IN THE UNITED STATES DISTRICT COURT
`FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
`
`v.
`
`1:21CV296
`
`
`
`
`
`
`NORTH CAROLINA DIVISION OF SONS )
`OF CONFEDERATE VETERANS, INC., )
`
`
`
`
`)
`Plaintiff,
`
`)
`
`)
`
`)
`
`)
`NORTH CAROLINA DEPARTMENT OF
`)
`TRANSPORTATION, J. ERIC
`)
`BOYETTE, in his official
`)
`capacity as SECRETARY OF
`)
`TRANSPORTATION OF THE STATE OF )
`NORTH CAROLINA, NORTH CAROLINA )
`DIVISION OF MOTOR VEHICLES,
`)
`and TORRE JESSUP, in his
`)
`official capacity as
`)
`COMMISSIONER OF MOTOR VEHICLES )
`OF THE STATE OF NORTH CAROLINA, )
`
`)
`
`)
`
`
`
`Defendants.
`
`MEMORANDUM OPINION AND ORDER
`
`OSTEEN, JR., District Judge
`
`Presently before the court is a Motion to Dismiss in Lieu
`
`of an Answer filed by Defendants North Carolina Department of
`
`Transportation, North Carolina Division of Motor Vehicles, J.
`
`Eric Boyette (in his official capacity as Secretary of the North
`
`Carolina Department of Transportation ), and Torre Jessup, (in
`
`his official capacity as Commissioner of North Carolina Division
`
`Case 1:21-cv-00296-WO-LPA Document 24 Filed 03/01/22 Page 1 of 29
`
`
`FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
`
`v.
`
`1:21CV296
`
`
`
`
`
`
`NORTH CAROLINA DIVISION OF SONS )
`OF CONFEDERATE VETERANS, INC., )
`
`
`
`
`)
`Plaintiff,
`
`)
`
`)
`
`)
`
`)
`NORTH CAROLINA DEPARTMENT OF
`)
`TRANSPORTATION, J. ERIC
`)
`BOYETTE, in his official
`)
`capacity as SECRETARY OF
`)
`TRANSPORTATION OF THE STATE OF )
`NORTH CAROLINA, NORTH CAROLINA )
`DIVISION OF MOTOR VEHICLES,
`)
`and TORRE JESSUP, in his
`)
`official capacity as
`)
`COMMISSIONER OF MOTOR VEHICLES )
`OF THE STATE OF NORTH CAROLINA, )
`
`)
`
`)
`
`
`
`Defendants.
`
`MEMORANDUM OPINION AND ORDER
`
`OSTEEN, JR., District Judge
`
`Presently before the court is a Motion to Dismiss in Lieu
`
`of an Answer filed by Defendants North Carolina Department of
`
`Transportation, North Carolina Division of Motor Vehicles, J.
`
`Eric Boyette (in his official capacity as Secretary of the North
`
`Carolina Department of Transportation ), and Torre Jessup, (in
`
`his official capacity as Commissioner of North Carolina Division
`
`Case 1:21-cv-00296-WO-LPA Document 24 Filed 03/01/22 Page 1 of 29
`
`
`
`of Motor Vehicles) (together, “Defendants”). (Doc. 8.)1 The North
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`Carolina Division of Sons of Confederate Veterans, Inc.
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`(“Plaintiff”) responded in opposition. (Doc. 10.) Defendants
`
`replied. (Doc. 15.) Plaintiff then filed a Motion for Stay of
`
`Proceedings, (Doc. 18), which Defendants opposed, (Doc. 21).
`
`For the reasons set forth herein, this court will grant
`
`Defendants’ motion to dismiss and deny Plaintiff’s stay motion.
`
`I.
`
`FACTUAL BACKGROUND
`
`On a motion to dismiss, a court must “accept as true all of
`
`the factual allegations contained in the complaint.” King v.
`
`Rubenstein, 825 F.3d 206, 212 (4th Cir. 2016). The facts, taken
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`in the light most favorable to Plaintiff, are as follows.
`
`Plaintiff is a nonprofit corporation organized under North
`
`Carolina law and is affiliated with the Sons of Confederate
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`Veterans, Inc. (“SCV”). (Compl. (Doc. 5) ¶ 1.) Plaintiff’s
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`insignia “is a representation of the Confederate Battle Flag
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`flanked on the left, top, and right sides by the words ‘SONS OF
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`CONFEDERATE VETERANS,’ and on the bottom side by the year
`
`
`1 All citations in this Memorandum Opinion and Order to
`documents filed with the court refer to the page numbers located
`at the bottom right-hand corner of the documents as they appear
`on CM/ECF.
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`- 2 -
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`‘1896,’” (id. ¶ 21), the year in which SCV was founded, (id.
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`¶ 9).2
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`North Carolina’s Department of Transportation (“NCDOT”),
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`through the Division of Motor Vehicles (“DMV”), issues specialty
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`license plates3 that “set aside” a “designated segment of the
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`plate” to feature the emblems of nationally recognized civic
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`organizations. (Id. ¶¶ 24—25 (quoting N.C. Gen. Stat. § 20-
`
`79.4(a3), (b)(44)).) As part of this program, Plaintiff’s
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`members “have held and renewed special commemorative license
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`plates identifying them as members of the SCV” via the featuring
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`of the organization’s insignia on their North Carolina license
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`plates. (Id. ¶ 26.) But, beginning in July 2020, the DMV started
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`withholding “the shipment of the specialty plates to SCV
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`members.” (Id. ¶ 29.) In response, Plaintiff and its members
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`“made numerous and varied efforts to engage with Defendants
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`regarding this matter, via telephone calls, emails, and visits
`
`
`2 This court notes that Plaintiff’s insignia was attached to
`the Complaint as an exhibit. (Compl. (Doc. 5) at 14.) It and
`other exhibits attached to Plaintiff’s Complaint, ( see id. at
`12—19), may be considered in adjudicating Defendants’ motion to
`dismiss. Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 166
`(4th Cir. 2016) (stating that at the Rule 12(b)(6) stage courts
`may “consider documents that are . . . attached to the complaint
`as exhibits”).
`
` 3
`
` These plates, like all license plates issued by the DMV,
`“remain the property of the State[.]” N.C. Gen. Stat. § 20-
`63(a).
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`to DMV offices.” (Id.) Eventually, the plates were released in
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`December 2020. (Id.)
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`However, effective January 1, 2021, Defendants decided to
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`“no longer issue or renew specialty license plates bearing the
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`Confederate battle flag or any variation of that flag.” (Id. at
`
`15.) Plaintiff was informed of this decision in a January 11,
`
`2021 letter from NCDOT which states that the “DMV will either
`
`issue SCV members standard plates and refund any specialty -plate
`
`fees paid or provide them with different specialty plates. ” (Id.
`
`at 16.) The letter justifies this decision on grounds that
`
`“specialty license plates constitute government speech[,]” and
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`“license plates bearing the Confederate battle flag have the
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`potential to offend those who view them.” ( Id. at 15.) The
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`letter also notes that the DMV “will continue to recognize
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`[Plaintiff] as a civic organization entitled to the issuance of
`
`a specialty plate[,]” and accordingly the “DMV remains open to
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`considering alternative artwork” for Plaintiff’s specialty plate
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`that “does not contain the Confederate battle flag. ” (Id.)
`
`II. PROCEDURAL HISTORY
`
`On March 8, 2021, Plaintiff filed its Complaint in Lee
`
`County Superior Court against Defendants. ( Compl. (Doc. 5).) The
`
`Complaint asserts (1) a 42 U.S.C. § 1983 claim, (2) a
`
`preliminary and permanent injunction claim, (3) a declaratory
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`
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`judgment claim, and (4) an attorney fees claim. (Id. ¶¶ 35—59.)
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`On April 8, 2021, Defendants filed a petition with this court to
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`remove the case from state to federal court on federal question
`
`and supplemental jurisdiction grounds. (Doc. 1.) On May 6, 2021,
`
`Defendants filed a motion to dismiss pursuant to Federal Rule of
`
`Civil Procedure 12(b)(6), (Doc. 8), along with an accompanying
`
`memorandum, (Defs.’ Mem. of Law in Supp. of Mot. to Dismiss in
`
`Lieu of Answer (“Defs.’ Br.”) (Doc. 9) ). Plaintiff responded in
`
`opposition. (Br. in Opp’n to Defs.’ Mot. to Dismiss (“Pl.’s
`
`Br.”) (Doc. 10).) Defendants replied. (Doc. 15.) Additionally,
`
`pursuant to an order of this court, (Doc. 16), Plaintiff filed a
`
`supplemental memorandum, (Doc. 17).
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`Subsequently, on December 29, 2021, Plaintiff filed a
`
`motion to stay this court’s proceedings, (Doc. 18), accompanied
`
`by a supporting memorandum, (Mem. of Law in Supp. of Mot. for
`
`Stay of Proceedings (“Pl.’s Stay Br.”) ( Doc. 19)). Defendants
`
`responded in opposition, (Defs.’ Opp’n to Pl.’s Mot. for Stay.
`
`(“Defs.’ Stay Br.”) (Doc. 21)), and Plaintiff replied, (Doc.
`
`22).
`
`Both Defendants’ motion to dismiss and Plaintiff’s motion
`
`for stay are now ripe for adjudication.
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`III. ANALYSIS
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`This court will grant Defendants’ motion to dismiss and
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`deny Plaintiff’s stay motion. Plaintiff’s stay motion will be
`
`addressed first.
`
`A.
`
`Motion for Stay
`
`Plaintiff has filed a motion to stay this court’s
`
`proceedings until the Supreme Court issues a decision in
`
`Shurtleff v. City of Boston. (Doc. 18.) In that case, Boston
`
`denied the plaintiffs’ application to fly a “Christian flag” on
`
`a flagpole in front of Boston City Hall, which has historically
`
`been available for the display of flags other than those of the
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`United States, Massachusetts, and Boston. Shurtleff v. City of
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`Bos., 986 F.3d 78, 82—85 (1st Cir. 2021). The plaintiffs claimed
`
`their First Amendment rights had been vi olated and sued Boston
`
`and a city official. Id.
`
`The First Circuit affirmed a ruling in favor of the
`
`defendants, holding that the “display of third-party flags on
`
`the City Hall flagpole constitutes government speech, not
`
`subject to most First Amendment restrictions.” Id. at 85, 94. In
`
`its decision, the First Circuit applied a three -factor analysis
`
`that the Supreme Court has used to determine whether speech
`
`constitutes government speech. Id. at 86—94. One of the cases in
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`which the Supreme Court has articulated that analysis is Walker
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`
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`v. Texas Division, Sons of Confederate Veterans, Inc. , a 2015
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`license plate case with strikingly similar facts to the instant
`
`case. 576 U.S. 200 (2015) (rejecting a First Amendment claim
`
`challenging Texas’ denial of the Texas Division of the Sons of
`
`Confederate Veterans’ request for a specialty license plate
`
`featuring the organization’s insignia).
`
`After losing at the First Circuit, the Shurtleff
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`plaintiffs’ writ of certiorari was accepted by the Supreme
`
`Court. 142 S. Ct. 55 (2021). The Court heard arguments on
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`January 18, 2022. Docket Sheet, Shurtleff v. City of Bos.,
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`(No. 20-1158), https://www.supremecourt.gov/search.aspx?
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`filename=/docket/docketfiles/html/public/20 -1800.html. A
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`decision can be expected sometime b efore the Court ends its
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`current term in late June 2022.
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`Plaintiff argues that this court’s proceedings should be
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`stayed until the Supreme Court decides Shurtleff because that
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`case “implicates the government speech and public forum
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`doctrines of First Amendment jurisprudence, both of which are
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`involved in the case now before this court on Defendants’ motion
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`to dismiss.” (Pl.’s Stay Br. (Doc. 19) at 4.) Therefore,
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`Plaintiff “contends that the interests of justice and judicial
`
`economy will be served by entering an order staying all
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`proceedings in this matter pending a decision by the Supreme
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`Court.” (Id.)
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`Defendants disagree. (Defs.’ Stay Br. (Doc. 21) at 1.) They
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`argue that judicial economy will not be served by waiting for
`
`the Court’s Shurtleff opinion because that decision is highly
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`unlikely to impact the instant case. ( Id.) Defendants claim that
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`this is because “the Shurtleff petitioners have not asked the
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`Court to modify the test for identifying government speech.
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`Instead, the Shurtleff petitioners have simply asked the Supreme
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`Court to apply the now-settled Walker test in a new factual
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`context.” (Id. at 3.) Defendants thus conclude that “while
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`Shurtleff will doubtlessly provide new guidance with respect to
`
`flags, it is unlikely to provide any new guidance with respect
`
`to license plates” given that the Court already addressed
`
`license plates and the government speech doctrine in Walker.
`
`(Id.)
`
`“[T]he power to stay proceedings is incidental to the power
`
`inherent in every court to control the disposition of the causes
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`on its docket with economy of time and effort for itself, for
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`counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 248,
`
`254 (1936). “The grant or denial of a request to stay
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`proceedings calls for an exercise of the distric t court’s
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`judgment ‘to balance the various factors relevant to the
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`expeditious and comprehensive disposition of the causes of
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`action on the court’s docket.’” Maryland v. Universal Elections,
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`Inc., 729 F.3d 370, 375 (4th Cir. 2013) (quoting United States
`
`v. Ga. Pac. Corp., 562 F.2d 294, 296 (4th Cir. 1977)).
`
`Specifically, there are three main “[f]actors courts consider in
`
`deciding whether to exercise their discretion to stay
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`proceedings.” Common Cause v. Rucho, Nos. 1:16-CV-1026, 1:16-CV-
`
`1164, 2017 WL 3981300, at *3 (M.D.N.C. Sept. 8, 2017). They are
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`“[1] the interests of judicial economy, [2] the hardship and
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`inequity to the moving party in the absence of a stay, and [3]
`
`the potential prejudice to the non-moving party in the event of
`
`a stay.” Yadkin Riverkeeper, Inc. v. Duke Energy Carolinas, LLC ,
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`141 F. Supp. 3d 428, 452 (M.D.N.C. 2015). The moving party must
`
`establish that the first and second factor s constitute “clear
`
`and convincing circumstances outweighing” the third factor.
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`Williford v. Armstrong World Indus., Inc., 715 F.2d 124, 127
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`(4th Cir. 1983).
`
`Here, the first two factors—judicial economy and hardship
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`to the moving party—fail to establish that clear and convincing
`
`circumstances warrant a stay. Accordingly, Plaintiff has failed
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`to discharge its burden to show that those factors outweigh the
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`third factor, prejudice to the non-moving party.4 In Rucho, a
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`political gerrymandering case, a three-judge panel denied a
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`motion to stay proceedings. 2017 WL 3981300, at *8. The motion
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`had requested that the case be placed in abeyance until the
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`Supreme Court decided Gill v. Whitford, another political
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`gerrymandering case. Id. at *2—3. The Rucho panel reasoned that
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`because the Supreme Court case differed significantly from the
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`case before it, waiting for Whitford to be decided could prove
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`futile since there was “a distinct possibility” it would provide
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`“no additional guidance as to how to resolve Plaintiffs ’
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`claims.” Id. at *6. Thus, the Rucho panel held, inter alia, that
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`“[i]n light of the numerous . . . factual differences between
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`Whitford and the instant case, staying these proceedings will,
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`at most, minimally advance the interests of judicial economy and
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`preventing hardship to [the moving party].” Id.
`
`So too here. The factual distinctions between the instant
`
`case and Shurtleff are stark. This case involves license plates .
`
`
`4 However, this court notes that Defendants have failed to
`articulate any concrete prejudice they will face if this case is
`stayed. Instead, Defendants broadly assert that they and “the
`citizenry of North Carolina have a clear interest in the
`expeditious and final resolution of this important
`constitutional issue.” (Defs.’ Stay Br. (Doc. 21) at 4 n.1.)
`While that may be so, it is not specific enough to constitute
`cognizable prejudice. But because this court finds that
`Plaintiff has failed to establish that the first two factors
`constitute clear and convincing circumstances warranting a stay,
`it is ultimately immaterial that Defendant s have not shown in
`any tangible way that they will be prejudiced by a stay.
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`Shurtleff involves flags. That distinction is meaningful because
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`the Shurtleff petitioners have not fundamentally challenged the
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`three-factor government speech analysis’ framework, see Br. for
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`Pet’rs, No. 20-1158 (2021) (arguing that the First Circuit
`
`applied the three factors too rigidly) , which Walker already
`
`applied to license plates. Accordingly, the instant case seems
`
`to be squarely governed by Walker. While Shurtleff may clarify
`
`the government speech doctrine in some circumstances, there is
`
`at least a “distinct possibility” that the thrust of the opinion
`
`will simply apply the doctrine to a novel factual context and
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`consequently provide “no additional guidance as to how to
`
`resolve Plaintiff[’s] claims.” Rucho, 2017 WL 3981300, at *6. If
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`so, judicial economy would not be served by waiting for
`
`Shurtleff’s publication nor would Plaintiff be harmed by this
`
`case proceeding in advance of it. As stated by the Rucho panel,
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`“[i]t makes little sense ‘to delay consideration of this case .
`
`. . waiting for a decision that may not ultimately affect it. ’”
`
`Id. (quoting Ga. State Conf. of NAACP v. Georgia, 269 F. Supp.
`
`3d 1266, 1283 (N.D. Ga. 2017)).
`
`Thus, this court will deny Plaintiff’s stay motion because
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`Plaintiff has failed to establish that judicial economy and the
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`hardship it will suffer in the absence of a stay (factors one
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`and two) constitute clear and convincing circumstances
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`justifying staying this court’s proceedings.
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`B.
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`Motion to Dismiss
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`This court will now address Defendants’ motion to dismiss.
`
`“To survive a [Rule 12(b)(6)] motion to dismiss, a complaint
`
`must contain sufficient factual matter, accepted as true, to
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`‘state a claim to relief that is plausible on its face.’”
`
`Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
`
`Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
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`plausible on its face “when the plaintiff pleads factual content
`
`that allows the court to draw the reasonable inference that the
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`defendant is liable for the misconduct alleged” and demonstrates
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`“more than a sheer possibility that a defendant has acted
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`unlawfully.” Id. When ruling on a motion to dismiss, this court
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`accepts the complaint’s factual allegations as true. Id.
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`Further, this court liberally construes “the complaint,
`
`including all reasonable inferences ther efrom . . . in the
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`plaintiff’s favor.” Est. of Williams-Moore v. All. One
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`Receivables Mgmt., Inc., 335 F. Supp. 2d 636, 646 (M.D.N.C.
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`2004). This court does not, however, accept legal conclusions as
`
`true, and “[t]hreadbare recitals of the elements of a cause of
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`action, supported by mere conclusory statements, do not
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`suffice.” Iqbal, 556 U.S. at 678.
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`Plaintiff asserts a 42 U.S.C. § 1983 claim on grounds that
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`“its rights under the First, Fifth, and Fourteenth Amendments to
`
`the United States Constitution have been abridged and denied
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`under color of state law by Defendants.” (Compl. (Doc. 5) ¶ 42.)
`
`Each alleged constitutional violation is addressed in turn
`
`below. As will be explained, Plaintiff has failed to plead
`
`sufficient facts to allege a plausible § 1983 cl aim on any of
`
`these constitutional grounds. Thus, this court will dismiss the
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`claim as well as Plaintiff’s related claims for injunctive
`
`relief, declaratory judgment, and attorney fees. ( Id. ¶¶ 35—59).
`
`1.
`
`Free Speech Allegations
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`Plaintiff claims its First Amendment free speech rights
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`have been violated because “Defendants seek to bar Plaintiff []
`
`and its members from expressing their viewpoint while allowing
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`other groups to express their viewpoint without restriction[.]”
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`(Id. ¶ 37.) Defendants urge dismissal of this claim “because
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`specialty license plates issued by North Carolina are government
`
`speech, and [thus] the State’s denial of a specialty license
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`plate bearing the confederate battle flag is not subject to
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`First Amendment scrutiny.” (Defs.’ Br. (Doc. 9) at 6.)
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`Defendants insist the conclusion that North Carolina specialty
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`license plates are government speech is required by binding and
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`controlling case law—namely Walker, 576 U.S. 200, and ACLU v.
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`Tennyson, 815 F.3d 183 (4th Cir. 2016). (Id. at 6–9.)
`
`In Walker, the Supreme Court denied a First Amendment free
`
`speech claim challenging Texas’ rejection of the Texas Division
`
`of the Sons of Confederate Veterans ’ request for a specialty
`
`license plate featuring the organization’s insignia.5 576 U.S. at
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`219. Walker held that the content on Texas specialty license
`
`plates is not private speech in a public forum with attendant
`
`First Amendment protections but rather government speech
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`entirely outside the purview of the Free Speech Clause. Id.
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`Thus, Texas “was consequently entitled to refuse to issue plates
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`featuring SCV’s” logo without fear of infringing any private
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`entity or individual’s free speech rights. Id. at 219—20. In its
`
`analysis, the Court applied three factors to Texas’ specialty
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`license plates to determine whether they were government speech:
`
`(1) the history of using license plates to communicate messages
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`to the public; (2) the extent in which license plate designs are
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`identified in the public mind with government; and (3) the
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`degree of control the state maintains over the message on
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`specialty plates. Id. at 210-13 (citing Pleasant Grove City v.
`
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`5 The Texas Division of the Sons of Confederate Veterans
`uses the same insignia as Plaintiff. Compare Walker, 576 U.S. at
`220, with (Compl. (Doc. 5) at 14).
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`Summum, 555 U.S. 460, 472 (2009)). All three factors indicated
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`the specialty plates were government speech . Id.
`
`In Tennyson, the Fourth Circuit applied Walker to North
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`Carolina’s specialty license program, which it described as
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`“substantively indistinguishable” from Texas’ specialty license
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`plate program. 815 F.3d at 185. The Fourth Circuit held that
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`“specialty license plates issued under North Carolina ’s program
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`amount to government speech and that North Carolina is therefore
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`free to reject license plate designs that convey messages with
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`which it disagrees.” Id. (citing Walker, 576 U.S. at 207).
`
`Plaintiff strives to distinguish Walker and Tennyson from
`
`the instant case. Plaintiff insists that Walker “does not
`
`control the outcome of [the] present case because of significant
`
`factual and legal distinctions.” (Pl.’s Br. (Doc. 10) at 10.)
`
`Plaintiff argues that unlike North Carolina’s specialty license
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`plate program, the statutes underpinning Texas’ program are
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`“permeated with discretion.” (Id. at 11.) Plaintiff stresses
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`that those statutes allow Texas to “refuse to create a new
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`specialty license plate for a number of reasons, for example if
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`the design might be offensive to any member of the public.” (Id.
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`(internal quotation marks omitted) (quoting Tex. Transp. Code
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`Ann. § 504.801(c)).) In contrast, Plaintiff maintains that the
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`statutes governing North Carolina’s program do not confer the
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`State any discretion to deny a qualifying civic organization its
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`requested plate design, so long as that design does “not
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`obstruct the license plate number or render it unre adable.”
`
`(Id.)
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`Plaintiff similarly tries to distinguish Tennyson, arguing
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`that because the plate at issue was not a civic club plate—it
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`was a “pro-choice” plate unaffiliated with any particular
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`organization—the case has “nothing to do with the precise facts
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`and statutory language involved in the case at bar [.]” (Id.)
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`Moreover, Plaintiff argues that Tennyson’s holding did not
`
`account for the North Carolina Court of Appeal’s “language [in]
`
`Faulkner that whether the Confederate Battle Flag should be
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`displayed on state-issued license plates is a question of public
`
`policy reserved to the [State’s] General Assembly.” (Id. at 12
`
`(referencing N.C. Div. of Sons of Confederate Veterans v.
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`Faulkner, 131 N.C. App. 775, 509 S.E.2d 207 (1998), which held
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`that Plaintiff qualifies as a civic club for purposes of North
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`Carolina’s specialty license plate statute ).)
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`This court is unpersuaded by Plaintiff’s attempts to
`
`distinguish Walker and Tennyson from the instant case. As to
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`Tennyson, the Fourth Circuit’s language in its holding was
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`categorical and not contingent on the type of specialty plate at
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`issue. 815 F.3d at 185. The Fourth Circuit stated, “we now
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`
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`conclude that specialty license plates issu ed under North
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`Carolina’s program amount to government speech and that North
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`Carolina is therefore free to reject license plate designs that
`
`convey messages with which it disagrees. ” Id. Plaintiff offers
`
`no rationale why the mere fact that its license plates are civic
`
`club specialty license plates should exempt it from Tennyson’s
`
`plain and unequivocal holding.
`
`Furthermore, Plaintiff’s reliance on Faulkner to undermine
`
`Tennyson is misplaced. Faulkner decided a narrow question of
`
`state law: whether Plaintiff qualifies as a civic club for
`
`purposes of the specialty license plate statute. 131 N.C. App.
`
`at 781, 509 S.E.2d at 211. While the North Carolina Court of
`
`Appeals decided Plaintiff did so qualify, that holding has no
`
`bearing on the federal constitutional question of whether
`
`denying Plaintiff a license plate violates the First Amendment’s
`
`free speech guarantees. Indeed, the only time Faulkner mentions
`
`the First Amendment—or anything about the Constitution for that
`
`matter—is in a footnote in which it notes that “ allowing some
`
`organizations . . . to obtain personalized plates while
`
`disallowing others . . . could implicate the First Amendment ’s
`
`restriction against content-based restraints on free speech.”
`
`Id. at 777 n.1, 509 S.E.2d at 209 n.1. Such speculation by the
`
`North Carolina Court of Appeals in 1998 was decisively rejected
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`
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`by the Supreme Court in its 2015 Walker decision. Therefore,
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`Faulkner in no way undercuts Tennyson which relied on Walker.
`
`Accordingly, Tennyson’s holding that North Carolina’s specialty
`
`license plates are government speech applies here to negate
`
`Plaintiff’s First Amendment claim.
`
`But even assuming arguendo that Plaintiff was correct that
`
`“Tennyson is not controlling[,]” (Pl.’s Br. (Doc. 10) at 12),
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`Plaintiff’s free speech would still be controlled by Walker.
`
`Plaintiff’s attempt to distinguish Walker implicates the third
`
`factor for government speech: the degree of control the state
`
`has over the message of the speech. See 576 U.S. at 210, 213. In
`
`Walker, the Supreme Court found that
`
`Texas maintains direct control over the messages
`conveyed on its specialty plates. Texas law provides
`that the State has sole control over the design,
`typeface, color, and alphanumeric pattern for all
`license plates. The [Texas Department of Motor
`Vehicles] Board must approve every specialty plate
`design proposal before the design can appear on a
`Texas plate. And the Board and its predecessor have
`actively exercised this authority. Texas asserts , and
`SCV concedes, that the State has rejected at least a
`dozen proposed designs. Accordingly , Texas has
`effectively controlled the messages conveyed by
`exercising final approval authority over their
`selection. This final approval authority allows Texas
`to choose how to present itself and its constituency.
`
`Id. (cleaned up). While this language discusses the particulars
`
`of the discretion granted to Texas authorities in approving
`
`specialty plates, a court in this circuit has held that “[t]here
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`- 18 -
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`
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`is no merit to [the] [p]laintiff’s contention that Walker is
`
`limited solely to one of Texas’s methods of selecting specialty
`
`plate designs. The Supreme Court’s decision did not rely on the
`
`method used to select the plate designs[.]” Sons of Confederate
`
`Veterans, Inc. v. Holcomb, No. 7:99-cv-00530, 2015 WL 4662435,
`
`at *3 (W.D. Va. Aug. 6, 2015). Crucially, and persuasively, that
`
`court concluded that “[n]othing in the Supreme Court’s decision
`
`suggests that if the method used to select the plate is varied,
`
`the reasoning of the Court’s conclusion would be altered.” Id.
`
`The court in that case was applying Walker to Virginia’s
`
`specialty license plate program. Id. The plaintiffs, SCV and
`
`SCV’s Virginia Division, had made the same argument that
`
`Plaintiff makes here as to why Walker should not apply to
`
`another state’s specialty license program. Id. They argued that
`
`unlike Texas, Virginia did “not exercise editorial discretion
`
`over the content of the specialty plate designs , and therefore
`
`the speech remains the speech of the ind ividual.” Id. at *4. The
`
`court disagreed, finding that Virginia did “exercise control
`
`over the design of specialty plates [,]” in part because Virginia
`
`law designates Virginia’s DMV as the entity “ responsible for
`
`designing and issuing specialty plates.” Id. The court ruled
`
`that “[t]he fact that the [DMV] Commissioner often adopts the
`
`proposed designs of sponsoring groups in no way undermines the
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`- 19 -
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`
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`Commonwealth’s authority to design the plates and, thus, speak
`
`by adopting the speech of another.” Id.
`
`
`
`Likewise, North Carolina, via its Division of Motor
`
`Vehicles, exercises direct control over the design of specialty
`
`license plates. The applicable statutes provide that “[t]he
`
`Division shall develop . . . a standardized format for special
`
`license plates[,]” and that even after the North Carolina
`
`General Assembly approves of a specific specialty license plate
`
`proposed by a civic club, “[t]he Division must review the
`
`artwork to ensure it complies with the standardized format .”
`
`N.C. Gen. Stat. §§ 20-79.3A(d)(1), 20-79.4(a3). Like Holcomb,
`
`that North Carolina’s DMV may “adopt[] the proposed designs of
`
`sponsoring groups in no way undermines the [State]’s authority
`
`to design the” overall standardized format for the “plates and,
`
`thus, speak by adopting the speech of another.” 2015 WL 4662435,
`
`at *4. Indeed, that North Carolina’s DMV “must approve every
`
`specialty plate design proposal before the design can appear on
`
`a [North Carolina specialty] plate” evinces that the State
`
`retains “final approval authority” over the p lates’ designs.
`
`Walker, 576 U.S. at 213. This constitutes sufficient control
`
`over the message of the plate’s speech. Thus, the third factor
`
`for identifying government speech indicates that North
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`Carolina’s specialty license plates —including civic club plates—
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`- 20 -
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`
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`are government speech and hence immunized from First Amendment
`
`scrutiny.
`
`
`
`In sum, this court finds that Plaintiff’s First Amendment
`
`challenge is defeated by Tennyson’s categorical language, which
`
`held that North Carolina’s specialty license program is
`
`government speech. And even assuming, arguendo, that Tennyson is
`
`not controlling, this court finds that Plaintiff’s challenge to
`
`the third Walker factor fails because North Carolina does
`
`exercise control over the message of specialty license plates.
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`Therefore, this court will grant Defendants ’ motion to dismiss
`
`Plaintiff’s § 1983 claim to the extent it asserts a First
`
`Amendment free speech violation.6
`
`
`6 Plaintiff brings a separate, but related, claim for relief
`under North Carolina’s Declaratory Judgment Act, N.C. Gen. Stat.
`§ 1-253. (Compl. (Doc. 5) ¶¶ 49—57.) The claim seeks declaratory
`judgment regarding “the extent and manner of the right to apply
`for and receive the commemorative license plates ” under North
`Carolina’s specialty license plate statutes “as well as
`regarding the discretion, if any, Defendants have in determining
`which commemorative license plates it will issue.” (Id. ¶ 56.)
`(Footnote continued)
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`
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`2.
`
`Due Process Allegations7
`
`
`
`Plaintiff claims it and its members have been deprived of
`
`“their liberty without due process of law.” (Compl. (Doc. 5)
`
`¶ 38.) Although Plaintiff fails to clearly specify, this court
`
`assumes that this due process claim is a procedural due process
`
`claim. This court makes such an assumption because Plaintiff’s
`
`brief explicitly acknowledges that it has not pled a substantive
`
`due process claim. (Pl.’s Br. (Doc. 10) at 13 (“ Given the bare
`
`
`This declaratory judgment claim is mooted by this court’s
`holding that North Carolina’s specialty license plate statutory
`program facilitates government speech , and thus Plaintiff’s
`members are not entitled to receive specialty license plates
`featuring Plaintiff’s insignia. Supra Part III.B.1. This holding
`resolves the actual controversy regarding the specialty license
`plate statutes, and thus no further interpretation of those
`statutes is required. See Lide v. Mears, 231 N.C. 111, 118, 56
`S.E.2d 404, 409 (1949) (“[A]n action for a declaratory judgment
`will lie only in a case in which there is an actual or real
`existing controversy between parties . . . .”). Therefore,
`Plaintiff’s Declaratory Judgment Act claim will be dismissed.
`See Calabria v. N.C. State Bd. of Elections, 198 N.C. App. 550,
`555, 680 S.E.2d 738. 743 (2009) (“If the issues before a court
`or administrative body become moot at any time during the cours
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