Sons of Confederate v. Comm'R of Va Dept. of Motor, 01-1242.

Citation288 F.3d 610
Decision Date29 April 2002
Docket NumberNo. 01-1242.,01-1242.
PartiesSONS OF CONFEDERATE VETERANS, INCORPORATED, a Tennessee Corporation, by its Commander-in-Chief Patrick J. GRIFFIN; Virginia Division of Sons of Confederate Veterans, Incorporated, a Virginia Corporation, by its Commander Robert W. Barbour, Sr., Plaintiffs-Appellees, v. COMMISSIONER OF THE VIRGINIA DEPARTMENT OF MOTOR VEHICLES, in his official capacity, Defendant-Appellant, and Commonwealth of Virginia, whose agents and officers enacted and will enforce, on its behalf, Va.Code Ann. 46.2-746.22; James S. Gilmore, III, Governor, as Governor of the Commonwealth of Virginia, in his official capacity; Shirley Ybarra, as Secretary of the Department of Transportation of the State of Virginia, in her official capacity, Defendants.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

ARGUED: William Henry Hurd, Solicitor General, Office of the Attorney General, Richmond, Virginia, for Appellant. Arthur Patrick Strickland, Strickland & Harden, P.C., Roanoke, Virginia, for Appellees. ON BRIEF: Randolph A. Beales, Acting Attorney General, Jeffrey A. Spencer, Assistant Attorney General, Alison P. Landry, Assistant Attorney General, Office of the Attorney General, Richmond, Virginia, for Appellant. Steven H. Aden, The Rutherford Institute, Charlottesville, Virginia, for Appellees.

Before WILLIAMS and TRAXLER, Circuit Judges, and HOWARD, United States District Judge for the Eastern District of North Carolina, sitting by designation.

Affirmed by published opinion. Judge WILLIAMS wrote the opinion, in which Judge TRAXLER and Judge HOWARD joined.

WILLIAMS, Circuit Judge.

This appeal arises out of a dispute regarding the constitutionality of a provision in the Virginia statute authorizing the issuance of special license plates to members of the Sons of Confederate Veterans1 (SCV). In contrast to other Virginia statutes authorizing special plates for members or supporters of various organizations, this statute contains a restriction (the logo restriction) providing that "[n]o logo or emblem of any description shall be displayed or incorporated into the design of license plates issued under this section." Va.Code Ann. § 46.2-746.22 (Michie Supp. 2000).2 The SCV are thus prohibited by the logo restriction from receiving special plates bearing the symbol of their organization, which includes the Confederate flag. Richard Holcomb, Commissioner of the Virginia Department of Motor Vehicles (the Commissioner), appeals from a district court's order granting summary judgment to the SCV on their claim that the logo restriction violates the First and Fourteenth Amendments to the United States Constitution and granting an injunction to the SCV prohibiting the Commissioner from enforcing the restriction. Because we agree with the district court that the logo restriction violates the Constitution, we affirm.


The General Assembly of Virginia has created a program through which "special" Virginia license plates may be issued to members and supporters of various organizations or groups. Such plates must be specifically authorized by statute. Va. Code Ann. § 46.2-725 (Michie 1998). Generally, the plates bear the organization's logo and motto in addition to letters and numbers as found on other Virginia license plates. Ordinarily, a group or organization that would like to have a special license plate made available to its members contacts a member of the General Assembly to request that a bill be introduced which, if enacted, would authorize the issuance of a special plate. The General Assembly has authorized well over one hundred special plates in this fashion, a significant number of them for private organizations or associations.

The Virginia statute that created the special license plate program gives the Commissioner authority to "prescribe" the design of any special plate, stating that "[a]ll special license plates issued pursuant to this article shall be of designs prescribed by the Commissioner...." Va. Code Ann. § 46.2-725(B)(3) (Michie 1998). Section 46.2-725(B)(3) does not merely create discretion in the Commissioner to approve or reject plate designs; it also lays out substantive standards for those plate designs, requiring that they "bear unique letters and numerals, clearly distinguishable from any other license plate designs, and be readily identifiable by law enforcement personnel." Id.

The record indicates that special plate designs ordinarily are settled upon by a cooperative process between the Commissioner, represented by the Department of Motor Vehicles (DMV), and the group authorized to receive a special plate. The group is invited in a letter from the DMV to submit a design through a designated "sponsor," a person authorized to communicate on the group's behalf with the DMV regarding the plate. The letter instructs the sponsor to include "electronic media art of the logo and legend for the plate" with its submission. (J.A. at 104) (DMV form letter to plate sponsors). In addition to these instructions, "Special License Plate Design Criteria" are provided, which specifically state that "[y]ou can use your organization's logo or create a logo to be placed on the plate." (J.A. at 106.)


The SCV brought this action in the United States District Court for the Western District of Virginia by and through their Commander in Chief, Patrick J. Griffin, seeking a declaration that the logo restriction is invalid under the First, Fifth, and Fourteenth Amendments to the United States Constitution, an injunction requiring the Commissioner to issue special license plates bearing the logo of the SCV, including the Confederate flag, to those members of the SCV who request them, and attorney's fees and costs pursuant to 42 U.S.C.A. § 1988. The SCV and the Commissioner filed cross-motions for summary judgment. The district court granted the SCV's motion and denied the Commissioner's motion on January 18, 2001. Concluding that the logo restriction violated the First Amendment as incorporated into the Fourteenth, the district court declared it invalid on that ground. Sons of Confederate Veterans, Inc. v. Holcomb, 129 F.Supp.2d 941, 947 (W.D.Va.2001). The district court then entered an injunction enjoining the Commissioner from enforcing the logo restriction and requiring the issuance of the special plates with the design sought by the SCV. The district court did not rule on the issues of costs or attorney's fees, stating that those matters would be taken up at a later date. Id. at 949.

In support of its rulings, the district court made several findings. First, it found that plates authorized for private organizations under Virginia's special license plate program constitute private, rather than government, speech. Id. at 945 ("the design of [special plates] honoring private entities is the speech of those entities"). The district court then analyzed the effect of the logo restriction on the SCV's speech rights, concluding that the prohibition of any logo or emblem on the SCV's special plate discriminates on the basis of viewpoint and is thus invalid. Id. at 947. The district court also conducted an analysis of the special license plate program as a forum for speech, concluding that it would constitute a "designated public forum" under such analysis.3 Id. at 947-49. The district court found that strict scrutiny would be applied to restrictions in that forum, other than reasonable time, place, and manner restrictions, and that the logo prohibition could not survive such scrutiny.

As to the appropriate remedy for the violation, the district court found that the two sentences of section 46.2-746.22 are severable under Virginia law, and that the second, comprising the logo restriction, could thus be invalidated while leaving the first intact. Id. at 949. The district court found alternatively that even if the second sentence could not be severed from the first (and consequently the whole statute authorizing a special plate for the SCV would have to be invalidated), it would act pursuant to its inherent equitable powers to compel the Commissioner to comply with the requirements of the first sentence of § 46.2-746.22 — that is, to issue special plates to the SCV containing their logo. To invalidate the authorizing statute entirely, the district court found, would give effect to viewpoint discrimination in violation of the First Amendment. Id. The Commissioner timely noted this appeal.

The Commissioner's argument on appeal has three parts. First, the Commissioner contends that the special plate authorized for the SCV, and indeed all the special plates authorized in Virginia, are instances of "government speech." Second, the Commissioner argues that even if the special plates contain private speech, that speech has not been abridged impermissibly in violation of the First Amendment because the logo restriction is a reasonable subject matter limitation, rather than a bar to expression of a particular viewpoint. Third and finally, the Commissioner contends that if section 46.2-746.22 is unconstitutional, the district court erred when it severed what it found to be the offending portion of the authorizing statute, thereby creating a statute that the General Assembly did not pass and would not have passed.

We address each of these arguments in turn, reviewing de novo the grant of the motion for summary judgment. Higgins v. E.I. DuPont de Nemours and Co., 863 F.2d 1162, 1167 (4th Cir.1988). In reviewing the record, we "draw all reasonable inferences in favor of the nonmoving party, ... and we may not make credibility determinations or weigh the evidence." Edell & Assoc., P.C. v. Law Offices of Peter G. Angelos, 264 F.3d 424, 435-36 (4th Cir.2001). Where the Government imposes viewpoint-based restrictions, we evaluate the restrictions pursuant to strict scrutiny. American Life League, Inc. v. Reno, 47 F.3d 642,...

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