New Decision Conflicts with Federal Ruling on Arizona "Choose Life" Plates; U.S. Supreme Court Appeal Possible Next Step

Just two weeks after a three-Judge panel of the U.S. Court of Appeals for the Seventh Circuit overturned a lower court's ruling that Illinois Secretary of State Jesse White must produce and sell "Choose Life" Illinois specialty license plates, lawyers for the Thomas More Society have filed a petition asking all the Judges in active service on the Court of Appeals to reinstate the earlier ruling. That ruling had been handed down January 22, 2007 by a federal district Judge, ordering that the plates be made available.

Over 25,000 Illinois citizens had signed petitions for the "Choose Life" plate, sale proceeds of which were to fund Illinois adoption agencies to help children find lifetime homes with loving families. But efforts to get the plate approved by Illinois authorities were frustrated at every turn. Bills introduced in the General Assembly were diverted to a special subcommittee where they died without any hearing. Secretary of State Jesse White claimed he did not have power to approve the plate himself, and when the federal trial court ruled that he did have such authority under the wording of license plate statute, the General Assembly passed a new bill that required legislative approval for every new specialty plate.

At a meeting with Choose Life Illinois leaders, Illinois Senate president Emil Jones said he disagreed with the "Choose Life" message, as his position was "pro-choice." Based on all these facts, which Illinois Attorney General Lisa Madigan never contradicted, the federal district court held that suppression of the "Choose Life" plates constituted "viewpoint discrimination" which violates the free speech rights of the petition signers and other Illinois citizens under the 1st Amendment. Illinois has also approved many specialty plates supporting other causes, such as environmental, peace and wildlife.

The Choose Life Illinois petition highlights "questions of exceptional importance" involving conflicts between the panel's ruling and rulings of other courts approving such plates. Tom Brejcha, president and chief counsel of Thomas More Society, said that an appeal to the US Supreme Court is likely in the event that rehearing is not granted, or if enough votes are not won on rehearing to overturn the panel's decision.

"We are committed to fight this battle to the finish," said Brejcha, "It makes no sense that suppression of the 'Choose Life' specialty plate in Arizona was condemned by the Ninth Circuit US Court of Appeals as 'viewpoint discrimination' in violation of the First Amendment rights of Arizona's citizens, whereas that same suppression here in Illinois was held a valid exercise of state power.

"Our US Constitution, especially the First Amendment's free speech clause, must be held to mean the same thing in all parts of our country, and it makes no sense that specialty plates that say 'Choose Life' whose proceeds support the cause of adoption are permitted in so many other states, yet outlawed here. This is a classic case of what federal courts always have condemned as 'viewpoint discrimination' and it must be stopped."

The Choose Life Illinois petition, whose principal author is Alan Untereiner, of the Washington, D.C. law firm, Robbins, Russell, Orseck, Untereiner & Sauber LLP, raises other issues including: (a) whether Illinois' action could be justified even if viewed only as a "content restriction" rather than as "viewpoint bias" in light of controlling Supreme Court precedent; (b) whether specialty license plates should be viewed as a "nonpublic forum," as the panel ruled, or rather as a "designated public forum" as most other courts have ruled; and (c) whether the panel erred in carving out a new, unprecedented "legislative body" exception to the venerable First Amendment principle forbidding license schemes that delegate unfettered, standardless discretion to government decision-makers.

Lawyers from Illinois Attorney General Lisa Madigan's office had argued that Illinois' refusal to approve Choose Life plates was lawfully based on the 'controversial' nature of the plates' message - the slogan "choose life" and two smiling kids' faces. They claimed that Illinois must be permitted to refuse any messages relating to 'reproductive rights.' But no pro-choice plate was ever sought, and Jim Finnegan of Barrington, Illinois, head of Choose Life Illinois, said if enough petitions were signed he would have no objection to a pro-choice plate.