PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1030
AMERICAN CIVIL LIBERTIES UNION OF NORTH CAROLINA; DEAN
DEBNAM; CHRISTOPHER HEANEY; SUSAN HOLLIDAY, CNM, MSN; MARIA
MAGHER,
Plaintiffs - Appellees,
v.
NICHOLAS J. TENNYSON, in his official capacity as Secretary
of the North Carolina Department of Transportation; KELLY J.
THOMAS, in his official capacity as Commissioner of the
North Carolina Division of Motor Vehicles,
Defendants – Appellants,
and
THOM TILLIS, North Carolina Speaker of the House of
Representatives; PHIL BERGER, President Pro Tempore of North
Carolina Senate,
Intervenors,
and
MICHAEL GILCHRIST, in his official capacity as Colonel of
the North Carolina State Highway Patrol,
Defendant.
--------------------------
NATIONAL LEGAL FOUNDATION,
Amicus Supporting Appellants.
On Remand from the Supreme Court of the United States.
(S. Ct. No. 14-35)
Decided on Remand: March 10, 2016
Before TRAXLER, Chief Judge, WYNN, Circuit Judge, and George L.
RUSSELL, III, United States District Judge for the District of
Maryland, sitting by designation.
Reversed and remanded with instructions by published opinion.
Chief Judge Traxler wrote the majority opinion, in which Judge
Russell joined. Judge Wynn wrote a dissenting opinion.
ARGUED: Kathryne Elizabeth Hathcock, NORTH CAROLINA DEPARTMENT
OF JUSTICE, Raleigh, North Carolina, for Appellants.
Christopher Anderson Brook, AMERICAN CIVIL LIBERTIES UNION OF
NORTH CAROLINA LEGAL FOUNDATION, Raleigh, North Carolina, for
Appellees. ON BRIEF: Roy Cooper, North Carolina Attorney
General, Neil Dalton, Special Deputy Attorney General, NORTH
CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellants. Scott W. Gaylord, ELON UNIVERSITY SCHOOL OF LAW,
Greensboro, North Carolina, for Intervenors. Steven W.
Fitschen, THE NATIONAL LEGAL FOUNDATION, Virginia Beach,
Virginia, for Amicus Curiae.
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TRAXLER, Chief Judge:
In our previous opinion in this case, we affirmed the
decision of the district court and held that North Carolina’s
specialty license plate program violated the First Amendment.
See ACLU v. Tata, 742 F.3d 563 (4th Cir. 2014). The State
sought review by the Supreme Court, which vacated our decision
and remanded the case to us for reconsideration in light of the
Court’s decision in Walker v. Texas Div., Sons of Confederate
Veterans, Inc., 135 S. Ct. 2239 (2015). See Berger v. ACLU, 135
S. Ct. 2886 (June 29, 2015). After considering Walker and the
supplemental briefs filed by the parties, we now reverse the
decision of the district court and remand with instructions that
the district court enter judgment for the State.
I.
As set out in more detail in our now-vacated decision,
North Carolina operates a specialty license plate program that
offers, inter alia, a “Choose Life” plate, but the State has
repeatedly rejected efforts to include a pro-choice license
plate. The ACLU and several vehicle owners brought this action
alleging that the State violated the First and Fourteenth
Amendments by refusing to offer a pro-choice license plate. The
district court granted summary judgment in favor of the
plaintiffs and issued an injunction prohibiting the State from
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issuing “Choose Life” plates without also offering a pro-choice
plate. See Tata, 742 F.3d at 566-67.
The State appealed the district court’s decision to this
court. The State argued that the message conveyed through
specialty license plates was government speech and that it was
therefore permissible for it to engage in viewpoint
discrimination when administering the license plate program.
See Pleasant Grove City v. Summum, 555 U.S. 460, 467-68 (2009)
(“A government entity has the right to speak for itself . . .
and to select the views that it wants to express.” (internal
quotation marks omitted)).
Applying the factors identified in Sons of Confederate
Veterans, Inc. ex rel. Griffin v. Commissioner of the Virginia
Department of Motor Vehicles, 288 F.3d 610 (4th Cir. 2002), we
rejected the State’s argument and held that “the ‘Choose Life’
plate at issue here implicates private speech rights and cannot
correctly be characterized as pure government speech.” Tata,
742 F.3d at 575. Because private speech rights were implicated,
we held that “the State’s offering of a ‘Choose Life’ license
plate in the absence of a pro-choice plate constitutes viewpoint
discrimination in violation of the First Amendment.” Id.
North Carolina filed a petition seeking review of our
decision by the Supreme Court. While the State’s petition was
pending, the Supreme Court issued its decision in Walker, which
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involved a challenge to Texas’s specialty license plate program.
The Supreme Court held that “Texas’s specialty license plate
designs constitute government speech and that Texas was
consequently entitled to refuse to issue plates featuring [the
plaintiff’s] proposed [Confederate battle flag] design.”
Walker, 135 S. Ct. at 2253. The Supreme Court thereafter
granted the State’s petition in Tata, vacated our decision, and
remanded the case to us for reconsideration in light of Walker.
The specialty license plate program at issue here is
substantively indistinguishable from that in Walker, and the
Walker Court’s analysis is dispositive of the issues in this
case. Accordingly, we now conclude that specialty license
plates issued under North Carolina’s program amount to
government speech and that North Carolina is therefore free to
reject license plate designs that convey messages with which it
disagrees. See Walker, 135 S. Ct. at 2245 (“When government
speaks, it is not barred by the Free Speech Clause from
determining the content of what it says.”). We therefore
reverse the district court’s grant of summary judgment in favor
of the plaintiffs and remand with instructions that the district
court enter judgment in favor of the defendants.
REVERSED AND REMANDED WITH INSTRUCTIONS
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WYNN, Circuit Judge, dissenting:
In Walker v. Texas Division, Sons of Confederate Veterans,
Inc., 135 S. Ct. 2239 (2015), the Supreme Court majority did not
address, much less overrule, this Circuit’s common-sense
recognition that speech can be “mixed”—i.e., that it can have
elements of both government and private speech. Insisting
otherwise is tantamount to “insisting that a mule must be either
a horse or a donkey.” David A. Anderson, Of Horses, Donkeys,
and Mules, 94 Tex. L. Rev. See Also 1, 4 (2015).
I refuse to believe that with Walker, the Supreme Court
meant to force us to choose that the mule in this case is either
a horse or a donkey. Instead, Walker’s holding, when narrowly
understood, does not lead to the conclusion that the North
Carolina specialty plate speech at issue here constitutes pure
government speech. On the contrary, based on the specifics of
this case, it presents mixed speech—with private speech
components that prohibit viewpoint discrimination. Accordingly,
the district court correctly held that in allowing a “Choose
Life” specialty plate while repeatedly rejecting a “Respect
Choice” plate, North Carolina violated the First Amendment.
Respectfully, I therefore dissent.
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I.
A.
“Premised on mistrust of governmental power, the First
Amendment stands against attempts to disfavor certain subjects
or viewpoints.” Citizens United v. Fed. Election Comm’n, 558
U.S. 310, 340 (2010). Chief amongst the evils the First
Amendment prohibits are government “restrictions distinguishing
among different speakers, allowing speech by some but not
others.” Id. Indeed, the Supreme Court has called viewpoint
discrimination “an egregious form of content discrimination” and
has held that “[t]he government must abstain from regulating
speech when the specific motivating ideology or the opinion or
perspective of the speaker is the rationale for the
restriction.” Rosenberger v. Rector & Visitors of Univ. of Va.,
515 U.S. 819, 829 (1995).
The First Amendment’s neutrality protections check only
government regulation of private speech. By contrast, when the
government engages in its own expressive conduct, the Free
Speech Clause and its viewpoint neutrality requirements have “no
application.” Pleasant Grove City, Utah v. Summum, 555 U.S.
460, 467 (2009). Under the “relatively new, and correspondingly
imprecise” government speech doctrine, Johanns v. Livestock
Mktg. Ass’n, 544 U.S. 550, 574 (2005) (Souter, J., dissenting),
the government is generally “entitled to say what it wishes, and
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to select the views that it wants to express,” Summum, 555 U.S.
at 468 (quotation marks and citations omitted).
In this Circuit, we have recognized “mixed speech”—that is,
speech that is “neither purely government speech nor purely
private speech, but a mixture of the two.” Planned Parenthood
of S.C. Inc. v. Rose, 361 F.3d 786, 789 (4th Cir. 2004). In
deciding whether speech is private, government, or mixed, we
have looked to instructive factors including the purpose of the
program in which the speech has occurred and the identity of the
literal speaker. Id. at 793; Sons of Confederate Veterans, Inc.
v. Comm’r of Va. Dep’t of Motor Vehicles, 305 F.3d 241, 245-46
(4th Cir. 2002); Sons of Confederate Veterans, Inc. v. Comm’r of
Va. Dep’t of Motor Vehicles, 288 F.3d 610, 618 (4th Cir. 2002).
And in the context of several states’ specialty license plates,
we have held that the instructive factors indicated mixed speech
but tipped in favor of private speech interests so as to
prohibit viewpoint discrimination. Id.
Last year in Walker, the Supreme Court deemed a Texas
specialty license plate to be government speech free from First
Amendment protections against viewpoint discrimination. 135 S.
Ct. 2239. In doing so, the Supreme Court relied on Summum, 555
U.S. 460, a case dealing with privately donated permanent
monuments in public parks. In Walker, as in Summum, the Court
focused on three factors: (1) “the history of license plates;”
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(2) observers’ “routine” and “reasonable” associations between
the speech at issue and the state; and (3) the extent of state
control over the message conveyed. Walker, 135 S. Ct. at 2248-
49 (quotation marks and citation omitted). “These [three]
considerations, taken together” convinced the Supreme Court that
the Texas specialty plate speech at issue was “similar enough”
to the privately donated monuments in public parks at issue in
Summum “to call for the same result”—that is, that both
constituted pure government speech. Id.
B.
Applying the Walker framework here, I conclude that North
Carolina’s authorization of a “Choose Life” plate and rejection
of a “Respect Choice” plate is not simply pure government
speech. And because the speech is not just the government’s,
North Carolina’s allowing a “Choose Life” plate while rejecting
a pro-choice plate constitutes viewpoint discrimination in
violation of the First Amendment.
Beginning with the first Walker factor, North Carolina
began putting slogans on its license plates in 1954, adding
graphics in 1981. J. Fox, License Plates of the United States
77 (1994). North Carolina’s vast array of specialty plates
honoring, for example, Corvettes, Piedmont Airlines, and out-of-
state universities, substantially postdates the use of a
standard state slogan. See id.; N.C. Gen. Stat. § 20-79.4.
9
The legislative history of North Carolina’s specialty plate
program indicates that it was intended to be a forum for private
expression of interests–that is, “‘voluntary speech that people
are making by purchasing the license plate.’” Am. Civil
Liberties Union of N.C. v. Tata, 742 F.3d 563, 572 (4th Cir.
2014) (citing Remark of Representative Tim Moore to the North
Carolina House Fin. Comm. (June 2, 2011)). Not surprisingly,
then, North Carolina expressly and repeatedly “invite[d] its
vehicle owners to ‘[m]ake a statement with a specialized or
personalized license plate’ and to ‘find the plate that fits
you.’” Id. (citations omitted). Further, North Carolina
“describe[d] its specialty plate program as ‘allow[ing] citizens
with common interests to promote themselves and/or their
causes.’” Id. (citation omitted). This history supports the
conclusion that the challenged speech was not the government’s.
Regarding the second Walker factor, whether there exists a
“routine” and “reasonable” association between the speech at
issue and the government, Walker, 135 S. Ct. at 2248-49
(quotation marks and citation omitted), the specifics before us
call any such strong association into serious doubt. In
analyzing the second Walker factor, for example, the Supreme
Court considered whether “persons who observe[d]” the Texas
plates at issue there “routinely—and reasonably—interpret them
as conveying some message on the issuers’ behalf” and whether “a
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person who displays a message on a . . . license plate likely
intends to convey to the public that the State has endorsed the
message.” Walker, 135 S. Ct. at 2249 (quotation marks,
brackets, and citation omitted). A person who sees a North
Carolina “I’d Rather Be Shaggin’” specialty plate during Monday
morning rush hour surely does not routinely and reasonably
believe that such a plate embodies the State of North Carolina’s
credo. Nor is it likely that a North Carolina Libertarian who
applies for a “Don’t Tread On Me” specialty plate is motivated
by a desire to convey to the public the government’s seal of
approval.
Again, North Carolina repeatedly told its citizens that
they can “‘[m]ake a statement with a specialized or personalized
license plate,’” inviting them “to ‘find the plate that fits
you’” in a “specialty plate program . . . ‘allow[ing] citizens
with common interests to promote themselves and/or their
causes.’” Tata, 742 F.3d at 572 (quoting North Carolina
Division of Motor Vehicles website). North Carolina’s refrain
has surely sunken in and must impact the way the North Carolina
public views its specialty plates—as a forum allowing them to
make a statement and promote themselves and their causes, just
as their government described.
Finally, regarding the third factor, state control over the
messages conveyed on specialty plates, here, as in Walker, the
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state government controls the final wording and appearance of
specialty plates. Id. at 2249; N.C. Gen. Stat. §§ 20-63, 20-
79.3A, 20-79.4. North Carolina’s General Assembly must
authorize the issuance of any new specialty plates. Id. And,
as Plaintiffs’ own verified complaint demonstrates, North
Carolina exercises its authority not simply to authorize new
specialty plates but also to reject proposed plates: Plaintiffs
complain that North Carolina “has expressly and repeatedly
rejected the development of a pro-choice license plate.” J.A.
11. Plaintiffs concede that the control factor tilts in the
government’s favor.
According to North Carolina, the control factor alone is
dispositive as to whether speech is the government’s. North
Carolina claims that “the Supreme Court’s Walker opinion sets
out a new test”—the so-called “control test”—that “focuses
solely on the level of government control.” Appellants’ Supp.
Br. at 4. Yet Walker does no such thing. Indeed, the words
“control test” appear nowhere in Walker, and for good reason.
The Supreme Court surely recognized that hinging government
speech on government control alone could incentivize the
government to increase its control over speech, thereby deem the
speech its own, and then use its freedom from First Amendment
constraints to discriminate against disfavored speakers and
messages at will. Nothing in Walker suggests that the Supreme
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Court supports such a circular inquiry that could so easily
enable a “subterfuge for favoring certain private speakers over
others based on viewpoint.” Summum, 555 U.S. at 473.
Applying all three of the factors the Supreme Court laid
out in Walker to the specifics of this case shows that the
speech at issue is a mixed picture tilting in favor of private
speech. I do not deny that some elements of North Carolina’s
specialty plates, like the state name and the vehicle’s tag
number, are unquestionably government speech. But the
“designated segment of the plate [that] shall be set aside for
unique design representing various groups and interests” can,
and here does, contain private speech. N.C. Gen. Stat. § 20-
79.4.
On appeal, North Carolina argued only that because its
specialty plates are government speech, North Carolina can
viewpoint-discriminate free from First Amendment constraints.
On its lone issue, North Carolina should lose: Because the
speech at issue is not purely the government’s, the First
Amendment’s constraints on viewpoint discrimination apply. And
in authorizing a “Choose Life” specialty plate while refusing to
authorize a pro-choice specialty plate, North Carolina violated
those discrimination constraints. The district court’s holding
to that effect, which is in no other respect challenged, should
therefore stand.
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II.
“Never has the line between the public and private sectors
been as blurred as it is today. Private companies run state
prisons and public hospitals. Public-private partnerships
develop real estate and build sports facilities and office
buildings. Management of public schools is delegated to private
companies.” Anderson, 94 Tex. L. Rev. See Also at 4. And the
lines have blurred in the speech realm, too, as “stadium
scoreboards of public universities tout not only the teams and
schools, but also soft drinks, banks, and car dealers” and
cities and schools sell logos and logo placements to private
entities. Id. at 5. Such speech need not be viewed
simplistically as all government or all private.
North Carolina invited its vehicle owners to “[m]ake a
statement” and “promote themselves and/or their causes”—but only
if they were on the government’s side of a highly divisive
political issue. This, North Carolina may not do. Because the
specialty plate speech at issue is not pure government speech,
North Carolina’s allowing a “Choose Life” plate while rejecting
a pro-choice plate constitutes viewpoint discrimination in
violation of the First Amendment. For this reason, I would
affirm the district court’s ruling in Plaintiffs’ favor and must
respectfully dissent.
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