Am. Civil Liberties Union of N.C. v. Tennyson

• Decision Date: 10 March 2016
• Docket Number: No. 13–1030.,13–1030.
• Citation: Am. Civil Liberties Union of N.C. v. Tennyson, 815 F.3d 183 (4th Cir. 2016)
• Parties: 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.
• Court: U.S. Court of Appeals — Fourth Circuit

815 F.3d 183

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,andThom 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.

No. 13–1030.

United States Court of Appeals, Fourth Circuit.

March 10, 2016.

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.

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.

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., ––– U.S. ––––, 135 S.Ct. 2239, 192 L.Ed.2d 274 (2015). See Berger v. ACLU, ––– U.S. ––––, 135 S.Ct. 2886, 192 L.Ed.2d 918 (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 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, 129 S.Ct. 1125, 172 L.Ed.2d 853 (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 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

WYNN, Circuit Judge, dissenting:

In Walker v. Texas Division, Sons of Confederate Veterans, Inc., –––U.S. ––––, 135 S.Ct. 2239, 192 L.Ed.2d 274 (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.

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, 130 S.Ct. 876, 175 L.Ed.2d 753 (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, 115 S.Ct. 2510, 132 L.Ed.2d 700 (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, 129 S.Ct. 1125, 172 L.Ed.2d 853 (2009). Under the "relatively new, and correspondingly imprecise" government speech doctrine, Johanns v. Livestock Mktg. Ass'n, 544 U.S. 550, 574, 125 S.Ct. 2055, 161 L.Ed.2d 896 (2005) (Souter, J., dissenting), the government is generally "entitled to say what it wishes, and to select the views that it wants to express," Summum, 555 U.S. at 468, 129 S.Ct. 1125 (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, 129 S.Ct. 1125, 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;" (2) observers' "routine"...