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ACLU can pursue suit over 'Choose Life' tags

Organization can proceed with legal fight, judge says

By Rob Johnson
The Tennessean (Nashville)

A lawsuit by the ACLU challenging Tennessee's yet-to-be issued ''Choose Life'' specialty license plate can proceed, a U.S. District Court judge ruled yesterday.

The state attorney general's office had argued that the American Civil Liberties Union of Tennessee lacked standing to pursue the lawsuit and had wanted the case dismissed at the outset.

In part, the state had argued that even if the ''Choose Life'' plate were declared unconstitutional, the court was not in a position to provide relief in the form of a pro-choice license plate for the other side of the issue. The plaintiff suffered no injury, in other words, the state argued, that the court could redress.

U.S. District Judge Todd Campbell disagreed. He ruled that a court could redress the ACLU's complaint by leveling the playing field, even if that meant denying one side's ability to display its speech on a state-issued license plate.

The ACLU argues that Tennessee's system of issuing specialty license plates is unconstitutional and that the General Assembly enjoys the ''unbridled discretion'' to determine which speech the state officially favors.

After the decision, Hedy Weinberg, head of the ACLU in Tennessee, said, ''We are gratified the court saw fit to let the case move forward. We look forward to presenting what we feel are strong constitutional arguments.''

Brian Harris, the president of New Life Resources, the organization that would receive money from the plates, did not return a call for comment.

The state had argued that the plaintiffs were free to find a legislator to sponsor a bill for a ''Pro-Choice'' license plate as the ''Pro-Life'' advocates had done. Until the plaintiffs did so, the state attorney general's office contended, they could not claim that they had been denied the opportunity.

Campbell wrote that when First Amendment rights are at issue, ''an expanded rule of standing must be applied, especially where, as here, the actual or possible exercise of unbridled discretion by public officials is at issue.''

He also wrote that for the purposes of determining standing, there was ''no constitutionally significant difference'' between asking the General Assembly to introduce a bill and asking, as happened in this case, for the General Assembly to amend a bill.

The Choose Life plate gained legislative approval in May 2003. Sponsors of the plate pre-sold more than 1,200 and have asked the state to proceed with making and distributing the plate.