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
`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
`
`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
`
`(cid:252)
`(cid:253)
`(cid:254)
`

`
`2
`
`PLANNED PARENTHOOD v. ROSE
`
`Before LUTTIG, MICHAEL, and GREGORY, Circuit Judges.
`
`Affirmed by published opinion. Judge Michael wrote a separate opin-
`ion and announced the judgment. Judge Luttig wrote an opinion con-
`curring in the judgment. Judge Gregory wrote an opinion concurring
`in the judgment.
`
`COUNSEL
`
`ARGUED: Tracey Colton Green, Assistant Deputy Attorney Gen-
`eral, OFFICE OF THE ATTORNEY GENERAL, Columbia, South
`Carolina, for Appellants. Carrie Y. Flaxman, PLANNED PARENT-
`HOOD 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 FEDERA-
`TION 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., Charles-
`ton, South Carolina, for Appellees. Mathew D. Staver, Erik W. Stan-
`ley, 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, Lou-
`isiana, 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 Caro-
`
`

`
`PLANNED PARENTHOOD v. ROSE
`
`3
`
`lina officials on First Amendment grounds, claiming that the statute
`authorizing the Choose Life plate amounts to viewpoint discrimina-
`tion 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 sym-
`bol" 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 organi-
`zation.
`
`

`
`4
`
`PLANNED PARENTHOOD v. ROSE
`
`Additional statutory provisions authorize various other specialty
`plates, most of which recognize veterans or members of civic organi-
`zations; 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 controver-
`sial 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 con-
`sidered 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 own-
`ers 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 pro-
`life 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 initia-
`tive.
`
`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
`
`

`
`PLANNED PARENTHOOD v. ROSE
`
`5
`
`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 view-
`point. 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 dis-
`criminates 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. Hig-
`gins 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 jurisdic-
`tion 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).
`
`

`
`6
`
`PLANNED PARENTHOOD v. ROSE
`
`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 plain-
`tiffs allege that the Act authorizing the Choose Life plate causes the
`discriminatory treatment by allowing pro-life supporters, but not pro-
`choice 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 extend-
`ing 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 prac-
`tices 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
`
`

`
`PLANNED PARENTHOOD v. ROSE
`
`7
`
`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 pro-
`choice 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 inabil-
`ity 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 impermiss-
`ibly 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 view-
`point, 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 pre-
`ferred 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 there-
`fore 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
`
`

`
`8
`
`PLANNED PARENTHOOD v. ROSE
`
`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 non-
`profit organizations. The plaintiffs’ failure to apply for an organiza-
`tional plate is not fatal to their standing to challenge the Act. Even
`assuming that the plaintiffs would have been able to obtain an organi-
`zational 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 pro-
`choice organization, assuming she was a certified member of that
`organization. Therefore, the complained-of unequal treatment (or dis-
`crimination) 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 plain-
`tiffs 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
`
`

`
`PLANNED PARENTHOOD v. ROSE
`
`9
`
`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 autho-
`rized, through the Act, a license plate with the Choose Life message.
`The usual first step in answering such a question is to classify the rel-
`evant message as either government speech or private speech. See
`Legal Servs. Corp. v. Velazquez, 531 U.S. 533 (2001); Sons of Con-
`federate 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 dis-
`crimination 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 regu-
`lates 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 mes-
`sage 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
`
`

`
`10
`
`PLANNED PARENTHOOD v. ROSE
`
`yet been enunciated in our circuit or by the Supreme Court for deter-
`mining 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 Con-
`federate flag. We concluded that the restriction prohibiting display of
`the organization’s emblem, though neutral on its face, was in fact dis-
`criminatory 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 pri-
`vate 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 Com-
`monwealth 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
`
`

`
`PLANNED PARENTHOOD v. ROSE
`
`11
`
`other hand, the State acts as a covert speaker within the specialty
`license plate forum, creating a license plate that promotes one view-
`point in the abortion debate at the expense of another. I draw the fol-
`lowing 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 pri-
`vate and government speech. Second, I conclude that despite the ele-
`ment 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 distrib-
`uted to local pregnancy crisis organizations, but not to family plan-
`ning 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 pur-
`pose 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 con-
`trol 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
`
`

`
`12
`
`PLANNED PARENTHOOD v. ROSE
`
`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 state-
`owned 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 pro-
`ducer of the bumper sticker. The same reasoning leads me to conclude
`(under the fourth SCV factor) that the private individual bears the ulti-
`mate 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 Vehi-
`cles, 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
`
`

`
`PLANNED PARENTHOOD v. ROSE
`
`13
`
`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 govern-
`ment 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 con-
`sider 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 discrimi-
`nate 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 visi-
`ble 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 govern-
`ment 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 view-
`point. Discrimination can occur if the regulation promotes one view-
`point 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 pro-
`moting the expression of one viewpoint (pro-life) while preventing
`
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`PLANNED PARENTHOOD v. ROSE
`
`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 deter-
`mined, 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 discrim-
`ination 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 gov-
`ernment 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); Rosenber-
`ger, 515 U.S. 819; Velazquez, 531 U.S. 533. A review of these deci-
`sions 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 expres-
`sion, 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 pro-
`mote 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
`
`

`
`PLANNED PARENTHOOD v. ROSE
`
`15
`
`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