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South Carolina, one of a dozen states that have authorized “Choose Life” license plates for drivers who want them, is asking the Supreme Court to choose to uphold the plates in the face of a First Amendment challenge. At its private conference Jan. 21, the Court will consider Rose v. Planned Parenthood of South Carolina, No. 04-429, among dozens of other petitions up for review. Under a program begun in 2001, South Carolina drivers may pay a $70 fee to purchase license plates with the “Choose Life” message. The revenue generated goes toward local crisis pregnancy programs and may not, according to the statute that authorized the plates, go to any organization that provides or promotes abortions. Soon after the law took effect, the state’s Planned Parenthood group filed suit in the U.S. District Court for the District of South Carolina, claiming the program amounts to viewpoint discrimination by the state. South Carolina, in the name of state Public Safety Director B. Boykin Rose, countered that Planned Parenthood had no standing to sue, in part because the organization had not applied for its own special license plate under a separate law that allows nonprofits to seek plates bearing their insignia for members. The district court found that Planned Parenthood had standing and agreed that the plates were unconstitutional. The 4th U.S. Circuit Court of Appeals last March splintered over the reasoning, but affirmed the district court on both counts. “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,” wrote Judge M. Blane Michael. “This it may not do.” Michael also said the group has standing, noting, “If we were to deny standing to the plaintiffs, it is unlikely that anyone would have standing, and the act would effectively be immune from attack.” Judges J. Michael Luttig and Roger Gregory agreed with the result, but wrote separate concurrences offering different rationales. On a motion by South Carolina to reconsider, the 4th Circuit voted 8-5 last June to deny en banc review. In seeking Supreme Court review, South Carolina Attorney General Henry McMaster says the 4th Circuit ruling will require his state to “affirmatively provide for the expression of opposing viewpoints” whenever it takes positions on public policy matters. McMaster also tells the Court that the issue of standing has divided lower courts, and the government speech issue is a substantial federal question that the high court should resolve. He notes that in addition to South Carolina, the following states have also enacted “Choose Life” license plate programs: Alabama, Arkansas, Connecticut, Florida, Hawaii, Louisiana, Maryland, Mississippi, Montana, Oklahoma, and Tennessee. Several of those programs have been challenged in court. In a ruling on the Louisiana program, the 5th Circuit denied standing to plaintiffs after concluding that declaring the law unconstitutional would not help the plaintiffs express a pro-choice point of view and would, instead, prevent other drivers from expressing their pro-choice views. Judge Edith Jones said giving standing in this instance “would transform the First Amendment into a device for censorship rather than the enhancement of free speech.” South Carolina AG McMaster also insists that the plates are a form of government speech, a category which, under a long line of cases, allows government to espouse certain positions and not espouse others. He describes the plate as “the most recent and apparently most visible expression in a long line of statements asserting the state’s clear and oft-repeated preference for childbirth over abortion.” Under the 4th Circuit’s ruling, he adds, the state would have to provide alternatives for those who oppose other authorized license plates that state “God Bless America” or “United We Stand.” In its brief opposing high court review, Planned Parenthood defends its standing to sue in part because it did ask the state legislature to authorize a “pro-choice” plate at the same time the “Choose Life” law was enacted. That request was rejected. Longtime Planned Parenthood lawyer Roger Evans also disputes the state’s contention that the plates are a form of government speech. Noting that the 4th Circuit found it to be both government and private speech occurring in a public forum, Evans says, “When citizens display the ‘Choose Life’ plates, they will not be speaking as and for the government program, they will be speaking for themselves.” Evans, seeking to preserve the 4th Circuit ruling, says the case does not warrant Supreme Court review. OTHER CASES UP FOR REVIEWDearing v. Texas Parks and Wildlife Department, No. 04-451. Disparate-impact claims under state ban against age discrimination in employment. � Hammond v. Coeur d’Alene Tribe of Idaho, No. 04-624. Whether tribally-owned gas stations must pay state motor fuels tax. This column seeks to identify cases on the Supreme Court’s conference agenda that are leading candidates for Supreme Court review or that raise significant national issues. Thomas Goldstein of Washington, D.C.’s Goldstein & Howe selects these cases from the many petitions filed based on several factors, including whether lower courts have split on the issues presented. He does not otherwise participate in the preparation of this column.

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