759 F.3d 388
5th Cir.2014Background
- Texas SCV applied for a Texas specialty license plate design featuring the Confederate battle flag under the private-vendor-approval pathway.
- Board-approval process allows denial if the design might be offensive to the public, with proceeds going to state or the nonprofit's fund.
- Initial DOT panel votes on the plate were split; after a second DOT vote, the plate was denied.
- Texas DMVB/Board later held a final review with public comment; the vote was deadlocked and then the Board denied the plate with a public-offensiveness rationale.
- Texas SCV sued under 42 U.S.C. § 1983, claiming the decision violated First and Fourteenth Amendments; district court granted summary judgment for the Board.
- This appeal raises whether the plate designs constitute government or private speech and whether the Board’s denial was permissible content regulation or impermissible viewpoint discrimination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Government vs private speech | SCV contends plates are private speech. | Board argues plates are government speech due to state ownership and control. | Specialty plates are private speech. |
| Content-based regulation or viewpoint discrimination | Board's denial reflects disfavored viewpoint against Confederate symbolism. | Board acted on an objective public-offensiveness standard, not viewpoint discrimination. | Board impermissibly engaged in viewpoint discrimination. |
Key Cases Cited
- Pleasant Grove City v. Summum, 129 S. Ct. 1125 (U.S. 2009) (government speech and private speech distinctions; donor monuments)
- Johanns v. Livestock Marketing Ass'n, 125 S. Ct. 2055 (U.S. 2005) (government speech via control over messages)
- Wooley v. Maynard, 430 U.S. 705 (U.S. 1977) (compelled display on driver's license; private speech rights)
- Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (U.S. 1995) (content discrimination and viewpoint discrimination in a private forum)
- Sons of Confederate Veterans, Inc. ex rel. Griffin v. Comm'n of Va. Dep't of Motor Vehicles, 288 F.3d 610 (4th Cir. 2002) (private speech in license-plate context)
- Byrne v. Rutledge, 623 F.3d 46 (2d Cir. 2010) (vanity plates as private speech; government-speech analysis not conclusive)
- Roach v. Stouffer, 560 F.3d 860 (8th Cir. 2009) (viewpoint discrimination in license-plate program)
- Arizona Life Coalition, Inc. v. Stanton, 515 F.3d 956 (9th Cir. 2008) (private speech on specialty plates; viewpoint considerations)
- Choose Life Ill., Inc. v. White, 547 F.3d 853 (7th Cir. 2008) (content vs viewpoint discrimination in license-plate context)