American Civil Liberties Union of North Carolina v. Tata: Manipulation of the Government Speech Doctrine Through Specialty License Plates

Kaitlin E. Leary

In American Civil Liberties Union (“ACLU”) of North Carolina v. Tata, the United States Court of Appeals for the Fourth Circuit considered whether specialty license plates bearing the message, “Choose Life,” which were authorized by the North Carolina General Assembly, constituted private or government speech. The Fourth Circuit employed a four-factor test developed in an earlier case also concerning specialty license plates and informed by two later United States Supreme Court decisions on the government speech doctrine outside of the specialty license plate context. Using this analysis, the Fourth Circuit found that the Choose Life license plate implicated private speech interests. Therefore, North Carolina engaged in impermissible viewpoint discrimination in violation of the First Amendment by authorizing the Choose Life plate while rejecting a pro-choice specialty license plate.

The Fourth Circuit in Tata correctly concluded that North Carolina attempted to manipulate the government speech doctrine to prevent the expression of a disfavored viewpoint by claiming private speech as its own. However, the court incorrectly interpreted Supreme Court case law on the government speech doctrine, which resulted in it employing an improper analysis to address the government speech issue. Instead, the Fourth Circuit should have simplified and reduced its four-factor balancing test into a dispositive two-element test: the actual and apparent accountability test. Under this test, the contested speech is government speech if (1) the government controls the content and dissemination of the message, and (2) the government appears, to a reasonable and fully informed observer, to be the literal speaker of the message. The existence of these two elements ensures that the government can be held accountable for its speech through the political process and prevents the government from improperly relying on the government speech doctrine to suppress disfavored viewpoints in a speech forum. Therefore, if either element of the actual and apparent accountability test is lacking, the contested speech is that of a private party and traditional First Amendment protections apply.