In ACLU v. Bredesen, the Sixth Circuit by a 2-1 vote upheld the constitutionality of the Tennessee law which allows for a "Choose Life" license plate but does not as yet offer a like plate for abortion rights advocates.
The majority distinguished Planned Parenthood of S.C., Inc. v. Rose, 361 F.3d 786 (4th Cir. 2004), setting the stage for a possible Supreme Court resolution of this inter-circuit conflict.
Judge Martin in dissent wrote this fun footnote:
"Moreover, the manner in which the majority presents and answers the question is misleading — are we really to conclude that the Tennessee government has established a program to disseminate all of the individual messages on the various license plates. That is, did the Tennessee government decide to establish a program promoting Penn State Alumni Pride and seek out private volunteers to transmit this message to the public at large? Did the Tennessee government decide to establish a program promoting the University of Florida (the University of Tennessee’s arch-rival in football, see Gator Hater, http://www.gator-haters.com/Tennessee/index_TN.shtml (last visited March 10, 2006) (a website run by University of Tennessee fans dedicated to their rivalry with the University of Florida, including news, jokes, and recipes for cooking alligator meat)), and does the State seek out private volunteers to promote the University of Florida to its citizens? It is a nice academic exercise to hypothesize that the license plate program is a governmental program to disseminate through private volunteers all of the state’s various messages, but it seems to me to be a conclusion that only judges banished to our ivory towers and shut off from the real world could reach. See also Children First Foundation, 2006 WL 544502 (holding that no reasonable person would believe that the government speech doctrine permits viewpoint discrimination in the specialty license plate context)."
The Sixth Circuit has been on fire lately in these First Amendment cases of various kinds.