In the
`United States Court of Appeals
`For the Seventh Circuit
`
`
`No. 07-1349
`
`CHOOSE LIFE ILLINOIS, INCORPORATED,
`RICHARD BERGQUIST, SUE BERGQUIST, et al.,
`Plaintiffs-Appellees,
`
`v.
`
`JESSE WHITE, Secretary of State
`of the State of Illinois,
`
`Defendant-Appellant.
`
`
`
`
`
`
`
`Appeal from the United States District Court
`for the Northern District of Illinois, Eastern Division.
`No. 04 C 4316—David H. Coar, Judge.
`
`ARGUED NOVEMBER 27, 2007—DECIDED NOVEMBER 7, 2008
`
`Before MANION, EVANS, and SYKES, Circuit Judges.
`SYKES, Circuit Judge. Choose Life Illinois, Inc. (“CLI”),
`collected more than 25,000 signatures from Illinois resi-
`dents interested in purchasing a “Choose Life” specialty
`license plate and applied to the Secretary of State for
`issuance of the plate under 625 ILL. COMP. STAT. 5/3-600(a)
`(amended effective 2008). That statute prohibits the
`
`
`United States Court of Appeals
`For the Seventh Circuit
`
`
`No. 07-1349
`
`CHOOSE LIFE ILLINOIS, INCORPORATED,
`RICHARD BERGQUIST, SUE BERGQUIST, et al.,
`Plaintiffs-Appellees,
`
`v.
`
`JESSE WHITE, Secretary of State
`of the State of Illinois,
`
`Defendant-Appellant.
`
`
`
`
`
`
`
`Appeal from the United States District Court
`for the Northern District of Illinois, Eastern Division.
`No. 04 C 4316—David H. Coar, Judge.
`
`ARGUED NOVEMBER 27, 2007—DECIDED NOVEMBER 7, 2008
`
`Before MANION, EVANS, and SYKES, Circuit Judges.
`SYKES, Circuit Judge. Choose Life Illinois, Inc. (“CLI”),
`collected more than 25,000 signatures from Illinois resi-
`dents interested in purchasing a “Choose Life” specialty
`license plate and applied to the Secretary of State for
`issuance of the plate under 625 ILL. COMP. STAT. 5/3-600(a)
`(amended effective 2008). That statute prohibits the
`
`
`
`2
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`No. 07-1349
`
`Secretary from issuing a new line of specialty plates unless
`he has a minimum number of applications on file, and
`CLI’s 25,000 signatures far exceeded the minimum. Since
`1948, however, when Illinois authorized its first specialty
`license plate, almost no specialty plate had been issued
`without prior legislative approval. The Secretary referred
`CLI to the General Assembly for enabling legislation.
`CLI hit a roadblock in the General Assembly. Despite
`the strong showing of support, the proposal for a “Choose
`Life” license plate died in subcommittee. CLI turned to
`federal court for relief, claiming that the Secretary was
`authorized to issue the plates without legislative approval
`once CLI met the statutory requirements and that his
`failure to do so constituted impermissible viewpoint
`discrimination in violation of the First Amendment. If
`legislative approval was required, CLI claimed the
`General Assembly’s refusal to adopt the “Choose Life”
`license plate was viewpoint discrimination. The district
`court accepted the first of these arguments and ordered
`the Secretary to issue the “Choose Life” plate, but stayed
`its judgment pending appeal.
`In the meantime, the General Assembly resolved CLI's
`first claim by amending 625 ILL. COMP. STAT. 5/3-600
`to require express prior legislative approval before the
`Secretary may issue new specialty plates. As to the
`second claim, the Secretary now argues that the amend-
`ment reinforces his position that the messages on
`specialty
`license plates are the government’s own
`speech—not private or a mixture of government and
`private speech—and therefore no First Amendment
`
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`No. 07-1349
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`3
`
`rights are implicated. We disagree, though we acknowl-
`edge the question has divided other circuits.1
`Specialty license plates implicate the speech rights of
`private speakers, not the government-speech doctrine.
`This triggers First Amendment “forum” analysis, and we
`conclude specialty plates are a nonpublic forum. Illinois
`may not discriminate on the basis of viewpoint, but it
`may control access to the forum based on the content of a
`proposed message—provided that any content-based
`restrictions are reasonable. The distinction between
`content and viewpoint discrimination makes a dif-
`ference here.
`It is undisputed that Illinois has excluded the entire
`subject of abortion from its specialty-plate program; it
`has authorized neither a pro-life plate nor a pro-choice
`plate. It has done so on the reasonable rationale that
`messages on specialty license plates give the appearance
`of having the government’s endorsement, and Illinois
`does not wish to be perceived as endorsing any position
`on the subject of abortion. The State’s rejection of a
`
`1 (
`
`Compare Ariz. Life Coal., Inc. v. Stanton, 515 F.3d 956, 965-68
`9th Cir. 2008) (private speech), Planned Parenthood of S.C., Inc. v.
`Rose, 361 F.3d 786, 793-95, reh’g en banc denied, 373 F.3d 580 (4th
`Cir. 2004) (mix of government and private speech), and Sons
`of Confederate Veterans, Inc. v. Comm’r of the Va. Dep’t of Motor
`Vehicles, 288 F.3d 610, 617-21, reh’g en banc denied, 305 F.3d 241
`(4th Cir. 2002) (private speech), with Am. Civil Liberties Union
`of Tenn. v. Bredesen, 441 F.3d 370, 378-79 (6th Cir. 2006) (gov-
`ernment speech).
`
`
`
`4
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`No. 07-1349
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`“Choose Life” license plate was thus content based but
`viewpoint neutral, and because it was also reasonable,
`there is no First Amendment violation. We reverse the
`judgment of the district court.
`
`I. Background
`A. Specialty License Plates in Illinois
`For an extra fee, Illinois will permit a vehicle owner
`to have a specialized license plate that, in addition to the
`generic or personalized numbers and characters required
`for license identification, also bears a specific message
`or symbol. See 625 ILL. COMP. STAT. 5/3-600 et seq. Like
`most other states, Illinois offers a broad selection of
`specialty plates. Some denote that the vehicle owner is
`an alumnus of a certain college or university (schools
`in Illinois and contiguous states qualify) or a member of a
`civic organization (e.g., the Knights of Columbus or the
`Masons). Id. 5/3-629, 635. Others signify support for
`a particular cause, such as a love of pets (“I am pet
`friendly”); opposition to violence (the dove of peace
`symbol); mammogram or organ-donor awareness (“Mam-
`mograms Save Lives,” “Be An Organ Donor”); or pre-
`vention of childhood cancer (“Stop Neuroblastoma”).2
`See id. 5/3-653, 630, 643, 646, 654.
`
`2 w
`
`Some specialty plates are issued at no extra charge to persons
`ho have achieved some noteworthy distinction, such as
`being awarded the Silver Star, having served in World War II,
`or holding a public office. 635 ILL. COMP. STAT. 5/3-642, 647, 639.
`
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`No. 07-1349
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`5
`
`With insignificant historical exceptions, each specialty
`license plate in Illinois has its own authorizing statute
`describing the plate and establishing the required addi-
`tional fee. These statutes typically allocate a portion of
`the proceeds from the sale of the plates to the specific
`state or local program that corresponds to the message
`or to the not-for-profit or charitable organization that
`sponsored the plate. (For example, proceeds from the
`“Park District Youth” plate benefit local park and recre-
`ational districts; the “Police Memorial” plate benefits the
`Police Memorial Committee Fund. See id. 5/3-654, 644.)
`Beyond their obvious utility as a means of promoting a
`message or cause, specialty license plates thus also serve
`a fundraising purpose for units of state and local gov-
`ernment and for private organizations.
`The basic requirements for issuance of a new specialty-
`plate series are set forth in 625 ILL. COMP. STAT. 5/3-600,
`enacted in 1990. Until recently, that statute provided
`as follows:
`(a) The Secretary of State shall not issue a series of
`special plates unless applications, as prescribed by the
`Secretary, have been received for 10,000 plates of that
`series; except that the Secretary of State may prescribe
`some other required number of applications if that
`number is sufficient to pay for the total cost of design-
`ing, manufacturing and issuing the special license
`plate.
`. . . .
`(c) This Section shall not apply to special license plate
`categories in existence on the effective date of this
`
`
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`6
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`No. 07-1349
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`amendatory Act of 1990, or to the Secretary of State’s
`discretion as established in Section 3-611 [relating to
`specialty plates for specific categories of persons,
`typically elected officials].
`Id. (amended effective 2008). Although the statute spec-
`ifies a default minimum of 10,000 applications, the Sec-
`retary often required far less (approximately 800 appli-
`cations) before issuing a new legislatively approved
`specialty plate. That lesser number was usually enough
`to make the program financially feasible from a man-
`ufacturing standpoint.
`Illinois currently has about
`60 specialty license plates available for purchase.
`
`B. CLI’s Quest for a “Choose Life” Specialty License
`Plate
`CLI is a not-for-profit agency that promotes adoption
`in the State of Illinois. In 2001 CLI embarked on an initia-
`tive to obtain approval for a specialty license plate
`bearing the words “Choose Life.” To that end CLI
`collected more than 25,000 signatures from prospective
`purchasers and applied to the office of Illinois Secretary
`of State Jesse White for issuance of the plate. The Secretary
`informed CLI that he could not issue a new specialty
`plate that had not been approved by the General Assem-
`bly. For the next several years, CLI waged a legislative
`battle for approval of its “Choose Life” specialty license
`plate, lining up support among sympathetic legislators. Its
`efforts were thwarted, however—initially in the Illinois
`Senate and later in the House. (The proposal died in a
`House subcommittee.)
`
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`No. 07-1349
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`
`CLI and several individual plaintiffs then brought this
`suit against the Secretary for violating their free-speech
`rights. The parties filed cross-motions for summary
`judgment. CLI first argued that the Secretary had
`authority under section 5/3-600 to issue the “Choose Life”
`plates without legislative approval, and his refusal to
`do so constituted viewpoint discrimination within a
`government-created forum for private speech. Alterna-
`tively, CLI claimed that if legislative approval was re-
`quired, it had been subjected to impermissible view-
`point discrimination by the General Assembly. CLI also
`claimed the specialty-plate program was facially unconsti-
`tutional because the lack of any governing standards
`invited discrimination against disfavored messages. CLI
`asked the district court to order the Secretary to issue
`the “Choose Life” plate or shut down the entire specialty-
`plate program.
`The Secretary argued that although section 5/3-600 was
`silent on whether an enabling statute was required for a
`new specialty-plate series, all specialty plates in Illinois
`(other than those grandfathered under section 5/3-600(c))
`had in fact been authorized by specific statutory enact-
`ment. Accordingly, the Secretary argued, the messages
`on specialty license plates were government speech, and
`the free-speech rights of the plaintiffs as private speakers
`were not implicated. The Secretary maintained in the
`alternative that even if the specialty-plate program
`amounted to a forum for private speech, it was a nonpublic
`forum and the State’s decision to exclude the entire
`subject of abortion from the forum was a reasonable
`viewpoint-neutral
`restriction on content and was
`therefore constitutionally permissible.
`
`
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`8
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`No. 07-1349
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`The district court granted summary judgment for CLI.
`The court interpreted section 5/3-600 as permitting the
`Secretary to issue new specialty license plates without
`specific enabling legislation. Applying the four-factor test
`from Sons of Confederate Veterans, Inc. v. Commissioner of the
`Virginia Department of Motor Vehicles, 288 F.3d 610, 618 (4th
`Cir. 2002), a Fourth Circuit license-plate case, the court
`concluded that the Illinois specialty-plate program estab-
`lished a forum for private speech and that the exclusion
`of the “Choose Life” message from this forum was view-
`point discrimination and could not withstand strict
`scrutiny. The court ordered the Secretary to issue the
`“Choose Life”
`license plates, but stayed
`its order
`pending appeal.
`In response to the district court’s decision, and while this
`appeal was pending, the General Assembly amended
`section 5/3-600 to include an explicit requirement of
`legislative approval for any new specialty license plate.
`Effective January 1, 2008, the statute provides: “The
`Secretary of State shall issue only special plates that have
`been authorized by the General Assembly.” Act of Aug. 23,
`2007, Ill. Pub. Act No. 95-0359.
`
`II. Analysis
`Our standard of review is de novo. Metro. Life Ins. Co. v.
`Johnson, 297 F.3d 558, 561-62 (7th Cir. 2002). The material
`facts are undisputed. The question presented is whether
`the messages on specialty license plates are the govern-
`ment’s own speech or private speech, and if the latter,
`whether the exclusion of CLI’s proposed “Choose Life”
`
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`No. 07-1349
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`9
`
`plate from the “specialty-plate forum” violates the Free
`Speech Clause of the First Amendment.3
`
`3 c
`
`We note that some specialty-license-plate cases in other
`ircuits have been dismissed on jurisdictional grounds, notably
`for lack of standing or by application of the Tax Injunction Act,
`28 U.S.C. § 1341. See Henderson v. Stalder, 407 F.3d 351, 358 (5th
`Cir. 2005) (plaintiffs’ challenge to Lousiana’s “Choose Life”
`license plate barred by the Tax Injunction Act); Women’s Emer-
`gency Network v. Bush, 323 F.3d 937, 946-47 (11th Cir. 2003)
`(holding that plaintiffs lacked standing to challenge Florida’s
`“Choose Life” license plate under either the Establishment
`Clause or the Free Speech Clause of the First Amendment);
`Henderson v. Stalder, 287 F.3d 374, 382 (5th Cir. 2002) (plaintiffs
`lacked standing to challenge Louisiana’s “Choose Life” license
`plate on free-speech grounds). On the other hand, plaintiffs in
`other circuits have successfully established standing and
`prevailed on the argument that the Tax Injunction Act does not
`apply. See Stanton, 515 F.3d at 963-64 (Tax Injunction Act does
`not apply to plaintiff advocacy group’s claim that Arizona
`committed viewpoint discrimination in denying its applica-
`tion for a “Choose Life” license plate); Bredesen, 441 F.3d at 373-
`74 (Tax Injunction Act does not bar plaintiffs’ claim that Tennes-
`see’s “Choose Life” license plate violates the First Amendment);
`Rose, 361 F.3d at 789-92 (plaintiffs have standing to challenge
`South Carolina’s “Choose Life” license plate on viewpoint-
`discrimination grounds). We are satisfied CLI and the
`individual plaintiffs have standing; they have adequately
`alleged an injury by reason of the exclusion of their “Choose
`Life” message from Illinois’ specialty-plate program. And we
`agree with the Ninth and Sixth Circuits that the Tax Injunction
`Act does not apply.
`
`
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`10
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`No. 07-1349
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`A. The District Court’s Interpretation of the Unamended
`Statute
`A considerable amount of the parties’ initial briefing
`concerned the proper interpretation of unamended 625 ILL.
`COMP. STAT. 5/3-600. The district court read the statute
`to permit the Secretary to issue new specialty license
`plates without a specific authorizing statute upon presenta-
`tion of the minimum required number of applications.
`There is reason to doubt this interpretation. The statute
`is phrased not as a positive grant of authority to approve
`a new plate series but as a limitation on the Secretary’s
`authority to commence issuing plates in an approved
`series. Id. (“The Secretary . . . shall not issue a series of spe-
`cial plates unless applications . . . have been received
`for 10,000 plates of that series.”). This begs the question
`of who has the approval authority; nothing in the
`Illinois Vehicle Code addresses the Secretary’s power to
`approve new specialty license plates. In practice, the Sec-
`retary has never issued specialty plates in a new series
`without a specific statutory enactment creating the series.
`We need not resolve this aspect of the appeal. The
`amendment to section 5/3-600(a) makes explicit what the
`Secretary had argued was implicit: that the authority to
`approve new specialty license plates resides with the
`General Assembly. Act of Aug. 23, 2007, Pub. Act No. 95-
`4
`
`4 i
`
`In addition to specifically challenging the rejection of
`ts “Choose Life” license plate, CLI also claims the Illinois
`specialty-plate program is facially unconstitutional because it
`lacks any articulated standards governing (1) the Secretary’s
`(continued...)
`
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`No. 07-1349
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`11
`
`0359 (amending 625 ILL. COMP. STAT. 5/3-600(a) to add
`the following: “The Secretary of State shall issue only
`special plates that have been authorized by the General
`Assembly.”). We ordinarily apply the law in effect on
`appeal, and where (as here) a party requests only pro-
`spective relief, there is no impediment to doing so retro-
`actively. Landgraf v. USI Film Prods., 511 U.S. 244, 273 (1994)
`(“[A]pplication of new statutes passed after the events
`in suit is unquestionably proper in many situations.
`When the intervening statute authorizes or affects the
`propriety of prospective relief, application of the new
`provision is not [impermissibly] retroactive.”).
`
`B. Government Speech or Private Speech?
`It is well established that when the government speaks,
`“it is entitled to say what it wishes[,] . . . [and] it may take
`legitimate and appropriate steps to ensure that its message
`is neither garbled nor distorted.” Rosenberger v. Rector &
`Visitors of the Univ. of Va., 515 U.S. 819, 833 (1995) (citations
`
`4 d
`
`(...continued)
`iscretion to authorize new plates (to the extent the Secretary
`had that authority), or (2) the state legislature’s discretion to
`authorize new plates. The amendment to section 5/3-600 moots
`the first of these claims, and the second has no merit. It is
`axiomatic that one legislature cannot bind a future legislature.
`Vill. of Rosemont v. Jaffe, 482 F.3d 926, 937-38 (7th Cir. 2007)
`(citing Reichelderfer v. Quinn, 287 U.S. 315, 318 (1932)). The
`General Assembly is entitled to authorize specialty plates one
`at a time. It is not required to—and cannot—adopt “standards”
`to control its legislative discretion.
`
`
`
`12
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`No. 07-1349
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`omitted); see also Johanns v. Livestock Mktg. Ass’n, 544 U.S.
`550, 559-62 (2005); Bd. of Regents of Univ. of Wis. Sys. v.
`Southworth, 529 U.S. 217, 229 (2000); Keller v. State Bar of
`Cal., 496 U.S. 1, 12-13 (1990). “[U]nits of state and local
`government are entitled to speak for themselves,” Hosty
`v. Carter, 412 F.3d 731, 736 (7th Cir. 2005), and “[w]hen
`the government speaks[,] . . . it is, in the end, accountable
`to the electorate and the political process for its advocacy.”
`Southworth, 529 U.S. at 235. “If the citizenry objects,
`newly elected officials later could espouse some dif-
`ferent or contrary position.” Id.
`Accordingly, when the government is the speaker, it
`may choose what to say and what not to say; it need not
`be neutral. Subject to other constitutional limitations not
`at issue here (such as the Establishment Clause), the
`constraints on the government’s choice of message are
`primarily electoral, not judicial. While it is true that the
`government may not compel a person to “express a
`message he disagrees with, imposed by the government”
`(the “compelled speech” doctrine) or compel a person
`to “subsidize a message he disagrees with, expressed by
`a private entity” (the “compelled subsidy” doctrine), see
`Johanns, 544 U.S. at 557, neither of these principles is
`implicated here. (We will have more to say about Johanns
`in a moment.) It follows, then, that if the messages on
`specialty license plates in Illinois are the State’s own
`speech, no private-speech rights are involved and CLI’s
`remedy for the defeat of its “Choose Life” license plate
`is at the ballot box.
`If, on the other hand, the messages on specialty license
`plates are not government speech, then the denial of
`
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`No. 07-1349
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`13
`
`CLI’s application for a “Choose Life” specialty plate is
`analyzed under the Supreme Court’s “speech forum”
`doctrine. “The government violates the Free Speech
`Clause of the First Amendment when it excludes a
`speaker from a speech forum the speaker is entitled to
`enter.” Christian Legal Soc’y v. Walker, 453 F.3d 853, 865
`(7th Cir. 2006) (citing Rosenberger, 515 U.S. at 829-30;
`Hosty, 412 F.3d at 737). Judicial scrutiny in this context
`varies depending on the nature of the forum, and speech
`fora come in three basic varieties: traditional public,
`designated public, and nonpublic.
`We will return to forum analysis later; the predicate
`question is whether the messages on specialty license
`plates are government speech, private speech, or a combi-
`nation of the two. Other circuits are divided on the ques-
`tion. The Fourth and Ninth Circuits have held that mes-
`sages on specialty license plates are private or hybrid
`speech; the Sixth Circuit has held that messages on spe-
`cialty license plates are government speech. Compare
`Ariz. Life Coal., Inc. v. Stanton, 515 F.3d 956, 968 (9th Cir.
`2008) (messages on specialty license plates in Arizona are
`private speech), Planned Parenthood of S.C., Inc. v. Rose,
`361 F.3d 786, 794 (4th Cir. 2004) (“Choose Life” message
`on South Carolina specialty license plate is a mixture of
`government and private speech), and Sons of Confederate
`Veterans, 288 F.3d at 621 (messages on Virginia specialty
`license plates are private speech), with Am. Civil Liberties
`Union of Tenn. v. Bredesen, 441 F.3d 370, 376 (6th Cir. 2006)
`(“Choose Life” message on Tennessee specialty license
`plate is government speech).
`
`
`
`14
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`No. 07-1349
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`The Fourth Circuit was the first to weigh in. In Sons
`of Confederate Veterans, the court was confronted with a
`First Amendment challenge to a Virginia statute authoriz-
`ing a specialty license plate for an organization of descen-
`dants of Confederate Army veterans. The statute differed
`from others authorizing specialty plates for private organi-
`zations because it specifically prohibited the group’s
`logo—which included the Confederate flag—from being
`displayed on the plate. 288 F.3d at 613-14. The Sons of
`Confederate Veterans cried foul, alleging viewpoint
`discrimination in violation of the First Amendment.
`Virginia argued in response that the specialty plate was
`government speech or, if it was not, that the restriction on
`the display of the Confederate flag was a reasonable
`content-based, not viewpoint-based, restriction.
`The Fourth Circuit began its analysis by adapting an
`approach developed by the Tenth Circuit in a case involv-
`ing a First Amendment challenge to a holiday display
`featuring joint public and private sponsorship. Id. at 618
`(citing Wells v. City & County of Denver, 257 F.3d 1132, 1141
`(10th Cir. 2002)). To determine whether the speech at
`issue was governmental or private, the court weighed
`the following factors:
`(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 govern-
`ment or the private entity bears the “ultimate responsi-
`bility” for the content of the speech . . . .
`Id. (quoting Wells, 257 F.3d at 1141).
`
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`No. 07-1349
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`15
`
`that
`the court noted
`framework,
`this
`Applying
`Virginia’s specialty-plate program had dual purposes: the
`collection of revenue for the State and the facilitation of
`expression by private organizations and their members.
`Id. at 620-21. The court also observed that the State gener-
`ally exercised minimal editorial control over the content
`of specialty license plates because it usually accepted
`the designs submitted by the sponsoring organizations.
`Id. at 621. Finally, the court noted that although specialty
`license plates (like other license plates) were technically
`the property of the State, the owners of the vehicles on
`which they were mounted were the “literal speakers” and
`bore “ultimate responsibility” for the messages con-
`tained on the plates. Id. at 621-22. The court concluded
`that the messages on Virginia’s specialty license plates
`were predominantly private rather than government
`speech. Id. The court went on to hold that the Virginia
`statute’s logo restriction amounted to viewpoint dis-
`crimination within a forum for private speech. Id. at 626.
`The Fourth Circuit returned to this subject just two
`years later in Rose, a case involving a challenge to South
`Carolina’s “Choose Life” specialty license plate. The statute
`at issue provided that proceeds from the sale of the
`“Choose Life” plate were to be distributed to local private
`crisis pregnancy agencies—but not to those that per-
`formed or promoted abortion services. Rose, 361 F.3d at
`788. Planned Parenthood of South Carolina challenged
`the statute shortly after it was adopted. The Fourth
`Circuit consulted the factors identified in Sons of Confeder-
`ate Veterans but fine-tuned its analysis. Rejecting South
`Carolina’s argument that its “Choose Life” specialty plate
`was government speech, the court determined that the
`
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`16
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`No. 07-1349
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`plate “embodie[d] a mixture of private and government
`speech.” Id. at 793.
`The
`indicators of government speech were more
`strongly present in Rose than in Sons of Confederate Veterans.
`For example, South Carolina’s “Choose Life” license
`plate had its origins in the state legislature rather than
`a private sponsoring organization;
`two
`lawmakers
`acting on their own had initiated the legislative effort.
`Other factors, however—notably that individual vehicle
`owners became the “literal speakers” with “ultimate
`responsibility” for the speech when they purchased and
`displayed the “Choose Life” plate on their vehicles—led
`the court to conclude that the license-plate message was
`a form of hybrid speech, both governmental and private.
`Id. at 793-94. The private-speech attributes of the
`specialty plate were substantial enough to analyze the
`case under nonpublic forum doctrine, testing for view-
`point neutrality. Id. at 798. The “Choose Life” plate
`flunked. See id. at 799 (“South Carolina has impermissibly
`favored the pro-life viewpoint by authorizing the Choose
`Life plate.”).
`The following year the Supreme Court decided Johanns,
`elaborating on the government-speech doctrine in the
`context of an alleged “compelled subsidy.” Johanns was
`a First Amendment challenge by a group of beef producers
`to a special federal assessment imposed on heads of
`cattle and used to fund a promotional campaign encourag-
`ing the consumption of beef. The advertising featured,
`among other things, the catchy “Beef. It’s What’s for
`Dinner” slogan. Johanns, 544 U.S. at 553-55. The com-
`plaining ranchers argued that the federal government
`
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`No. 07-1349
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`17
`
`could not constitutionally compel them to subsidize a
`private message.
`The Supreme Court held that the assessment did not
`amount to a compelled subsidy of a private message
`because the promotional campaign was entirely the govern-
`ment’s speech. Id. at 560-62. Congress had established the
`framework for the promotional program in the Beef
`Promotion and Research Act of 1985 and directed the
`Secretary of Agriculture to implement it via a Cattlemen’s
`Beef Promotion and Research Board, whose members
`were appointed by and answerable to the Secretary. Id. at
`553-54. The Beef Board, in turn, convened an Operating
`Committee composed of Beef Board members and repre-
`sentatives appointed by a federation of state beef councils.
`Id. The ranchers argued that the advertising could not be
`considered government speech because it was actually
`developed by the Operating Committee, some of whose
`members were private beef-industry representatives. Id.
`at 560.
`The Court disagreed, holding that “[t]he message set out
`in the beef promotions is from beginning to end the
`message established by the Federal Government.” Id. The
`program was established by Congress, and the Secretary
`of Agriculture
`implemented and retained ultimate
`control over it. Id. at 561. “When, as here, the govern-
`ment sets the overall message to be communicated and
`approves every word that is disseminated, it is not pre-
`cluded from relying on the government-speech doctrine
`merely because it solicits assistance from nongovern-
`mental sources in developing specific messages.” Id. at 562.
`
`
`
`18
`
`No. 07-1349
`
`Relying almost entirely on Johanns, a divided panel of
`the Sixth Circuit broke with the Fourth Circuit and held in
`Bredesen that Tennessee’s “Choose Life” specialty license
`plate was government speech, implicating no speech rights
`of private speakers whatsoever. 441 F.3d at 380. The
`Bredesen majority thought Johanns established a new test
`for government speech, applicable in all contexts, and on
`this basis declined to follow the Fourth Circuit’s lead in
`Rose. “The Johanns standard,” the court held, “classifies
`the ‘Choose Life’ message [on Tennessee’s specialty plate]
`as government speech.” Id.
`The Court’s conclusion in Johanns had been driven by
`the
`federal government’s pervasive and complete
`control—“from beginning to end”—over the beef-promo-
`tion message. 544 U.S. at 560. The Sixth Circuit believed the
`same total governmental control was evident in Bredesen.
`The Tennessee legislature had consulted with New Life
`Resources, a private, nonprofit pregnancy-assistance
`organization, on the design of the “Choose Life” plate; the
`statute authorizing the plate also directed that New Life
`was to receive half the profits from its sale. Bredesen, 441
`F.3d at 372. But because the Tennessee legislature “chose
`the ‘Choose Life’ plate’s overarching message and ap-
`proved every word to be disseminated,” the court held
`that “Johanns supports classifying ‘Choose Life’ on spe-
`cialty license plates as the State’s own message.” Id. at 376.
`That specialty license plates involve additional private
`speakers—the individual vehicle owners who carry the
`messages on their cars—did not alter the Sixth Circuit’s
`analysis. On this point, the court distinguished Wooley v.
`
`
`
`No. 07-1349
`
`19
`
`Maynard, 430 U.S. 705 (1977), a “compelled speech” case
`involving a New Hampshire vehicle owner who repeatedly
`obliterated the state’s motto, “Live Free or Die,” from his
`license plate. After multiple convictions and a jail term
`for violating the State’s vehicle code, the vehicle owner
`sought and obtained a federal-court injunction against
`further enforcement of the State’s license-plate statute.
`The Supreme Court affirmed, noting that the State’s
`license-plate statute “in effect requires that [vehicle
`owners] use their private property as a ‘mobile billboard’
`for the State’s ideological message or suffer a penalty.” Id.
`at 715. This, the Court held in Wooley, was a form of
`coerced speech, impermissible under the First Amend-
`ment. Id. at 716-17.
`Not so in Bredesen, said the Sixth Circuit; no vehicle
`owner is compelled to carry Tennessee’s “Choose Life”
`message. 441 F.3d at 377-78. From this unremarkable
`observation the court extrapolated the following con-
`clusion: Because display of a specialty license plate is
`voluntary, not compulsory, Tennessee had not created a
`forum for private speech. Id. at 378. This strikes us as a
`non sequitur. As Judge Martin noted in dissent, if
`messages on license plates implicated no private-speech
`interests at all, then Wooley (among other cases) would have
`come out differently. See id. at 386 (Martin, J., dissenting).
`Judge Martin also noted that the First Amendment harm
`in the “compelled speech” or “compelled subsidy” context
`is the compulsion—in the former, being compelled against
`one’s conscience to utter the government’s preferred
`message, and in the latter, being compelled to subsidize
`someone else’s private message. See id. at 385-86. The
`
`
`
`20
`
`No. 07-1349
`
`First Amendment harm in the specialty-plate context, on
`the other hand, is “being denied the opportunity to
`speak on the same terms as other private citizens within
`a government sponsored forum.” Id. at 386. We think
`Judge Martin has it exactly right.
`The Ninth Circuit did, too, in Arizona Life Coalition, Inc. v.
`Stanton, a case very much like our own. The Arizona
`License Plate Commission denied the Arizona Life Coali-
`tion’s application for a “Choose Life” specialty license
`plate, and the group sued, alleging a violation of its mem-
`bers’ free-speech rights and asking the court to order
`the Commission to issue the plate. The Ninth Circuit
`viewed the Sixth Circuit’s decision in Bredesen as a mis-
`application of Johanns and declined to follow it. Stanton,
`515 F.3d at 964-65.
`The court found Johanns instructive, however, in that
`the Supreme Court had focused on some of the same
`factors the Fourth Circuit had identified as important in
`Sons of Confederate Veterans. Applying the Fourth Circuit’s
`four-factor test, the court in Stanton concluded that mes-
`sages on specialty license plates in Arizona were not
`government speech; instead, as in Sons of Confederate
`Veterans and Rose, messages on specialty license plates
`in Arizona should be treated as private speech and sub-
`jected to forum analysis. See id. at 968. The court held that
`the forum was a limited one (more precisely, a nonpublic
`forum), meaning that “any access restriction must be
`viewpoint neutral and reasonable in light of the pur-
`pose served by the forum.” Id. at 971. Finally, the court
`concluded that the Commission’s exclusion of the “Choose
`
`
`
`No. 07-1349
`
`21
`
`Life” message was viewpoint discriminatory and ordered
`the Commission to approve the plate. Id. at 971-73.
`We will come back to this last point in a moment. For
`now, we pause to note that what emerges from this trip
`through license-plate caselaw is that the Sixth Circuit
`stands alone in holding that specialty license plates
`implicate no private-speech rights at all. We think this
`conclusi
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