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ACLU v. Tennyson

United States Court of Appeals, Fourth Circuit

March 10, 2016

AMERICAN CIVIL LIBERTIES UNION OF NORTH CAROLINA; DEBNAM; CHRISTOPHER HEANEY; SUSAN HOLLIDAY, CNM, MSN; MARIA MAGHER, Plaintiffs - Appellees,
v.
NICHOLAS J. TENNYSON, in his official capacity as Secretary of the North Carolina Department of Transportation; KELLY J. THOMAS, in his official capacity as Commissioner of the North Carolina Division of Motor Vehicles, Defendants - Appellants, and THOM TILLIS, North Carolina Speaker of the House of Representatives; PHIL BERGER, President Pro Tempore of North Carolina Senate, Intervenors, and MICHAEL GILCHRIST, in his official capacity as Colonel of the North Carolina State Highway Patrol, Defendant. NATIONAL LEGAL FOUNDATION, Amicus Supporting Appellants

On Remand from the Supreme Court of the United States. (S.Ct. No. 14-35).

ARGUED:

Kathryne Elizabeth Hathcock, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellants.

Christopher Anderson Brook, AMERICAN CIVIL LIBERTIES UNION OF NORTH CAROLINA LEGAL FOUNDATION, Raleigh, North Carolina, for Appellees.

ON BRIEF:

Roy Cooper, North Carolina Attorney General, Neil Dalton, Special Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellants.

Scott W. Gaylord, ELON UNIVERSITY SCHOOL OF LAW, Greensboro, North Carolina, for Intervenors. Steven W. Fitschen, THE NATIONAL LEGAL FOUNDATION, Virginia Beach, Virginia, for Amicus Curiae.

Before TRAXLER, Chief Judge, WYNN, Circuit Judge, and George L. RUSSELL, III, United States District Judge for the District of Maryland, sitting by designation. Chief Judge Traxler wrote the majority opinion, in which Judge Russell joined. Judge Wynn wrote a dissenting opinion.

OPINION

Page 184

TRAXLER, Chief Judge.

In our previous opinion in this case, we affirmed the decision of the district court and held that North Carolina's specialty license plate program violated the First Amendment. See ACLU v. Tata, 742 F.3d 563 (4th Cir. 2014). The State sought review by the Supreme Court, which vacated our decision and remanded the case to us for reconsideration in light of the Court's decision in Walker v. Texas Div., Sons of Confederate Veterans, Inc., 135 S.Ct. 2239, 192 L.Ed.2d 274 (2015). See Berger v. ACLU, 135 S.Ct. 2886, 192 L.Ed.2d 918 (June 29, 2015). After considering Walker and the supplemental briefs filed by the parties, we now reverse the decision of the district court and remand with instructions that the district court enter judgment for the State.

I.

As set out in more detail in our now-vacated decision, North Carolina operates a specialty license plate program that offers, inter alia, a " Choose Life" plate, but the State has repeatedly rejected efforts to include a pro-choice license plate. The ACLU and several vehicle owners brought this action alleging that the State violated the First and Fourteenth Amendments by refusing to offer a pro-choice ...


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