Vista-Graphics, Inc. v. Virginia Department of Transportation
682 F. App'x 231
| 4th Cir. | 2017Background
- Vista-Graphics, a private publisher, produced three tourist guides displayed for years at Virginia rest areas/welcome centers operated by VDOT.
- In 2012 VDOT adopted the SAVE program (and later a 2015 contract establishing a PMA program) imposing fees for displays and restricting content (e.g., forbidding political, religious, obscene, deceptive material and prohibiting implication of Commonwealth endorsement). VDOT retained prior approval authority.
- Plaintiffs sued Virginia and related entities challenging (1) the fees and (2) the content restrictions as violating the First Amendment, Fourteenth Amendment (Due Process/Equal Protection), and state law; district court dismissed some claims and ruled the guides are government speech.
- On appeal the Fourth Circuit held plaintiffs had Article III standing to challenge content restrictions (based on alleged, reasonable self-censorship), but concluded the guides, when displayed in state rest areas, constitute government speech and thus are not protected by the Free Speech Clause.
- The court affirmed dismissal of plaintiffs’ other claims (due process, equal protection, and certain state-law claims) as inadequately pleaded or foreclosed by the government-speech holding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to challenge content restrictions | Plaintiffs claimed they engaged in self-censorship and thus suffered an injury-in-fact | Defendants argued no actual enforcement and plaintiffs never sought guidance, so no concrete injury | Plaintiffs have standing at pleading stage; alleged self-censorship is a plausible injury-in-fact |
| Whether guides constitute government or private speech | Vista-Graphics: guides are privately produced; disclaimers and prohibition on implying endorsement show they are private speech | Commonwealth: rest areas are government property historically used to disseminate information; state controls content and approval | Guides displayed in state rest areas are government speech; Free Speech Clause does not apply |
| Validity of content restrictions under Free Speech Clause | Plaintiffs: restrictions chill protected speech and are overbroad | Commonwealth: if guides are government speech, First Amendment challenge fails | Because guides are government speech, court did not reach merits of Free Speech challenge |
| Due Process / Equal Protection / State-law claims | Plaintiffs: content rules conflict with state administrative code and violate constitutional protections | Commonwealth: plaintiffs failed to plausibly plead conflicts or identify specific rights violated; many claims premised on speech protection that does not apply | Court rejected due process and equal protection claims for lack of plausible factual support and because speech at issue is government speech |
Key Cases Cited
- Pleasant Grove City v. Summum, 555 U.S. 460 (2009) (permanent monuments on public land typically constitute government speech)
- Walker v. Texas Div., Sons of Confederate Veterans, 135 S. Ct. 2239 (2015) (license-plate messages constitute government speech; factors for identifying government speech)
- Clatterbuck v. City of Charlottesville, 708 F.3d 549 (4th Cir. 2013) (standing in First Amendment cases: relaxed pleading requirement for self-censorship claims)
- Benham v. City of Charlotte, 635 F.3d 129 (4th Cir. 2011) (self-censorship can establish injury-in-fact for standing)
- Cooksey v. Futrell, 721 F.3d 226 (4th Cir. 2013) (de novo review of subject-matter-jurisdiction dismissals)