‘Choose Life’ on license plates protected speech?

The audience in the court Chamber hushed with anticipation as the bailiff announced in a ringing tone, “Oye, oye, oye! All persons having business before the honorable Supreme Court of the United States are advised to draw near and give their attention, for the court is now sitting. God save the United States and this honorable court.”

So began the University of Florida Justice Campbell Thornal Moot Court Final Four competition held on Sept. 5. For the first time in UF history, a sitting cheif justice of the United States, John G. Roberts Jr., presided over the competition, which was held in the university’s Phillips Center for the Performing Arts before an audience of 1,500 law students, faculty, staff and guests.

Judge Peter T. Fay, Judge Susan H. Black and Judge Rosemary Barkett, all UF alumni and judges in the 11th Circuit of the U.S. Court of Appeals, joined Roberts on the Moot Court bench.

The case to be decided during the Moot Court hinged on the First Amendment aspects of the “Choose Life” license plate in the fictional State of Webb. Student attorneys Cary Aronovitz and Kevin Combest served as counsel for the plaintiff, the State of Webb Department of Motor Vehicles. They would argue in the plaintiff’s appeal of respondent Planned Parenthood of Webb Inc.’s earlier victory in the U.S. Court of Appeals. Robert Davis and Tara Nelson served as counsel for the respondent.

At issue was whether the federal courts held jurisdiction in the matter, and if they did, whether or not the “Choose Life” specialty plate violated First Amendment principles of free speech. Under the stern gazes of the jurists, counsel for the plaintiff Cary Aronowitz stepped up to the podium to open arguments on the case before the court. Fighting butterflies, Aronowitz managed to maintain his composure when Chief Justice Roberts cut him off with a line of questioning, soon joined by the other jurists, regarding whether the $25 purchase price for the specialty tag was a tax, a regulatory fee, or a contractual exchange.

“The very first question presented to me was from [Cheif Justice] Roberts and I was anticipating that question, but it was probably the one question I really didn’t want to answer,” Aronovitz said. “I got it out of my mouth, I saw him nodding and that was a big confidence booster.”

Despite pointed questioning from the bench, the competitors were confident in their answers because of weeks of practice facing rigorous grilling from their professors.

“What really made it much easier than you would have thought was that the questions the professors asked us in practice were hard-hitting, adversarial, trying to get us to mess up, and that prepared us to talk to these judges and justice who didn’t want to do that,” Combest said.

“They just wanted to talk back and forth. We had seen the worst, and anything less than that was just pleasant.”

That’s not to say the jurists didn’t ask the competitors some tough questions, probing their arguments to find chinks in their reasoning regarding complex legal questions. As an example, Roberts questioned Davis on his argument for the respondent that a four-prong approach should be adopted when determining whether a message on a state automobile license tag is government or private speech.

“The problem with multifactor tests, of course, is that they delegate a huge amount of discretion to the judiciary,” said Roberts. “When you have four factors, they can be manipulated in any way, and so you’re transferring the determination from the legislature to the courts about what types of policies the government can support and promote. Isn’t that problematic?”

During deliberations, UF Law Professor Lyrissa Lidsky addressed the audience to outline the constitutional elements of the case, stressing its importance despite its hypothetical nature. She noted Florida was the first state to have a “Choose Life”  license plate and is also considering a license plate with the words “I Believe” with a picture of a cross.

Although the “I Believe” tag has been stalled in Florida, South Carolina recently approved an “I Believe” license plate, and a lawsuit has already been filed in the matter, she said.

“This is a very important issue, it’s a hot issue, and some very smart people in our appellate courts have split on the constitutionality of the issue,” Lidsky said.

Although the bench eventually ruled for the petitioner, Roberts said all of the students performed

well.

“We unanimously decided that there was not a bad one among them,” Roberts said. “That’s not always the case, so we appreciate very much, as we do in our day jobs, that a lot of work went into the presentations. Judges and justices are very grateful when that happens.”

Aronovitz and Combest won the competition for the petitioner. Aronovitz was awarded best brief and best oral argument of the competition, while Davis took home the best overall participant. The event was sponsored by the law firms of Holland & Knight and Zimmerman, Kiser &Sutcliffe. The Charles W. Abbott Endowment provided scholarships for the final four, the final four alternate, the best oralist, and to the author of the best brief. Dr. Joseph Rhile provided the Elizabeth Rhile scholarship for the best overall competitor.

“We depend so heavily on the jobs that the lawyers do, both in the briefs and in the oral presenations,” said Roberts. “It always makes it a more enjoyable experience to have counsel who’ve put in long hours, as I can tell all four of our advocates have.”

—Ian Fisher and Lindy Brounley