Opposition Brief — Choose Life Life Illinois, Inc. v. White (No. 08-1283)

nt, U.S.

(7 SutOTTLED

7 JUL 3 1 2009

No. 08-1283 OFFICE OF THE CLERK

In the

Supreme Court of the United States

CHOOSE LIFE ILLINOIS, INC., et al.,

PETITIONERS,

v.

JESSE WHITE, ILLINOIS SECRETARY OF STATE,

RESPONDENT.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Seventh Circuit

BRIEF IN OPPOSITION

LisA MADIGAN

Attorney General of Illinois

MICHAEL A. SCODRO*

Solicitor General

JANE ELINOR Notz

Deputy Solicitor General

RICHARD S. HUSZAGH

PAUL BERKS

Assistant Attorneys General

100 West Randolph Street

Chicago, Illinois 60601

* Counsel of Record (312) 814-3698

Counsel for Respondent

QUESTION PRESENTED

Through the passage of successive laws, the Illinois

legislature has created various specialty license plates

for motor vehicles (e.g., plates honoring members of the

military and elected officials, and plates supporting

environmental protection), but has not enacted any law

creating a specialty plate expressing a view—pro-life,

pro-choice, or otherwise—on the subject of abortion.

The question presented is:

Where the Illinois legislature creates every new

specialty plate by passing a separate law specifically

authorizing that plate, did the court of appeals correctly

hold that the absence of any law creating a plate on the

subject of abortion is not discrimination against a

particular viewpoint, and that there is no merit to

petitioners’ facial challenge to Illinois’s method of

creating specialty plates, where that challenge was

inadequately developed below, petitioners lack standing

to advance it, and no Supreme Court or appellate court

authority supports it?

1]

TABLE OF CONTENTS

Page

QUESTION PRESENTED ......+++5+55453)9 i

TABLE OF AUTHORITIES ......9.53353n lil

BRIEF IN OPPOSITION .....-..55.55 ee 1

STATEMENT .......020+004 55 ee 4

REASONS FOR DENYING THE PETITION .... 10

I. There Is No Circuit Split Over What It Means

For A Law To Be “Viewpoint Neutral” ..... 10

II. Petitioners’ Facial Challenge Implicates No

Circuit Split And Is Not A Ground For

Further Review .......6ss5 sk) 22

lil. Respondent’s Alternate Theory That Illinois

Specialty Plates Are Government Speech

Provides An Additional Reason To Deny The

Petition ......00s0004 605 32

ikl

TABLE OF AUTHORITIES

Cases: Page(s)

ACLU of Tenn. v. Bredesen,

646 U.S. 906 (2006) ............ 33, 34, 35, 36

Advantage Media, LLC v. City of Eden Prairie,

456 F.3d 793 (8th Cir. 2006) .............. 31

Ariz. Life Coal., Inc. v. Stanton,

515 F.3d 956 (9th Cir.),

cert. denied, 129 S. Ct. 56 (2008) ...... passim

Ark. Educ. Television Comm’n v. Forbes,

a | 12

Bd. of Airport Comm’rs of City of L.A. v. Jews

for Jesus, Inc., 482 U.S. 569 (1987) ...... 30-31

Bordelon v. Chicago Sch. Reform Bd. of Trs.,

233 F.3d 524 (7th Cir. 2000) .............. 19

Broadrick v. Oklahoma, 413 U.S. 601 (1973) ..... 30

Children of the Rosary v. City of Phoenix,

154 F.3d 972 (Sth Cir. 1998) .............. 20

City of Mobile v. Bolden, 446 U.S. 55 (1980) ..... 26

Cornelius v. NAACP Legal Def. & Educ. Fund,

ee ee i CE sk se iv cee eves 12, 20

iv

TABLE OF AUTHORITIES—Continued

Davenport v. Wash. Educ. Ass’n,

Re ed y : ) i ee a ee 12

Davis v. Fed. Election Comm’n,

126 BS. Ch. SIGS Se) .. we se eee 31

Ex parte Young, 209 U.S. 123 (1908) ........... 29

Fletcher v. Peck, 6 Cranch 87 (1810) ............ 24

Good News Club v. Milford Cent. Sch.,

ae Ge ee CE oe es obs nee has weenen 12

Hazelwood Sch. Dist. v. Kuhlmeier,

OG ET Be te ges oh sc eae whee 20

Johanns v. Livestock Mktg. Ass’n,

BOO US. DOO COO) 6. hci wc wecsss oo, 26, 37

Lewis v. Wilson, 253 F.3d 1077 (8th Cir. 2001) ... 22

McCray v. New York, 461 U.S. 961 (1983) ....... 38

Midwest Media Prop., LLC v. Symmes Twp., Ohio,

503 F.3d 456 (6th Cir. 2007) «.. 2.5 i ks 31

Mo. Coal. for Env’t v. Joint Comm. on Admin.

Rules, 948 S.W.2d 125 (Mo. 1997) ......... 28

Mix v. Ill. Cent. R.R. Co., 6 N.E. 42 (Ill. 1886) .... 24

Planned Parenthood of S.C., Inc. v. Rose,

361 F.3d 786 (4th Cir. 2004) .......... passim

Vv

TABLE OF AUTHORITIES—Continued

Pleasant Grove City v. Summum,

BZO wm. CF. SISO (SOG)... eee es passim

Reichelderfer v. Quinn, 287 U.S. 315 (1932) ..... 24

Roach v. Stouffer,

560 F.3d 860 (8th Cir. 2009) .......... passim

Roberts v. Galen of Va., Inc.,

525 U.S. 249 (1999) (per curiam) .......... 23

Rosenberger v. Rector & Visitors of Univ. of Va.,

Dae Ge. OE a) «cw we ce cca eane ees passim

Shuttlesworth v. City of Birmingham,

gee U.S. 147 (1068) «2... cc cee 23, 24, 25, 26

Sons of Confederate Veterans, Inc. v. Comm’r

of the Va. Dep’t of Motor Vehicles,

288 F.3d 610 (4th Cir. 2002) .......... passim

State Auditor v. Joint Comm. on Legislative

Research, 956 S.W.2d 228 (Mo. App. 1997) .. 28

Tesas v. Cobd. 532 1.5. 162 (200) ... 6. cece ss 26

Wisconsin v. Mitchell, 508 U.S. 476 (1993) ...... 23

Young v. Am. Mini Theatres, Inc.,

ee 8 ee ok eee ikea 26

vl

TABLE OF AUTHORITIES—Continued

Constitutional Provision:

8 a ra passim

Statutes and Rules:

625 Ill. Comp. Stat. 5/3-600 et seg. (2008) ........ 4

625 Ill. Comp. Stat. 5/3-808(f) (2008) ........... 20

Be, WO ASE SG-OSGO 2. ww cece cee eves 7

ok Se ee } jr 19

NS eg eed ce Urhtle gale k a WN ad Oe 19

BRIEF IN OPPOSITION

The petition for certiorari should be denied. A

change in the Illinois statute governing speciality

license plates, enacted while this case was on appeal, has

forced petitioners to concede that this was not the case

they thought it was when they filed suit. Petitioners

now admit, contrary to their legal position before the

district court and the Seventh Circuit, that respondent

does not decide what new specialty plates are created in

Illinois. Only the General Assembly may authorize new

plates, which it does by enacting a new law for every

plate. Accordingly, this is not the case of an

administrative body refusing to issue a plate satisfying

a State’s preset, statutory criteria. Rather, it is the case

of a legislature declining to pass a new law authorizing

a plate on a controversial topic never before made the

subject of Illinois plates.

This distinction was not only dispositive of the

analysis and ultimate judgment below, but it means that

this case implicates none of the claimed “splits” in

authority that petitioners allege. They contend that the

decision below is in conflict with the Ninth Circuit’s

recent decision in Arizona Life Coalition, Inc. v.

Stanton, 515 F.3d 956 (9th Cir.), cert. denied, 129 S. Ct.

56 (2008). But in sharp contrast to Illinois’s reliance on

case-by-case, legislative lawmaking to authorize new

plates, Stanton involved an administrative body’s

content-based refusal to issue a plate that it was

2

statutorily obligated to provide because the sponsor met

all applicable eligibility criteria. Of course the court

found viewpoint discrimination under’ such

circumstances, just as this Court did on analogous facts

in Rosenberger v. Rector & Visitors of the University of

Virginia, 515 U.S. 819 (1995). But nothing in the

decision below is to the contrary.

The alleged split between that decision anda single

other circuit court opinion purportedly implicated by

petitioners’ facial challenge is just as illusory. The

Eighth Circuit decision on which petitioners rely, Roach

v. Stouffer, 560 F.3d 860 (8th Cir. 2009), says nothing

about the situation here, where again it is dispositive

that the General Assembly authorizes each new plate

without delegating any of that authority. And there are

numerous obstacles to further review of petitioners’

facial challenge, including the inapplicability of

overbreadth analysis, petitioners’ lack of standing to

press a facial claim, and their failure to brief this issue

adequately below.

Finally, petitioners seek to bolster their petition by

anticipating that respondent will advance, as an

independent ground to sustain the judgment below, that

specialty plates are government speech to which First

Amendment protections do not apply. But that

argument would implicate no meaningful split in

authority. And in any event this Court clarified the

government-speech doctrine last Term in Pleasant

Grove City v. Summum, 129 S. Ct. 1125 (2009)

3

(“Summum”), and it is far too early to claim

irreconcilable confusion in the lower courts over the

impact of that decision on the States’ varied specialty-

plate programs.

Ultimately, petitioners do not (and cannot) produce

a single circuit court decision sustaining a First

Amendment challenge to a specialty-plate process, like

Illinois’s, that requires the state legislature to enact a

law authorizing each new plate, without a clear

departure from past practices or other competent

evidence of viewpoint discrimination. The Illinois

legislature has not created any plate with an abortion-

related message, and petitioners’ proposed law is just

one among dozens the General Assembly has declined to

enact. The Seventh Circuit therefore rightly found

nothing in the record to suggest viewpoint

discrimination in the legislature’s non-action here. In

the end, when the dust settles on petitioners’ several

alleged conflicts and splits, they are asking this Court

merely to review that factual record and rectify what

they see (wrongly) as the appellate court’s failure to

consider evidence allegedly suggestive of the legislators’

true motives in declining to pass a Choose Life plate bill.

But even if well-founded (and it is not), such a request

for error correction is not grounds for certiorari review.

4

STATEMENT

1. In Illinois, unlike most States, the legislature

must pass a statute to authorize any new specialty

license plate. Pet. App. 10a. By contrast, the majority

of States delegate some or all of this authority to an

official or other administrative entity.’

Illinois statutes authorizing new speciality plates

are collected in Chapter 3, Article VI of the Illinois

Motor Vehicle Code, 625 Ill. Comp. Stat. 5/3-600 et seq.

(2008) (“Code”), including laws creating plates for war

veterans and public officials, and others endorsing

environmental protection, organ donation, and the

prevention of violence and drug abuse. None of the

specialty plates created by the Illinois legislature

contains any message on the_ subject of

abortion—pro-life, pro-choice, or otherwise. Pet. App.

3a, 25a.

2. Petitioners tried to garner legislative support

for a Choose Life plate, but that plate, like dozens of

others (including plates recognizing the Cancer Society,

Community Colleges, Correctional Employee Memorial,

Corvettes, Diabetes, Fallen Veterans, Illinois Coal

Mining, Iraqi Freedom, K-12 Education, Lions Club,

Besides Illinois, the following States presently create

specialty plates exclusively by specific legislative enactment:

Alaska, Colorado, Florida, Kansas, Louisiana, Maine,

Minnesota, Mississippi, Nebraska, New Hampshire, New

Mexico, Ohio, Rhode Island, South Dakota, Tennessee, Virginia,

West Virginia, and Wyoming.

5

NASCAR, Relay for Life, Road Worker Safety,

Submarine Veterans, and Sudden Infant Death

Syndrome) never inspired a new law authorizing its

production. Pet. App. la-2a; see also Feb. 5, 2007

Motion, Ex. A; Nov. 30, 2007 Fed. R. App. P. 28) Letter

1-4."

Petitioners then brought suit against respondent,

Illinois Secretary of State Jesse White, who is

responsible for administering the Code. Petitioners

framed their case as one involving the unlawful

delegation and exercise of power by respondent. The

complaint thus began with the premise that the Code

authorized him—not the General Assembly—to create

new specialty plates, and that he had arbitrarily

delegated this authority back to the General Assembly.

Am. Comp. 1f 3-4, 20-21, 23, 35, 43. Petitioners alleged

that the failure to issue the Choose Life plate was the

product of unlawful viewpoint discrimination, and they

sought an injunction requiring respondent to issue their

plate. Pet. App. 6a-7a. Their theory that Illinois law

authorized respondent to issue speciality plates also

took the form of a facial challenge, in which they

claimed that the Code lacked sufficient standards

cabining respondent’s exercise of that authority. Id. at

7a; see also Oct. 4, 2005 Pet. Mem. 14-15. As relief on

that claim, petitioners sought to enjoin Illinois’s

specialty-plate program in its entirety unless the State

)

Record materials outside the Petitioners’ Appendix are

identified by the filing date in the court’s docket.

6

adopted viewpoint- and content-neutral criteria to

govern respondent’s actions. Pet. App. 7a.

The parties filed cross-motions for summary

judgment. Respondent argued that if petitioners’ claims

did not fail at the threshold because specialty plates

represent government speech rather than private

expression, then they failed on the alternative ground

that “the State does not engage in viewpoint

discrimination by not approving the ‘Choose Life’ plate”

but instead “simply remains neutral, taking no position

on a politically-charged topic.” Dec. 7, 2005 Resp. Mem.

2. Elaborating on the latter point, and contrary to

misstatements in the petition (at pp. 7, 17-18 & n.11),

respondent argued specifically that it is “legitimate” for

the State “to avoid having its license plates be the place

for the controversial competition of ‘pro-life’ and ‘pro-

choice’ messages.” Oct. 4, 2005 Resp. Mem. 10.

Critically, respondent also made clear that he had no

independent authority to permit new _ speciality

plates—that he performed certain ministerial tasks, but

only the General Assembly could authorize a new plate

by statute. Dec. 7, 2005 Resp. Mem. 3-4.

The district court denied respondent’s motion,

granted petitioners’, and ordered respondent to issue a

Choose Life plate if petitioners met the Code’s

“numerical and design requirements for issuance of a

specialty plate.” Pet. App. 5la. The court adopted

petitioners’ view that the Code authorized respondent

to issue a new specialty plate without a statute

7

specifically creating that plate, and concluded that the

State had rejected the Choose Life plate proposal based

on adesire to “suppress” petitioners’ pro-life viewpoint.

Id. at 36a, 50a.

3. Respondent appealed, and while the case was

pending before the Seventh Circuit, the General

Assembly amended the Code to clarify that—contrary to

the district court’s interpretation of Illinois law—new

speciality plates are available only by specific legislative

act. Pet. App. 10a-11a (citing Ill. Public Act 95-0359).

In supplemental briefing, petitioners urged the Seventh

Circuit to decide the appeal under pre-amendment

Illinois law, Supp. Br. of Appellees 1-3, consistent with

the manner in which they framed the case in their

complaint.

4. The Seventh Circuit reversed. Without the

benefit of this Court’s later decision in Summum, the

court applied the four-factor test for distinguishing

between government and private speech used by the

Fourth Circuit in Sons of Confederate Veterans, Inc. v.

Commissioner of the Virginia Department of Motor

Vehicles, 288 F.3d 610 (4th Cir. 2002) (“SCV”), and

concluded that there were “enough elements of private

speech” in Il]linois’s specialty-plate program to trigger

First Amendment protections. Pet. App. 21a-22a. The

nature of those protections turns on the type of “forum”

that speciality plates represent, however, and on this

score the court determined (in line with other courts of

appeals) that the plates are a nonpublic forum, meaning

8

they are reviewed “for viewpoint neutrality and

reasonableness.” Pet. App. 24a. As the court explained,

the “primary purpose” of license plates is “to identify

the vehicle, not to facilitate the free exchange of ideas,”

and “Tllinois hasn’t opened this particular property for

general public discourse and debate.” Jd. at 23a.

The court upheld the legislative decision not to

pass a law authorizing the Choose Life plate as

viewpoint-neutral and reasonable. It was viewpoint-

neutral because it was “undisputed” that Illinois “has

authorized neither a pro-life plate nor a pro-choice

plate” and thus “has excluded the entire subject of

abortion from its specialty-plate program.” Jd. at 3a

(emphasis in original). The court contrasted this case

with SCV and Planned Parenthood of South Carolina,

Inc. v. Rose, 361 F.3d 786 (4th Cir. 2004) (“Rose”),

where States manifested viewpoint discrimination by

singling out the Confederate Flag alone for exclusion

from speciality plates, and by authorizing a Choose Life

specialty plate while simultaneously rejecting a “pro-

choice” plate, Pet. App. 25a.

Moreover, the court had “no trouble” concluding

that the General Assembly’s exclusion of all speech on

the subject of abortion was reasonable. Id. at 27a.

“License plates are * * * owned and issued by the State,

and, as respondent had argued consistently, “specialty

license plates in particular cannot come into being

without legislative and gubernatorial authorization.”

Id. at 27a-28a. Thus, “[allthough the messages on

9

specialty license plates are not government speech, they

are reasonably viewed as having the State’s stamp of

approval,” and therefore “it is reasonable for the State

to maintain a position of neutrality on the subject of

abortion.” Jd. at 27a, 28a (emphasis 11 original).

Also, in a footnote, the Seventh Circuit rejected

petitioners’ facial challenge. The court held that the

amendment clarifying that express legislative

authorization is required for issuance of any specialty

plate is controlling, and it rejected petitioners’ fallback

argument that their facial challenge was sound even if

the General Assembly, not respondent, has exclusive

responsibility for creating new specialty plates. Id. at

10a-1la n.4. As the court explained, “[i]t is axiomatic

that one legislature cannot bind a future legislature,”

and, accordingly, petitioners’ view that “the Illinois

specialty-plate program is facially unconstitutional

because it lacks any articulated standards

governing * * * the state legislature’s discretion to

authorize new plates” has “no merit.” Jbid. Thus,

“(t]he General Assembly is entitled to authorize

specialty plates one at a time,” and “[i]t is not required

to—and cannot—adopt ‘standards’ to control its

legislative discretion.” Ibid.

10

REASONS FOR DENYING THE PETITION

Petitioners’ suggested reasons for granting the

petition fail. First, petitioners rely chiefly on an alleged

1:1 split between the decision below and Stanton, but

this shallow split is manufactured, for Stanton is

perfectly compatible with the Seventh Circuit’s holding

that there was no viewpoint discrimination on these

facts. Second, petitioners advance a claim—belatedly

raised and summarily rejected in a footnote below—that

Illinois’s practice of creating specialty plates via

individual statutes is facially invalid, and petitioners

again allege a 1:1 split, this time with the Eighth

Circuit’s decisionin Roach. But once again, petitioner’s

purported split is wholly illusory, as Roach does not

even address, much less reject, the settled constitutional

rule on which the Seventh Circuit relied. Finally,

petitioners must establish that the messages on Illinois

specialty plates are private rather than government

speech, and this threshold requirement does not present

an issue worthy of certiorari review. Accordingly, the

petition should be denied.

I. There Is No Circuit Split Over What It Means

For A Law To Be “Viewpoint Neutral.”

The Seventh Circuit properly rejected petitioners’

as-applied challenge, and that decision implicates no

split in appellate authority. Petitioners repeatedly

characterize their failure to obtain a law authorizing a

Choose Life plate as a “selective” denial, Pet. i, 1, 11, 12,

13, 15, but what they call “selective” in this case has no

11

analogue in any of the purportedly conflicting authority

on which they rely. The Seventh Circuit readily

distinguished these cases of patent viewpoint

discrimination on their facts, the only exception being

an alternative holding in a single Ninth Circuit decision,

and even that is easily reconciled with the opinion

below. Far from evidencing a split over legal doctrine,

courts merely are applying the same principles to very

different facts. In each of petitioners’ cases, courts

inferred viewpoint discrimination from obvious

differences in treatment or from the fact that a

requested plate was denied after satisfying preset

criteria for its issuance. Neither basis for finding

viewpoint discrimination exists here.

1. Petitioners rest their petition largely on a

manufactured split between the decision below and the

Ninth Circuit’s decision in Stanton over whether not

issuing a Choose Life plate betrays viewpoint

discrimination. Pet. 12-18, 20. To be sure, the opinion

below suggests some “disagreement” between it and

Stanton, Pet. App. 25a, a reference on which the

petition relies heavily, Pet. 12-14. But petitioners

overstate this alleged “conflict” dramatically.

First, the passage from Stanton with which the

Seventh Circuit purported to “disagreel|” was

unnecessary to the Ninth Circuit’s decision. To survive

a First Amendment challenge, the decision denying the

plate in Stanton had to be both viewpoint-neutral and

reasonable, and the court separately held that

12

defendants “acted unreasonably” in denying the plate

where plaintiffs admittedly met Arizona’s preset,

substantive requirements for speciality plates. 515 F.3d

at 972-973.

Second, and more critically, the instant case and

Stanton are worlds apart factually, in a manner that

bears directly on the presence vel non of viewpoint

discrimination. The key difference between these two

cases is the distinction between declining to open a

forum to certain subjects and failing to respect the

forum’s boundaries after they are established. Thus,

the decision below and Stanton are both faithful to the

Court’s teaching that “[olnce it has opened a limited

forum, * * * the State must respect the lawful

boundaries it has itself set.” Rosenberger, 515 U.S. at

829; see also Davenport v. Wash. Educ. Ass’n, 551 U.S.

177, 189 (2007); Good News Club v. Milford Cent. Sch.,

533 U.S. 98, 107-112 (2001).* Both recognize that if the

speech of a party seeking access to a nonpublic forum is

on a topic the government has included in the forum,

denying access to that speech based on its message

necessarily constitutes viewpoint discrimination.

: Courts have sometimes used the term “limited public

forum” to describe what Davenport, 551 U.S. at 189, Arkansas

Educational Television Commission v. Forbes, 523 U.S. 666, 677

(1998), and Cornelius v. NAACP Legal Defense & Educational

Fund, Inc., 473 U.S. 788, 802 (1985), referred to as a “nonpublic

forum.” See Rosenberger, 515 U.S. at 829. Respondent adopts

the latter expression.

13

This principle compelled a finding of viewpoint

discrimination in Rosenberger. After offering funding to

various student groups for education-related speech,

and thereby opening a nonpublic forum for student

journalistic endeavors, the University of Virginia could

not lawfully exclude a student magazine addressing

topics included in that forum from a religious viewpoint.

See 515 U.S. at 824, 828-837. Because “the subjects

discussed were otherwise within the approved category

of publications,” it was clear that “[t]he prohibited

perspective, not the general subject matter, resulted in

the refusal to [provide funding]” and established

unlawful viewpoint discrimination. /d. at 831. That is

exactly what occurred in Stanton, and it bears no

resemblance to the Illinois General Assembly’s decision

here not to enact a new law authorizing plates on a topic

never before made the subject of an Illinois plate. That

distinction, and not any conflict over applicable law,

explains the different outcomes in the two cases.

Stanton addressed a challenge to the refusal by the

Arizona License Plate Commission to issue a Choose

Life specialty plate sought by Arizona Life Coalition.

The governing Arizona statute required the Commission

to issue such plates at the request of a not-for-profit

organization if it satisfied three criteria, including that

“(t]he primary activity or interest of the organization

serves the community [or] contributes to the welfare of

others,’” and that “‘[t]he purpose of the organization

does not promote a _ specific religion, faith, or

antireligious belief.’” 515 F.3d at 961 (quoting statute).

14

“The Commission [did] not dispute that Life Coalition

* * * met each of the statutory requirements,” id. at

973, but nonetheless it refused to issue the plate, id. at

962. Although the Commission gave no formal reason

for its refusal, :bid., during the application process

members indicated that it was related to the message on

Life Coalition’s plate. Members “raised concerns over

whether the general public would believe Arizona had

endorsed the message of the ‘Choose Life’ license plate,

land] whether groups with diifering viewpoints would

file applications.” Jd. at 961.

The Ninth Circuit held that the Commission’s

refusal to issue the specialty plate not only “ignored its

statutory mandate,” but also constituted impermissible

viewpoint discrimination because “Arizona has defined

the outer limits of its speciality license plate program,

and Life Coalition fits within those statutory

boundaries.” /d. at 973. Addressing the Commission’s

contention that it had not issued a specialty plate “to a

group with a viewpoint in opposition to Life Coalition’s

and[,| therefore, neither side of the ‘Choose Life’ issue

is represented by a special organization plate,” id. at

971 (internal quotation marks and brackets omitted),

the Ninth Circuit correctly determined that Rosenberger

had “rejected a similar argument” when it held that

denying access to “‘an entire class of viewpoints’” that

are within a forum’s scope “‘is just as offensive to the

First Amendment as exclusion of only one,’” bid.

(quoting Rosenberger, 515 U.S. at 831).

15

But unlike in Rosenberger and Stanton, Illinois did

not pass a statute making specialty plates available to a

broadly defined category of speakers and messages, only

to bar access to a speaker who indisputably fell within

that category. This material distinction disposes of

petitioners’ alleged split. Unlike the Commission in

Stanton or the university administrators in

Rosenberger, who dispensed plates or funds according to

preset substantive standards defining the respective

speech forum, Illinois is creating its specialty-plate

program through a series of individual statutes (to

which no one is entitled, any more than parties are

entitled to passage of any law), encompassing a limited

number of subjects, not including the _ subject

—abortion—on which petitioners wish to speak. The

General Assembly’s nonpassage of a bill authorizing a

Choose Life specialty plate therefore cannot be equated

with the Arizona Commission’s refusa! to issue a Choose

Life plate under the Arizona program, or the

university’s refusal to fund plaintiffs’ publication in

Rosenberger.

As petitioners note, Pet. 12-14, the Seventh Circuit

did reference the similarity between the Arizona

Commission’s belatedly expressed desire to avoid any

speech on the subject of abortion, and respondent’s

argument that the General Assembly reasonably could

have decided not to include any abortion-related

messages in Illinois’s specialty-plate program, Pet. App.

25a-27a. But given the two States’ fundamentally

different mechanisms for authorizing specialty plates,

16

that similarity is at best skin deep. It does not, as the

Seventh Circuit mistakenly suggested, reflect a true

disagreement over the meaning of Rosenberger. Having

affirmatively opened its specialty-plate program by

statute to speech on the topic of abortion, Arizona could

not, consistent with Rosenberger, exclude one (or

several) viewpoints on that topic. In short, both

Stanton and the decision below are entirely consistent

with one another and with Rosenberger.

2. Nor is there any conflict between the Seventh

Circuit’s finding of no viewpoint discrimination and two

decisions of the Fourth Circuit, both of which the

opinion below readily distinguished. In Rose, the South

Carolina legislature authorized a Choose Life plate,

rejecting arguments that the law should also authorize

a plate allowing vehicle owners “to express the pro-

choice view.” 361 F.3d at 788-789 (internal quotation

marks and brackets omitted). The Fourth Circuit’s

determination that this was impermissible viewpoint

discrimination, see id. at 799 (“South Carolina has

engaged in viewpoint discrimination by allowing only

the Choose Life plate”), fully accords with the Seventh

Circuit’s conclusion that Illinois did not favor one

abortion-related viewpoint over another, but instead

excluded “the entire subject of abortion” from Illinois

specialty plates, Pet. App. 25a.

The Fourth Circuit’s earlier decision in SCV, which

the Seventh Circuit likewise distinguished, also is

perfectly consistent with the decision below. In that

17

case, the Virginia legislature had passed bills

authorizing more than 100 specialty plates. See 288

F.3d at 614. Pursuant to state-issued guidelines,

successful plate applicants were informed they could

“use [their] organization’s logo or create a logo to be

placed on the plate,’” and a letter from the Department

of Motor Vehicles therefore asked these applicants to

submit “‘electronic media art of the logo and legend for

the plate.’” /bid. (quoting State’s guidelines and letter,

respectively). The lone exception to this memorialized

practice was the law challenged in SCV, which

authorized a specialty plate for the Sons of Confederate

Veterans but affirmatively prohibited their plate alone

from bearing any “logo or emblem,” and thereby

prevented members from obtaining “special plates

bearing the symbol of their organization, which includes

the Confederate flag.” Jd. at 613.

ce

Finding this unique, logo-prohibiting law to

constitute viewpoint discrimination, the Fourth Circuit

emphasized “[t]he nature of the restricted speech, the

lack of a generally applicable content-based restriction,

the breadth of the special plate program in Virginia, and

the lack of any restrictions in statutes authorizing

special plates other than the SCV’s.” T/d. at 626

(footnote omitted). That holding is consistent with the

Seventh Circuit’s decision here. As the court below

observed, “Virginia was not imposing a ‘no flags’ rule”;

rather, it singled out “a specific symbol commonly

understood to represent a particular viewpoint.” Pet.

App. 24a.

18

3. Without acircuit split, petitioners challenge the

decision below for its treatment of the factual record,

including, in particular, claimed “evidence” that the

Seventh Circuit did not see fit to mention. Specifically,

they claim that the Seventh Circuit overlooked

respondent’s supposedly inconsistent justifications for

the absence of a Choose Life plate from Illinois’s

program, Pet. 5, 6 & nn.4-5, 7, 17, 18 & n.11, 23, and

purported evidence of actual viewpoint discrimination

by the Illinois General Assembiy, including an affidavit

submitted by petitioner Dan Proft, id. at 4. But even if

accurate, this amounts to a request for mere error

correction, and these contentions are unfounded in any

event. Respondent consistently maintained that the

General Assembly’s desire to stay neutral by avoiding

the controversial subject of abortion, not hostility to

petitioners’ specific viewpoint, was a legitimate reason

not to authorize the Choose Life plates. See supra p. 6.

And critically, petitioners are simply wrong to suggest

that the Illinois legislature has passed every other bill

proposing a new specialty plate. Pet. 6 n.4, 16-17; see

supra pp. 4-5." As for the Proft “opinion” about certain

Even though respondent bore no burden to disprove

viewpoint discrimination, and thus to show that other specialty-

plate bills also died in the iegislature, the record before the

district court disclosed a number of bills (including bills that

would have created specialty plates for K-12 Education,

Submarine Veterans, Road Worker Safety, Relay for Life,

NASCAR, and the Cancer Society) that recently had met that

fate. Feb. 5, 2007 Motion, Ex. A. Then, when petitioners’

counsel represented at oral argument on appeal that the

19

legislators’ subjective motives for not passing a Choose

Life plate bill, for multiple reasons the Seventh Circuit

and the district court were on solid ground in

disregarding it.” At bottom, then, the alleged factual

basis for petitioners’ viewpoint discrimination claim

rests on a false choice between official endorsement and

suppression of private speech, with no room for

neutrality that avoids all speech on a subject.

4. Petitioners suggest in passing that Illinois’s

specialty-plate program is properly characterized as a

“designated public forum,” subjecting even content-

based regulation to strict scrutiny. Pet. 18, 19 & n.12,

20. But no circuit court has ever held that a specialty-

plate program is a designated public forum—even when

the program, unlike Illinois’s, is expressly open by

General Assembly “approved all of thle] specialty plates”

requested except Choose Life, respondent clarified, based on

judicially noticeable facts, that the General Assembly also failed

to pass many other specialty-plate bills introduced (including

ones pertaining to lraqi Freedom, Community Colleges, Fallen

Veterans, Corvettes, Sudden Infant Death Syndrome, and

Diabetes). Nov. 30, 2007 Fed. R. App. P. 28(j) Letter 1-4.

Among other things, Proft’s “opinion” purporting to reveal

the subjective, internal motivations of a few individual

legislators and extrapolating that to the entire General

Assembly was inadmissible under F.R.E. 702. And petitioners

were further foreclosed from relying on it due to their failure to

disclose it in accordance with Fed. R. Civ. P. 26(a)(2) and to

identify it in their local Rule 56.1(a) Statement, see Bordelon v.

Chicago Sch. Reform Bd. of Trs., 233 F.3d 524, 529 (7th Cir

2000).

20

statute to a broad category of defined subjects. See

Roach, 560 F.3d at 868 n.4; Stanton, 515 F.3d at 968-

971; Rose, 361 F.3d at 796-798; SCV, 288 F.3d at 623.

And petitioners’ speculation about how the Ninth

Circuit “likely would” characterize Illinois’s specialty-

plate program, which they rightly concede is different

from the Arizona scheme in Stanton, Pet. 20, is no basis

for this Court’s review.

5. Finally, petitioners claim that even if Illinois’s

specialty-plate program were a nonpublic forum, it is

unreasonable, as a matter of law, for Illinois to exclude

“controversial” or politically sensitive topics from the

forum. Pet. 24-25. Again, no circuit court has adopted

petitioners’ view, and the Seventh Circuit’s ruling is

consistent with numerous holdings by this and other

courts. See Cornelius v. NAACP Legal Defense & Educ.

Fund, 473 U.S. 788, 809 (1985); see also Hazelwood Sch.

Dist. v. Kuhlmeier, 484 U.S. 260, 272 (1988); Children

of the Rosary v. City of Phoenix, 154 F.3d 972, 979 (9th

Cir. 1998) (White, J.).° If, as Cornelius holds, see 473

6 ‘ eas ° P

In the same vein, petitioners invoke the issuance of a

“special event” plate to commemorate the inauguration of

President Obama as a “reason to be skeptical” of the position

that Illinois wishes to avoid abortion-related specialty plates

because they are “too politically divisive or controversial.” Pet.

25 n.14. But under Illinois law special event plates— which

respondent has discretion to issue for qualifying occasions and

may be displayed for 60 days, with the owner’s regular license

plates also on the vehicle, see Dec. 7, 2005 Resp. Mem. 5-6; 625

Ill. Comp. Stat. 5/3-808(f) (2008)—are very different from

specialty plates, which are the exclusive focus of the claims here.

21

U.S. at 809, the controversial nature of a subject n akes

it reasonable to exclude that subject entirely from a

nonpublic forum, then that same controversial nature

cannot also make it unreasonable to exciude from that

forum all viewpoints on that subject.

Petitioners base their argument chiefly on the false

premise that Illinois specialty plates convey no state

approval or endorsement of the messages on them and,

therefore, that “[blecause the purposes of specialty

plates are to raise revenue for the state and sponsoring

organizations and * * * permit private expression,”

Illinois’s decision to exclude the subject of abortion from

its specialty plates cannot serve the forum’s purposes.

Pet. 24-25. Thus, in petitioners’ view, once a State

establishes a specialty-plate program, it may not decline

to issue a requested plate, no matter the message, so

long as it will produce revenue. This approach is

nonsensical and, if adopted, would encourage States to

do away with specialty plates entirely.

Moreover, contrary to petitioners’ suggestion, Pet.

25 & n.15, the Eighth Circuit has not decided otherwise.

Roach held merely that the messages communicated on

Missouri specialty plates are sufficiently private to

preclude their characterization as government speech.

See 560 F.3d at 867-868. And to the extent that Roach

held that Missouri’s process for creating new plates did

not establish official state approval for every plate’s

message, that conclusion is inapplicable to Illinois’s

fundamentally different mechanism of approving each

22

plate through individual legislative enactment. As for

Lewis v. Wilson, 253 F.3d 1077 (8th Cir. 2001), the

court there merely concluded that Missouri’s program

for vanity plates, whose individualized messages are

crafted entirely by vehicle owners, did not provide its

government administrators with sufficiently precise

standards to refuse messages that are “obscene or

profane.” Jd. at 1078-1081. Thus, neither decision

conflicts with the Seventh Circuit’s uncontroversial

conclusion that, even if the messages on specialty plates

include at least some elements of private speech, such

messages may be “viewed as having the State’s stamp of

approval,” making it reasonable for Illinois to exclude

politically-charged subjects from these plates.

Pet. App. 27a.

II. Petitioners’ Facial Challenge Implicates No

Circuit Split And Is Not A Ground For

Further Review.

The Seventh Circuit’s passing rejection of

petitioners’ facial challenge provides no basis for further

review. Below, petitioners insisted that it was

respondent, and not the General Assembly, who

authorized specialty plates. Br. of Appellees 2-4, 13,

27-32, 34, 42-43. On appeal, petitioners argued for the

first time, and then only briefly, that the Illinois system

was facially invalid even if (as respondent correctly

maintained) speciality plates require individual

authorization from the legislature. Jd. at 42-44. Indeed,

even in their supplemental brief, filed with the Seventh

Circuit after the General Assembly amended Illinois law

23

to make clear that only it can authorize new plates,

petitioners devoted the bulk of their argument to the

position they now abandon—thai the court should

decide this case under Illinois law as it s.»0d before the

amendment, which in their view empowered respondent

to issue speciality plates. Supp. Br. of Appellees 1-2.

They devoted only a paragraph to the claim that

Illinois’s process was invalid after the amendment. Jd.

at 3. And neither of petitioners’ briefs below even cited

Shuttlesworth v. City of Birmingham, 394 U.S. 147

(1969), the decision they now claim is dispositive. Nor

did petitioners contest the principle that, in this

context, the Illinois General Assembly cannot bind itself

to standards controlling its future decisions on creating

specialty plates. Br. of Appellees 44.’ Without

sufficient development below, including the failure even

to cite the case petitioners now criticize the Seventh

Circuit for ignoring, petitioners’ facial challenge to

current Illinois law is not properly before this Court.

See Roberts v. Galen of Va., Inc., 525 U.S. 249, 253-254

(1999) (per curtam) (declining to consider claims not

“sufficiently developed below”); Wisconsin v. Mitchell,

508 U.S. 476, 481 n.2 (1993) (same).

—

=

The petition also advances two other arguments that

petitioners never made below and thus forfeited: a claim that

the General Assembly’s decisions tu create new specialty plates

are not an exercise in “legislative authority,” Pet. 32, and the

contention that even if federal law recognizes a_ state

legislature’s inability to limit its own power, that could not

“trump the First Amendment (or the power of the federal

courts to remedy a constitutional violation),” id. at 32-33.

24

Even if it were, it is not an issue worthy of further

review. Contrary to petitioners’ claim, Pet. 27-30, the

basis for the Seventh Circuit’s ruling—that “one

legislature cannot bind a future legislature,” Pet. App.

10a n.4—is perfectly consistent with both Roach and

Shuttlesworth. And petitioners gloss over threshold

issues that are independently fatal to their facial

challenge and therefore preclude review of the

Roach/Shuttlesworth issue they now raise—namely

whether First Amendment overbreadth analysis even

applies in these circumstances and, if so, whether

petitioners have standing to raise it.

1. As the Seventh Circuit recognized, the

Constitution prohibits one legislature from limiting a

future legislature’s power. See, e.g., Reichelderfer v.

Quinn, 287 U.S. 315, 318 (1932) (federal law); Fletcher

v. Peck, 6 Cranch 87, 135 (1810) (Marshall, C.J.) (same);

see also Mix v. Ill. Cent. H.R. Co., 6 N.E. 42, 44 (IIL.

1886) (Illinois law). That reality is alone fatal to

petitioners’ facial challenge, for the First Amendment

does not authorize enjoining Illinois’s specialty-plate

program on the ground that the legislature has not

enacted a law it has no power to enact—here, a law that

would place substantive limits on future specialty-plate

approvals.®

Petitioners deny that their theory requires the General

Assembly to pass a law that is “binding” on itself. Pet. 32. But

if that were correct, it would negate the key premise of their

facial claim, which depends on the availability and necessity of

standards controlling future speech-regulating decisions.

25

Petitioners seek to depict this as the subject of

another circuit spit, but no such conflict exists. Their

quarrel with the footnote in the decision below—which

they characterize as embracing a “‘legislative body’”

exception to First Amendment overbreadth analysis,

Pet. 28, but is more properly viewed as rejecting a First

Amendment overbreadth exception to the constitutional

principle that a legislature cannot limit its future

lawmaking authority—is not supported by any decision

of this Court or any federal court of appeals. The two

cases on which petitioners rely, Shuttlesworth and

Roach, are in no way inconsistent with the opinion

below.

a. Shuttlesworth voided convictions under an

ordinance linposing a prior restraint on expression ina

traditional public forum without “narrow, objective, and

definite standards” to govern licensing decisions. 394

U.S. at 150-153. The ordinance granted authority to

issue parade licenses to the Birmingham City

Commission, and petitioners cite a phrase in the

Alabama Appellate Court’s decision (not the decision

reviewed by this Court) referring to that Commission as

“the City’s legislative body.’” Pet. 28-29. But it is well

settled that this Court’s precedent resides in the

questions it actually decides, not in “inferences from

Indeed, petitioners’ facial claim, if accepted, would turn the

nondelegation doctrine on its head by requiring a legislature

always to delegate its authority to decide what speech will be

allowed in a nonpublic forum.

26

opinions which did not address the question.” Texas v.

Cobb, 532 U.S. 162, 169 (2001). And in any event this

Court did not characterize the Commission as

petitioners suggest; insteae, it framed the question

before it as one involving “discretion” in the hands of

“administrative” or “licensing officials.” 394 U.S. at

153 (internal quotation marks omitted).” It comes as no

surprise, therefore, that this Court has described

Shuttlesworth as applying where expressive conduct

“has required official approval under laws that

delegated standardless discretionary power to local

functionaries, resulting in virtually unreviewable prior

restraints on First Amendment rights.” Young v. Am.

Mini Theatres, Inc., 427 U.S. 50, 59 n.17 (1976) (citing

Shuttlesworth, 395 U.S. 147). That rule does not

conflict with the Seventh Circuit’s decision here, where

the recent amendment makes clear that the General

: The Court was correct to depict the Commission as acting

in a non-legislative capacity in this context. The Commission

likely undertook both legislative and administrative duties, and

issuing licenses (without any suggestion that such issuance

required new legislation, as it does in Illinois) would be an

administrative function. See Citv of Mobile v. Bolden, 446 U.S.

55, 59 (1980) (“City Commission” of Mobile, Alabama,

“exercise[s] all legislative, executive and administrative power

in the municipality”). Consistent with that understanding, an

offer of proof in a case arising out of the same events showed

“that the [Birmingham] City Commission had never passed on

permit applications in the past, but had delegated the task to

inferior officials.” Shuttlesworth, 394 U.S. at 163 n.5 (Harlan,

J., concurring).

27

Assembly has not delegated its authority to respondent

or any other official.

b. For the same reason, there is no conflict

between the decision below and Roach. The statute in

that case required the Missouri Department of Revenue

to grant all specialty-plate applications by private

organizations meeting certain content-neutral criteria,

provided that applications received “unanimous”

approval from the Joint Committee on Transportation

Oversight, whose voting members were state legislators.

560 F.3d at 862, 870. Two committee members, who

described themselves as “pro-choice,” opposed plaintiffs’

application for a Choose Life plate; the Department of

Revenue denied it; 2nd plaintiffs challenged the denial,

arguing that the “statutory scheme was

unconstitutional because it gave Missouri officials

unbridled discretion to restrict private speech.” Id. at

863. Sustaining this claim, the Eighth Circuit held that

the statute vesting the Committee with veto power over

specialty-plate applications was facially unconstitutional

because it contained no standards preventing the

Committee from denying applications based on

viewpoint. See zd. at 869-870.

To manufacture a split between this case and

Roach, petitioners mischaracterize the latter as a

decision about standardless discretion in the hands of a

“legislative bady.’” Pet. 28. Roach involved ao such

thing. The Committee whose discretion plaintiffs

challenged in that case was not “legislative”; it was

28

administrative, notwithstanding that it was made up of

Jegislators. Indeed, Missouri law is clear that the state

legislature’s role begins and ends with passing statutes,

and that any entity with control over implementation of

a statute—even one that happens to be composed of

legislators—is an administrative agency that must be

housed in the executive branch of government. See Mo.

Coal. for Env’t v. Joint Comm. on Admin. Rules, 948

S.W.2d 125, 133-134 (Mo. 1997); State Auditor v. Joint

Comm. on Legislative Research, 956 S.W.2d 228, 231,

233 (Mo. Ct. App. 1997).

The Eighth Circuit recognized this distinction at

the outset, when it differentiated between the two

methods for seeking a specialty plate in Missouri: the

legislative route, requiring the state legislature to “pass

a bill that creates a specialty plate,” and the

administrative process that plaintiffs challenged.

560 F.3d at 862. Plaintiffs carefully observed this

distinction as well. They acknowledged that the joint

committee members, when exercising veto power over

specialty plates meeting the statutory eligibility criteria,

“were not acting in their legislative capacities” and that

“[t]heir actions were only administrative.” Pl. Mem. 9

n.9, Choose Life v. Vincent, No. 06-0443-CV-W-SOW

(W.D. Mo. Nov. 5, 2007). And on appeal they repeatedly

emphasized the constitutional significance of the fact

that they were not challenging the legislature’s own

approval process. See Br. of Appellees, Roach v. Davis,

No. 08-1429 (8th Cir. July 15, 2008), 2008 WL 2861766,

at *12, 14 (noting that, under challenged provision,

29

“[t]he messages never go before the legislature for [a]

vote,” “(t]he Missouri legislature never votes to approve

the message after a private organization submits its

application,” and “{t]he private message never goes

before the Missouri governor for signature”) (emphasis

in original).

?

Petitioners’ error is to mistake Roach’s rejection of

defendants’ legislative immunity defense for a

conclusion that the committee was somehow

“legislative” in character. Defendant committee

members had claimed they were “immune from suit”

because they were “legislators, not administrators or

hired state employees.” 560 F.3d at 870. The court

rejected this theory on the ground that “immunity * * *

is apersonal defense that is available only when officials

are sued in their individual capacities,” and thus

legislative immunity was unavailable because plaintiffs

“filed suit against the members of the Joint Committee

in their official capacities.” Jbid. (citations and internal

quotation marks omitted) (emphasis in original).

Accordingly, the Eighth Circuit simply held that

prospective equitable relief of the type permitted under

Ex parte Young, 209 U.S. 123 (1908), is available to

prevent an administrative body’s exercise of veto

authority over access to a nonpublic forum to which the

governing statute otherwise grants a right of access.

2. In any event, petitioners’ facial challenge fails

on an alternative ground, making this case a singularly

poor vehicle to address the issues raised in the petition,

30

even if they otherwise were grounds for this Court’s

review. Specifically, as respondent argued below, see

Br. of Appellant 44-45, First Amendment overbreadth

analysis does not automatically apply to every speech-

regulating action affecting a nonpublic forum.

Overbreadth is “strong medicine” that is used

“sparingly,” Broadrick v. Oklahoma, 413 U.S. 601, 613

(1973), and petitioners, who rely on this Court’s

precedents involving prior restraints on speech in

traditional public fora, do not provide any appellate

authority for their critical assumption that overbreadth

principles necessarily apply to all restrictions in a

nonpublic forum, much less to a _ specialty-plate

program, like Illinois’s, where the legislature has not

delegated any authority over the creation of new plates,

but instead exercises that authority on its own by

passing an individual law for every plate.’”

Petitioners cannot prevail without overcoming this

obstacle, yet there is no circuit split or other basis for

addressing it on certiorari review. Indeed, respondent

knows of only one instance in which this Court

transplanted the First Amendment overbreadth

doctrine to a challenge involving a nonpublic forum, but

that decision is readily distinguished. Board of Airport

Commissioners of City of Los Angeles v. Jews for Jesus,

10

Roach did not present that issue because, as explained

above (at pp. 27-28), Missouri’s specialty-plate program

delegated to an administrative body unlimited discretion to veto

any specialty-plate application meeting all of the enabling

statute’s eligibility criteria.

31

Inc., 482 U.S. 569 (1987), held that an absolute ban on

all “‘First Amendment activities’” in the Los Angeles

airport’s central terminal area, including “even talking

and reading, or the wearing of campaign buttons or

symbolic clothing,” was facially unconstitutional

because “even if [the airport] were a nonpublic forum

* * * no conceivable governmental interest would justify

such an absolute prohibition of speech.” Jd. at 575.

That limited holding by no means supports applying

overbreadth analysis here.

3. Finally, petitioners lack standing to advance

their facial challenge, a second insurmountable obstacle

to review by this Court. Even if Illinois had standards

to prevent discrimination against viewpoints on the

topics encompassed by its specialty-plate program, those

topics do not include abortion. The presence of such

standards therefore could not benefit petitioners.

Unlike parties who might want Illinois to create a

specialty plate with a message on a subject that is

included in the State’s program, petitioners cannot

satisfy the “redressability” component of standing for

their claim that the General Assembly must adopt such

standards. See Advantage Media, LLC v. City of Eden

Prairie, 456 F.3d 793, 801 (8th Cir. 2006) (finding lack

of standing to bring facial challenge to local sign code

because “a favorable decision [still] would not allow

[plaintiff] to build its proposed signs”); see also Midwest

Media Prop., LLC v. Symmes Twp., Ohio, 503 F.3d 456,

461-464 (6th Cir. 2007); see generally Davis v. Fed.

Election Comm’n, 128 S. Ct. 2759, 2768-2769 (2008)

32

(Article III’s core standing requirements, including a

concrete injury fairly traceable to defendant’s

challenged behavior that is likely to be redressed by a

favorable ruling, must be demonstrated “for each form

of relief that is sought”) (citations and internal

quotation marks omitted).

III. Respondent’s Alternate Theory That Ilinois

Specialty Plates Are Government Speech

Provides An Additional Reason To Deny The

Petition.

Respondent has consistently maintained that the

messages on specialty plates are government rather

than private speech and thus are exempt from scrutiny

under the Free Speech Clause. Pet. App. 7a. Even

petitioners acknowledge that this argument provides an

independent ground for affirming the judgment below.

Pet. 20. Petitioners are wrong to suggest, however, that

the government-speech issue somehow provides an

additional reason for review. Jbid. The “conflict”

petitioners describe is largely (if not entirely) the

product of material factual differences in the procedures

States use in authorizing new specialty plates. And this

case is an especially poor vehicle for addressing the

government-speech issue because Illinois is among the

minority of States that approve plates exclusively by

legislative act. Finally, this Court revisited the

definition of government speech last Term in Summum,

and more time is needed before proclaiming that lower

courts are in hopeless disarray over its effect in this

context.

33

1. Even without taking account of Summum’s

impact, petitioners grossly exaggerate the extent of any

pre-Summum disagreement over government-speech

analysis in the context of specialty-plate programs, and

thus any arguable justification for the Court to consider

the government-speech issue in this case. Petitioners

are wrong to say that the circuits are divided into two

doctrinal camps, with the Fourth, Seventh, Eighth, and

Ninth Circuits supposedly holding that specialty plates

are never government speech, and the Sixth Circuit

ruling that specialty plates are always government

speech. Pet. 10-11, 20. This mischaracterization of the

relevant decisions ignores the legal significance of

different States’ varied methods for creating specialty

plates.

Yentral to petitioners’ alleged split is the Sixth

Circuit’s decision in ACLU of Tenn. v. Bredesen, 548

U.S. 906 (2006) (“Bredesen”), the first specialty-plate

decision after Johanns v. Livestock Marketing

Association, 544 U.S. 550 (2005), which held that the

Tennessee legislature’s action creating a Choose Life

specialty plate was government speech. See 441 F.3d at

380. Petitioners contrast Bredesen with the Ninth

Circuit’s decision in Stanton and the Eighth Circuit’s in

Roach, which held that Choose Life plates were private

speech. But Bredesen involved a_ specialty-plate

program that, like Illinois’s, created new plates by the

passage of individual laws, while Roach and Stanton

addressed programs that were statutcrily opened on an

indiscriminate basis to broad categories of private

34

speech. The cases thus are materially distinguishable—

the outcomes are different because the facts are

different, not because the decisions announce different

legal rules.

In Bredesen, the Choose Life message on specialty

plates conveyed government speech because the

legislature had created the plate through an individual

law in which it “chose * * * and approved every word to

be disseminated.” 441 F.3d at 376. As the court

explained, the plate’s message was “government-

crafted” by the Tennessee legislature itself, which had

“spelled out in the statute that these plates would bear

the words ‘Choose Life.’” Jd. at 375-376. Thus, as

support for its conclusion that the speech was the

State’s own, the Sixth Circuit emphasized that the

legislature was the source of the message.

The district court in Roach understood the

important distinction between legislative and non-

legislative approval schemes, distinguishing the

administrative process challenged in that case from one

in which “specific messages are created through

legislative eiactment.” D. Ct. Order 11 n.9., Choose

Life v. Vincent, No. 06-0443-CV-W-SOW (W.D. Mo. Jan.

23,2008). Likewise, the Roach plaintiffs recognized this

difference and emphasized throughout their appellate

brief that they were challenging an administrative

approval process in which plates lacked any legislative

imprimatur. See Br. of Appellees, 2008 WL 2861766, at

*12. The Eighth Circuit correspondingly recognized

35

that “the more control the government has over the

content of the speech, the more likely it is to be

government speech,” Roach, 560 F.3d at 864, and it

stressed facts specific to that case: that the Joint

Committee’s administrative authority to approve or

deny a plate was “based solely on a general description

of the plate provided by the sponsoring organization,”

and that, once approved, plates are “produce[d] * * *

without further input from the Joint Committee or any

other state actor,” id. at 867. Under this approach, the

sponsoring organization, and not the state legislature,

“bear|s| the ultimate responsibility for the message.”

Id. at 868.

Similarly, Stanton emphasized that’ the

administrative body exercised only “de minimis editorial

control over the plate design and color,” and that while

it was charged with determining whether the

sponsoring organization met the statutory

requirements, those requirements “address[ed| who

may speak, not what they may say.” 515 F.3d at 966.

Thus, again, the organization, not the legislature,

“determined the substantive content of th[e] message.”

Ibid.

Nor does Bredesen present a current conflict with

the Fourth Circuit’s decisions in SCV and Rose. To be

sure, those decisions involved challenges to legislatively

created plates, but in holding that the plates were

private speech the SCV court expressly found that the

legislature did not “ordinarily assert ‘editorial control’

36

over the content of the[ | plates.” 288 F.3d at 621; see

also Rose, 361 F.3d at 793 (plate at issue in SCV “was

sought and designed by the plate’s private sponsor”). In

addition, unlike Bredesen, both SCV and Rose were

decided without the benefit of the Court’s government-

speech ruling in Johanns. Moreover, both relied on the

four-factor test that neither Johanns nor Summum

embraced, and that even Rose admitted produces an

“indeterminate,” 361 F.3d at 793—and therefore easily

manipulable—result. Thus, they lack enduring vitality

for purposes of ascertaining current doctrine, or

contributing to a meaningful conflict, in this area.

2. The variety of ways in which different States

create specialty plates also means that a decision on the

government speech issue in this case would be relevant

only in that minority of States where the legislature

alone decides what specialty plates to create. See supra

at 4n.1. Thus, any decision by this Court on whether

Illinois specialty plates are government speech would be

of iimited effect.

3. Finally, Summum dramatically affects the

government-speech analysis for First Amendment

claims involving a government-created forum. In

holding that privately donated monuments in public

parks were government speech, Summum made no

mention of the four-factor test that petitioners

vigorously advocated below, see Br. of Appellees 15, 18,

20, and that the Fourth, Seventh, Eighth, and Ninth

Circuits approved, Pet. App. 14a-21la. Thus, until the

37

lower courts have had an opportunity to assess

Summum’s effects on specialty-plate programs, it is

premature for the Court to address any claim that

depends, as petitioners’ does, on a determination that

the messages in a particular program are private rather

than government speech.

Indeed, Summum likely will have a significant

impact on the potentially dispositive government-speech

question in many specialty-plate cases.’ The Court

held that monuments could convey government speech

even if “donated in completed form by private entities,”

because the government had “exercis|ed_] ‘final approval

authority’” over the monuments’ selection and thereby

““effectively controlled’ the messages” they sent. 129

S. Ct. at 1134 (quoting Johanns, 544 U.S. at 560-561).

Moreover, because cities and other jurisdictions, in

deciding whether to accept donated monuments,

consider various “content-based factors,” “[t]he

‘t Petitioners inaccurately suggest that Roach negates this

conclusion. Pet. 10. As noted above (at p. 27), however, the

Missouri specialty-plate program in Roach was statutorily open

to virtually all private organizations. That approach therefore

embodied the polar opposite of the “selective receptivity”

emphasized in Summum, 129 S. Ct. at 1133, and, likewise, of

the method chosen by the General Assembly to authorize

specialty plates in Illinois. Thus Roach—which was decided

only a month after Summum, without supplemental briefing or

argument, and, after a cursory discussion, simply concluded

that Summum did not “require[] a different outcome” in that

case, 560 F.3d at 868 n.3 (emphasis added)—does not minimize

Summum's impact on government-speech analysis in cases like

this one.

38

monuments that are accepted * * * are meant to convey

and have the effect of conveying a government

message.” Jbid. This analysis bears critically on the

government-speech question in cases like this one,

where the legislature not only retains “final approval

authority” over specialty plates, but itself crafts, by

individual legislation, the specific message on every

state-issued plate.

This Court has long recognized the many

advantages in permitting the lower courts to weigh in

on new legal issues before addressing them (if

necessary) on certiorari review. See, e.g., McCray v.

New York, 461 U.S. 961, 963 (1983) (Stevens, J.,

respecting denial of petitions for writs of certiorari)

(“[I]t is a sound exercise of discretion for the Court to

allow the various States to serve as laboratories in

which the issue receives further study before it is

addressed by this Court.”). Suchan exercise of restraint

is especially appropriate in the present circumstances.

As several of the Court’s members have noted, the

“category of government speech” is “relatively new.”

Summum, 1298. Ct. at 1142 (Souter, J., concurring in

the judgment); accord 7d. at 1139 (Stevens, J., joined by

Ginsburg, J., concurring) (describing government

speech doctrine as “recently minted”). As a result, “it

would do well for [the Court] to go slow in setting its

bounds, which will affect existing doctrine in ways not

yet explored.” Jd. at 1141 (Souter, J., concurring in the

judgment). The latter observation is particularly apt

here, for Summum will inevitably have significant

39

implications for challenges to government decisions

regarding specialty plates, yet the lower courts have had

almost no opportunity to consider them.

In short, even if this Court were inclined to review

the questions petitioners present, this, case is an

unsuitable vehicle for doing so because lower courts

have not yet had an adequate opportunity to address the

effect of Summum on the government-speech issue in

the context of specialty-plate programs, and petitioners

would have to prevail on that issue before the Court

could address the issues on which they do seek review.

40)

CONCLUSION

For the foregoing reasons, the petition should be

denied.

* Counsel of Record

JULY 2009

Respectfully submitted.

LISA MADIGAN

Attorney General of Illinois

MICHAEL A. SCODRO*

Solicitor General

JANE ELINOR NOTZ

Deputy Solicitor General

RICHARD 8S. HUSZAGH

PAUL BERKS

Assistant Attorneys General

100 West Randolph Street

Chicago, Illinois 60601

(312) 814-3698

Counsel for Respondent