Planned Parenthood of South Carolina Inc. v. Rose

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  No. 03-1118
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.

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
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
14 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 services," but prohibited the award of
funds to clinics with "programs where abortion is a method of family
planning." 42 U.S.C. § 300a-6. This meant that doctors at funded clin-
ics could not counsel their patients on abortion matters. When the reg-
ulations that prohibited abortion counseling and referral were
challenged as viewpoint discrimination, the Court upheld them
because they were "designed to ensure that the limits of the federal
program are observed." Rust, 500 U.S. at 193. Because the Title X
grant program was designed "not for prenatal care, but to encourage
family planning," the Court reasoned, "[a] doctor who wished to offer
prenatal care to a project patient who became pregnant could properly
be prohibited from doing so because such a service is outside the
scope of the federally funded program." Id. After noting that the regu-
lations were consistent with the statutory prohibition, the Court con-
cluded that Congress had not restricted speech based on viewpoint,
but rather had "merely chosen to fund one activity to the exclusion of
another." Id. at 193. The Court further explained that "when the Gov-
ernment appropriates public funds to establish a program it is entitled
to define the limits of that program." Id. at 194. In Rust the Court "did
not place explicit reliance on the rationale that the counseling activi-
ties of the doctors . . . amounted to government speech; when inter-
preting the holding in later cases, however, [it] . . . explained Rust on
this understanding." Velazquez, 531 U.S. at 541.

Rust stands for the principle that when the government creates and
manages its own program, it may determine the contents and limits
of that program. See, e.g., Rosenberger, 515 U.S. at 833; Velazquez,
531 U.S. at 541. There is no First Amendment problem, for example,
when a public school makes content-based decisions about its curricu-
lum, see Rosenberger, 515 U.S. at 833, or when a public museum
decides to display one work of art as opposed to another, see R.
Bezanson & W. Buss, The Many Faces of Government Speech, 86
Iowa L. Rev. 1377, 1422 (2001). The government’s broad discretion
is justified in such instances because "[w]hen the government speaks
. . . to promote its own policies or to advance a particular idea, it is,
in the end, accountable to the electorate and the political process for
its advocacy." Bd. of Regents of Univ. of Wis. Sys. v. Southworth, 529
U.S. 217, 235 (2000). Further, "[i]f the citizenry objects, newly
16 PLANNED PARENTHOOD v. ROSE
elected officials later could espouse some different or contrary posi-
tion." Id. See also Robert C. Post, "Subsidized Speech," 106 Yale L.J.
151, 164 (1996) ("Managerial domains are necessary so that a demo-
cratic state can actually achieve objectives that have been democrati-
cally agreed upon."). In short, government speech is necessary to
achieve the objectives approved through the ballot box, but the gov-
ernment must remain accountable to the citizenry for what it says. At
the same time, as the Supreme Court explains, "[n]either the latitude
[allowed] for government speech nor [the] rationale" for that latitude
applies to all cases where the government funds speech. Velazquez,
531 U.S. at 542. The Court made this clear in both Rosenberger and
Velazquez, two viewpoint discrimination cases.

In Rosenberger a public university established a student activities
fund (SAF) to reimburse student organizations for the printing costs
of their publications. 515 U.S. at 823. The SAF was designed to sup-
port a broad range of extracurricular activities that related to the uni-
versity’s educational purpose. The university, however, excluded
certain student activities, including religious activities, from receiving
SAF funds. Id. at 824-25. A Christian student organization that was
denied funding for the printing costs of its newspaper challenged the
funding exclusion, which the Supreme Court struck down. Id. at 825-
26. The Court determined that the university, by establishing the SAF,
had created a limited public forum for speech, albeit "a forum more
in a metaphysical than in a spatial or geographic sense." Id. at 830.
The university must abide by First Amendment principles, the Court
said, "even when the limited public forum is one of its own creation."
Id. at 829. Specifically, "[w]hen the government targets . . . particular
views taken by speakers on a subject, the violation of the First
Amendment is all the more blatant." Id. The Court therefore distin-
guished government regulation of a limited forum for speech from the
typical instance when the State may permissibly promote its view-
point, such as when it "determines the content of the education it pro-
vides" or when (as in Rust) it "use[s] private speakers to transmit
specific information pertaining to its own program." Id. at 833. In
Rosenberger the student groups that applied for SAF funding were
not speaking for the university; they "[were] not the University’s
agents, [were] not subject to its control, and [were] not its responsibil-
ity." Id. at 835. Therefore, the Court held that the university could not
"silence the expression" of the viewpoints of the groups listed as inel-
 PLANNED PARENTHOOD v. ROSE 17
igible for SAF funding. Id. Though the Court acknowledged that
"[t]he necessities of confining a forum to the limited and legitimate
purposes for which it was created" may justify certain restrictions on
its use, it emphasized that those restrictions must be viewpoint neutral
and must be reasonable in light of the forum’s purpose. Id. at 829-30.

In Velazquez the Court invalidated a funding restriction under the
Legal Services Corporation (LSC) Act that forbade recipients of LSC
funds from arguing for a change in existing welfare law. The funding
condition required an LSC-funded lawyer to withdraw from repre-
senting a client if it turned out that the representation would involve
challenging a welfare law. Velazquez, 531 U.S. at 539. The govern-
ment, relying on Rust, attempted to justify the funding restriction as
"necessary to define the scope . . . of the federal program." Id. at 547.
The Court rejected this justification. It explained that "[t]he lawyer is
not the government’s speaker" and that when the government regu-
lates a particular medium — lawyer advocacy in that case — the "ac-
cepted usage [of the medium must be considered] in determining
whether a particular restriction is necessary." Id. at 542, 543. In regu-
lating the advocacy of LSC lawyers, the government had impermiss-
ibly attempted to "use an existing medium of expression and to
control it, in a class of cases, in ways which distort its usual function-
ing." Id. at 543. The Court further observed that "there is no program-
matic message of the kind recognized in Rust," concluding that "[t]his
serves to distinguish [the challenged regulation] from any of the Title
X program restrictions upheld in Rust, and to place it beyond any con-
gressional funding condition approved in the past by this Court." Id.
at 548.

Based on Rosenberger and Velazquez, I conclude that in assessing
the Act, a court must focus not only on the character of the speech,
but also on the nature of the medium. The medium here — the speci-
ality license plate scheme — is more like a limited forum for expres-
sion than it is like a school, museum, or clinic. Although the State
authorizes the sale of license plates with the Choose Life message, the
State does not enlist vehicle owners to convey the imprinted message
in the way that employees of a government-funded enterprise are
enlisted to carry out the programs of that enterprise. See Rosenberger,
515 U.S. at 833 (explaining that the government may selectively favor
speech based on viewpoint when it "enlists private entities to convey
18 PLANNED PARENTHOOD v. ROSE
its own message"). Rather, vehicle owners purchase and display the
Choose Life plate because they agree with the message. Thus,
because South Carolina has not created a program "of the kind recog-
nized in Rust," it cannot justify the Act as "necessary to define the
scope and contours" of the license plate scheme. Velazquez, 531 U.S.
at 547. Instead, because the State has established a license plate forum
for the abortion debate, it cannot limit the viewpoints expressed in
that forum. See Rosenberger, 515 U.S. at 835.

In addition to creating a limited forum for expression, the State has
entered that forum as a privileged speaker. South Carolina does not
merely approve or deny applications by private organizations for a
specialty plate; it has favored its own position by authorizing one
plate for those who share its view and by failing to authorize a com-
parable plate for those who oppose its view. The State thus acts as a
privileged speaker within a forum that it created and controls. The
Supreme Court has never suggested that the government speech ratio-
nale allows a State to dominate a forum in this way, even one of its
own creation.

Moreover, the State’s role in promoting the Choose Life message
is obscured from the public. When a certain viewpoint dominates a
speech forum, it should be clear to the public whether that dominance
reflects the prevailing view or whether it results from a government
restriction. In this case, the pro-life position exclusively dominates the
abortion debate in the license plate forum, but the reason for that
dominance is not readily apparent to the ordinary citizen. Those who
see the Choose Life plate displayed on vehicles, and fail to see a com-
parable pro-choice plate, are likely to assume that the presence of one
plate and the absence of another are the result of popular choice. Spe-
cifically, they are likely to assume that there are pro-life residents in
South Carolina, but not pro-choice residents, who seek to express
their viewpoint in the license plate forum. The State can thereby mis-
lead the public into thinking that it has already won support for the
position it is promoting. This possibility thwarts "the rationale behind
the government’s authority to draw otherwise impermissible view-
point distinctions in the government speech context," namely, "the
accountability inherent in the political process." SCV, 288 F.3d at
618.
 PLANNED PARENTHOOD v. ROSE 19
It might be argued that South Carolina is not hiding its identifica-
tion with the message on the Choose Life plate because the General
Assembly enacted the statute making the plate available. Voters, of
course, can always express their approval or disapproval of legislative
action through the political process. But this argument overlooks the
fact that continuing transparency is essential to accountability. Given
the array of specialty license plates available in South Carolina, a citi-
zen is less likely to associate the plate messages with the State. South
Carolina authorizes license plates that express support for, among
other things, the National Wild Turkey Federation, S.C. Code Ann.
§ 56-3-3410; saltwater fishing, id. § 56-3-7300; adopting homeless
pets, id. § 56-3-9600; and NASCAR racing, id. § 56-3-8710. The
array of choices makes the license plate forum appear increasingly
like a forum for private speech. As the citizen becomes less likely to
associate specialty plate messages with the State, the State’s account-
ability for any message is correspondingly diminished.

Of course, South Carolina could abolish the Choose Life license
plate Act that results in mixed speech and adopt "Choose Life" as its
state motto. Then the State’s identity as speaker would be readily
apparent, and the State would be accountable to the public for its sup-
port of a particular position. Residents displeased with the State’s
position could register their displeasure through the electoral process.
However, precisely because this is a case of mixed speech, and the
identity of the speaker of the Choose Life message is likely to be
unclear to viewers of the license plate, government accountability is
diminished. South Carolina has placed itself in a position to advocate
for a political position while disguising its advocacy as that of private
vehicle owners. See Jacobs, supra at 56-57. ("While the interest of
private individuals in speaking anonymously may outweigh listeners’
interest in knowing who they are, this same balance does not apply
when the government speaks. [The government] can skew the speech
market and the basis of its political support in unaccountable ways.")
Thus, the State both amplifies the pro-life message and evades scru-
tiny for its action. Therefore, I conclude that South Carolina has
impermissibly favored the pro-life viewpoint by authorizing the
Choose Life plate.

I should point out that this result does not render South Carolina
powerless to regulate its specialty license plate forum. Because
20 PLANNED PARENTHOOD v. ROSE
license plates are publicly displayed and issued by the State, certain
restrictions on speech within this forum are reasonable and permissi-
ble. Velazquez, 531 U.S. at 543; Int’l Soc’y for Krishna Conscious-
ness, Inc. v. Lee, 505 U.S. 672, 687 (1992). For instance, the State
may consider content in deciding whether to authorize issuance of a
particular plate and may, for example, prohibit patently offensive
speech from appearing on license plates. See, e.g., Perry v. McDon-
ald, 280 F.3d 159 (2d Cir. 2001) (upholding Vermont’s restriction on
offensive scatological terms on vanity plates as viewpoint neutral and
reasonable). But South Carolina has not prohibited patent offensive-
ness here. The State has opened a limited forum for expression, then
entered that forum as a covert but dominant speaker, advocating for
one viewpoint in the abortion debate without political accountability
and without authorizing the expression of the opposing viewpoint. By
limiting access to a specialty license plate to those who agree with its
pro-life position, the State has distorted the forum in favor of its own
viewpoint. This it may not do. See, e.g., Mosley, 408 U.S. at 95. In
sum, South Carolina has engaged in viewpoint discrimination by
allowing only the Choose Life plate, and it has insulated itself from
electoral accountability by disguising its own pro-life advocacy. This
is prohibited by the First Amendment.

IV.

The Act authorizing the Choose Life plate in South Carolina vio-
lates the First Amendment. Accordingly, the district court’s judgment
invalidating the Act is affirmed.

AFFIRMED

LUTTIG, Circuit Judge, concurring in the judgment:

Based upon the reasoning and conclusions set forth in my opinion
respecting the denial of rehearing en banc in Sons of Confederate Vet-
erans v. Commissioner of the Virginia Department of Motor Vehicles,
305 F.3d 241, 244 (4th Cir. 2002), I concur in the judgment reached
today. In Sons of Confederate Veterans, I outlined what I believed
were the factual and doctrinal necessities for recognition that some
speech acts constitute both private and government speech, notwith-
standing that the Supreme Court of the United States had not at that
 PLANNED PARENTHOOD v. ROSE 21
time (and as yet has not) recognized that a single communicative
event may be both private speech and government speech. See id. at
244-47. I concluded in that case that vanity license plates are quintes-
sential examples of such hybrid speech. While recognizing that differ-
ent circumstances may present themselves even in the single context
of the vanity license plate, I explained my view that at least where the
private speech component is substantial and the government speech
component less than compelling, viewpoint discrimination by the
state is prohibited.

I expressed the expectation in Sons of Confederate Veterans that,
when the opportunity arose, this court would further refine its views
on the important question of whether a single communicative event
can be both private and government speech. Needless to say, I am
pleased that the court adopts today the view that speech can indeed
be hybrid in character. I believe that, with time, recognition of this
external and legal fact will be a contribution to the law, even if differ-
ent questions must now be resolved over the implications of such a
holding.

I am pleased in particular that Judge Gregory, who also wrote in
dissent from denial of rehearing en banc in Sons of Confederate Vet-
erans, 305 F.3d at 252, concurs in the judgment reached today, for I
understood him to take a different position in his opinion in that case
than the one he takes today. In Sons of Confederate Veterans, in an
analysis which, if applied here, would permit the State of South Caro-
lina to exclude the pro-choice message, he reasoned that the First
Amendment permitted the Commonwealth of Virginia to exclude the
Confederate flag from the state’s license plates, because the Com-
monwealth of Virginia bore the "ultimate responsibility" for the
speech at issue, id. at 251 n.2; the Commonwealth had a substantial
interest in not being compelled to speak by private citizens, id. at 252,
being no differently postured in this regard than the "objecting drivers
in Wooley v. Maynard," id. at n.4 (citation omitted); the "predominate
concern that motivated [the Commonwealth’s] enactment" of the stat-
ute excluding the Confederate flag was to avoid "speech by attribu-
tion," id. (citation omitted), which he believed to be a "substantial
government interest," id. at 252; and there remained open "reasonable
alternative avenues" for communication of the excluded message. Id.
I had been concerned that Judge Gregory would have believed him-
22 PLANNED PARENTHOOD v. ROSE
self bound by his reasoning in Sons of Confederate Veterans to come
to a different conclusion than does he and the court today, and to hold
that the State of South Carolina may, permissibly under the First
Amendment, exclude the pro-choice message from its license plates
because of the state’s expressed interest in avoiding association with
that message.

Judge Gregory found the panel’s opinion deficient in Sons of Con-
federate Veterans in large part because of its "cursory" examination
of the factors bearing on the question of whether speech is that of the
government or that of private individuals. Id. at 251; see also id.
(describing panel’s application of test as "incomplete at best"). In par-
ticular, he believed that "there [was] more to be said about the test,
including how the factors relate to each other, and the relative weight
to be given each factor." Id. Judge Gregory does not identify the test
that he would apply or explain the details as to how he believes that
test would be applied in this case. I infer from his concurrence, how-
ever, that he no longer holds to the views expressed in his opinion in
Sons of Confederate Veterans, and that he has continued to refine his
thinking on the difficult issues presented in this case and in Sons of
Confederate Veterans, as have I and the other members of the court.

GREGORY, Circuit Judge, concurring in the judgment:

In Sons of Confederate Veterans, Inc. v. Comm’r of Va. Dep’t of
Motor Vehicles, 288 F.3d 610, 613 (4th Cir. 2002), this Court was
asked to determine whether the State of Virginia had a right to disas-
sociate itself from what many Americans, of all races and nationali-
ties, view to be a symbol of racism and slavery—the Confederate flag
—by prohibiting the Sons of Confederate Veterans ("SCV") from dis-
playing their organizational logo, which includes the Confederate
flag, on state owned and state issued license plates. The panel hearing
the case, in a unanimous decision, held that Virginia did not have
such a right. Id. at 614, 627. To reach this holding, the panel con-
cluded, incorrectly in my view, that only private speech was impli-
cated by Virginia’s vanity license plate program. Id. at 618-21.
Having so concluded, the panel held that Virginia’s attempt to bal-
ance its interest of not being associated with a highly divisive and
controversial symbol with the interest of the SCV in having an orga-
 PLANNED PARENTHOOD v. ROSE 23
nizational license plate amounted to viewpoint discrimination and was
therefore unconstitutional. Id. at 622-27.

In a six to five vote, this Court declined to rehear the case en banc.
Sons of Confederate Veterans, Inc. v. Comm’r of Va. Dep’t of Motor
Vehicles, 305 F.3d 241, 242 (4th Cir. 2002)(denying rehearing en
banc). In dissenting from that decision, I expressed my belief "that the
panel did not fully and adequately analyze the ‘government speech’
aspect of [the] case." Id. at 251 (Gregory, J., dissenting from the
denial of rehearing en banc). In doing so, I noted that "[w]hat is, and
what is not, ‘government speech’ is a nebulous concept, to say the
least," id., because there is a "blurry and sometimes overlapping line
between private and government speech." Id. at 252. I believe this is
especially true with "license plate programs [because they] . . . really
have elements of both private and government speech." Id.

Thus, while I continue to believe that Sons of Confederate Veterans
was wrongly decided, I am constrained to follow it because it is the
law of this Circuit. Accordingly, because I believe the judgment
reached today applies the factors set forth in Sons of Confederate Vet-
erans in a manner that begins to recognize the government speech
interests that are implicated in the vanity license plate forum, I concur
in the judgment.