Cressman v. Thompson

• Decision Date: 04 August 2015
• Docket Number: No. 14–6020.,14–6020.
• Citation: 798 F.3d 938
• Parties: Keith CRESSMAN, Plaintiff–Appellant, v. Michael C. THOMPSON, in his official capacity as Secretary of Safety and Security and as the Commissioner of Public Safety for the State of Oklahoma; Paula Allen, individually and in her official capacity as Licensing Services Hearing Officer for the Oklahoma Department of Public Safety; Thomas Kemp, Jr., in his official capacity as Chairman of the Oklahoma Tax Commission; Jerry Johnson, in his official capacity as Vice Chairman of the Oklahoma Tax Commission; Dawn Cash, in her official capacity as Secretary Member of the Oklahoma Tax Commission; Kerry Pettingill, in his official capacity as Chief of the Oklahoma Highway Patrol, Defendants–Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

798 F.3d 938

Keith CRESSMAN, Plaintiff–Appellant

v.Michael C. THOMPSON, in his official capacity as Secretary of Safety and Security and as the Commissioner of Public Safety for the State of Oklahoma; Paula Allen, individually and in her official capacity as Licensing Services Hearing Officer for the Oklahoma Department of Public Safety; Thomas Kemp, Jr., in his official capacity as Chairman of the Oklahoma Tax Commission; Jerry Johnson, in his official capacity as Vice Chairman of the Oklahoma Tax Commission; Dawn Cash, in her official capacity as Secretary Member of the Oklahoma Tax Commission; Kerry Pettingill, in his official capacity as Chief of the Oklahoma Highway Patrol, Defendants–Appellees.

No. 14–6020.

United States Court of Appeals, Tenth Circuit.

Aug. 4, 2015.

Nathan W. Kellum, Center for Religious Expression, Memphis, TN, (Bryan H. Beauman, Sturgill, Turner, Barker & Moloney, PLLC, Lexington, KY, with him on the briefs), for Plaintiff–Appellant.

Kevin L. McClure, Assistant Attorney General, Office of the Attorney General, Oklahoma City, OK, (Larry Patton, Senior Assistant General Counsel, and Taylor P. Henderson, Assistant General Counsel, Oklahoma Tax Commission, Oklahoma City, OK, with him on the brief), for Defendants–Appellees.

Before HOLMES, BACHARACH, and McHUGH, Circuit Judges.

Opinion

HOLMES, Circuit Judge.

In this case, we must decide whether Oklahoma's depiction of a Native American shooting an arrow towards the sky on its standard vehicle license plates compels Appellant Keith Cressman to speak in violation of his First Amendment rights.

In a prior appeal, we determined that Mr. Cressman had alleged sufficient injury to confer standing and that he had stated a plausible compelled-speech claim at the motion-to-dismiss stage. See Cressman v. Thompson, 719 F.3d 1139, 1147–56 (10th Cir.2013) (“Cressman I ”). On remand, and after a bench trial, the district court concluded that a reasonable person would not understand the vehicle license plate image to convey the pantheistic message to which Mr. Cressman objects; it thus held that he was not compelled to speak. See Cressman v. Thompson, No. CIV–11–1290–HE, 2014 WL 131715, at *5 (W.D.Okla. Jan. 14, 2014). Exercising our jurisdiction under 28 U.S.C. § 1291, we now affirm.

I

A

In 2007, the Oklahoma legislature created the Oklahoma License Plate Design Task Force to update the design of the standard Oklahoma vehicle license plate. See Okla. Stat. tit. 47, § 1113.3. This change was motivated by the public-safety concern that the old license plates were difficult to read. However, the task force also viewed the redesign as an opportunity to “market Oklahoma as a tourist destination.” Aplt.App. at 171 (Okla. State Senate Press Release, dated Nov. 27, 2007). In 2008, the task force chose a design that included an image of a Native American man shooting an arrow towards the sky (the “Native American image”).¹ It also featured the words “Native America.” Id. at 174 (Okla. Tax Comm'n Website, dated Oct. 31, 2008).² The image is based on a sculpture by acclaimed Oklahoma artist Allan Houser, entitled Sacred Rain Arrow, which depicts the story of a young Apache warrior who fired an arrow that was blessed by a medicine man into the heavens; as the tale goes, the arrow carried prayers for rain to the Spirit World.³

Mr. Cressman, an Oklahoma resident, professes “historic Christian beliefs,” including monotheism and the view that “Jesus Christ is the mediator between all people and God.” Id. at 91–92 (Trial Tr., dated Jan. 9, 2014). He learned about the new license plate design, the Sacred Rain Arrow sculpture, and the Native American legend that inspired Mr. Houser's work from various news stories covering the redesign. He objected to the Native American image because, in his view, it conveys “the same message as the [Sacred Rain Arrow ] statue,” which he believes teaches that there are “multiple gods” and that “the arrow is an intermediary for prayer.” Id. at 97.

Finding the license plate image to be irreconcilable with his beliefs, Mr. Cressman tried various means to avoid displaying it. He initially covered up the Native American image on the standard license plates affixed to his vehicles. However, he was advised by a tag agency that obscuring any part of the license plate might be illegal.⁴ He subsequently visited the Oklahoma Tax Commission, where a clerk again informed him that he could not cover up the Native American image, but that he could instead obtain a specialty license plate for an extra charge. Mr. Cressman then spoke with a hearing officer at the Department of Public Safety, who confirmed that he could be prosecuted for covering up the license plate image. See Okla. Stat. tit. 47, § 1113.⁵ Indeed, concealing a state-issued license plate is a misdemeanor under Oklahoma law. See id. § 1151(A)(2). During this time, Mr. Cressman obtained specialty plates for his vehicles, the cost of which ranged from eighteen to thirty-eight dollars more than a standard license plate.⁶

In March 2010, Mr. Cressman sent letters to the Attorney General of Oklahoma and various other state officials indicating that he no longer wished to pay the extra charge for the specialty plates and asking that he be allowed “either to cover up the image of the ‘Sacred Rain Arrow’ sculpture on a standard license plate or ... obtain a vanity plate free of charge.” Aplt.App. at 169 (Letter, dated Mar. 10, 2010). He did not receive a response to these requests.

B

Mr. Cressman filed the present 42 U.S.C. § 1983 civil-rights lawsuit in November 2011, alleging that he was forced to display the Native American image—and thereby communicate its allegedly pantheistic message—in violation of his free-speech, free-exercise, and due-process rights under the First and Fourteenth Amendments.⁷ He sought an injunction prohibiting state officials from prosecuting him for covering the image on his license plate or, alternatively, an order requiring the Oklahoma Tax Commission to provide him with a specialty license plate at the same cost as a standard license plate. The defendants filed motions to dismiss based on a lack of standing and a failure to state a claim upon which relief could be granted. The district court found that Mr. Cressman had standing, but nonetheless dismissed the complaint because, in its view, Mr. Cressman had failed to state a plausible claim of compelled speech. See Cressman v. Thompson, 871 F.Supp.2d 1176, 1180–86 (W.D.Okla.2012).

On appeal, in Cressman I, we confirmed that Mr. Cressman did indeed meet the requirements for Article III standing. See 719 F.3d at 1144–47. However, we reversed and remanded to the district court for further proceedings based on our conclusion that Mr. Cressman's complaint stated a plausible compelled-speech claim. We found that the complaint sufficiently alleged the elements of symbolic speech established in Spence v. Washington, 418 U.S. 405, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974) (per curiam), and Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989) —namely, that the Native American image “conveys a particularized message that others are likely to understand and to which [Mr. Cressman] objects.” 719 F.3d at 1157. We further concluded that, under the Supreme Court's decision in Wooley v. Maynard, 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977), the placement of the image on Oklahoma's license plate meant that the message it conveyed was “sufficiently linked” to Mr. Cressman “to raise compelled speech concerns.” 719 F.3d at 1157. Given the pleading stage of the litigation, we did not question Mr. Cressman's assertion that “others are in fact likely to perceive the message [he] alleges.” Id. at 1154. Instead, we noted that “further factual development through discovery may or may not support this allegation.” Id.⁸

After the case was remanded to the district court, the parties engaged in discovery and filed cross-motions for summary judgment and a joint stipulation of uncontested facts. The district court granted partial summary judgment to defendants Thomas Kemp, Jr., Jerry Johnson, and Dawn Cash (collectively, the “Tax Commission defendants”), concluding that it lacked subject-matter jurisdiction under the Tax Anti–Injunction Act to compel the Tax Commission to issue Mr. Cressman a specialty license plate at the same cost as a standard license plate.⁹ It denied the other parties' summary-judgment motions and instead held a bench trial on Mr. Cressman's various claims.

The district court ultimately concluded that the Native American image, in isolation, did not provide a basis for Mr. Cressman's First Amendment claim because:

a reasonable observer would not be likely to conclude that an identifiable message was conveyed simply from the inclusion of the image on the standard state license plate. Without further research, it is simply a depiction of an Indian shooting a bow and arrow. A reasonable observer, even one living in Oklahoma, would not be likely to know of All[a]n Houser's intentions or thoughts in creating the “Sacred Rain Arrow” statue or of the legend behind it, even if the observer assumed the image was an exact replica of the statue.

Aplt.App. at 227 (Order, filed Jan. 14, 2014) (footnote omitted). Instead, the court found that, in the context of the license plate as a whole, the meaning a reasonable observer would likely perceive from the image was something “akin to ... [the notion] that Oklahoma is Native America”—a message that Mr. Cressman explicitly indicated was not objectionable. Id. at 228. The court also dismissed the argument that the license plate image was pure speech.¹⁰ As such, it concluded that Mr. Cressman was not compelled to speak in violation of his First Amendment rights, denied his motion for a preliminary injunction, and entered judgment in favor of the defendants.

II

In a matter involving First Amendment rights, we review the district court's decision de novo, conducting “an independent examination of...