Elon Law Professor Scott Gaylord was retained by the North Carolina House and Senate, through the legislature’s Speaker and President Pro Tem, to represent the State in its efforts to get the U.S. Supreme Court to review a decision of the Fourth Circuit Court of Appeals that prohibits North Carolina from issuing “Choose Life” specialty license plates.
Gaylord became involved in the case after the North Carolina Attorney General’s office decided not to file a petition for a writ of certiorari in the Supreme Court on behalf of the named State defendants.
“The North Carolina Speaker and President Pro Tem moved to intervene based on N.C. General Statute section 1-72.2, which was one of the first times that statute has been invoked,” Gaylord said. “The Fourth Circuit granted our motion to intervene, and Chief Justice Roberts granted North Carolina’s application for an extension of time.”
The central legal question in the case turns on whether statements on license plates are considered government speech, individual speech or a combination of government and private speech.
“There is a critical need for guidance from the Supreme Court on this issue,” Gaylord said. “To date, seven federal circuit courts have resolved challenges to ‘Choose Life’ specialty plates in at least five different ways, demonstrating broad disagreement about the circumstances under which the government can speak for itself.”
“Across the country, groups like the ACLU have tried to use the high court’s First Amendment speech cases to censor government expression,” Gaylord said. “Such efforts are not only inconsistent with the purpose of the First Amendment, but also with the Supreme Court’s government speech precedents.”
Gaylord’s work on the petition stems from his article in the Washington and Lee Law Review, “‘Kill the Sea Turtles’ and Other Things You Can’t Make the Government Say.”
The petition to the U.S. Supreme Court is available here.
The U.S. Supreme Court likely will not decide whether to grant the petition until after the start of its next term in October 2014.
More information about Elon Law Professor Scott Gaylord is available here.