Opposition Brief — American Civil Liberties Union of Tennessee v. Bredesen

8

exercises final approval authority over every aspect of the

message; and (5) that the government ts not limited to only

final approval, but is involved in the design and shaping of

the message. /d. at 561.

Here, the Sixth Circuit correctly applied the test

articulated in Johanns, finding that the Act substantially

mirrored the factors present in Johanns. See Pet. App. Al1-

Al4. In summarizing, the Sixth Circuit stated:

Johanns stands for the proposition that when the

government determines an overarching message and

retains power to approve every word disseminated at

its behest, the message must be attributed to the

government for First Amendment purposes. In this

case, Johanns requires the court to conclude that

“Choose Life” is Tennessee’s message because the

Act determines the overarching message and

Tennessee approves every word on such plates.

Pet. App. All. é

In applying the Johanns test for government speech, the

Sixth Circuit correctly found that the Tennessee legislature set

the overall and specific message when it authorized the

“Choose Life” specialty plate. As in Johanns, while

Tennessee allows partial participation by another party, New

Life Resources, in the design of the plate, the State retains a

veto over the design and its message. “Tennessee’s statutory

law, and its power to withdraw authorization for any license

plate, gives the State the right to wield ‘final approval

authority over every word used’ on the “Choose Life’ plate.”

Pet. App. Al2. The Sixth Circuit noted that, under Johanns,

“a government crafted message is government speech even if

the Government does not explicitly credit itself as the

9

speaker.” In any event, the Sixth Circuit correctly concluded

that a reasonable person knows that the medium for the

message in this case, a “government-issued license plate,” is

government-issued and “a fortiori conveys a government

message.” Pet. App. Al4.

The Sixth Circuit is thus the first circuit court to have had

the opportunity to apply Johanns in the context of a First

Amendment challenge to a speciality license plate. Indeed,

the Sixth Circuit appears to be the first circuit court to have

had the opportunity to apply Johanns substantively to any

First Amendment challenge. Cf. Pelts & Skins, LLC v.

Landreneau, 2006 WL 1163855 (Sth Cir. May 3, 2006)

(vacating prior opinion and remanding for reconsideration of

government speech question under Johann’s “now-governing

standard”); R.J. Reynolds Tobacco Co. v. Shewry, 423 F.3d

906 (9th Cir. 2005) (stating in postscript to prior opinion that

Johanns “affirms our reasoning” on government speech

question); Charter v. United States Department of

Agriculture, 412 F.3d 1017 (9th Cir. 2005) (resubmitting

appeal in light of Johanns and remanding for further

proceedings). As the Sixth Circuit observed, the Fourth

Circuit’s decision in PPSC is “in tension with the intervening

case of Johanns.” Pet. App. A21. “Johanns sets forth an

authoritative test for determining when speech may be

attributed to the government for First Amendment purposes.

[PPSC] relied instead on a pre-Johanns four-factor test of the

Fourth Circuit’s own devising . . . .” /d.?

"Indeed, the “degree of governmental control over the message,”

which was key to this Court’s finding of government speech in

Johanns, see 544 U.S. at S61, is but one of the four factors

considered by the Fourth Circuit in PPSC. See 361 F.3d at 793.

10

Petitioners support their bid for review by citing a litany

of cases pending in a number of circuit or district courts that

involve like challenges to a “Choose Life” plate, Pet. 15-16,

arguing that the “sheer number” of these challenges

demonstrates the need for a “unifying response” from this

Court. But that response has already come and the fact that

several cases are currently pending in the lower courts is all

the more reason for this Court to deny review and afford

these courts the same opportunity as had the Sixth Circuit to

apply Johanns. Just as consideration of the “government

speech” theory proved to present “a solution to the problem

presented by [the checkoff assessment] cases” in Johanns,

544 U.S. at 569 (Breyer, J., concurring), so too may that

theory prove to be the solution to the problem presented by

the many “Choose Life” license plate cases. Contrary to

petitioners’ assertions, this theory, as adopted in Johanns and

as applied in this case by the Sixth Circuit, comports fully

with this Court’s prior decisions. See Rosenberger v. Rector

and Vistiors of Univ. Of Va., 515 U.S. 819, 833 (1995)

(viewpoint-based decision may be sustained where

government uses private speakers “to convey a governmental

message”). Cf. Legal Services Corporation v. Velazquez, 531

U.S. 533, 542 (2001) (serious restrictions on client advocacy

may not be part of a legal services program that “was

designed to facilitate private speech, not to promote a

governmental message”);'° Wooley v. Maynard, 430 U.S.

Petitioners argue that the Sixth Circuit decision conflicts with

Velasquez because the Sixth Circuit failed to consider “the overall

purpose of the specialty license plate scheme.” (Pet. 23). But

petitioners isolated their challenge to the statute that authorized the

“Choose Life” license plate, and the district court expressly

declined to address petitioners’ separate challenge to the entire

specialty plate program. (Pet. App. A53-A54). Consequently, the

only question before the Sixth Circuit was whether the

1]

705, 715 (1977) (invalidating state statute that “in effect

requires that appellees use their private property as a ‘mobile

billboard’ for the State’s ideological message”) (emphasis

added). Therefore, in light of this Court’s “government

speech” test set forth in Johanns, there is no unsettled,

important question of federal law that needs to be resolved.

government’s dissemination of the “Choose Life” message

constituted government speech.

12

CONCLUSION

For all of the reasons stated above, this Court should deny

the petition for a writ of certiorari.

Respectfully submitted,

Paul G. Summers

Attorney General

State of Tennessee

Michael E. Moore

Solicitor General

Joseph F. Whalen

Associate Solicitor General

Steven A. Hart

Special Counsel

Counsel of Record

William Helou

Assistant Attorney General

Tennessee Attorney General’s Office

P.O. Box 20207

Nashville, TN 37202-0207

(615) 741-3505

Counsel for State Respondents

June 6, 2006

~, ws i —ee

fer i

4 FILED

| “AY 1 6 2006

OFFICE OF THE Cre

No. 05-1389 |_ SUPREME count

SNOT ARR

In The

Supreme Court of the United States

A ewenetees ony

AMERICAN CIVIL LIBERTIES UNION OF TENNESSEE, PLANNED

PARENTHOOD OF MIDDLE AND EAST TENNESSEE, INC., SALLY

LEVINE, HILARY CHIZ, JOE SWEAT, Petitioners,

V.

PHILIP BREDESEN, GOVERNOR OF TENNESSEE, GERALD F.

NICELY, INTERIM COMMISSIONER OF SAFETY OF TENNESSEE,

FRIENDS OF GREAT SMOKY MOUNTAINS NATIONAL PARK, A

NON-PROFIT NORTH CAROLINA CORPORATION, NEW LIFE

RESOURCES, INC., Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

Objection of Respondent New Life Resources, Inc.,

to Petition for Writ of Certiorari

James Bopp, Jr., Counsel of Record

Thomas J. Marzen

Anita Y. Woudenberg

HORATIO R. STORER FOUNDATION, INC.

Bopp, COLESON & BOSTROM

| South 6th Street

Terre Haute, IN 47807-3510

Ph. 812/232-2434; Fx. 812/235-3685

Counsel for Respondent New Life

May 16, 2006 Resources, Inc.

=

1

QUESTION PRESENTED BY RESPONDENT

Whether the Sixth Circuit correctly upheld a legislatively

mandated social, economic, and educational program to

encourage childbirth that specifically mandates publication of

the message “Choose Life” on state vehicle specialty license

plates, aithough the legislature refused to enact legislation

enabling production of specialty plates with a “pro-choice”

message.

il

CORPORATE DISCLOSURE STATEMENT

Respondent New Life Resources, Inc., does not have any

stock owned by a publicly held corporation. It does not have a

parent corporation.

ili

TABLE OF CONTENTS

QUESTIONS PRESENTED BY RESPONDENT ....... |

CORPORATE DISCLOSURE STATEMENT ............ ii

ROLES OR CAPT EEE ES ora o's Re PA BD a eee ill

TABLE OF AUTRES oi wicks vcas cea eee eee iv

REASONS FOR DENYING THE PETITION ............ I

I. Johanns Resolves Any Conflict Between the Sixth

Circuit’s and Fourth Circuit’s Decisions ........... 3

fl. Other Challenges to Issuance or Rejection of “Choose

Life” License Plates Programs Do Not Warrant the

Conclusion that Petitioners’ Question Presented

Demands Resolution At This Time. ............... 5

II. In the Wake of Johanns, Clarification of the Scope

and Application of the Government Speech Doctrine

Is Unnecessary to Alleviate Confusion Among Lower

COM a sc eae s bated maces CEE Ch ee ee 7

IV. The Sixth Circuit’s Reasoning Is Consistent With

Fale CSD FOO oo G's <0 sd ck oA 10

AGS Rl) Sk BNE er ret ree noe Pa ree 14

iV

TABLE OF AUTHORITIES

Cases: Page(s)

Arizona Life Coalition, Inc. v. Stanton, No. CV-03-1691-

PHX-PGR, 2005 WL 242811, 2005 U.S. Dist. LEXIS

21960 (D. Ariz. Sept.26, 2005), appeal docketed, No.

O5-16971 Gm Ce: Ot TB ZORS) sn i Sine een Ce. 6

Chadwick v. Janecka, 302 F.3d 107 (3d Cir. 2002) ... 2n.1

Children First Found., Inc. v. Martinez, Nos. 05-0567-CV,

05-1979-CV, 2006 WL 544502, 2006 U.S. App. LEXIS

5830 (2d Cir. Mar. 6, 2006) (unpublished) ..... 4n.3,6

Choose Life Illinois, Inc. v. White, No. 1:04-CV-04316 (N.D.

eh: TA ONE 20; AVE) 5. ces kins aes dea eeen tes 6-7

Diamond v. Charles, 476 U.S. 54 (1986) ........... 1 n.1

Didrickson v. U.S. Dep't of Interior, 982 F.2d 1332 (9th Cir.

PRE Oya ka hae CCRAOEK sr eRe Cae ae 2n.1

Harris v. McRae, 448 U.S. 297 (1980)... 2.2.2.2... 10, 13

Henderson v. Stalder, 47 F.3d 351 (Sth Cir. 2005), petition

for cert. filed sub nom., Keller v. Stalder, No. 05-1222

GME 2h, BOUT is tia ko beac e aah ba vee do 5 n.4, 6

Hill v. Kemp, No. 04-CV-0028-CVE-PJC (N.D. Okla. Aug.

16, 2005, appeal docketed, No. 05-05-5160 (10th Cir. Sept.

Eh, GOA sk neu kOe eA en nee ae Rees bane aCe ee 6

Int'l Union of Mine Workers v. Eagle-Picher Mining &

amenting Go. 325 US. 335 (IFES) oo. si cena es 1n.]

Vv

Johanns v. Livestock Marketing Association, 544 U.S. 550,

bag Bie ye. PS | SEI Reaper eee top ner gaper ran passim

Legal Services Corp. v. Velasquez, 531 U.S. 533 (2001) . 11

Maher v. Roe, 432 U.S. 464 (1977) ............... 10, 13

Mich. State AFL-CIO v. Miller, 103 F.3d 1240 (6th Cir.

ged FOR PES Set ee re Op eee oe eee ee ears In.

NARAL Pro-Choice Ohio v. Taft, No. 1:05- CV-1064, 2005

U.S. Dist LEXIS 21394, 2005 U.S. Dist. LEXIS 21394

(N.D. Ohio Sept. 27, 2005), appeal docketed, No. 05-

aoe els SOR re, MED A Gch bk 0 pes 5 ke 6

Planned Parenthood of South Carolina v. Rose, 361 F.3d 786

(4th Cir. 2004), reh’g en banc denied, 373 F.3d 580,

cert. denied, 543 U.S. 1119 (2005) ........ sy Te

Poelker v. Doe, 432 U.S. 519 (1977) ...........4.4- 10, 13

Police Dept. of Chicago v. Mosley, 408 U.S. 92 (1972) .. 12

Perry Education Ass'n v. Perry Local Educators’ Ass'n, 460

CUP SR ty 2 Bane Gaet AAS eieart per ecs 12-13

Rosenberger v. Rector & Visitors of the University of

PEPER, Se Ai AO CLO O) 6 vs cen sa tea wenees 12

Rust v. Sullivan, 500 U.S. 173 (1991) ............. 10, 13

Simon v. Eastern Kentucky Welfare Rights Org.,

ge 8, g |) RR eps Sree oare Pape 1n.1

v1

Sons of Confederate Veterans, Inc. v. Commissioner of the

Virginia Dept. of Motor Vehicles, 288 F.3d 610 (4th Cir.

2002), reh’g en banc denied, 305 F.3d 241 (4th Cir.

BUMMER bs 50 5-65 SW eh WR a a 7

Schulz v. Williams, 44 F.3d 48 (2d Cir. 1994) ........ 2 n.1

Women's Emergency Network v. Bush, 323 F.3d 937

CETUS E55 Shs rine Sees Ma eS be SR 4,6

Women’s Resource Network v. Gourley, 305 F. Supp. 2d

LED i ae, CEE a sds Wc ska ce eae abe ae 7

Wooley v. Maynard, 430 U.S. 705 (1997) ........... 8, 10

Constitutional Provision:

ERS 3. ge Sy See ret er ee 1-2 n.1

SR eS RPS Pee er ares ee passim

Statutes & Rules:

Ps Ma SN OE vn we ede ek Cae Rs baw 1n.l

Jewe: Stat. SS4-20TANS MB) © 2 oe ks ees 1 n.l

U.S. Court of Appeals for the Second Circuit

PIRES cs ccc ys oh ae Woe anes Comin eae 5 n.3

Re Ae Be | | memary rere eerie Sera Cera 2

As UR, Bs FO) oe eh owns ee PPS CT eee 3

REASONS FOR DENYING THE PETITION

Respondent New Life Resources, Inc.’ (“New Life’),

'New Life, which intervened pursuant to Fed. R. Civ. Pro. 24 as a

defendant in the District Court, is properly before this Court, as it was

properly before the Sixth Circuit, because it has Article II] standing. It has

a specific and concrete financial interest in the outcome of this case.

The Sixth Circuit does not require intervenors to have Article III

standing. Mich. State AFL-CIO v. Miller, 103 F.3d 1240, 1245 (6th Cir.

1997). However, only New Life appealed the decision of the District Court.

Pet. App. at 3. And this Court has held that “an intervenor’s right to continue

a suit in the absence of the party on whose side intervention was permitted

is contingent upon a showing by the intervenor that he fulfills the

requirements of Article III.” Diamond v. Charles, 476 U.S. 54, 68 (1986).

The pediatrician-intervenor in Diamond asserted a number of

interests that he claimed provided him standing, but none were deemed

sufficient to satisfy the Article II] requirement. /d. at 65-68. In particular, he

claimed an interest in a successful outcome of the litigation based on the

prospect that, if the law at issue went into effect, then more children would

be born and he would thus gain financially by virtue of more fee-paying

patients. /d. at 66. However, as the Diamond Court held, “the possibilities

that such fetuses would survive and then find their way as patients to

Diamond are speculative, and ‘unadorned speculation will not suffice to

invoke the federal judicial power.”” /d. (quoting Simon v. Eastern Kentucky

Welfare Rights Org., 426 U.S. 26, 44 (1976)). The Diamond Court thus held

the intervenor lacked Article II] standing to appeal! on such a basis.

In stark contrast, New Life has a vested financial interest in a

portion of the funds that have already been paid by purchasers of the

“Choose Life” plates to satisfy the requirement that funds for at least 500

such plates be presented to the State before production of the plates may

begin. Tenn. Stat.§ 55-4-201(a)(3)(B); Pet. App. at 65. The State specifically

estimated the amount due to New Life for the first year alone of the program

would be $14,000. Pet. App. 64. Thus, New Life suffers a concrete injury in

fact as the result of this action — an injury that will be redressed if it succeeds

in this case. As a consequence, it has standing to pursue this appeal even in

the absence of the State as an appellant. See, e.g., Int'l Union of Mine

Workers v. Eagle-Picher Mining & Smelting Co., 325 U.S. 335, 338-39

(1945), which upheld intervenor-unions' standing to appeal denial of NLRB's

petition to vacate portion of decree dealing with back pay where NLRB had

2

argues that petition for writ of certiorari in this case should be

denied as resolved by this Court’s decision in Johanns v.

Livestock Marketing Association, 544 U.S. 550, 125 S. Ct. 2055

(2005). The decision here is in technical conflict with the

decision of U.S. Court of Appeals for the Fourth Circuit in

Planned Parenthood of South Carolina v. Rose, 361 F.3d 786

(4th Cir. 2004), reh’g en banc denied, 373 F.3d 580, cert.

denied, 543 U.S. 1119 (2005) (“PPSC’). However, the

intervening decision of the Court in Johanns effectively

overrules PPSC by virtue of its reasoning on the nature of

government speech. Cf U.S. Sup. Ct. R. 10(a).

There are a number of cases involving “Choose Life”

specialty license plates pending in federal courts throughout the

country. However, these too are now properly resolved by

application of Johanns, thus obviating the need for any

guidance toward resolution by this Court. Similarly, Johanns

now provides clear guidance on the proper application of the

government speech doctrine, alleviating any confusion that

might have previously existed below. Finally, the decision in

not sought Supreme Court review). See also Chadwick v. Janecka, 302 F.3d

107, 112-15 (3d Cir. 2002) (permitting intervenor wife standing to appeal

ruling freeing husband from incarceration for civil contempt of order

requiring him to pay into escrow account for wife's benefit when the State

did not appeal, where wife had Article IL] standing by virtue of her financial

injury and her injury could be redressed by reversal that would require

husband to remain incarcerated until he paid funds into escrow account);

Schulz v. Williams, 44 F.3d 48, 53 (2d Cir. 1994) (permitting political

opponents to intervene for purposes of appealing preliminary injunction

preventing enforcement of determination that political party's nominating

petitions were invalid, after state decided not to appeal to defend

constitutionality of its statutes); Didrickson v. U.S. Dep't of Interior, 982

F.2d 1332, 1339 (9th Cir. 1992) (allowing defendant-intervenor industry

groups to appeal to defend federal regulation where government abandoned

its appeal and court held that defendant-intervenor had independent Article

III standing and could benefit from reversal of lower court decision).

3

this case is in accord with Johanns, which is itself in accord

with well-established precedents of this Court. See Johanns,

125 S. Ct. at 2064-65, and the cases there cited. Cf U.S. Ct. R.

10(c).

I. Johanns Resolves Any Conflict Between the Sixth

Circuit’s and Fourth Circuit’s Decisions.

Although there would appear to be a conflict between the

Sixth Circuit’s decision here and the Fourth Circuit’s decision

in PPSC, the conflict was actually resolved by the intervening

decision of this Court in Johanns. PPSC was fully decided prior

to the decision in Johanns, and Johanns was decided while this

case was being briefed before the Sixth Circuit. In following

Johanns, the Sixth Circuit thus simply applied the most recent

precedent of this Court on the nature of government speech — a

precedent unavailable at the time PPSC was decided.

As Petitioners? state, PPSC is “‘a case virtually identical to

this one.” Pet. at 13. Indeed, the South Carolina and Tennessee

“Choose Life” specialty plate statutes operate in the same way.

Under both statutes, the “Choose Life” message is dictated by

the legislature. Under both statutes, the State maintains final

control over the message and the manner in which it is to be

communicated. Thus, following Johanns, the “Choose Life”

message on both the Tennessee and South Carolina plates

should properly be deemed “government speech” because, in

both cases, “the government determines an overarching

message and retains power to approve every word disseminated

at its behest.” Pet. App. Al0 (citing Johanns, 125 S. Ct. at

2062-66).

?American Civil Liberties Union of Tennessee, Planted Parenthood

of Middle and East Tennessee, Inc., Sally Levine, Hilary Chiz, and Joe

Sweat (the “Petitioners”).

4

Just as in Johanns, the message here and in PPSC qualifies

as government speech because “from beginning to end [it is] the

message established by [the State].” 125 S. Ct. at 2062. Just as

in Johanns, the State here and in PPSC stated the “overarching

message and some of its elements,” leaving only some

“remaining details to an entity” that is answerable to the State.

Id. at 2063. Just as in Johanns, the State here and in PPSC

“exercises final approval authority over every word used in

every promotional campaign.” /d. It follows that, because in all

three cases “the government sets the overall message to be

communicated and approves every word that is disseminated,”

id., the speech involved is government speech.

Thus, any conflict between the Sixth and Fourth Circuits in

this regard is more apparent than real. Moreover, there is not

any other conflict warranting Supreme Court review on this

matter. The Eleventh Circuit — once again, prior to Johanns -

did comment that it “fail[ed] to divine sufficient government

attachment to the messages on Florida specialty license plates

to permit a determination that the messages constitute

government speech.” Women’s Emergency Network v. Bush,

323 F.3d 937, 945 n.9 (1]th Cir. 2003). But this was mere

dictum because the Court held that the plaintiffs lacked standing

and that it lacked jurisdiction to hear the merits of the case. Jd.

at 949.° This Court should not, therefore, review this case based

‘Both the dissent in the decision below, Pet. App. A22 n.2 (Martin,

J., concurring in part and dissenting in part), and the Petitioners, Pet. at 11

n.7 and 15, also cite as conflicting authority Children First Found., Inc. v.

Martinez, Nos. 05-0567-CV, 05-1979-CV, 2006 WL 544502, 2006 U.S.

App. LEXIS 5830 (2d Cir. Mar. 6, 2006) (unpublished). In Martinez, the

Second Circuit held defense of qualified immunity do not appear on the face

of the complaint, it lacked appellate junsdiction. 2006 U.S. App. LEXIS

5830, at *3. The court specifically declined to reach the merits of the issue,

which involved whether New York should issue a “Choose Life” specialty

plate. Jd. Moreover, Martinez is an unpublished opinion and a summary

5

on a conflict of circuits over the issue of whether there is a

conflict of circuits over the messages on specialty license plates

constitute government speech where, as here, the message of

the plate is dictated and controlled by the government.‘

If. Other Challenges to Issuance or Rejection of “Choose

Life” License Plates Programs Do Not Warrant the

Conclusion that Petitioners’ Question Presented

Demands Resolution At This Time.

Petitioners cite a number of cases in support of their claim

that they present an important federal question that is “in need

of a unifying response from the Court.” Pet. at 15-16. As New

Life has shown, the apparent conflict with PPSC is resolved by

\

order, and under U.S. Court of Appeals for the Second Circuit Rule 0.23

(Dispositions in Open Court or by Summary Order):

Where disposition is by summary order, ti.> court may

append a brief written statement to that order. Since these

statements do not constitute formal opinions of the court

and are unreported or not uniformly available to all

parties, they shall not be cited or otherwise used in

unrelated cases before this or any other court.

“The Sixth Circuit decision at issue here did create a genuine

conflict of circuits in holding that the federal] Tax Injunction Act, 28 U.S.C.

§ 1341 (“TIA”) did not apply to deprive federal courts subject matter

jurisdiction over the Tennessee specialty plates program. See Pet. App. AS5-

Al0. The Fifth Circuit earlier held that the TIA applies to Louisiana's

“Choose Life” plate scheme. Henderson v. Stalder, 47 F.3d 351, 354-60 (Sth

Cir. 2005), petition for cert. filed sub nom., Keller v. Stalder, No. 05-1222(

March. 21, 2006). In this case, the Sixth Circuit unanimously held that the

TIA did not apply to the Tennessee “Choose Life” plates program. Pet. App.

AS-A10; Pet. App. A22 (Martin, J., concurring in part and dissenting in

part). New Life intends to tile a Conditional Cross-Petition for Writ of

Certiorari requesting review of the decision of the Sixth Circuit finding that

the TIA does not apply to the Tennessee specialty plates program.