearing en banc.
`
`The petition for rehearing is denied, and because the poll of judges
`in active service failed to produce a majority in favor of rehearing en
`banc, the petition for rehearing en banc is also denied. Judge Wilkin-
`son wrote an opinion concurring in the denial of rehearing en banc.
`Judge Shedd wrote an opinion, joined by Judge Williams, dissenting
`from the denial of rehearing en banc.
`
`Entered for the Court,
`
`/s/ Patricia S. Connor
`
`
` CLERK
`
`WILKINSON, Circuit Judge, concurring in the denial of rehearing en
`banc:
`
`At issue here is a South Carolina statute allowing citizens to opt for
`specialty license plates bearing the message "Choose Life." See S.C.
`Code Ann. § 56-3-8910. No specialty license plate with the opposite
`message is similarly available. Planned Parenthood of South Carolina,
`Inc. and Renee Carter have challenged the statute authorizing the
`"Choose Life" plates. The statute’s message could be reversed and the
`plaintiffs’ position could be pro-life, not pro-choice, but the principles
`that govern this case would remain the same.
`
`I vote to deny rehearing en banc. I simply do not believe the state
`should use license plates to practice viewpoint discrimination. See
`Sons of Confederate Veterans, Inc. v. Comm’r of Va. Dep’t of Motor
`Vehicles, 305 F.3d 241, 242 (Wilkinson, C.J., concurring in the denial
`of rehearing en banc). That is plainly what is happening here. The
`state is saying that its citizens may express one view on a profound
`controversy but not the other. Citizens are permitted to express their
`agreement with the officially sanctioned policy, but they have no sim-
`
`

`
`PLANNED PARENTHOOD v. ROSE
`
`3
`
`ilar outlet to express their disagreement with it. This is a presidential
`election year. May a state issue plates touting one candidate, but not
`another? It is one thing for states to use license plates to celebrate
`birds and butterflies, military service, historical events and scenic vis-
`tas. 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.
`
`The state would argue that its viewpoint discrimination is permissi-
`ble, because its license plates constitute pure government speech. But
`the speech here only becomes speech by virtue of a citizen’s choice.
`When speakers mount a soapbox or hoist a placard, one presumes
`they are free to create their own messages. I am not convinced that
`the mere presence of a license plate allows the state unlimited author-
`ity to channel would-be speakers into privileged categories of expres-
`sion of the state’s own choosing.
`
`Just as I considered Sons of Confederate Veterans "a free speech
`case, not . . . a Confederate flag case," id. at 242, this to me is a First
`Amendment case, not a case about abortion. "It will not do to decide
`the same question one way between one set of litigants and the oppo-
`site way between another." Benjamin N. Cardozo, The Nature of the
`Judicial Process 33 (1921). The fact that Americans have deep differ-
`ences of opinion on subjects such as these is all the more reason to
`recognize the unifying force of the First Amendment principle —
`namely, that none of us has the right to compel assent to our views,
`but that all of us have the right to express them. The state’s failure
`to be neutral on the right to speak about our most divisive issues will
`give rise to great resentment. The confidence that all are treated
`equally with respect to belief, conscience, and expression enables
`Americans to transcend difference and to make "e pluribus unum" the
`lasting legacy of our nation.
`
`SHEDD, Circuit Judge, dissenting from the denial of rehearing en
`banc:
`
`According to the panel, the South Carolina General Assembly may
`enact a statute declaring "Choose Life" the official motto of the state,
`and that message may be printed on every standard license plate
`issued to vehicle owners in the state, but the General Assembly may
`
`

`
`4
`
`PLANNED PARENTHOOD v. ROSE
`
`not take the less intrusive step of enacting a statute authorizing a spe-
`cialty license plate bearing precisely the same message for interested
`vehicle owners willing to pay a higher fee. Not only is this result
`bizarre on its face, but it also reflects a misapplication of our recent
`decision in Sons of Confederate Veterans, Inc. v. Commissioner of the
`Virginia Department of Motor Vehicles, 288 F.3d 610 (4th Cir. 2002)
`("SCV"). Because the panel’s decision unduly restricts the ability of
`elected officials to express the views of their constituents on any
`issue, however controversial, I dissent from the denial of rehearing en
`banc.1
`
`I.
`
`South Carolina issues a license plate to the owner of every vehicle
`registered in and licensed by the State. S.C. Code Ann. § 56-3-1210.
`The State owns every license plate, but state law requires that the
`plate be displayed on the vehicle. Id. There are two basic methods by
`which South Carolina permits issuance of specialty license plates.
`One method for obtaining a specialty plate is by application to the
`Department of Public Safety ("DPS") pursuant to the administrative
`approval process described in S.C. Code Ann. § 56-3-8000. Under
`this statute, a certified nonprofit organization (or a member of such
`organization) desiring a specialty plate must apply to DPS and submit
`four hundred prepaid applications or a $4,000 deposit, as well as a
`marketing plan for sale of the plate. Id. § 56-3-8000(A)-(B). DPS has
`discretion to "alter, modify, or refuse to produce" any organizational
`specialty plate that it deems "offensive" or that "fails to meet commu-
`nity standards." Id. § 56-3-8000(H). Once approved, a specialty plate
`under this section is available only to certified members of the rele-
`vant organization. Id. § 56-3-8000(D). Revenues generated by sales of
`such a plate may be spent only to defray the costs of producing non-
`profit organizational plates pursuant to this section. Id. § 56-3-
`8000(F).
`
`1It is important to note that the panel’s analysis applies equally to all
`messages printed on specialty license plates, not just messages concern-
`ing abortion. Given the wide variety of messages currently appearing on
`specialty plates in South Carolina, see discussion infra, the implications
`of this decision are far-reaching indeed.
`
`

`
`PLANNED PARENTHOOD v. ROSE
`
`5
`
`A second method for obtaining a specialty plate is by direct action
`in the General Assembly. The General Assembly has enacted separate
`statutes authorizing issuance of specialty plates to members of certain
`organizations. See, e.g., S.C. Code Ann. § 56-3-3410 (National Wild
`Turkey Federation); id. § 56-3-3800 (American Legion); id. § 56-3-
`7100 (Shriners); id. § 56-3-8200 (Rotary International); id. § 56-3-
`8400 (Lions Club); id. § 56-3-8600 (Ducks Unlimited). Likewise, the
`General Assembly has authorized specialty plates recognizing organi-
`zations for issuance to any interested vehicle owner. See, e.g., id.
`§ 56-3-3600 (South Carolina Nurses); id. § 56-3-4100 (South Caro-
`lina Elks Association); id. § 56-3-90 (Sertoma International). In addi-
`tion, the General Assembly has approved specialty plates for disabled
`veterans, id. § 56-3-1120; former prisoners of war, id. § 56-3-1150;
`Medal of Honor recipients, id. § 56-3-1850; Purple Heart recipients,
`id. § 56-3-3310; Normandy Invasion survivors, id. § 56-3-5350; Pearl
`Harbor survivors, id. § 56-3-5920; and World War II veterans and
`their spouses, id. § 56-3-8800, among others. The General Assembly
`has even approved a specialty plate commemorating the introduction
`of the "Shag" as South Carolina’s state dance. Id. § 56-3-3910.
`
`The General Assembly does not authorize specialty plates merely
`to recognize certain individuals, organizations, and the official dance.
`Some authorizing statutes earmark revenues generated from sales of
`specialty plates to support identified programs. See, e.g., id. § 56-3-
`5010 (earmarking a portion of the fees generated by the "Public Edu-
`cation: A Great Investment" plate for the purchase of computers in
`identified school districts); id. § 56-3-7300 (requiring fees collected
`for sales of a Saltwater Fishing plate to be deposited into a special
`account for management and conservation of the state’s marine
`resources); id. § 56-3-7910 (requiring fees collected for sales of the
`H.L. Hunley submarine plate to be distributed to the Fund to Save the
`Hunley for continued curation efforts); id. § 56-3-9100 (earmarking
`proceeds from sales of the South Carolina Technology Alliance plate
`for development of high technology programs and businesses); id.
`§ 56-3-930 (earmarking proceeds from sales of "United We Stand"
`plates for deposit into a fund created to establish rewards for the cap-
`ture of terrorists); id. § 56-3-9500 (designating proceeds from sales of
`"God Bless America" plates for use by the South Carolina National
`Guard for homeland security purposes); id. § 56-3-9600 (designating
`
`

`
`6
`
`PLANNED PARENTHOOD v. ROSE
`
`proceeds from sales of "No More Homeless Pets" plates for animal
`spaying and neutering programs).
`
`On rare occasions, the General Assembly takes the unusual step of
`prescribing the message that appears on a specialty plate. For
`instance, the Nongame Wildlife and Natural Areas Fund plate must
`bear the message "South Carolina Protects Endangered Species," id.
`§ 56-3-4510, and another plate must bear the message "Public Educa-
`tion: A Great Investment," id. § 56-3-5010. The General Assembly
`has authorized specialty plates bearing the messages "Conserve South
`Carolina," id. § 56-3-2540; "Keep South Carolina Beautiful," id. § 56-
`3-3950; "In God We Trust," id. § 56-3-9200; "United We Stand," id.
`§ 56-3-9300; and "God Bless America," id. § 9500, among others.2
`
`In 2001, the General Assembly enacted a separate statute authoriz-
`ing the issuance of a specialty plate bearing the message "Choose
`Life." Id. § 56-3-8910. This plate is available to all interested vehicle
`owners in the State. Id. § 56-3-8910(A). Purchasers of the "Choose
`Life" plate must pay a $70 fee every other year in addition to the
`basic fee for license plates, and proceeds from sales of this plate are
`earmarked for a special account from which the South Carolina
`Department of Social Services makes grants to support crisis preg-
`nancy programs. Id. § 56-3-8910(A)-(B). The statute specifically pro-
`vides that such grants "may not be awarded to any agency, institution,
`or organization that provides, promotes, or refers for abortion." Id.
`§ 56-3-8910(B). Under the "Choose Life" statute, production of the
`specialty plate could commence once the South Carolina Department
`of Motor Vehicles received four hundred prepaid applications or a
`$4,000 deposit; in this respect, the "Choose Life" statute is identical
`to other specialty license plate statutes that support special programs
`and prescribe particular messages. See, e.g., id. § 56-3-4410; id. § 56-
`
`2The panel erroneously asserts that South Carolina does not authorize
`specialty plates bearing messages concerning "politically controversial"
`subjects. Planned Parenthood of S.C. Inc. v. Rose, 361 F.3d 786, 788
`(4th Cir. 2004). Not only does this assertion ignore the fact that environ-
`mental policy, education policy, and government-sponsored references to
`God often generate public controversy, but it erroneously suggests that
`the degree of controversy surrounding a particular message affects the
`status of that message vis-a-vis the First Amendment.
`
`

`
`PLANNED PARENTHOOD v. ROSE
`
`7
`
`3-5200; id. § 56-3-7300; id. § 56-3-7910; id. § 56-3-9100; id. § 56-3-
`9200; id. § 56-3-9300; id. § 56-3-9500; id. § 56-3-9600.
`
`II.
`
`The outcome of this case depends upon the proper characterization
`of the statutorily prescribed "Choose Life" message as private speech
`or government speech.3 If the "Choose Life" message is properly
`labeled private speech, then the government has preferred one private
`message over other messages based upon the viewpoints of those
`messages. The First Amendment ordinarily does not permit such
`viewpoint discrimination. SCV, 288 F.3d at 622 (citing Arkansas
`Educ. Television Comm’n v. Forbes, 523 U.S. 666, 677 (1998), and
`Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 828
`1995)). If, on the other hand, the "Choose Life" message is properly
`labeled government speech, then the ordinary prohibition against
`viewpoint discrimination is inapplicable and the statute survives First
`Amendment scrutiny. The government can speak for itself, and it can
`take measures designed to ensure that its message is not distorted.
`SCV, 288 F.3d at 616-17 (citing Board of Regents of Univ. of Wis.
`Sys. v. Southworth, 529 U.S. 217, 229 (2000), and Griffin v. Depart-
`ment of Veterans Affairs, 274 F.3d 818, 822 (4th Cir. 2001)). As we
`noted in SCV, "[t]he rationale behind the government’s authority to
`draw otherwise impermissible viewpoint distinctions in the govern-
`ment speech context is the accountability inherent in the political pro-
`cess." 288 F.3d at 618 (citing Southworth, 529 U.S. at 235).4
`
`3The State sought reconsideration of the standing issue as well as the
`substantive First Amendment issue. At the very least, the panel’s stand-
`ing analysis should have reckoned with contrary decisions from the Fifth
`and Eleventh Circuits in the only other federal appellate cases involving
`"Choose Life" license plates. See Henderson v. Stalder, 287 F.3d 374
`(5th Cir.), cert. denied, 123 S. Ct. 602 (2002); Women’s Emergency Net-
`work v. Bush, 323 F.3d 937 (11th Cir. 2003). Indeed, the Eleventh Cir-
`cuit found standing lacking even where the plaintiffs had attempted, but
`failed, to obtain enactment of a statute authorizing pro-choice specialty
`plates. Women’s Emergency Network, 323 F.3d at 946 n.12. No such
`effort was made in this case.
`4Drawing distinctions between private speech and government speech
`can be a difficult task in the context of license plates. Since the govern-
`
`

`
`8
`
`PLANNED PARENTHOOD v. ROSE
`
`In determining whether a particular message constitutes private
`speech or government speech, we consider four separate, but closely
`related, factors: (1) the purpose of the program in which the speech
`occurs, (2) the degree of editorial control over the speech by the gov-
`ernment, (3) the identity of the literal speaker, and (4) which party —
`the government or a private party — bears ultimate responsibility for
`the speech. SCV, 288 F.3d at 618-19.
`
`The speech at issue in SCV was the background logo of the Sons
`of Confederate Veterans, which included a representation of the Con-
`federate flag. Although the Virginia legislature approved a specialty
`plate for the group, the authorizing statute included a unique restric-
`tion that prohibited the use of any symbol or emblem on the plate. We
`invalidated this logo restriction on the ground that it impermissibly
`discriminated against private speech based upon the viewpoint
`expressed by inclusion of the Confederate flag in the Sons of Confed-
`erate Veterans’ logo. Id. at 626, 629.
`
`In reaching this conclusion, we noted that the purpose of the pro-
`gram in which the speech occurred was to "produce revenue while
`allowing, on special plates authorized for private organizations, for
`the private expression of various views." Id. at 619. Moreover, the
`
`ment produces the plate, issues the plate for identification purposes, and
`actually owns the plate, it may always be said that the government
`speaks whatever message appears on a particular plate; at the same time,
`since a private individual or entity owns the vehicle on which the plate
`is displayed, there is a very real sense in which that private party may
`be said to speak the message that appears on the plate. See Planned Par-
`enthood, 361 F.3d at 794; Sons of Confederate Veterans v. Commissioner
`of Va. Dep’t of Motor Vehicles, 305 F.3d 241, 245-46 (4th Cir. 2002)
`("SCV II") (Luttig, J., respecting denial of reh’g en banc); id. at 252
`(Gregory, J., dissenting from denial of reh’g en banc). Nevertheless,
`while the "private speech" and "government speech" categories are
`imprecise when applied to messages printed on license plates, they
`remain useful in describing the degree of government involvement in
`creating and speaking particular messages. The bottom-line question,
`then, is whether the government speech component to the "Choose Life"
`message is so substantially greater than the private speech component
`that the message may fairly be characterized as "government speech."
`
`

`
`PLANNED PARENTHOOD v. ROSE
`
`9
`
`state exercised "little, if any" editorial control over the content of spe-
`cialty license plates. Id. at 621. Citing Wooley v. Maynard, 430 U.S.
`705 (1977), for the proposition that "license plates . . . implicate pri-
`vate speech interests because of the connection of any message on the
`plate to the driver or owner of the vehicle," we concluded that the lit-
`eral speaker was the vehicle owner rather than the government and
`that the vehicle owner bore ultimate responsibility for the message
`conveyed by the Sons of Confederate Veterans logo. SCV, 288 F.3d
`at 621. As a result, we held that the background logo on the Sons of
`Confederate Veterans specialty plate was private speech rather than
`government speech. Id.
`
`The statutory scheme at issue here differs in material respects from
`the scheme at issue in SCV, and I believe that the four-factor analysis
`yields a different result. With respect to the first factor, there can be
`no doubt that the primary purpose of the "Choose Life" statute is to
`express the General Assembly’s current position on the abortion
`issue. A secondary purpose of the statute is to generate revenues for
`crisis pregnancy programs, specifically programs that do not provide
`or promote abortions. As the panel correctly recognized, this statute
`was intended to make a statement about the General Assembly’s pref-
`erence for the pro-life position. Planned Parenthood, 361 F.3d at 793.
`
`It is equally clear that the General Assembly exercised complete
`editorial control over the "Choose Life" plate. The General Assembly
`created and codified the particular message that appears on the plate.
`Unlike the statute at issue in SCV — and unlike most other specialty-
`plate statutes in South Carolina — the "Choose Life" statute actually
`mandates the message that appears on the plate.
`
`To this point in the analysis, the "Choose Life" message is plainly
`government speech. The government intended to express its own
`viewpoint, and it created a message to achieve that objective. The
`panel concedes this much. Planned Parenthood, 361 F.3d at 793. At
`this point, however, the panel takes a turn toward private speech that
`I find unwarranted. While I do not disagree that the vehicle owner is
`a literal speaker with respect to the "Choose Life" message, the
`panel’s analysis too quickly dismisses the government’s role as the
`predominant speaker.
`
`

`
`10
`
`PLANNED PARENTHOOD v. ROSE
`
`The panel begins with the modest proposition that messages on
`license plates "are associated at least partly with the vehicle owners."
`Planned Parenthood, 361 F.3d at 794 (citing Wooley, 430 U.S. at
`717). Indeed, Wooley goes no further than that. At issue in Wooley
`was a New Hampshire statute making it a misdemeanor knowingly to
`obscure the figures or letters on a license plate, including the state’s
`motto, "Live Free or Die." The Supreme Court held that New Hamp-
`shire could not punish vehicle owners who registered their objections
`to the state motto by obscuring that message on their license plates.
`Id. at 717. More broadly, a state cannot "require an individual to par-
`ticipate in the dissemination of an ideological message by displaying
`it on his private property in a manner and for the express purpose that
`it be observed and read by the public." Id. at 713. Because there is
`nothing in this case remotely akin to compelled speech, Wooley is of
`little use here. For present purposes, Wooley suggests that (1) the gov-
`ernment can speak its messages through the medium of license plates
`but (2) vehicle owners may choose to reject the government’s mes-
`sages. Thus, Wooley recognizes that both the government and the
`vehicle owner are literal speakers, to varying degrees, with respect to
`messages printed on license plates. To decide this case (and any spe-
`cialty license plate case), we must ask whether any peculiar circum-
`stance surrounding the specialty plate so diminishes the government’s
`role as a literal speaker or highlights the vehicle owner’s role as a lit-
`eral speaker that one or the other party must be deemed the sole
`speaker.
`
`The panel concludes that the vehicle owner should be treated as the
`literal speaker of the message on a specialty license plate because "the
`specialty plate gives private individuals the option to identify with,
`purchase, and display one of the [State’s] authorized messages."
`Planned Parenthood, 361 F.3d at 794. I disagree. By giving interested
`citizens the option to endorse its message, the State has not lost its
`place as the literal speaker of that message. The proper question is
`whether the private citizen "engages the government to publish his
`message" or the government "engages the private citizen to publish
`its message." SCV II, 305 F.3d at 246 (Luttig, J.). The Virginia statute
`at issue in SCV called for a specialty plate to be issued only upon
`application by an organization, with the design of that plate proposed
`by the organization. Thus, the message was created by private citi-
`zens, and it was left to the government to approve or disapprove that
`
`

`
`PLANNED PARENTHOOD v. ROSE
`
`11
`
`message. By contrast, under South Carolina’s "Choose Life" statute,
`the government expresses its message on its own initiative, and pri-
`vate citizens are invited to take that message or leave it. Private citi-
`zens do not suggest the message, nor do they compose it. On their
`own, they cannot change the message. The vehicle owner’s purchas-
`ing the specialty plate signifies his endorsement of the State’s mes-
`sage, not his engaging the State to speak his own message.
`
`Just as the State should be deemed the literal speaker of the
`"Choose Life" message, so the State will bear ultimate responsibility
`for that message. The General Assembly alone created the message,
`and it wrote that message into state law for the watching electorate
`to see. Assuming that the panel correctly perceives the divisiveness
`of the abortion issue in South Carolina, that fact would suggest a
`heightened awareness by voters of the General Assembly’s role in
`authorizing the "Choose Life" plate. I can think of no more transpar-
`ent act of government than the enactment of a statute that says in
`plain terms what it purports to do. I can think of no clearer demonstra-
`tion of political accountability than for citizens opposed to this
`"Choose Life" license plate to turn out the current government and
`replace it with a government that will amend or repeal the statute and
`perhaps even replace it with a statute calling for pro-choice specialty
`plates. See Southworth, 529 U.S. at 235 ("When the government
`speaks . . . it is, in the end, accountable to the electorate and the politi-
`cal process for its advocacy. If the citizenry objects, newly elected
`officials later could espouse some different or contrary position.").
`According to the factors set out in SCV, South Carolina’s "Choose
`Life" license plate is properly characterized as government speech,
`not private speech, and is therefore permissible under the First
`Amendment.
`
`III.
`
`The "Choose Life" statute does not create a forum for private
`expression so much as it supports an established government pro-
`gram. The Supreme Court in Rust v. Sullivan, 500 U.S. 173 (1991),
`approved the federal government’s policy of offering federal funds to
`private health clinics on the condition that those clinics not counsel
`or provide abortions. Id. at 193. Answering the argument that the fed-
`eral government was restricting private physicians’ speech based
`
`

`
`12
`
`PLANNED PARENTHOOD v. ROSE
`
`upon viewpoint, the Court stated that "[t]he Government can, without
`violating the Constitution, selectively fund a program to encourage
`certain activities it believes to be in the public interest, without at the
`same time funding an alternative program which seeks to deal with
`the problem in another way. In so doing, the Government has not dis-
`criminated on the basis of viewpoint; it has merely chosen to fund one
`activity to the exclusion of the other." Id. In other words, when the
`government establishes a program, it is permitted to define the con-
`tours of that program as it sees fit. Rust, 500 U.S. at 194. The govern-
`ment may refuse to fund speech that is inconsistent with the program
`thus defined. Id. at 194-95.
`
`The "Choose Life" statute is analogous to the federal regulations
`at issue in Rust. The "Choose Life" statute earmarks revenues gener-
`ated from sales of this specialty plate for a government grant program
`established to fund crisis pregnancy services that specifically do not
`counsel abortion. In furtherance of this identified program, the statute
`offers the plates for sale to private persons who wish to support the
`"Choose Life" message and the crisis pregnancy grant program. Just
`as in Rust, the government has created a program and enlisted willing
`participants to support that program. As in Rust, "we have not here
`the case of a general law singling out a disfavored group on the basis
`of speech content, but a case of the Government refusing to fund
`activities, including speech, which are specifically excluded from the
`scope of the project funded." Id. If the government can actually
`restrict private entities’ speech in furtherance of an established gov-
`ernment program, as it did in Rust, then surely it can speak its own
`message — without restricting anyone else’s speech — in furtherance
`of such a program. See 500 U.S. at 193 (stating that "[t]here is a dif-
`ference between direct state interference with a protected activity and
`state encouragement of an alternative activity consonant with legisla-
`tive policy").
`
`Perhaps even more troubling are the panel’s contentions that "the
`State’s role in promoting the Choose Life message is obscured from
`the public" and that the "Choose Life" statute represents "cloaked
`advocacy" that insulates the General Assembly from criticism and
`electoral retribution. Planned Parenthood, 361 F.3d at 795-96, 798.
`Nothing but the panel’s conjecture supports such conclusions.
`
`

`
`PLANNED PARENTHOOD v. ROSE
`
`13
`
`According to the panel, ordinary South Carolinians will likely be
`misled into believing that the presence of the "Choose Life" plate and
`the absence of an opposing plate "are the result of popular choice."
`Id. at 798. Likewise, the panel worries that ordinary citizens might be
`misled into thinking that the State "has already won support for the
`position it is promoting." Id. The panel offers no justification for its
`suspicion that the government of South Carolina — the General
`Assembly and the governor — misrepresented popular sentiments
`when it enacted the "Choose Life" statute. In any event, whether or
`not a majority of South Carolina voters approve the "Choose Life"
`message, a majority of their elected representatives did approve that
`message in open session and on a public record. If those duly elected
`representatives misjudged their constituents’ opinions, then they will
`be held accountable for their error; if the abortion issue is as contro-
`versial in South Carolina as the panel asserts, then a legislator’s vote
`on the "Choose Life" statute will surely be noticed. We ought not
`short-circuit regular political processes based upon speculation that
`the citizens of South Carolina cannot discern what role their elected
`representatives played in enacting the "Choose Life" statute.
`
`The mere fact that the General Assembly has authorized a myriad
`of specialty license plates does not diminish its accountability for the
`"Choose Life" message. First, it is the rare specialty plate for which
`the General Assembly actually writes the message — an act more
`conspicuous when it happens than the simple approval of an organiza-
`tion’s suggested design. Second, if the panel is correct that abortion
`is an especially divisive issue in South Carolina, then the General
`Assembly’s taking the extraordinary step of authoring the "Choose
`Life" message would be expected to draw extraordinary public atten-
`tion. Under the panel’s view, merely allowing issuance of plates other
`than the standard plate so confuses ordinary citizens that they cannot
`be expected to know when their legislature takes sides in an important
`debate.5
`
`5The panel’s suggestion that the General Assembly scrap the "Choose
`Life" statute and replace it with a new statute making "Choose Life" an
`official motto of the State is dubious at best. Under the panel’s own rea-
`soning, the problem here is the medium: Specialty license plates do not
`readily identify the literal speaker of the message, such that ordinary citi-
`zens cannot hold their elected leaders accountable for their role in speak-
`
`

`
`14
`
`PLANNED PARENTHOOD v. ROSE
`
`IV.
`
`"It is inevitable that government will adopt and pursue programs
`and policies within its constitutional powers but which nevertheless
`are contrary to the profound beliefs and sincere convictions of some
`of its citizens." Southworth, 529 U.S. at 229. Indeed, the General
`Assembly has adopted and pursued a policy concerning abortion that
`is contrary to some South Carolinians’ sincere convictions. The ques-
`tion here is not whether the General Assembly has expressed the cor-
`rect position, or even the more popular position; rather, the question
`is whether the General Assembly may express any position on a spe-
`cialty license plate. The panel says it may not, even though there is
`no danger that vehicle owners who object to the "Choose Life" mes-
`sage will be compelled to display this plate and even though the Gen-
`eral Assembly (unlike the Virginia legislature in SCV) has not in any
`way singled out a group or message for unfavorable treatment. This
`holding unduly restricts the ability of state governments to express the
`views of their constituents on matters of public importance.
`
`It is important to note that the panel’s holding affects much more
`than the "Choose Life" plate alone. The General Assembly has taken
`similar action with respect to environmental conservation, S.C. Code
`Ann. § 56-3-3950; public education, id. § 56-3-5010; and even the
`war on terror, id. § 56-3-9300. The messages expressed on these top-
`ics may be described as ideological and even controversial. Like the
`"Choose Life" plate, the specialty plates approved in these statutes are
`the creatures of ordinary political processes; their messages are pre-
`scribed by the legislature itself; and they are made available to any
`interested vehicle owner willing to pay an extra fee. Like the "Choose
`Life" plate, these plates generate revenues earmarked for specific
`government programs. Under the panel’s analysis, these plates and
`others like them must be discontinued unless the General Assembly
`also provides for plates bearing contrary messages. In other words,
`
`ing that message. Planned Parenthood, 361 F.3d at 798-99. If the
`problem is the medium, then it should make no difference at all whether
`"Choose Life" is designated an official motto. By the panel’s logic, no
`message appearing on a specialty license plate can be treated as govern-
`ment