Sons of Confederate Veterans v. Holcomb

• Decision Date: 18 January 2001
• Docket Number: No. 7:99CV00530.,7:99CV00530.
• Citation: 129 F.Supp.2d 941
• Parties: SONS OF CONFEDERATE VETERANS, INC. and Virginia Division of Sons of Confederate Veterans, Inc., Plaintiffs v. Richard D. HOLCOMB, Commissioner, Virginia Department of Motor Vehicles, Defendant.
• Court: U.S. District Court — Western District of Virginia

129 F.Supp.2d 941

SONS OF CONFEDERATE VETERANS, INC. and Virginia Division of Sons of Confederate Veterans, Inc., Plaintiffs v. Richard D. HOLCOMB, Commissioner, Virginia Department of Motor Vehicles, Defendant.

No. 7:99CV00530.

United States District Court, W.D. Virginia, Roanoke Division.

January 18, 2001.

Arthur Patrick Strickland, Arthur P. Strickland, P.C., Roanoke, VA, Steven H. Aden, The Rutherford Institute, Charlottesville, VA, for Plaintiffs.

Gregory E. Lucyk, Jeffrey Alan Spencer, Mark L. Earley, William Henry Hurd, Office of Atty. General, Richmond, VA, for Commonwealth of Virginia.

Judith W. Jagdmann, Office of Atty. General, Richmond, VA, for Richard D. Holcomb.

ORDER

KISER, Senior District Judge.

MEMORANDUM OPINION

The controversy regarding the Confederate flag has apparently invaded its newest terrain, automobile license plate designs. In this matter, the Commonwealth of Virginia statutorily authorized the Virginia Department of Motor Vehicles ("DMV") to produce a specialty license plate honoring the Sons of Confederate Veterans ("the Sons"). Va.Code Ann. § 46.2-746.22. At the same time, however, the statute forbade such plates from bearing a logo or emblem of any kind. Id. The Sons now seeks a declaratory judgment and injunction, arguing that this restriction violates their free speech and equal protection rights under the First, Fifth, and Fourteenth Amendments, as well as under 42 U.S.C. § 1983. The Sons also seek nominal and compensatory damages for the intentional violation of Plaintiff's constitutional rights. Both sides have moved for summary judgment. For the reasons that follow, I grant Plaintiffs' Motion and deny Defendant's Motion because I find the restricting language in § 746.22 to be an impermissible restriction on speech.

Background

Plaintiffs are the Sons of Confederate Veterans, Inc., a Tennessee non-profit corporation, and the Sons of Confederate Veterans, Inc., Virginia Division ("the Sons-VA"). The groups are suing by and through Patrick J. Griffin, the Sons' Commander-in-Chief, and Robert W. Barbour, Commander of the Sons-VA. The Sons are qualified under Internal Revenue Code § 501(c)(3).

Defendant is Richard D. Holcomb, the Commissioner of the Virginia Department of Motor Vehicles. The DMV is under Holcomb's supervision and is responsible for the specialty license plate program that is at issue in this case. Specialty license plates in Virginia have been issued that incorporate designs honoring over 300 diverse organizations, including various military veterans' organizations and fraternal organizations. Access to this program is restricted to only those groups so designated under Virginia statute.

The statute authorizing the creation of the Sons' specialty license plates, Va.Code Ann. § 46.2-746.22, reads as follows:

Special license plates; members of the Sons of Confederate Veterans.

On receipt of an application therefor and written evidence that the applicant is a member of the Sons of Confederate Veterans, the Commissioner shall issue special license plates to members of the Sons of Confederate Veterans. No logo or emblem of any description shall be displayed or incorporated into the design of license plates issued under this section. (Emphasis added).

This language is identical to numerous other specialty license plate provisions with the sole exception of the ban on displaying any logos or emblems. This restriction was clearly aimed at excluding the organization's official logo, which incorporates the Confederate battle flag. This logo has been the Sons' official logo for over 100 years and is proprietary to the organization. Out of the scores of separate statutory provisions allowing hundreds of organizations to qualify for the special license plates, § 746.22 is the only one with any sort of speech restriction.

Discussion

This case raises several interesting issues. The initial inquiry, of course, is whether the license plate design implicates Plaintiffs' rights at all, or whether the design is speech of the Commonwealth. Since I find the design at issue to be the speech of the Plaintiffs, I turn to First Amendment analysis to examine whether the statutory restriction is impermissible viewpoint discrimination. I find that the restricting language is inexorably crafted to discriminate against Plaintiffs based on the content of their message. Nevertheless, I also apply the traditional forum analysis to this matter, where I again find Plaintiffs' arguments compelling. For these reasons, I grant Plaintiffs' Motion for Summary Judgment and enjoin the Defendant from enforcing the restriction on logos or emblems that appears in § 746.22.

Who Is Speaking

This issue is pivotal. If Defendant is correct in asserting that the specialty plates represent government speech, then the First Amendment rights of the Plaintiffs are not implicated whatsoever. Under this view, then, Plaintiffs' action is nothing more than an attempt to compel the Commonwealth to speak. In the alternative, Defendant also argues that specialty plates represent at least some sort of "joint speech," implicating both governmental and private speech. In either instance, Defendant maintains that it may veto the content because it cannot be compelled to speak unwillingly. Cf. Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 833, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) (stating "when the State is the speaker, it may make content-based choices").

I am not persuaded, however, that specialty plates at issue represent anything more than speech of the Plaintiffs. At the outset, let me make clear that I realize that certain license plate designs clearly represent speech by the Commonwealth. I find such state speech to be limited, however, to areas of speech regarding official governmental matters. Such plates include those bearing the Commonwealth's official bird, the Commonwealth's official state motto, and those honoring official governmental entities, such as various municipalities.

It is important to note that this type of speech by the Commonwealth is distinct and separate from the speech conveyed on other specialty plates. Indeed, the types of plates with governmental speech number few, while the vast majority of specialty plates available to drivers in Virginia represent private speech. Thus, plates honoring various occupational associations, civic and fraternal associations, industry associations, and so forth all represent the views of private actors, who are entitled to First Amendment protection.¹ Overall, I firmly believe that specialty plates can be divided into separate spheres of public (e.g., state symbols) speech and private speech and that the specialty plates at issue in this matter fall into the latter sphere.

Detailed analysis of the record also supports this finding.² The design of specialty plates is left entirely to the organization, and not the Commonwealth. See, DMV Special License Plate Design Criteria (recognizing explicitly that the private organization "may create a design" for the specialty plate "to represent [the] organization"). The only real restrictions on specialty plate participants' speech relate to formatting requirements, such as plate colors and the size and placement of logos. Id. Moreover, the DMV repeatedly uses the possessive pronoun "your," as in "your design" and "your plate," when corresponding with groups regarding design of specialty plates. In this case, the DMV even asked Plaintiffs to "consider using another flag or emblem" in a letter to the organization. Overall, I find these factors persuasive evidence that organizations speak through their designs of specialty plates. As such, I find the design at issue to represent speech of the Plaintiffs, and not speech of the government or joint-speech between the parties.

This line of distinction between public and private speech on license plates squares well with the leading court decisions on this matter. Defendant characterizes the Court's ruling in Wooley v. Maynard, 430 U.S. 705, 715, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977), as standing for the proposition that all license plate designs represent state speech. Yet, the license plate in Maynard was one bearing the state motto of New Hampshire, "Live Free or Die." Though I would view such a plate bearing the state motto to be state speech, other courts have agreed with me in finding plates communicating individuals' political viewpoints or affiliations to be private speech. For instance, the Court in Henderson v. Stalder, 112 F.Supp.2d 589 (E.D.La.2000), recently ruled that the "Choose Life" specialty plate design implicated private speech rights. In fact, that court found State's contention that specialty plates represent state speech to be "an oxymoron." Id. at 595; cf. Sons of Confederate Veterans, Inc. v. Glendening, 954 F.Supp. 1099, 1101-02 (D.Md.1997) (finding specialty plates to represent private speech, with defendants not even "disput[ing] that display of the logo is speech protected by the First Amendment"); Jed M. Silversmith, Confederate License Plates at the Constitutional Crossroads, 54 U. Miami L.Rev. 563, 585 (2000) (discussing various license plates and concluding that "states may generally not restrict specialty plates"); but see, In the Matter of Denial of the Application for the Custom Plates "Wine" "Invino" "Vino" of Michael Paul Higgins v. Driver and Motor Vehicles Serv. Branch, 170 Or.App. 542, 13 P.3d 531 (2000) (en banc) (finding all license plates to be state speech).³

Turning to Defendant's specific arguments, Defendant primarily asserts an unfettered ability to control the message because it views the plates as government speech. It is, of course, a well-settled point of law that the First Amendment protects only citizens' speech rights from government regulation, and does not apply to government speech itself. Columbia Broad. Sys., Inc. v. Democratic Nat. Comm., 412 U.S. 94, 139 and n. 7, 93...