It must be hard being a lawyer in the Attorney General's office these days, being on the wrong side of so many fundamental issues. And not just voter suppression and gay marriage. The AG's office was in federal district court this week, appealing a ruling against North Carolina's "Choose Life" license plate program. By all accounts, the State will be on the losing side of this one too.
Back in 2011, extremists in the General Assembly passed a law allowing the State to issue "Choose Life" plates for those who wanted to purchase them. At the same time, they rejected plates with "Trust women" and "Respect Choice." The legislation was immediately challenged, and U.S. District Judge James Fox ruled it unconstitutional. The state can't make the plates while the case works its way through the system. This week, the State went to court to appeal that ruling, arguing that it's matter of public speech, not private expression.
One lawyer who was present in the courtroom is optimistic that Judge Fox's decision will be upheld. She was baffled by the fact that the State appealed in the first place. "The case law was against them going in. There's no way the State should have appealed this."
Hathcock, the attorney for the state, argued that the license plate amounts to government speech, while ACLU attorney Christopher Brook insisted that the state created a public forum and must allow people on both sides of a hotly debated political issue have their say. "It is textbook viewpoint discrimination, and it goes to the heart of what the First Amendment is trying to protect," Brook said.
Hathcock said the viewpoint at issue is the state's, not residents who display the "Choose Life" plates because they agree with the message. "This is about North Carolina's right to speak for itself," she said.
Appeals court Judge James A. Wynn, who is from North Carolina, seemed skeptical of Hathcock's argument. "What you are doing is suppressing speech," he told Hathcock. "It's troubling." Hathcock wondered aloud how far the state would be required to go if compelled to offer an opposing viewpoint for every specialty plate. "Will we have 'Kill the sea turtles' plates?" she said.
If the State loses this appeal, which seems likely, it will also have to pay for the costs of litigation. So much for the party of fiscal responsibility, which is flushing millions of dollars to defend the indefensible for this and other court actions.