Case: 13-50411   Document: 00512697267     Page: 1   Date Filed: 07/14/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT    United States Court of Appeals
                                                                        Fifth Circuit

                                                                       FILED
                                 No. 13-50411                       July 14, 2014
                                                                    Lyle W. Cayce
                                                                         Clerk
TEXAS DIVISION, SONS OF CONFEDERATE VETERANS,
INCORPORATED, a Texas Corporation; GRANVEL J. BLOCK, Individually;
RAY W. JAMES, Individually,

                                           Plaintiffs–Appellants
v.

VICTOR T. VANDERGRIFF, In His Official Capacity as Chairman of the
Board; CLIFFORD BUTLER, In His Official Capacity as a Member of the
Board; RAYMOND PALACIOS, JR., In His Official Capacity as a Member of
the Board; LAURA RYAN, In Her Official Capacity as a Member of the
Board; VICTOR RODRIGUEZ, In His Official Capacity as a Member of the
Board; MARVIN RUSH, in his official capacity as a Member of the Board;
JOHN WALKER, III, In His Official Capacity as a Member of the Board;
BLAKE INGRAM, In His Official Capacity as a Member of the Board,

                                           Defendants–Appellees



                Appeals from the United States District Court
                      for the Western District of Texas


Before SMITH, PRADO, and ELROD, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
      The Texas Division of the Sons of Confederate Veterans and two of its
officers (collectively “Texas SCV”) appeal the district court’s grant of summary
judgment in favor of Victor T. Vandergriff, Chairman of the Texas Department
of Motor Vehicles Board, and seven other board members (collectively “the
Board”). Texas SCV argues that the Board violated its First Amendment right
    Case: 13-50411    Document: 00512697267       Page: 2   Date Filed: 07/14/2014



                                 No. 13-50411
to free speech when the Board denied Texas SCV’s application for a specialty
license plate featuring the Confederate battle flag. The district court rejected
Texas SCV’s arguments and found that the Board had made a reasonable,
content-based regulation of private speech. We disagree, and because the
Board engaged in impermissible viewpoint discrimination, we reverse.
                              I. BACKGROUND
      The State of Texas requires that all registered motor vehicles display a
license plate. Tex. Transp. Code Ann. § 504.943; 43 Tex. Admin. Code § 217.22.
Texas offers a standard-issue license plate, but, for an additional fee, drivers
may display a specialty license plate on their vehicles. See Tex. Transp. Code
Ann. § 504.008. Under Texas law, there are three different ways to create a
specialty license plate.   First, the legislature can create and specifically
authorize a specialty license plate. See 

Second, any
individual or organization can create a specialty plate through a third-party
vendor. 

The Texas Department of Motor Vehicles Board
must approve any plates created through the private vendor. 43 Tex. Admin.
Code § 217.40.
      The third and final means of creating a specialty license plate is at issue
in this case. The Texas Department of Motor Vehicles Board can issue a new
specialty plate, either on its own or in response to an application from a
nonprofit organization.    Tex. Transp. Code Ann. § 504.801(a).          When a
nonprofit organization proposes a plate, the Board must approve the plate’s
design and “may refuse to create a new specialty license plate if the design
might be offensive to any member of the public.” 

The proceeds
from the sale of these specialty license plates go to either the Texas
Department of Motor Vehicles or to a state agency of the nonprofit
organization’s choosing. 

(e).


                                        2
    Case: 13-50411    Document: 00512697267     Page: 3   Date Filed: 07/14/2014



                                 No. 13-50411
      Texas SCV, a nonprofit organization that works to preserve the memory
and reputation of soldiers who fought for the Confederacy during the Civil War,
applied for a specialty license plate through this third process. Texas SCV’s
proposed plate features the SCV logo, which is a Confederate battle flag framed
on all four sides by the words “Sons of Confederate Veterans 1896.” A faint
Confederate flag also appears in the background of the proposed plate. The
word “Texas” is at the top of the plate in bold text, and “Sons of Confederate
Veterans” runs in capitalized letters along the bottom of the plate. An outline
of the state of Texas appears in the top, right corner of the proposed plate.
      Texas SCV submitted its application in August 2009 to the Texas
Department of Transportation, which was the agency responsible for
administering the specialty license plate program at the time.                  The
Department of Transportation put Texas SCV’s proposed plate to a vote of its
seven-member panel. During the first vote, three members voted to approve
the plate, and two members voted against; two members failed to vote despite
repeated efforts to encourage them to cast their vote. Instead of moving the
plate to the public comment period, the Department of Transportation chose to
hold another vote. During this second vote, one member voted to approve the
plate, four voted against, and two members again failed to vote.                The
Department of Transportation then denied Texas SCV’s application.
      The Texas Department of Motor Vehicles subsequently assumed
responsibility for administering the specialty license plate program, and Texas
SCV renewed its application for a specialty license plate with the Board. The
Board invited public comment on Texas SCV’s proposed plate on its website
and set a date for final review of the plate. Eight of the nine members of the
Board were present for the final review meeting, and their vote was
deadlocked, four in favor and four against the plate. The Board rescheduled
the vote, in the hope that all Board members would be able to be present for
                                       3
     Case: 13-50411      Document: 00512697267        Page: 4    Date Filed: 07/14/2014



                                     No. 13-50411
the vote. Many members of the public attended the Board meeting where the
second vote was scheduled to occur.             Texas SCV’s proposed plate elicited
numerous public comments; while some were in favor, the majority were
against approving the plate. At its second vote, the Board unanimously voted
against issuing Texas SCV’s specialty plate. The Board’s resolution explaining
its decision stated:
      The Board . . . finds it necessary to deny [Texas SCV’s] plate design
      application, specifically the confederate flag portion of the design,
      because public comments have shown that many members of the
      general public find the design offensive, and because such
      comments are reasonable. The Board finds that a significant
      portion of the public associate the confederate flag with
      organizations advocating expressions of hate directed toward
      people or groups that is demeaning to those people or groups.
      Texas SCV sued in federal district court under 42 U.S.C. § 1983,
asserting violations of its rights under the First and Fourteenth Amendments.
Both parties moved for summary judgment, and the district court granted the
Board’s motion. First, the district court found that the specialty license plates
were private, not government, speech. The court then analyzed Texas SCV’s
claims under the First Amendment and found that (1) the specialty license
plate program was a nonpublic forum; (2) the Board’s rejection of Texas SCV’s
plate “was a content-based restriction on speech, rather than a viewpoint-
based limitation”; and (3) the content-based regulation was reasonable. Thus,
the district court concluded that the Board had not violated Texas SCV’s rights
under the First Amendment and entered judgment for the Board. 1 Texas SCV
timely appealed.




      1 The district court did not reach Texas SCV’s claim that the Board had violated its
rights under the Fourteenth Amendment, and Texas SCV does not raise its Fourteenth
Amendment argument on appeal.
                                            4
     Case: 13-50411       Document: 00512697267         Page: 5     Date Filed: 07/14/2014



                                       No. 13-50411
                                  II. JURISDICTION
       Neither party has argued that this Court lacks jurisdiction, but federal
courts have a duty to consider their subject matter jurisdiction sua sponte. See
Gonzalez v. Thaler, 

, 648 (2012). In Henderson v. Stalder, 

(5th Cir. 2005), we were asked to decide whether Louisiana’s specialty
license plate program discriminated against pro-choice views in violation of the
First Amendment. 

          Instead of reaching the merits, we held that
the Tax Injunction Act (“TIA”), 28 U.S.C. § 1341, barred the suit, and we
vacated and remanded with instructions for the district court to dismiss the
case for lack of jurisdiction. 

Because this case involves a seemingly
similar fact pattern, we first consider whether the TIA bars the instant case.
       Under the TIA, “[t]he district courts shall not enjoin, suspend or restrain
the assessment, levy or collection of any tax under State law where a plain,
speedy and efficient remedy may be had in the courts of such State.” 28 U.S.C.
§ 1341. But, the TIA will not deprive federal courts of jurisdiction when “(a) the
‘fees’ charged by the state are not taxes for purposes of TIA, or if (b) Hibbs v.
Winn, 

. . . (2004) can be read to encompass this suit.” 

. Hibbs opens the doors to federal court where the TIA might
otherwise bar the suit if “(1) a third party (not the taxpayer) files suit, and (2)
the suit’s success will enrich, not deplete, the government entity’s coffers.” 

(citing 

–09).
       We hold that the TIA does not bar this suit because this case falls under
the Hibbs exception. 2 The first part of Hibbs is met because Texas SCV is a



       2 In Henderson, this Court concluded that the charges Louisiana citizens paid for the
state’s “Choose Life” specialty license plate were taxes, not 

–59.
Although there are differences between how the specialty license plate in Henderson and the
specialty license plate here were created, we do not decide whether the charges for the
specialty license plate here are taxes or fees. Because we hold that the Hibbs exception to
the TIA applies, we have no reason to consider whether the first exception to the TIA applies.
                                              5
    Case: 13-50411    Document: 00512697267      Page: 6   Date Filed: 07/14/2014



                                 No. 13-50411
third party. See 

(“[The TIA] has been read to restrain
state taxpayers from instituting federal actions to contest their liability for
state taxes, but not to stop third parties from pursuing constitutional
challenges to tax benefits in a federal forum.”). The second part of Hibbs is
also met because, if Texas SCV succeeds in having its specialty license plate
issued, it will actually enrich the state. See Tex. Transp. Code § 504.801(e)
(explaining that the fees collected for specialty license plates reimburse the
Board for administrative costs and also go to the credit of the state’s specialty
license plate fund or the Texas Department of Motor Vehicles fund).
      Because the TIA does not bar this suit, the district court had jurisdiction
pursuant to 28 U.S.C. § 1331. We have jurisdiction over this appeal of a final
decision of a district court under 28 U.S.C. § 1291.
                       III. STANDARD OF REVIEW
      We review the district court’s grant of summary judgment de novo.
Elizondo v. Green, 

, 509 (5th Cir. 2012). We apply the same
standard as the district court, and summary judgment is appropriate when
“the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a);
see also 

.
                              IV. DISCUSSION
      This case presents two primary issues on appeal.          First, we must
determine whether the speech on specialty license plates is government speech
or private speech. If we conclude that the speech is private speech, we must
then ask whether the Board’s decision to reject Texas SCV’s specialty license
plate was a permissible content-based regulation or impermissible viewpoint
discrimination. We address each issue in turn.




                                       6
     Case: 13-50411    Document: 00512697267      Page: 7   Date Filed: 07/14/2014



                                  No. 13-50411
A.    Government Speech or Private Speech
      As a threshold matter, we must decide if the speech at issue is
government speech. “A government entity has the right to speak for itself.
. . . [I]t is entitled to say what it wishes, and to select the views that it wants
to express.” See Pleasant Grove City, Utah v. Summum, 

, 467–68
(2009) (alteration in original) (citations and internal quotation marks omitted).
“The Free Speech Clause restricts government regulation of private speech; it
does not regulate government speech.” 

Thus, if we conclude that
the speech in this case is government speech, the analysis ends because there
has been no First Amendment violation—in fact, the First Amendment would
not even apply. See 

Grove City and its local officials] were
engaging in their own expressive conduct, then the Free Speech Clause has no
application.”). If, however, we determine that the speech in question is private
speech, we must then apply traditional First Amendment principles and
analyze whether the Board violated Texas SCV’s right to free speech.
      The parties disagree over the standard we should apply to determine
whether Texas SCV’s proposed plate is government speech.              Texas SCV
maintains that Justice Souter’s concurrence in Summum sets out the best test
for determining government speech: whether a reasonable and fully informed
observer would understand the expression to be government speech. See 

(Souter, J., concurring). Texas SCV argues that any reasonable observer
would view a specialty license plate as the speech of the individual driving the
car. The Board also relies on the Supreme Court’s opinion in Summum, but
argues that speech is government speech when it is under the govenrment’s
“effective control.” Because the specialty license plates are state-approved and
the state owns the design, the Board urges this is government, not private,
speech.


                                        7
    Case: 13-50411    Document: 00512697267    Page: 8   Date Filed: 07/14/2014



                                No. 13-50411
      The government speech doctrine is “recently minted,” see 

(Stevens, J., concurring), and neither the Supreme Court nor this Court has
articulated a test to identify government speech. To determine whether the
specialty license plates are government or private speech, we look to the two
opinions where the Supreme Court has most clearly formulated the
government speech doctrine, Johanns v. Livestock Marketing Ass’n, 

(2005), and Summum. As we explain, when we compare this case to
Johanns and Summum and consider the Supreme Court’s method of deciding
those two cases, we conclude that the speech here is private speech.
      In Johanns, the Supreme Court held that a promotional campaign to
encourage beef consumption that the government “effectively controlled” was
government speech. 

The government did not pay for the campaign
itself; instead, it funded the campaign by charging an assessment on all sales
and importation of cattle and on imported beef products. 

The
government, though, had “set out the overarching message and some of its
elements” and had “final approval authority over every word used in every
promotional campaign.”     

   Thus, because the message in the
promotional campaign was “from beginning to end the message established by
the Federal Government,” the campaign was government speech. 

      Summum, however, shows that “the Supreme Court did not espouse a
myopic ‘control test’ in Johanns.” ACLU of N.C. v. Tata, 

, 570 (4th
Cir. 2014). In Summum, the Supreme Court held that Pleasant Grove City,
Utah (“the City”) had not violated the First Amendment free speech rights of
Summum, a religious organization, when the City refused to erect a permanent
monument that Summum had tried to donate and place in a public park. The
Court held there was no First Amendment violation because “the City’s
decision to accept certain privately donated monuments while rejecting
[Summum’s] is best viewed as a form of government speech.” Summum, 555
                                      8
    Case: 13-50411    Document: 00512697267     Page: 9   Date Filed: 07/14/2014



                                 No. 13-50411
U.S. at 481. The Supreme Court noted that the City “‘effectively controlled’
the messages sent by the monuments in the Park by exercising ‘final approval
authority’ over their selection.”   See 

(quoting

–61)). But, the Court did not base its holding on City’s
control over the permanent monuments. Instead, its conclusion focused on the
nature of both permanent monuments and public parks. The Court explained
that governments have historically used monuments, such as statues,
triumphal arches, and columns, “to speak to the public.” 

These
“[p]ermanent monuments displayed on public property typically represent
government speech.” 

also recognized that public parks are a
traditional public forum.    See, e.g., 

(“With the concept of the
traditional public forum as a starting point . . . .”). “Public parks are often
closely identified in the public mind with the government unit that owns the
land.” 

Thus, given the context, there was “little chance that
observers [would] fail to appreciate” that the government was the speaker. 

      Considering the emphasis on context and the public’s perception of the
speaker’s identity in Summum, we think the proper inquiry here is “whether
a reasonable and fully informed observer would understand the expression to
be government speech, as distinct from private speech the government chooses
to oblige.” 

(Souter, J., concurring); see also Roach v. Stouffer, 

, 867 (8th Cir. 2009) (“Our analysis boils down to one key question:
whether, under all the circumstances, a reasonable and fully informed observer
would consider the speaker to be the government or a private party.”); Choose
Life Ill., Inc. v. White, 

, 863 (7th Cir. 2008) (identifying
government speech by asking “[u]nder all the circumstances, would a
reasonable person consider the speaker to be the government or a private
party”).
                                       9
    Case: 13-50411    Document: 00512697267       Page: 10   Date Filed: 07/14/2014



                                  No. 13-50411
      Here, the differences between permanent monuments in public parks
and specialty license plates on the back of personal vehicles convince us that a
reasonable observer would understand that the specialty license plates are
private speech. Unlike their treatment of permanent monuments, states have
not traditionally used license plates to convey a particular message to the
public. Rather, license plates have primarily been a means of identifying
vehicles. See Wooley v. Maynard, 

, 716 (1977) (explaining that one
of the reasons the state had asserted an interest in including its motto on state
license plates was to “facilitate[] the identification of passenger vehicles”); Tex.
Transp. Code Ann. §§ 504.001–504.948 (effecting a vehicle registration
scheme); see also 

(mandating that each license plate have a
“unique identifier”). License plates also do not have the permanent character
of monuments in public parks. See 

, 480 (contrasting
permanent monuments with “temporary displays” and “transitory expressive
acts”). An individual may choose a new specialty license plate every year
simply by paying a fee, see Tex. Transp. Code Ann. § 504.008, and an individual
registers for a new license plate any time he or she moves to a new state.
      Further, while public parks have traditionally been “closely identified in
the public mind with the government” and have “play[ed] an important role in
defining the identity [of] a city,” the same cannot be said for license plates and
the backs of cars. See 

. In Wooley, the Supreme
Court held that New Hampshire could not force its citizens (the plaintiffs were
Jehovah’s Witnesses) to bear the “Live Free or Die” motto on standard issue
license plates because it would be a violation of their First Amendment 

.      The Court never discussed whether the plates were
government or private speech. Instead, it presumed that the license plates
were private speech, engaged in a First Amendment analysis, and explicitly
stated that because a car was “private property,” the government could not
                                        10
   Case: 13-50411     Document: 00512697267      Page: 11   Date Filed: 07/14/2014



                                  No. 13-50411
force individuals to bear a license plate with New Hampshire’s motto. 

Thus, the “Supreme Court has indicated that license plates, even when
owned by the government, implicate private speech interests because of the
connection of any message on the plate to the driver or owner of the vehicle.”
Sons of Confederate Veterans, Inc. ex rel. Griffin v. Comm’r of Va. Dep’t of Motor
Vehicles, 

, 621 (4th Cir. 2002) (citing 

).
And while the plates at issue in Wooley were standard-issue plates, here a third
party designed and submitted the specialty license plate, making the
connection between the plate and the driver or owner of the car even closer.
See Matwyuk v. Johnson, No. 2:13–CV–284, 

, *13 (W.D.
Mich. May 23, 2014) (discussing Summum and concluding that “vanity plates
are viewed as defining the identity of the driver of the vehicle bearing them . .
. . and that [t]herefore, no reasonable government official . . . would have
believed that [the vanity plate] constituted government speech”).
      Moreover, this case does not present the unworkable system that the
Supreme Court feared would be created “[i]f government entities must
maintain viewpoint neutrality in their selection of donated monuments.” See

. The Summum Court noted the “well founded”
concerns that requiring viewpoint neutrality would force the City to “either
‘brace themselves for an influx of clutter’ or face the pressure to remove
longstanding and cherished monuments.” 

By contrast, here there
is no danger of having too many specialty license plates because they do not
take up physical space, nor is there a finite amount of space available for
specialty plates. Indeed, whereas the park in Summum contained fifteen
monuments, there are currently over 350 specialty plates in Texas. The Board
has given no indication that there is any limit to the number of designs it will
accept. Thus, given the differences between permanent monuments in public


                                       11
    Case: 13-50411       Document: 00512697267          Page: 12     Date Filed: 07/14/2014



                                       No. 13-50411
parks and specialty license plates on the back of cars, Summum does not
dictate that specialty license plates are government speech.
       Our conclusion that specialty license plates are private speech is
consistent with the majority of other circuits that have considered the issue.
See 

(specialty plates are private speech); Arizona Life
Coal. v. Stanton, 

, 968 (9th Cir. 2008) (“Choose Life” plate with
logo depicting the faces of two young children was private speech); 

(“Messages on specialty license plates cannot be characterized as
the government’s speech”); Sons of Confederate 

(“SCV’s special plates constitute private speech.”). 3 Although only Roach was
decided after Summum, the Eighth Circuit did not think that Summum
mandated that the specialty license plates were government 

n.3. And for the reasons we explained above, we agree.
       The Board, though, urges us to follow the Sixth Circuit’s decision in
ACLU of Tennessee v. Bredesen, 

(6th Cir. 2006), where the Sixth
Circuit held that a specialty license plate was government speech. The Board
claims Bredesen’s “holding extends to all specialty plates approved by state
officials” and can serve as a model for this Court. We disagree. The Sixth
Circuit’s conclusion that specialty license plates are government speech makes
it the sole outlier among our sister circuits. And the Sixth Circuit reached that
holding based on facts different from those in the instant case: the Tennessee
legislature itself had passed an act specifically authorizing, creating, and


       3 In Byrne v. Rutledge, 

(2d Cir. 2010), the Second Circuit treated Vermont
vanity plates as private 

–54. The state did not argue that the vanity
license plates were government speech before the district court, and though the state raised
that argument on appeal, the Second Circuit declined to consider the issue. 

n.7 (explaining that it is “a well-established general rule that an appellate court will
not consider an issue raised for the first time on appeal”). Because Byrne did not analyze
whether the vanity license plates were government or private speech, we do not include it
here.
                                             12
    Case: 13-50411        Document: 00512697267          Page: 13     Date Filed: 07/14/2014



                                       No. 13-50411
issuing a “Choose Life” specialty license plate. 

, 376.
We think this distinction alone is sufficient to warrant a different outcome
here. But even if it were not, we would decline to follow Bredesen because the
Sixth Circuit’s analysis cannot be reconciled with Supreme Court precedent,
specifically Wooley. See 

(Martin, J., dissenting) (explaining that
Wooley found the message on the license plate was private, even though the
government had “crafted” and “had ultimate control over” the message); see
also 

(characterizing the Sixth Circuit’s conclusion in
Bredesen as “flawed” in part because of the difficulty in squaring the decision
with Wooley).
       As the Supreme Court has acknowledged, “[t]here may be situations in
which it is difficult to tell whether a government entity is speaking on its own
behalf or is providing a forum for private speech.” 

.
But considering the situation here, we are confident that a reasonable observer
would know that a specialty license plate is the speech of the individual driving
the car. Thus, we hold that specialty license plates are private speech. 4


       4 The dissent asserts that the majority’s “analysis presents a false dichotomy” that the
speech must be only government or only private speech. But this is not so. Here, the
reasonable observer test implicitly recognizes that specialty plates may have elements of both
government and private speech. Ultimately, if “a reasonable and fully informed observer
would understand the expression to be government speech,” then it is just that. As we explain
in the opinion, however, a reasonable observer would understand specialty plates to be
private speech. In any event, we need not discuss or adopt a hybrid speech doctrine. Neither
party has briefed the concept of hybrid speech or asked for the court to adopt such a doctrine.
Nor has the Supreme Court addressed a hybrid speech doctrine.
        Moreover, only the Fourth Circuit has discussed hybrid speech in evaluating
restrictions of specialty license plates. See 

–69 & n.4; Planned
Parenthood of S.C., Inc. v. Rose, 

, 794, 800, 801 (4th Cir. 2004). In both opinions,
the Fourth Circuit considered specialty license plates that the state legislature had
specifically authorized. 

; Rose, 361 F,3d at 788. The Fourth Circuit
used a traditional First Amendment analysis to hold, as we do, that a specialty license plate
restriction constituted viewpoint discrimination. See 

; 

(“My conclusion that the speech is mixed (both government and private) does not end
the discussion, however. I must go on to consider whether the State has engaged in viewpoint
discrimination and whether it may engage in viewpoint discrimination . . . .”).
                                              13
      Case: 13-50411     Document: 00512697267      Page: 14   Date Filed: 07/14/2014



                                     No. 13-50411
B. Content-Based Regulation or Viewpoint Discrimination
        Because the specialty plate program is private speech, we must next
determine whether the Board’s rejection of Texas SCV’s proposed plate was a
permissible     content-based        regulation   or    impermissible     viewpoint
discrimination. Making this determination can at times be difficult because
the    distinction     between   a    content-based    regulation   and   viewpoint
discrimination “is not a precise one.” Rosenberger v. Rector & Visitors of the
Univ. of Va., 

, 831 (1995).
        “It is axiomatic that the government may not regulate speech based on
its substantive content or the message it conveys.” 

Thus, the
government may not “favor one speaker over another,” “discriminat[e] against
speech because of its message,” or target “particular views taken by speakers
on a subject.” 

(citations omitted). Viewpoint discrimination is
presumptively impermissible for private speech. See 

(“[V]iewpoint
discrimination . . . is presumed impermissible when directed against speech
otherwise within the forum’s limitations.” (citation omitted)); Perry Educ. Ass’n
v. Perry Local Educators’ Ass’n, 

, 46 (1983) (explaining that, in a
nonpublic forum, the state may not regulate speech in “an effort to suppress
expression merely because public officials oppose the speaker’s view” (citation
omitted)). On the other hand, we are also aware that “content discrimination
. . . may be permissible if it preserves the purposes of [the] limited forum.”

. In distinguishing between these two types of
discrimination, the Supreme Court has explained viewpoint discrimination is
“an egregious form of content discrimination” that is “a subset or particular
instance of the more general phenomenon of content discrimination.” 

(citation omitted).
        Texas SCV argues that the Board’s denial of Texas SCV’s proposed plate
was viewpoint discrimination, because the Board “endorsed the viewpoint of
                                          14
    Case: 13-50411    Document: 00512697267       Page: 15   Date Filed: 07/14/2014



                                  No. 13-50411
those offended by the Confederate battle flag and discriminated against the
view [of Texas SCV] that the flag is a symbol honoring the Confederate soldier,
history, and Southern heritage.” The Board counters that its decision was not
viewpoint discrimination because it did nothing to disparage Texas SCV’s view
of the Confederate flag, nor did it reject the proposed plate merely because the
Board opposed Texas SCV’s view. The Board argues it made its decision based
solely on the “objective inquiry” of how members of the public would react to
Texas SCV’s license plate.
      We agree with Texas SCV and hold that the Board engaged in
impermissible viewpoint discrimination and violated Texas SCV’s rights under
the First Amendment. In explaining its denial of Texas SCV’s application, the
Board stated it denied the plate, “specifically the confederate flag portion of
the design, because public comments have shown that many members of the
general public find the design offensive.” By rejecting the plate because it was
offensive, the Board discriminated against Texas SCV’s view that the
Confederate flag is a symbol of sacrifice, independence, and Southern heritage.
The Board’s decision implicitly dismissed that perspective and instead credited
the view that the Confederate flag is an inflammatory symbol of hate and
oppression.    Texas’s specialty license plate program features a number of
plates that honor veterans, including Korea Veterans, Vietnam Veterans,
Woman Veterans, Buffalo Soldiers, Operation Iraqi Freedom, and World War
II Veterans.    Given Texas’s history of approving veterans plates and the
reasons the Board offered for rejecting Texas SCV’s plate, it appears that the
only reason the Board rejected the plate is the viewpoint it represents.
      We understand that some members of the public find the Confederate
flag offensive. But that fact does not justify the Board’s decision; this is exactly
what the First Amendment was designed to protect against.                   Turner
Broadcasting System, Inc. v. F.C.C., 

, 641 (1994) (“Government
                                        15
    Case: 13-50411      Document: 00512697267       Page: 16   Date Filed: 07/14/2014



                                     No. 13-50411
action that stifles speech on account of its message . . . pose[s] the inherent risk
that the Government seeks not to advance a legitimate regulatory goal, but to
suppress unpopular ideas or information or manipulate the public debate
through coercion rather than persuasion.”). As the Supreme Court has already
recognized, “any suggestion that the Government’s interest in suppressing
speech becomes more weighty as popular opposition to that speech grows is
foreign to the First Amendment.” See United States v. Eichman, 

,
318 (1990). “[T]he fact that society may find speech offensive is not a sufficient
reason for suppressing it. Indeed, if it is the speaker’s opinion that gives
offense, that consequence is a reason for according it constitutional protection.”
Simon & Schuster Inc. v. Members of N.Y. State Crime Victims Bd., 

, 108 (1991) (citations and internal quotation marks omitted).
      Further, the Board’s “might be offensive to any member of the public”
standard lacks specific limiting standards, which gives the state “unbridled
discretion” that permits viewpoint discrimination. Prime Media, Inc. v. City of
Brentwood, 

, 351 (6th Cir. 2007). Indeed, the most recent license
plate case to be decided by a federal court, Matwyuk v. Johnson, held just this.
Matwyuk involved Michigan’s vanity plate program, which did not allow any
license plate configurations “that might carry a connotation offensive to good
taste and decency.” Matwyuk, 

, at *1. The Matwyuk court
held that this “offensive” standard “impermissibly permits the . . . State to deny
a license plate application based on viewpoint because the statute lacks
objective   criteria,   and   thus    confers   unbounded      discretion   on   the
decisionmaker.” 

(citing Shuttlesworth v. City of Birmingham, 

, 150–51 (1969) (noting “the many decisions of this Court over the last
30 years, holding that a law subjecting the exercise of First Amendment
freedoms to the prior restraint of a license without narrow, objective, and
definite standards to guide the licensing authority, is unconstitutional”)).
                                         16
    Case: 13-50411      Document: 00512697267      Page: 17    Date Filed: 07/14/2014



                                   No. 13-50411
      Matwyuk’s conclusion is consistent with many other courts that have
held that similar standards present a “very real and substantial” danger that
the defendant would exclude speech solely because of its viewpoint. See United
Food & Commercial Workers Union, Local 1099 v. Sw. Ohio Reg’l Transit
Auth., 

, 361–62 (6th Cir. 1998) (holding that the defendant’s
advertising    policy    prohibiting     “controversial”      advertisements     was
unconstitutionally overbroad because its application presented a “very real and
substantial”   danger     that   the   defendant    would     exclude   a   proposed
advertisement solely because of its viewpoint); see McCauley v. Univ. of the
V.I., 

, 248–49 (1st Cir. 2010) (“Paragraph R’s use of ‘offensive’ is,
‘on its face, sufficiently broad and subjective that [it] could conceivably be
applied to cover any speech . . . th[at] offends someone.’” (alterations in
original) (quoting DeJohn v. Temple Univ., 

, 317 (3d Cir. 2008)));
Aubrey v. City of Cincinnati, 

, 1104 (S.D. Ohio 1993)
(concluding that the Cincinnati Reds’ banner policy allowing banners only if
they were in “good taste” left “too much discretion in the decision maker
without any standards for that decision maker to base his or her
determination”); Montenegro v. N.H. Div. of Motor Vehicles, No. 2012-624, 

, at *5 (N.H. May 7, 2014) (“Because the ‘offensive to good taste’
standard is not susceptible of objective definition, the restriction grants DMV
officials the power to deny a proposed vanity registration plate because it
offends particular officials’ subjective idea of what is ‘good taste.’”).
      Here, the tortured procedural history that eventually led to the denial of
Texas SCV’s plate demonstrates that the subjective standard of offensiveness
led to viewpoint discrimination. During the Department of Transportation’s
initial vote, a majority of a quorum voted to approve Texas SCV’s plate.
Instead of moving the plate to the next step in the approval process, the
Department of Transportation chose to hold another vote. The record offers no
                                         17
   Case: 13-50411    Document: 00512697267       Page: 18   Date Filed: 07/14/2014



                                  No. 13-50411
valid procedural basis for the Department of Transportation’s decision to
disregard the initial vote approving the plate.       Instead, e-mails between
committee members reveal that some members wanted a second vote solely
because of the controversial nature of Texas SCV’s proposed plate; they denied
the plate during this second vote. Once the Board took control of the specialty
license plate program, Texas SCV reapplied. At the public hearing before the
Board voted on the plate, many members of the public who opposed Texas
SCV’s plate expressed their concerns about the fact that the plate featured the
Confederate flag. Following this public hearing, the Board denied the plate.
This sequence of events lends support to our conclusion that SCV’s proposed
plate was rejected because of its “controversial” and “offensive” viewpoint,
which is impermissible viewpoint discrimination.
      Further, we reject the Board’s argument that the denial of Texas SCV’s
plate is a content-based regulation because it bans all viewpoints of the
Confederate flag. First, there is nothing in the Board’s decision that suggests
it would exclude all points of view on the Confederate flag. The Board rejected
Texas SCV’s plate because members of the public found the proposed plate
offensive without issuing any overarching ban on the use of the Confederate
flag on Texas specialty license plates. But even if the Board were correct that
its decision merely excluded multiple viewpoints on the meaning of the
Confederate flag, that decision would be equally objectionable. As the Supreme
Court explained in Rosenberger,
      The . . . assertion that no viewpoint discrimination occurs because
      the Guidelines discriminate against an entire class of viewpoints
      reflects an insupportable assumption that all debate is bipolar and
      that antireligious speech is the only response to religious speech.
      Our understanding of the complex and multifaceted nature of
      public discourse has not embraced such a contrived description of
      the marketplace of ideas. If the topic of debate is, for example,
      racism, then exclusion of several views on that problem is just as

                                      18
   Case: 13-50411     Document: 00512697267      Page: 19   Date Filed: 07/14/2014



                                  No. 13-50411
      offensive to the First Amendment as exclusion of only one. It is as
      objectionable to exclude both a theistic and an atheistic perspective
      on the debate as it is to exclude one, the other, or yet another
      political, economic, or social viewpoint. The [idea] that debate is
      not skewed so long as multiple voices are silenced is simply wrong;
      the debate is skewed in multiple 

–32. Silencing both the view of Texas SCV and the view of those
members of the public who find the flag offensive would similarly skew public
debate and offend the First Amendment.
      We are not the only circuit to reach this conclusion. In fact, the majority
of the other circuits to consider this question have held that the state engaged
in viewpoint discrimination when it denied a specialty license plate based on
the speaker’s message. See 

(concluding that a Vermont
statute barring vanity plate that referred to a religion or deity was viewpoint
discrimination); 

(concluding that Missouri’s specialty
plate program engaged in viewpoint discrimination when it denied a “Choose
Life” plate); 

(holding that the denial of a specialty
license plate application on the basis that the government chose not to enter
the Choose Life/Pro-Choice debate was viewpoint discriminatory); Sons of
Confederate 

(holding that a statute that prohibited
display of the Confederate flag constituted viewpoint discrimination).
      The Seventh Circuit’s decision to the contrary does not persuade us to
reach a different outcome. The Seventh Circuit is the only one of our sister
circuits to consider this question and hold that excluding a specialty license
plate because of its content did not violate the First Amendment. 

(holding that excluding the entire subject of abortion from its
specialty license plate program was content-based, but viewpoint-neutral,
decision). But even the Seventh Circuit suggested it might have reached a
different conclusion if faced with the denial of a specialty flag plate because it

                                       19
   Case: 13-50411    Document: 00512697267      Page: 20   Date Filed: 07/14/2014



                                 No. 13-50411
featured a Confederate flag. See 

(“The difference between content
and viewpoint discrimination was more readily apparent in Sons of
Confederate Veterans [v. Virginia Department of Motor Vehicles] . . . than it is
here. Excluding the Confederate flag from a specialty-plate design . . . [was a]
fairly obvious instance[] of discrimination on account of viewpoint. Virginia
was not imposing a ‘no flags’ rule; it was prohibiting the display of a specific
symbol commonly understood to represent a particular viewpoint.”). Thus,
even considering the reasoning in White, we are not convinced to reach the
same decision as the Seventh Circuit.
      The government may not “selectively . . . shield the public from some
kinds of speech on the ground that they are more offensive than others.” See
Erzonznik v. City of Jacksonville, 

, 209 (1975). That is precisely
what the Board did, however, when it rejected Texas SCV’s plate. Accordingly,
we hold that the Board impermissibly discriminated against Texas SCV’s
viewpoint when it denied the specialty license plate.
                              V. CONCLUSION
      For the foregoing reasons, we REVERSE and REMAND for further
proceedings not inconsistent with this opinion.




                                        20
    Case: 13-50411    Document: 00512697267      Page: 21   Date Filed: 07/14/2014



                                  No. 13-50411

JERRY E. SMITH, Circuit Judge, dissenting:


      This is a jurisprudentially difficult case that can be conscientiously
decided in a number of different ways. The majority has chosen a respectable
approach: Applying a “reasonable observer test,” it reverses a summary judg-
ment for the state after holding that Texas’s specialty license plates are not
“government speech.” Though I agree with much of the cogent and well-
written majority opinion, I do not discern a “reasonable observer test” in the
applicable caselaw and am also unable to distinguish Pleasant Grove City,
Utah v. Summum, 

(2009). Because I would therefore affirm the
summary judgment, I respectfully dissent.


                                       I.
      The majority correctly rules that we have jurisdiction to hear this mat-
ter, though I would not describe Hibbs v. Winn, 

(2004), as “open-
[ing] the doors to federal court[s] where the [Tax Injunction Act (“TIA”)] might
otherwise bar the suit” or as an “exception” to the TIA. Winn merely draws the
contours of the TIA, holding that it does not apply where the plaintiff is not
seeking to “enjoin, suspend or restrain” the collection of state taxes. That is
the situation here, where plaintiff Texas Division, Sons of Confederate Veter-
ans (“SCV”) wants the state to collect taxes, and in Winn, in which the plaintiff
wanted to compel Arizona to collect taxes, as contrasted with the situation in
Henderson v. Stalder, 

(5th Cir. 2005), in which the plaintiff
wanted to enjoin Louisiana from collecting assessments on license plates.
Winn does not provide an “exception” to the TIA’s bar; if a plaintiff seeks to
“enjoin, suspect or restrain” the collection of taxes, Winn would provide him no
avenue for relief in federal court.
                                            21
   Case: 13-50411    Document: 00512697267       Page: 22   Date Filed: 07/14/2014



                                No. 13-50411
      Moreover, I concur that the state has engaged in viewpoint
discrimination: The reason it refused to allow SCV’s license plate was that it
objected to the pro-Confederate Flag design. I therefore agree that unless the
government-speech doctrine protects the state’s decision to refuse to produce
the plate, SCV would be entitled to relief. I disagree with the majority, how-
ever, that the government-speech doctrine does not encompass Texas’s decision
as to what messages to accept on its license plates. The “reasonable observer”
test is not an accurate reflection of discerned law but, instead, manifests an
understandable desire to create a plain, quotable test.


                                      II.
      The “reasonable observer test” cannot be discerned from the law, though
the majority is in good company, given that some of our sister courts have
adopted it.   The majority announces the “reasonable observer test” after
analyzing Johanns v. Livestock Marketing Association, 

(2005),
and Summum, but neither decision can be e1xplained by way of that test, and
neither provides it. Livestock Marketing, as the majority acknowledges, was
resolved by way of an “effective control” test. The Supreme Court was not
opaque in its reasoning: The reason that government-speech doctrine encom-
passed ostensibly private ads for the beef industry was that the ads were “from
beginning to end the message established by the Federal Government,” despite
the major role played by private actors in crafting them. Livestock 

.
      Summum is of little more help to the majority, which logically must
bypass large swaths of that opinion, inflate one portion of it, and ultimately
morph Justice Souter’s lone concurrence (and his dissent in Livestock Market-
ing) into law. Citing ipse dixit from the Fourth Circuit, the majority states
                                            22
   Case: 13-50411     Document: 00512697267      Page: 23   Date Filed: 07/14/2014



                                  No. 13-50411
that Summum “shows that ‘the Supreme Court did not espouse a myopic
‘control test’ in [Livestock Marketing].” It is not obvious how the majority or
the Fourth Circuit reaches that conclusion. According to the majority, Sum-
mum “did not base its holding on [the city’s] control over the permanent mon-
uments. Instead, its conclusion focused on the nature of both permanent
monuments and public parks.” From that characterization, the majority inac-
curately reimagines Summum as a “reasonable observer” case.
      Summum did discuss the association between public parks and govern-
ments, but that was only one portion of an opinion that emphasized “effective
control” just as much, if not more:
   [T]he City has ‘effectively controlled’ the messages sent by the monu-
   ments in the Park by exercising ‘final approval authority’ over their
   selection. [Livestock 

–561. The City has
   selected those monuments that it wants to display for the purpose of
   presenting the image of the City that it wishes to project to all who
   frequent the Park; it has taken ownership of most of the monuments in
   the Park, including the Ten Commandments monument that is the
   focus of respondent’s concern; and the City has now expressly set forth
   the criteria it will use in making future selections.

–78.
      The fairest reading of Summum is that the Court emphasized a variety
of aspects of the public park and saw all of them to weigh in favor of finding
government speech. Depending how we count them, the Court gave about half
a dozen reasons why the city was entitled to judgment but without attempting
to mint any “test,” and it is a demonstrable misreading of Summum to pigeon-
hole it as providing otherwise.
      The only Justice who favored of a “reasonable observer” test was Justice
Souter, and even he does not seem to believe that that test is the law in the
wake of Summum. Sitting as a circuit judge after Summum, Justice Souter—

                                         23
    Case: 13-50411    Document: 00512697267      Page: 24    Date Filed: 07/14/2014



                                  No. 13-50411
rather than believing that Summum manifested a coalescence around his
twice-proposed test (despite that no Justice joined his concurrence in Sum-
mum)—described the post-Summum government-speech doctrine as “at an
adolescent stage of imprecision.” Griswold v. Discoll, 

, 59 n.6 (1st
Cir. 2010) (Souter, J.) (emphasis added).
      Perhaps more poignantly, the “reasonable observer” test demonstrably
contradicts binding caselaw. In Livestock Marketing, the Court—again, apply-
ing an “effective control” test—held that television advertisements for the beef
industry were government speech. What would a reasonable observer have
seen when watching those ads? He would have seen the familiar trademark
“Beef. It’s What’s for Dinner.” And he would have seen the message “Funded
by America’s Beef Producers,” the logo for the “Beef Board,” and a checkmark
with the word “BEEF.” Livestock 

–55. Nowhere
would the ad have given any indication that the federal government had any-
thing to do with this industry advertisement.
      If a “reasonable observer” test were the law, then Livestock Marketing
was incorrectly decided. That is why Justice Souter, espousing the “reasonable
observer” test for the first time, dissented in that case.
      As for Summum, several, if not all, of the privately donated monuments
bore some inscription indicating the donor. For example, the Ten Command-
ments monument (the monument that triggered the suit) bore the mark of the
Fraternal Order of Eagles and a prominent statement authored by the order
that the display was presented by it to the city; the order maintained the
monument and took steps to ensure that its inscription remained visible. If
the court were only asking whether a “reasonable observer” would see private
speech when looking at the monuments, why would that reasonable observer
not have concluded that the Ten Commandments monument was the speech of
                                            24
    Case: 13-50411       Document: 00512697267          Page: 25     Date Filed: 07/14/2014



                                       No. 13-50411
the Fraternal Order of the Eagles? 1
       The same goes for Rust v. Sullivan, 

(1991), which involved
restrictions on federal funding for “family-planning services” and which pro-
hibited physicians from receiving grants under a federal program (“Title X”)
from counseling       patients on abortion “as a method of family planning.”
Against a First Amendment challenge, the Court upheld Title X as a permissi-
ble exercise of the government’s policy preferences in favor of life and against
abortion, despite that the ostensible speaker is the physician, not the
government.
       Finally, in Chiras v. Miller, 

(5th Cir. 2005), a pre-Summum
case, we held that the state’s selection and use of textbooks in public schools
was government speech, notwithstanding that a reasonable observer would
also attribute the speech to several private actors: the authors, publishers, and
editors of the textbooks. In short, it is not reasonably possible to reconcile the
“reasonable observer” test with existing caselaw.
       A final comment: The reasonable observer test would bless the govern-
ment’s behavior in any case involving viewpoint discrimination so long as it
made it clear enough that the government is endorsing the speech that remains
in the forum. How can it be that the law would provide a test that, by its terms,
would allow the government an easy mechanism to shut down speech in any
forum on any topic it wants?             Undoubtedly, courts would still routinely
condemn viewpoint discrimination, no matter how clearly the government
indicates to third-party observers that it is engaging in the censorship. But


       1 The answer is that the reasonable observer may well have attributed the speech to
both the Fraternal Order and the city. A fundamental error in the majority opinion is describ-
ing the government-speech doctrine as presenting a binary choice: government or private
speech. As I explain, every government-speech case that resulted in a victory for the
government―including Summum―involved private participation in the relevant speech.
                                                 25
    Case: 13-50411        Document: 00512697267           Page: 26     Date Filed: 07/14/2014



                                        No. 13-50411
what that should reveal is that the “reasonable observer test” is not the law.
                                              III.
        The majority properly notes that five courts of appeals have expounded
on the applicability of the government-speech doctrine to license plates. 2 The
majority understandably emphasizes that all but one have held government-
speech doctrine inapplicable. 3 But the landscape is more complicated than
that.
        None of those circuits meaningfully negotiates Summum. That is unsur-
prising, given that only one of their decisions post-dates Summum. And even
that opinion was issued less than a month after Summum, relegated Summum
to a footnote, and rejected its relevance summarily. 4 Yet, Summum makes the
instant question more difficult than such treatment would suggest.
        SCV conceded at oral argument that, despite its repeated admonitions
that the (near) harmony of our sister courts’ judgments should weigh heavily
on our own, we are the first court meaningfully to consider the applicability of
Summum to these facts. I address that now.




        2 In this court’s only post-Summum case dealing (briefly) with government speech, we,
in dictum, stated that a city’s financial support of certain street processions was insufficient
to render it “government speech.” The key reason was that, though the city gave the parade
organizers waivers from having to pay for cleanup, the city did not otherwise have any rela-
tionship with the procession’s message. See Int’l Women’s Day March Planning Comm. v.
City of San Antonio, 

, 360 (5th Cir. 2010) (dictum; judgment affirmed on other
grounds).
        3 Compare Sons of Confederate Veterans, Inc. ex rel. Griffin v. Comm’n of Va. Dep’t of

Motor Vehicles, 

(4th Cir. 2002) (coincidentally involving another division of the
SCV); Arizona Life Coal. Inc. v. Stanton, 

(9th Cir. 2008); Choose Life Ill., Inc. v.
White, 

(7th Cir. 2008); and Rouch v. Stouffer, 

, 867 (8th Cir. 2009)
(all holding government speech doctrine inapplicable) with ACLU of Tenn. v. Bredesen, 

(6th Cir. 2006) (over a dissent, applying government speech doctrine to specialty
plates).
        4 See 

n.3.

                                                     26
   Case: 13-50411     Document: 00512697267      Page: 27   Date Filed: 07/14/2014



                                  No. 13-50411
                                       A.
      Pleasant Grove City, Utah, has a 2.5-acre public park in its historic
district that contained fifteen displays, at least eleven of which were donated
by private groups or individuals.     The monuments included, among other
things, a Nauvoo Temple Stone (an artifact from the Mormon Temple in Nau-
voo, Illinois, donated by John Huntsman), a Pioneer Water Well donated by
the Lions Club, a Pioneer Granary donated by “the Nelson family,” a Septem-
ber 11 monument donated by the Eagle Scouts, and—most relevant to the dis-
pute in Summum—a Ten Commandments monument donated by the Fra-
ternal Order of the Eagles in 1971. Several, if not all, of the privately donated
monuments bore some inscription indicating the donor. For example, the Ten
Commandments monument (which was the monument that, according to the
plaintiffs, manifested Pleasant Grove’s viewpoint discrimination) bore the
mark of the Fraternal Order and a prominent statement authored by the order
that the display had been presented by it to the city. The order maintained the
monument and took steps to ensure that its inscription remained visible.
      Summum, a religious organization, twice wrote to the mayor requesting
permission to erect a stone monument containing the “Seven Aphorisms of
SUMMUM,” similar in size and nature to the Ten Commandments monument;
the city rejected the request. Summum sued under 42 U.S.C. § 1983, claiming
that the city was engaged in viewpoint discrimination by accepting a Ten Com-
mandments monument but not Summum’s religious monument.
      The Court held that when the city decided which private monuments it
would accept and install in the park, the city was itself speaking, even if it was
joining the company of private speakers. Because the city was speaking for
itself, the First Amendment were irrelevant, and dissenters could not force the
city to accept monuments that it did not wish to have in its park. What is
                                            27
    Case: 13-50411        Document: 00512697267          Page: 28     Date Filed: 07/14/2014



                                       No. 13-50411
striking about Summum is just how much one can analogize almost every sali-
ent fact there to the facts here.


                                              B.
                                              1.
       First, the Court noted that all parties in Summum had agreed that if “a
monument . . . is commissioned and financed by a government body for place-
ment on public land,” the monument would undoubtedly “constitute[] govern-
ment speech.” 

(describing this statement as an
“obvious proposition”). 5 The Court then held that the result did not change
just because the monuments were privately financed and donated in final form:
    Just as government-commissioned and government-financed monu-
    ments speak for the government, so do privately financed and donated
    monuments that the government accepts and displays to the public on
    government land. It certainly is not common for property owners to
    open up their property for the installation of permanent monuments
    that convey a message with which they do not wish to be associated.

The same can be said of Texas’s specialty license plates, which are
made, owned, and sold by the state, 6 which also owns the intellectual property
in those plates and does not permit owners to bear plates other than its own.
       Just as Pleasant Grove invited or allowed private actors to submit
possible monuments for placement in its parks, Texas invites private groups
or persons to submit license-plate designs for consideration, but the state
ultimately chooses what designs it wishes to adopt and which plates it wishes




       5 I take it that SCV would not dispute this proposition, i.e., that this case exists only
because Texas has decided not to force drivers to display plates that it designs on its own.
       6 See TEX. TRANSP. CODE § 504.002(3) (“[T]he department is the exclusive owner of the

design of each license plate.”).
                                                   28
      Case: 13-50411     Document: 00512697267         Page: 29     Date Filed: 07/14/2014



                                      No. 13-50411
to manufacture for sale. 7 Also just as private monuments supplemented those
placed by Pleasant Grove in its parks, the privately designed license plates
supplement those designed by Texas itself. 8              The reasoning in Summum
informs that if Texas license plates would constitute government speech if only
Texas had designed the plates itself, they do not lose their governmental char-
acter just because Texas accepted a privately designed message, endorsed it,
and then placed it on its plates. 9


                                             2.
        Second, the Summum Court 

, that “[p]ublic parks
are often closely identified in the public mind with the government unit that
owns the land,” a phenomenon that will cause jurisdictions to be selective in
which images they choose to represent them:
      [Parks] commonly play an important role in defining the identity that
      a city projects to its own residents and to the outside world. Accordingly,
      cities and other jurisdictions take some care in accepting donated mon-
      uments. Government decisionmakers select the monuments that por-
      tray what they view as appropriate for the place in question, taking into
      account such content-based factors as esthetics, history, and local cul-
      ture. The monuments that are accepted, therefore, are meant to convey
      and have the effect of conveying a government message, and they thus
      constitute government speech.

43 TEX. ADMIN. CODE § 17.28(i)(8)(B) (providing the DMVB with “final approval
authority of all specialty license plate designs”); 43 TEX. ADMIN. CODE § 217.40 (detailing
elaborate approval process for private vendor plate designs).
        8 See TEX. TRANSP. CODE ANN. § 504.005.
        9 See also 

(“[W]hile government entities regularly accept

privately funded or donated monuments, they have exercised selectivity.”); 

(“[T]he
City has effectively controlled the messages sent by the monuments in the Park by exercising
‘final approval authority’ over their selection.”) (quoting Livestock 

–61).
                                                  29
    Case: 13-50411        Document: 00512697267          Page: 30     Date Filed: 07/14/2014



                                       No. 13-50411
       Again, the same can be said of license plates: They are uniformly identi-
fied with the state governments that issue them. People see plates when driv-
ing on the highways and immediately will recognize and describe them as
“Texas license plates.” Even specialty plates cannot exist but for the state’s
cooperation and effort to manufacture and sell them. 10
       Unlike monuments, license plates broadcast an associational image of
the state on Texas vehicles wherever they may travel. And unlike monuments,
license plates play an integral role in the most usual and rote form of
interaction between a citizen and a state’s regulatory body: registering one’s
vehicle. And also unlike monuments, there are no license plates that do not
bear the name of the state of registration, directly imputing the state’s goodwill
and reputation on whatever communication the plate bears.
       License plates exist only because of state regulation. They are a method
of effecting state vehicle registration regimes, at once sui generis and akin to
drivers’ licenses, passports, currency, green cards, public school or military
IDs, or others documents produced by virtue of a state regulatory regime. The
association between license plates and a particular government, for that rea-
son alone, could hardly be stronger. 11 It follows that the law allows Texas to
choose whether it wishes its name to be associated with any criticism associ-
ated with the Confederate flag—whether it wishes the state to be linked to that
flag wherever Texas cars are driven. 12


       10 See generally TEX. TRANSP. CODE ANN. § 504.945(a).
       11 This analysis calls into question whether the majority is even applying its proffered
test correctly. If a reasonable, informed observer knows all I have just described of Texas
license plates, how could that observer not attribute the message to Texas?
       12 Cf. Sutliffe v. Epping Sch. Dist., 

, 331-32 (1st Cir. 2009) (applying Sum-

mum where a town decided which hyperlinks it would post on its website). The majority’s
contrary conclusion is largely ipse dixit, and I invite the reader to compare the reasons I have
given for what would be an obvious association between a state and its license plates with
                                                  30
    Case: 13-50411        Document: 00512697267          Page: 31      Date Filed: 07/14/2014



                                        No. 13-50411


                                               3.
       Third, the Summum 

, distinguished between the
kinds of free speech rights usually occurring on public lands—“the right to
speak, distribute leaflets, etc.”—and the monuments at issue. The “City ha[d]
made no effort to abridge [Summum’s] traditional free speech rights,” so its
followers could continue to go onto the park, speak, distribute literature, and
presumably picket and hand out petitions. 

could not erect
fixtures on the park. What Summum really demanded, at bottom, was the
city’s “adopt[ion]” or “embrace” of its message. 

can be said here. Texas does not prevent SCV from engaging
in speech on its or its members’ vehicles in the same way that speech has tra-
ditionally been made: by license plate frames, bumper stickers, window
stickers, window flags, or even painting cars with the Confederate flag. If SCV
and its members can do all of those things, why is it seeking an order from a
court compelling Texas to sell Confederate plates? The answer is the same
answer in Summum: SCV seeks the kind of “adopt[ion]” and “embrace” that
comes with being on Texas license plates, with appearing next to the state’s
flag, name, and likeness, and being given the kind of validation that follows
from appearing on a state-issued license plate. It is precisely the reason that



the explanation given by the majority. The majority relies, in part, on Wooley v. Maynard,

, 716 (1977), noting that “one of the reasons the state had asserted an interest
in including [the challenged motto in that case]” was to “facilitate[] the identification of pas-
senger vehicles.” What the majority does not mention is that the other interest asserted by
New Hampshire was to “promote[] appreciation of history, individualism, and state pride.”

for the putative novelty of Texas’s speaking on its plates. In any event, as I will
explain, neither this dissent nor Summum is in tension with Maynard, which involved a
different First Amendment doctrine that addresses concerns different from those pressed by
the plaintiffs here.
                                                    31
   Case: 13-50411     Document: 00512697267      Page: 32   Date Filed: 07/14/2014



                                 No. 13-50411
SCV wants to force Texas to produce these plates that it should be denied a
court order doing so. Texas, like Pleasant Grove, cannot be forced to associate
with messages it does not prefer.
      The analogy applies in another important respect. Unlike pamphleteer-
ing, speeches, marches, picketing, and bumper stickers—all of which unques-
tionably involve private speech, even if they occur on government-owned
property—erecting monuments and manufacturing specialty license plates
both require the government’s assistance and complicity. That distinction, yet
again, makes specialty plates more like park monuments and less like leaflet-
ing and bumper stickers.


                                       C.
      Although I have addressed the striking similarities between this case
and Summum, there are differences: The relationship between the cases is
that of an analogy, not an identity. Even in light of every distinction proffered
by SCV, the district court, and the majority, there is no principled basis to
deviate from Summum.


                                       1.
      The majority opinion presents government-speech doctrine as a binary
choice, as deciding whether the plates are “government speech or private
speech,” and stating that “[i]f we conclude that the speech is private speech,”
we then ask whether the state engaged in viewpoint discrimination. According
to the remainder of the majority’s reasoning, if a reasonable observer would
attribute the message on license plates to the driver, the analysis is over, and




                                            32
    Case: 13-50411        Document: 00512697267          Page: 33     Date Filed: 07/14/2014



                                       No. 13-50411
the speech is “private” as contradistinguished from “government” speech. That
analysis presents a false dichotomy not present in Summum. 13
       In Summum, the overwhelming majority of the monuments were
designed, built, and donated by private actors; and at least some portion (if not
all) of the privately donated monuments bore the inscription, name, and/or
written message of the donors, including the particular monument that Sum-
mum challenged as manifesting viewpoint discrimination. Because of the city’s
selectivity in deciding which private messages to endorse, the Fraternal Order
effectively had a venue that Summum did not. The Court did not hold, how-
ever, that such was enough to trigger the protections of the First Amendment.
       Indeed, the Court did not seem to find particularly relevant that when
the city spoke, it had the company of private speakers. To the contrary, the
Court repeatedly disavowed the relevance of the private aspects of the speech
that Pleasant Grove was adopting, emphasizing that a “government entity may
exercise th[e] same freedom to express its views when it receives assistance
from private sources for the purpose of a delivering a government-controlled
message” as when it acts alone. 14




       13   See Andy G. Olree, Identifying Government Speech, 42 CONN. L. REV. 365, 400−10
(2009) (canvassing the growing awareness of the limits of this binary conception); see also
Caroline Mala Corbin, Mixed Speech: When Speech Is Both Private and Governmental, 83
N.Y.U. L. REV. 605 (2008) (proposing to apply intermediate scrutiny to so-called “hybrid”
speech cases).
         14 See 

(citing Livestock 

; Rosen-

berger v. Rector & Visitors of the Univ. of Va., 

, 833 (1995)); see also 

71 (“Just as government-commissioned and government-financed monuments speak for the
government, so do privately financed and donated monuments that the government accepts
and displays to the public on government land.”); 

(“Although many of the monu-
ments were not designed or built by the City and were donated in completed form by private
entities, the City decided to accept those donations and to display them in the Park.”); Live-
stock 

(stating that where the government controls the message,
“it is not precluded from relying on the government-speech doctrine merely because it solicits
                                                  33
    Case: 13-50411       Document: 00512697267          Page: 34     Date Filed: 07/14/2014



                                       No. 13-50411
       Because Texas cannot constitutionally force its citizens to carry its mes-
sage on their cars, 15 there will always be an element of private expression in
specialty license plates—no matter their method of distribution or the author
of their design—because the driver must have voluntarily chosen to accept a
Texas plate. If an affected element of private speech is enough to foreclose
application of government-speech doctrine, then the majority’s reasoning
reduces to this: Texas may not speak on its license plates. It is a false dichot-
omy to suggest, then, that either Texas is speaking or private citizens are
speaking. 16
       The kind of association between Texas and its specialty license reflects
the kind of association typical of advertisers and sponsors generally. When we
attend a Houston Texans NFL game at its home stadium and see “Ford: the
Best in Texas,” both the Houston Texans and Ford are speaking. Ford is saying
it is the best in Texas; the Texans team is indicating that it is comfortable
having its name, reputation, and goodwill associated with Ford and its prod-
ucts. And that association matters; endorsers and sponsors will engage or
disengage with one another based on their mutual willingness to be associated
with the other. 17



assistance from nongovernmental sources); 

(opining that a gov-
ernment entity may “regulate the content of what is or is not expressed . . . when it enlists
private entities to convey its own message”).
        15 See 

(ruling that New Hampshire could not force Quaker

to bear license plate with the phrase “Live Free or Die,” the state motto).
        16 See Joseph Blocher, Government Property and Government Speech, 52 WM. & MARY

L. REV. 1413, 1479−80 (2011) (“The unavoidable implication is that the expression emanating
from specialty license plates is both governmental and private. . . . [A] reasonable observer
would probably conclude that both the owner of the vehicle displaying the plate and the state
government that authorized it support the plate’s message.”).
        17 Cf. Texas v. Knights of the Klu Klux Klan, 

(5th Cir. 1995) (upholding

exclusion of the KKK from Texas’s Adopt-a-Highway program, though describing the prohibi-
tion as “viewpoint-neutral”). Justice Stevens, who, like Justice Souter and the panel majority,
                                                 34
    Case: 13-50411        Document: 00512697267          Page: 35     Date Filed: 07/14/2014



                                       No. 13-50411
       In the end, Summum already tells us how to deal with the mixed quality
of affected speech. There, as noted, the private designers and donors of the
monuments often kept their own marks and included their own written mes-
sages with the monuments accepted by Pleasant Grove. In fact, the very
monument that Pleasant Grove challenged as manifesting viewpoint discrim-
ination bore the trademark of a private organization with a plaque containing
a message that group had authored. By its facts, then, Summum already
teaches that government cannot be forced to associate with all viewpoints just
because it chooses to associate with one.
       The dictum in Summum describing other monuments suggests the same.
The Court, apparently believing them to be obvious examples of government
speech, discusses several monuments that have some elements of private
speech, such as the Grego-Roman mosaic of the word “Imagine,” donated to
New York in memory of John Lennon. See Summum, 

–78, for
several similar examples. Summum, it should be noted, was not remarkable
in this regard. Every government speech case in which the government won
(few as they are) has involved private participation and sometimes even con-
cerned, as here, private dissemination. 18



would prefer a “reasonable observer test,” does not fail to appreciate this. See 

(Stevens, J., concurring) (“While I join the Court’s persuasive opinion, I think the
reasons justifying the city’s refusal would have been equally valid if its acceptance of the
monument, instead of being characterized as ‘government speech,’ had merely been deemed an
implicit endorsement of the donor’s message.”) (emphasis added).
        18 See Livestock 

(finding government-speech doctrine

applicable despite that a board of private beef growers managed and produced the relevant
promotional campaigns and that the promotional materials were ostensibly associated with
said private producers, where the Agriculture Secretary approved all messages before they
were disseminated; the advertisement also ran on private newspapers and television sta-
tions); 

−95 (upholding use of private physicians and hospitals to dissem-
inate government’s policy encouraging live birth); 

–35 (Town setting
up and controlling a town website, choosing which third-party hyperlinks it would allow;
                                                  35
    Case: 13-50411       Document: 00512697267          Page: 36     Date Filed: 07/14/2014



                                       No. 13-50411
       Finally, the state can engage in government speech despite the adoption
and use of private speech in delivering its message, though no one would ques-
tion the “mixed” association an observer would have on the message. In Chiras
v. Miller, 

(5th Cir. 2005), a pre-Summum case, we held that the
state’s selection and use of textbooks in public schools constituted government
speech, notwithstanding that the textbooks were unquestionably also the
speech of their private authors. These cases reveal that the fact that an
observer might also associate a message with a driver (as well as a private
sponsor, such as SCV, for that matter) in addition to the State of Texas does
not render the government-speech doctrine inapplicable.
       The foregoing analysis also meets SCV’s argument that Maynard, which

, that New Hampshire could not compel drivers to carry
“Live Free or Die” license plates, forecloses applying the government-speech
doctrine. 19 Maynard was decided before the Supreme Court announced the
government-speech doctrine, so that was not at issue. Nevertheless, there is
no tension between Maynard and the lessons to be drawn from Summum. Both
compel us to conclude that speech on license plates is “mixed” insofar as it will




describing Summum as “mak[ing] it clear that when the government uses its discretion to
select between the speech of third parties for presentation through communication channels
owned by the government and used for government speech, this in itself may constitute an
expressive act by the government that is independent of the message of the third-party
speech”); Downs v. L.A. Unified Sch. Dist., 

, 1011 (9th Cir. 2000) (“While these
faculty and staff members may have received materials from outside organizations, the
faculty and staff members alone posted material on the bulletin boards, and at all times their
postings were subject to the oversight of the school principals.”); Newton v. LePage,

, 184 (D. Maine 2011) (private artist commissioned by state to paint a
pro-labor mural); Page v. Lexington Cnty. Sch. Dist. One, 

, 282 (4th Cir. 2008)
(school board circulating communications by private individuals in support of board’s position
that particular piece of legislation be voted down).
        19 The panel majority did not rely on Maynard, but I address it because it was urged

by SCV.
                                                 36
    Case: 13-50411      Document: 00512697267         Page: 37    Date Filed: 07/14/2014



                                     No. 13-50411
be associated with both the state and the driver. Maynard informs us that,
under the compelled-speech doctrine, the government may not force private
speakers to disseminate its message in such a circumstance. 20                 Summum
informs us that, under the government-speech doctrine, the government will
not be forced to associate with all private messages just because it associates
with some.
      So, if Pleasant View were ordering Summum to erect its monument with
an inscription indicating its endorsement of the city, Maynard would say the
city’s conduct is unconstitutional. But where SCV wants to force Texas to
produce plates bearing messages with which it does not want to be associated,
Summum tells us that Texas may permissibly refuse.


                                            2.
       The majority attempts to distinguish Summum on the ground that “this
case does not present the unworkable system that the Supreme Court feared
would be created ‘[i]f government entities must maintain viewpoint neutrality
in their selection of donated monuments.’” For at least two reasons, that sec-
ond proffered distinction is not a helpful basis for deciding this case.
       First, the Court was well aware that content-neutral time, place, and
manner restrictions could unquestionably handle every “practical” problem
that would manifest itself if park fixtures were considered to create a forum.
The Court explicitly rejected the invitation to decide the case accordingly. See

. Second, no other government-speech case 21 in
which the government prevailed presented the kind of “practicality” problem


      20 See also W. Va. State Bd. of Educ. v. Barnette, 

(1943).
      21 The exception is Newton v. LePage, 

, 185 (D. Maine 2011), which
involved a mural inside a state building’s anteroom.
                                                 37
    Case: 13-50411           Document: 00512697267       Page: 38    Date Filed: 07/14/2014



                                         No. 13-50411
that physical congestion presented in Summum. See, e.g., Livestock 

(involving television ads).
         Physical congestion, then, is not and cannot be a talisman for finding
government speech. Do we have any reason to think that Summum would
have come out differently if instead of a 2.5-acre park, the city had a 25-acre
park? I can think of none. Moreover, dictum from the Supreme Court expli-
citly assumed that monuments in NYC’s Central Park (which is 778 acres)
would qualify as government speech for the same reason as did the park in
Summum. 22
         For basically the same reason, it is no material distinction that there are
300 types of specialty license plates instead of 15 monuments. Do we have any
doubt that Central Park could accommodate 300 privately donated fixtures if
the city were inclined to accept them? I presume the argument is not that it
would be surprising that the government would ever take positions on 300
topics; that would surely be wrong. At any rate, it would be impossible for us
to derive a principle that Texas can speak on its own license plates without
opening up a forum, but only if it resolves to associate with no more than
X number of positions on Y number of topics.
         Perhaps the majority is alluding to a distinction offered by the district
court that license plates do not take up “public space.” I assume what the court
meant here is public real estate. 23 But that could not be relevant. Government
messages on currency—the paradigmatic 24 example of government speech—



         22   See 

–75 (discussing the John Lennon memorial in Central
Park).
         23That is because license plates do take up physical, though noncontiguous, space,
and it would presumably be financially impracticable to have an infinite number of license
plates.
        24 See Carl G. DeNigris, When Leviathan Speaks: Reining in the Government-Speech

                                                  38
    Case: 13-50411        Document: 00512697267          Page: 39     Date Filed: 07/14/2014



                                       No. 13-50411
similarly do not take up public “space.” Nor do other more obvious methods of
speaking, such as press conferences at the Presidential podium, sense-of-
Congress resolutions, or, to take a dramatic example of government speech,
the Emancipation Proclamation.
       Less dramatically but more relevant, neither Rust nor Livestock Market-
ing involved occupation of public real estate. Livestock Marketing, for its part,
involved television and print ads, the former of which occupies “space” in no
sense except the metaphorical. See Livestock 

. And
Rust involved spoken and written words from physicians and hospitals to
patients. See 

−80. So, it cannot be the law that the gov-
ernment can speak without opening up a forum and can elicit private assis-
tance in disseminating or even endorsing its message, but only where its actual
speech is a fixture on real estate.
       The caselaw makes the point well enough, and reason confirms its les-
son. The irrelevance of an “occupied public real estate” distinction becomes
apparent when we recall what aspect of the specialized license plates triggered
the challenge here. No one disputes that if Texas designed its own license
plates and compelled drivers to carry only those plates, 25 the government-
speech doctrine would apply as clearly as it does to currency or passports. The
only reason this case exists is because Texas lets drivers choose plates that
were sometimes designed by private actors. Yet, we cannot say that one type
of plate takes up “public space” but the other does not.




Doctrine Through a New and Restrictive Approach, 60 AM. U. L. REV. 133, 135 (2010).
        25 Perhaps with a blank option to satisfy 

(stating that the

state could not force Quaker to bear license plate with the phrase “Live Free or Die,” the state
motto).
                                                  39
   Case: 13-50411    Document: 00512697267         Page: 40   Date Filed: 07/14/2014



                                 No. 13-50411
                                         3.
      The majority, like the district court, also attempts to distinguish
Summum on the ground that license plates are not “permanent” as are the
monuments.     At first, this might appear to be a potentially important
distinction until one realizes what the Court was explaining in Summum with
its emphasis on monuments’ “permanence” and when one pursues the logical
rigor of a rule based on something as relative a concept as “permanence.”
      Although the Summum Court did repeatedly emphasize the permanent
nature of the monuments, it had an obvious rhetorical purpose in doing so.
Summum was arguing on appeal, with the aid of broad language from Supreme
Court precedent, that public parks had been held since “time immemorial” to
be a quintessential public forum, where state regulation of speech would be
subject to the most exacting scrutiny. Because of that tradition, Pleasant
Grove should not have been allowed to engage in what our jurisprudence would
consider, along with prior restraints, to be the very worst form of speech
restriction: viewpoint discrimination.
      The Court responded that the kind of speech that courts had in mind
when describing public parks in such lofty terms did not include the installa-
tion of fixtures. See Summum, 

–79. Rather, courts were consid-
ering things such as pamphleteering, giving speeches, canvassing, leafleting,
demonstrations, and the like. So, when the Court emphasized the “perman-
ence” of monuments, it does not appear to have thought that permanence qua
permanence was significant but instead that that characteristic distinguished
the kinds of speech that had already been held to be protected in public parks
from the kinds of speech Summum wanted to engage in, which had never been
held to be protected in public parks
      That is the only understanding of Summum’s discussion of “permanence”
                                              40
    Case: 13-50411       Document: 00512697267         Page: 41     Date Filed: 07/14/2014



                                      No. 13-50411
that accords with reason. We know that permanence cannot be significant in
itself, because it is a relative concept that does not supply its own meaning,
much less its own significance. Monuments, like license plates, can be removed
and added over time. 26        More illustratively, the ads in Livestock Marketing
were no more “permanent” than was the government speech on Texas’s license
plates—perhaps less so, because television and radio ads are by their nature
fleeting. See Livestock 

. Yet, that did not give the
Court any pause in concluding that the ads in Livestock Marketing constituted
government speech. And again, the quintessential forms of government speech
(on currency, passports, and other traditional methods of speaking) do not sug-
gest a kind of “permanence” that reveal the significance of that characteristic.
       I do not take SCV to be arguing—as the plaintiffs in Summum were—
that the putative forum in question is a traditional public forum, 27 like parks,
in which the freedom of speech is at its apex. So, unlike the Court in Summum,
we are not confronted with the difficulty of distinguishing kinds of speech in a
particular forum and deciding whether all of those kinds of speech are similarly
protected by our tradition.




       26  See, e.g., Newton (applying government-speech doctrine to a governor’s removal of
a large, wall-sized mural depicting Maine’s labor history from lobby of government building;
the mural had been in place for three years). Many of the statutory specialty plates in Texas
have been around for over ten years. See, e.g., Registration of Vehicles and the Issuance of
License Plates by the Texas Department of Transportation; Providing Penalties, 2003 Tex.
Sess. Law Serv. ch. 1320 § 6 (H.B. 2971) (Vernon’s). Does that connote less “permanence”
than does a removable fixture?
        27 The majority curiously attempts to distinguish Summum on the ground that license

plates—unlike parks—are not traditional public forums. But that surely cuts in the opposite
direction. Traditional public forums are where speech restrictions are most strictly scrutin-
ized. The fact that parks had been held since “time immemorial” to be places of public speech
was a hurdle for the city in Summum. That is, the city won in Summum despite the fact that
public parks are traditional public forums, not because they are public forums.
                                                41
   Case: 13-50411     Document: 00512697267      Page: 42   Date Filed: 07/14/2014



                                 No. 13-50411
                                      IV.
      In sum (pun intended), none of the differences between this case and
Summum are differences in principle, and none offers a defensible justification
for why Pleasant Grove City was entitled to a judgment in its favor in Sum-
mum but Texas is not so entitled here. The attempt to distinguish Summum
ultimately devolves to manifesting a conclusion in search of a reason. However
insignificant one might find the dispute before us, the law entitles Texas to a
judgment in its favor. I respectfully dissent.




                                            42