American Civil Liberties Union v. Eugene Conti, Jr.

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 5:11-cv-00470-F. [999771565]. [13-1030]

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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.

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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).
S. Ct. 2886 (June 29, 2015).

See Berger v. ACLU, 135

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
plate.
alleging

rejected

efforts

to

include

a

pro-choice

license

The ACLU and several vehicle owners brought this action
that

the

State

violated

the

First

and

Fourteenth

Amendments by refusing to offer a pro-choice license plate.

The

district

the

court

granted

summary

judgment

in

favor

of

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

discrimination

when

for

it

administering

to

engage

the

license

in

viewpoint

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.”
742 F.3d at 575.

Tata,

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
North

in

Carolina

violation
filed

of

a

the

petition

decision by the Supreme Court.

First

Amendment.”

seeking

review

Id.
of

our

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]
Walker,

proposed

135

S.

Ct.

[Confederate

at

2253.

battle

The

flag]

Supreme

design.”

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

substantively

license

plate

indistinguishable

program

from

that

at

here

is

Walker,

in

issue

and

the

Walker Court’s analysis is dispositive of the issues in this
case.

Accordingly,

plates

issued

we

under

now

conclude

North

that

Carolina’s

specialty

program

license

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,

is

it

determining

the

not

barred

content

of

by

the

what

it

Free

Speech

says.”).

Clause
We

from

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,

lead

does

not

to

the

conclusion

that

the

North

Carolina specialty plate speech at issue here constitutes pure
government speech.
this

case,

it

On the contrary, based on the specifics of

presents

mixed

speech—with

private

components that prohibit viewpoint discrimination.

speech

Accordingly,

the district court correctly held that in allowing a “Choose
Life”

specialty

Choice”

plate,

plate
North

while

repeatedly

Carolina

violated

Respectfully, I therefore dissent.

6

rejecting
the

First

a

“Respect

Amendment.

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I.
A.
“Premised

on

mistrust

of

governmental

power,

the

First

Amendment stands against attempts to disfavor certain subjects
or viewpoints.”
U.S.

310,

Citizens United v. Fed. Election Comm’n, 558

340

(2010).

Chief

amongst

the

evils

the

First

Amendment prohibits are government “restrictions distinguishing
among

different

others.”

speakers,

Id.

allowing

speech

by

some

but

not

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

restriction.”

the

speaker

is

the

rationale

for

the

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

515 U.S. 819, 829 (1995).
The

First

Amendment’s

neutrality

government regulation of private speech.
government

engages

in

its

own

protections

check

only

By contrast, when the

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).
imprecise”

Under the “relatively new, and correspondingly

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

private speech, but a mixture of the two.”

speech

nor

purely

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

prohibit viewpoint discrimination.
Last

year

in

Walker,

the

speech

interests

so

as

to

Id.

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.

a

460,

case

dealing

monuments in public parks.

with

privately

donated

permanent

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

omitted).

(quotation

marks

and

citation

“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

constituted pure government speech.

is,

that

both

Id.

B.
Applying the Walker framework here, I conclude that North
Carolina’s authorization of a “Choose Life” plate and rejection
of

a

“Respect

speech.

Choice”

plate

is

not

simply

pure

government

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
began

putting

with

slogans

graphics in 1981.
77

(1994).

the
on

first
its

Walker
license

factor,
plates

North
in

Carolina

1954,

adding

J. Fox, License Plates of the United States

North

Carolina’s

vast

array

of

specialty

plates

honoring, for example, Corvettes, Piedmont Airlines, and out-ofstate

universities,

standard state slogan.

substantially

postdates

the

use

See id.; N.C. Gen. Stat. § 20-79.4.
9

of

a

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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)).
then,

North

vehicle

Carolina

owners

to

expressly

‘[m]ake

a

and

Not surprisingly,

repeatedly

statement

with

“invite[d]

a

its

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

causes.’”

interests

to

promote

Id. (citation omitted).

themselves

and/or

their

This history supports the

conclusion that the challenged speech was not the government’s.
Regarding the second Walker factor, whether there exists a
“routine”
issue

and

and

“reasonable”

the

association

government,

Walker,

between

135

S.

the

Ct.

speech
at

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.

brackets, and citation omitted).

at

2249

(quotation

marks,

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 . . .
with

common

causes.’”

interests
Tata,

742

to
F.3d

promote
at

572

Division of Motor Vehicles website).

‘allow[ing] citizens

themselves
(quoting

and/or
North

their

Carolina

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.
79.3A,

Id. at 2249; N.C. Gen. Stat. §§ 20-63, 20-

20-79.4.

North

Carolina’s

General

Assembly

authorize the issuance of any new specialty plates.
as

Plaintiffs’

own

verified

complaint

Id.

demonstrates,

must
And,
North

Carolina exercises its authority not simply to authorize new
specialty plates but also to reject proposed plates:

Plaintiffs

complain

repeatedly

that

North

Carolina

“has

expressly

and

rejected the development of a pro-choice license plate.”
11.

J.A.

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.

Indeed, the words

Yet Walker does no such thing.

“control test” appear nowhere in Walker, and for good reason.
The

Supreme

speech

on

Court

surely

government

recognized

control

alone

that

hinging

could

government

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

messages at will.

against

disfavored

speakers

and

Nothing in Walker suggests that the Supreme
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such

a

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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
number,

plates,
are

like

the

unquestionably

state

name

and

government

the

vehicle’s

speech.

But

tag
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,

specialty

plates

North
are

viewpoint-discriminate

Carolina

argued

government
free

from

only

speech,
First

that

North

Amendment

because

its

Carolina

can

constraints.

On its lone issue, North Carolina should lose:
speech

at

issue

is

not

purely

the

government’s,

Because the
the

Amendment’s constraints on viewpoint discrimination apply.

First
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

develop

real

estate

and

buildings.

build

sports

partnerships

facilities

and

office

Management of public schools is delegated to private

companies.”

Anderson, 94 Tex. L. Rev. See Also at 4.

lines

blurred

have

in

the

speech

realm,

too,

as

And the
“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

political issue.

the

government’s

side

of

a

highly

This, North Carolina may not do.

divisive

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

violation of the First Amendment.

viewpoint

discrimination

in

For this reason, I would

affirm the district court’s ruling in Plaintiffs’ favor and must
respectfully dissent.

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