throbber
No. 14-144
`================================================================
`
`In The
`Supreme Court of the United States
`---------------------------------  ---------------------------------
`
`JOHN WALKER III, IN HIS OFFICIAL CAPACITY
`AS CHAIRMAN OF THE BOARD, ET AL.,
`Petitioners,
`
`v.
`
`TEXAS DIVISION, SONS OF CONFEDERATE
`VETERANS, INC., ET AL.,
`Respondents.
`
`---------------------------------  ---------------------------------
`
`On Petition For A Writ Of Certiorari
`To The United States Court Of Appeals
`For The Fifth Circuit
`
`---------------------------------  ---------------------------------
`
`BRIEF IN OPPOSITION TO PETITION
`FOR WRIT OF CERTIORARI
`
`---------------------------------  ---------------------------------
`
`R. JAMES GEORGE, JR.
` Counsel of Record
`JOHN R. MCCONNELL
`GEORGE BROTHERS KINCAID
` & HORTON LLP
`1100 Norwood Tower
`114 W. 7th Street
`Austin, Texas 78701
`Telephone: (512) 495-1400
`Facsimile: (512) 499-0094
`rjgeorge@gbkh.com
`jmcconnell@gbkh.com
`Attorneys for Respondents
`
`================================================================
`COCKLE LEGAL BRIEFS (800) 225-6964
`WWW.COCKLELEGALBRIEFS.COM
`
`

`
`i
`
`QUESTION PRESENTED
`
`
`Can a state establish a program for private
`
`individuals, non-profit organizations, and businesses
`to design specialty license plates, and then deny
`access to an eligible non-profit organization because
`the organization’s logo featuring the Confederate
`battle flag “might be offensive to any member of the
`public”?
`
`
`
`

`
`ii
`
`CORPORATE DISCLOSURE STATEMENT
`
`
`Texas Division, Sons of Confederate Veterans,
`
`Inc. has no parent corporation and no publicly held
`corporation owns 10% or more of its stock.
`
`
`
`

`
`iii
`
`TABLE OF CONTENTS
`
`6
`
`Page
`QUESTION PRESENTED...................................
`i
`CORPORATE DISCLOSURE STATEMENT .......
`ii
`TABLE OF CONTENTS ......................................
`iii
`TABLE OF AUTHORITIES .................................
`v
`STATEMENT OF THE CASE ..............................
`1
`SUMMARY OF THE ARGUMENT ......................
`5
`REASONS FOR DENYING THE PETITION .....
`6
`
`I. THE CIRCUIT SPLITS DESCRIBED BY
`PETITIONERS ARE NOT APPLICABLE
`TO THIS CASE ..........................................
`A. EVERY COURT OF APPEALS TO
`ADDRESS THE TYPE OF SPECIAL-
`TY PLATE AT ISSUE HERE HAS
`HELD THAT THE FIRST AMEND-
`MENT APPLIES AND STATE REG-
`ULATION MUST BE VIEWPOINT
`NEUTRAL ...........................................
`B. THE CIRCUIT SPLIT REGARDING
`PLATES DESIGNED BY STATE
`LEGISLATURES IS NOT APPLICA-
`BLE TO THIS CASE ...........................
`C. THE SEVENTH CIRCUIT’S DECI-
`SION IN CHOOSE LIFE ILLINOIS
`DOES NOT EVIDENCE A CIRCUIT
`SPLIT RELEVANT TO THIS CASE ... 11
`
`7
`
`9
`
`

`
`iv
`
`TABLE OF CONTENTS – Continued
`
`Page
` II. THE FIFTH CIRCUIT DECISION IS
`SQUARELY IN LINE WITH SUPREME
`COURT PRECEDENT ............................... 14
`A. WHETHER SPEECH “MIGHT BE
`OFFENSIVE TO ANY MEMBER OF
`THE PUBLIC” IS NOT A CONSTI-
`TUTIONALLY VALID STANDARD
`TO LIMIT SPEECH ............................ 15
`B. THE SPECIALTY PLATES AT ISSUE
`ARE PRIVATE SPEECH ..................... 17
`C. DENYING TEXAS SCV’S SPECIAL-
`TY PLATE WITH THE CONFEDER-
`ATE BATTLE FLAG WAS VIEW-
`POINT DISCRIMINATION ................. 20
`CONCLUSION ..................................................... 22
`
`

`
`v
`
`TABLE OF AUTHORITIES
`
`Page
`
`CASES:
`American Civil Liberties Union of North Caro-
`lina v. Tata, 742 F.3d 563 (4th Cir. 2014) ............... 10
`American Civil Liberties Union of Tennessee v.
`Bredesen, 441 F.3d 370 (6th Cir. 2006), cert.
`denied, 548 U.S. 906 (2006) .................................. 8, 9
`Arizona Life Coalition, Inc. v. Stanton, 515 F.3d
`956 (9th Cir. 2008), cert. denied, 555 U.S. 815
`(2008) ........................................................... 7, 8, 9, 19
`Briggs v. Mississippi, 331 F.3d 499 (5th Cir.
`2003) ........................................................................ 20
`Choose Life Illinois, Inc. v. White, 547 F.3d 853
`(7th Cir. 2008), cert. denied, 558 U.S. 816
`(2009) ............................................................... passim
`Coleman v. Miller, 912 F. Supp. 522 (N.D. Ga.
`1996), aff ’d, 117 F.3d 527 (11th Cir. 1997) ............. 20
`Denno v. School Bd. of Volusia Cty., 218 F.3d
`1267 (11th Cir. 2000) ............................................... 21
`Lewis v. Wilson, 253 F.3d 1077 (8th Cir. 2001),
`cert. denied sub nom Fischer v. Lewis, 535
`U.S. 986 (2002) ........................................................ 16
`Pleasant Grove City, Utah v. Summum, 555
`U.S. 467 (2009) .................................................... 9, 18
`Police Dept. of City of Chicago v. Mosley, 408
`U.S. 92 (1972) .......................................................... 18
`Roach v. Stouffer, 560 F.3d 860 (8th Cir.
`2009) .......................................................... 8, 9, 10, 19
`
`

`
`vi
`
`TABLE OF AUTHORITIES – Continued
`
`Page
`
`Rosenberger v. Rector & Visitors of Univ. of
`Virginia, 515 U.S. 819 (1995) ................................. 18
`Rust v. Sullivan, 500 U.S. 173 (1991) ........................ 18
`Simon & Schuster, Inc. v. Members of New York
`State Crime Victims Bd., 502 U.S. 105 (1991) ....... 15
`Snyder v. Phelps, 131 S. Ct. 1207 (2011) ............. 15, 16
`Sons of Confederate Veterans, Inc. ex rel. Griffin
`v. Commissioner of the Virginia Department
`of Motor Vehicles, 288 F.3d 610 (4th Cir.
`2002) ...................................................................... 8, 9
`Texas Div., Sons of Confederate Veterans, Inc. v.
`Vandergriff, A-11-CA-1049-SS, 2013 WL
`1562758 (W.D. Tex. Apr. 12, 2013) ............................ 5
`Texas Div., Sons of Confederate Veterans, Inc. v.
`Vandergriff, 759 F.3d 388 (5th Cir. 2014) .... 1, 5, 8, 9, 10
`Women’s Emergency Network v. Bush, 323 F.3d
`937 (11th Cir. 2003) ................................................. 10
`Wooley v. Maynard, 430 U.S. 705 (1977) ............. 10, 19
`
`STATUTES:
`Tex. Transp. Code § 504.605 .......................................... 1
`Tex. Transp. Code § 504.602 .......................................... 1
`Tex. Transp. Code § 504.616 .......................................... 1
`Tex. Transp. Code § 504.637 .......................................... 1
`Tex. Transp. Code § 504.801(c) ..................................... 4
`
`
`

`
`vii
`
`TABLE OF AUTHORITIES – Continued
`
`OTHER AUTHORITIES:
`Petition for a Writ of Certiorari, Berger v.
`ACLU of N.C., No. 14-35 (July 11, 2014) ............... 10
`
`Page
`
`

`
`1
`
`STATEMENT OF THE CASE
`The Fifth Circuit’s opinion accurately describes
`
`the specialty license plate system in Texas. Texas
`Div., Sons of Confederate Veterans, Inc. v. Vandergriff,
`759 F.3d 388, 390-91 (5th Cir. 2014); Pet. App. 2a-3a.1
`In short, specialty license plates are either (a) created
`by the legislature by specific legislation2 or (b) de-
`signed by private individuals, non-profits, and busi-
`nesses who submit their applications to the Texas
`Department of Motor Vehicles (“DMV”) directly or
`through a third-party vendor in contract with the
`state.3 Essentially, Texas has created a program
`through which it sells space on license plates for
`individuals, non-profits, and businesses to publish
`messages and advertising. Drivers who wish to
`express a message pay a premium for such specialty
`
`
`1 In this brief, “App. ___” refers to the page in Texas SCV’s
`
`Record Excerpts filed in the Fifth Circuit Court of Appeals.
`“USCA5 ___” refers to the page in the Record on Appeal filed in
`the Fifth Circuit Court of Appeals. “Pet. ___” and “Pet. App. ___”
`refer to the pages in the Petition for Writ of Certiorari and its
`Appendix, respectively.
`
`2 See Tex. Transp. Code §§ 504.601, 504.602-504.662. Some
`examples of plates made available by statute in Texas include
`“Animal Friendly,” “Keep Texas Beautiful,” “Texas Reads,” and a
`Daughters of the Republic of Texas plate that reads “Native
`Texan.” Tex. Transp. Code §§ 504.602, 504.605, 504.616, 504.637.
`
`3 Non-profit organizations can send their application
`directly to the DMV, but individuals and for-profit businesses
`must submit their applications through the third-party vendor
`who helps facilitate and market specialty plates. The DMV must
`still approve plates submitted to the third-party vendor.
`
`

`
`2
`
`plates and the program results in increased revenue
`to the state.
`
`The more than 350 specialty plates available in
`
`Texas express a wide variety of messages. Some of the
`specialty plates available to Texas drivers are: Choose
`Life, Calvary Hill (“One State Under God”), God Bless
`Texas, Knights of Columbus (“One Nation Under
`God”), Buffalo Soldiers, Insure Texas Kids, Boy
`Scouts, Girl Scouts, Texas Masons, Texas Lions
`Camp, Rotary International, March of Dimes, Be a
`Blood Donor, College for All Texans, Enduring Free-
`dom, Fight Terrorism, Korea Veterans, Vietnam
`Veteran, Former Prisoner of War, Woman Veteran,
`World War II Veterans, Mothers Against Drunk
`Driving, NASCAR, Operation Iraqi Freedom, Pearl
`Harbor Survivor, Organ Donor, Rather Be Golfing,
`Read to Succeed, Stop Child Abuse, Texas It’s Like a
`Whole Other Country, United We Stand, World Wild-
`life Fund, University of Alabama, University of Ari-
`zona, University of Arkansas, University of Georgia,
`University of Illinois, University of Kansas, Universi-
`ty of Kentucky, University of Louisiana, University of
`Mississippi, University of Missouri, University of
`Nebraska, University of Oklahoma, University of
`South Carolina, University of Tennessee, Notre
`Dame, Oklahoma State University, Re/Max, Dr.
`Pepper, Mighty Fine Burgers, Master Gardener,
`Share the Road, YMCA, Young Lawyers Association,
`
`

`
`3
`
`Texas State Rifle Association, Texas Trophy Hunters
`Association, and Animal Friendly.4
`
`The Fifth Circuit opinion accurately describes
`
`Texas Sons of Confederate Veterans’ (“Texas SCV’s”)
`application for a specialty license plate and the
`“tortured procedural history” at the Texas Depart-
`ment of Transportation (“TxDOT”) and Texas De-
`partment of Motor Vehicles Board (“DMVB”). Pet.
`App. 3a-5a, 17a-18a. The plate, including the Confed-
`erate battle flag in Texas SCV’s logo, was initially
`approved by a simple majority vote.5 Despite no
`evidence of any procedural basis for taking another
`vote, a second vote was conducted and the plate was
`
`
`4 See examples included at App. 110-111, USCA5 324-325.
`
`See also http://myplates.com, last visited 9/25/14; http://txdmv.
`gov/motorists/license-plates/specialty-license-plates, last visited
`9/25/14.
`
`5 The committee at TxDOT in charge of approving specialty
`plates at the time initially approved the plate by a simple
`majority vote. App. 103, USCA5 280. But the Director of the
`Vehicle Titles and Registration Division maintained that the
`plate did not pass and suggested that Texas SCV be notified that
`its application was rejected. Id. In response, another board
`member emailed the following: “Since it is now documented that
`we had a quorum and that the plate passed by a simple majority.
`I don’t think we can just declare a no pass. An open records
`request would expose the vote and we will be shown as biased. I
`believe we should follow the procedures and let the public
`decide!” Id. Upon the Director’s insistence that there be a re-vote
`based upon the “controversial” nature of the plate, a re-vote was
`conducted, and the plate was rejected. See App. 106, USCA5 293.
`There is no evidence of a valid procedural basis for the commit-
`tee ignoring the initial quorum vote.
`
`

`
`4
`
`rejected. See App. 106, USCA5 293. Texas SCV then
`reapplied with the DMVB, which deadlocked four to
`four in two votes and then ultimately denied the plate
`unanimously after an impassioned public hearing.
`App. 80, ¶¶ 17, 20, USCA5 254; App. 118-119, USCA5
`445-446.
`
`At the same hearing, the DMVB approved a
`
`Buffalo Soldiers plate by a five to three vote, despite
`the fact that Land Commissioner Jerry Patterson,
`who sponsored both the Texas SCV and the Buffalo
`Soldiers plates, told the DMVB at the hearing that he
`had had conversations “with a group of Indians, who
`were offended by the . . . Buffalo Soldier plate.”
`USCA5 377; App. 121, USCA5 451.
`
`In its written rejection of Texas SCV’s application
`
`for a specialty plate, the DMVB stated:
`
`The Board has considered the information
`and finds it necessary to deny this plate de-
`sign application, specifically the confederate
`flag portion of the design, because public
`comments have shown that many members
`of the general public find the design offen-
`sive, and because such comments are rea-
`sonable.
`
`App. 108, USCA5 322. The Board cited a provision of
`the Texas Transportation Code which provides, in
`part, that the Board “may refuse to create a new
`specialty license plate if the design might be offensive
`to any member of the public.” Tex. Transp. Code
`§ 504.801(c).
`
`

`
`5
`
`Following the denial of its application for a
`
`specialty plate, Texas SCV filed the underlying law-
`suit challenging the DMVB’s decision as unconstitu-
`tional under the First and Fourteenth Amendments
`to the Constitution.
`
`The district court granted the DMVB’s motion for
`
`summary judgment and denied Texas SCV’s motion
`for summary judgment. Texas Div., Sons of Confeder-
`ate Veterans, Inc. v. Vandergriff, A-11-CA-1049-SS,
`2013 WL 1562758 (W.D. Tex. Apr. 12, 2013). The court
`held that the specialty plates implicated private
`speech concerns but found no viewpoint discrimina-
`tion. Id. The Fifth Circuit reversed and remanded,
`holding that the specialty plates were private speech
`and the State engaged in viewpoint discrimination in
`denying Texas SCV’s specialty plate. Texas Div., Sons
`of Confederate Veterans, Inc. v. Vandergriff, 759 F.3d
`388 (5th Cir. 2014).
`
`---------------------------------  ---------------------------------
`
`SUMMARY OF THE ARGUMENT
`This case is not as complicated or remarkable as
`
`Petitioners would have this Court believe. There is no
`circuit split applicable to these facts, as every circuit
`to address a specialty plate program enabling private
`parties to submit their own specialty plate designs
`has held that the plates constitute private speech, the
`First Amendment applies, and regulation has to be
`viewpoint neutral. Neither of the two circuit splits
`Petitioners assert is applicable to the facts of this
`
`

`
`6
`
`case. Further, First Amendment case law has long-
`established that “offensiveness” is not a permissible
`standard to limit speech. Decades of Supreme Court
`precedent have established (1) that the State cannot
`open a forum for speech and then deny access to that
`forum on the basis of viewpoint and (2) that “offen-
`siveness” is not a permissible standard to restrict
`speech. This case presents no novel questions or
`circuit splits for this Court to resolve, and the petition
`for writ of certiorari should be denied.
`
`---------------------------------  ---------------------------------
`
`REASONS FOR DENYING THE PETITION
`I. THE CIRCUIT SPLITS DESCRIBED BY
`PETITIONERS ARE NOT APPLICABLE
`TO THIS CASE
`Petitioners argue there is a circuit split about
`
`whether specialty plates are “private speech” or
`“government speech.” However, Petitioners fail to
`point out that there are two kinds of cases considered
`by the various courts of appeals. First, there are cases
`involving specialty license plates created by specific
`individual enabling legislation (hereinafter “Legisla-
`tive Plates”) passed by a state legislature. Second,
`there are cases where the state has created a revenue
`generating program by selling space on license plates
`to private citizens to express themselves. In this
`second category, private individuals and organiza-
`tions apply to a state agency, such as the DMVB in
`this case, to have their own designs published on
`specialty license plates.
`
`

`
`7
`
`This case is in the second category. Respondents
`
`are not complaining of any specialty plate issued by
`an individual act of the Texas legislature. The Texas
`legislature has passed legislation authorizing “Ani-
`mal Friendly,” “Keep Texas Beautiful” and many
`other plates, which are all unchallenged. Instead,
`Texas SCV and its members sought to communicate
`their message in the same manner as many other
`non-profit organizations in Texas have done, by
`designing a specialty license plate. After being denied
`access to the forum because Texas SCV’s logo was
`deemed “offensive,” Texas SCV filed suit.
`
`
`
`A. EVERY COURT OF APPEALS TO AD-
`DRESS THE TYPE OF SPECIALTY
`PLATE AT ISSUE HERE HAS HELD
`THAT THE FIRST AMENDMENT AP-
`PLIES AND STATE REGULATION
`MUST BE VIEWPOINT NEUTRAL
`Every circuit to address the type of specialty
`
`plate program at issue here – specialty plates de-
`signed by
`individuals, non-profit organizations,
`and/or for-profit businesses pursuant to a program for
`private parties to apply for plates, as opposed to
`specialty plates designed by state
`legislatures
`through individual legislation – has held that the
`specialty plates implicate private speech concerns
`and that government regulation must comply with
`the First Amendment. See Arizona Life Coalition, Inc.
`v. Stanton, 515 F.3d 956 (9th Cir. 2008), cert. denied,
`555 U.S. 815 (2008) (Arizona’s “special organization
`
`

`
`8
`
`license plate program” was primarily private speech
`and restrictions had to be viewpoint neutral); Roach
`v. Stouffer, 560 F.3d 860 (8th Cir. 2009) (Missouri’s
`organizational license plate program held to be
`private speech of the organization and the vehicle
`owner); Texas Div., Sons of Confederate Veterans, Inc.
`v. Vandergriff, 759 F.3d 388 (5th Cir. 2014). Including
`the Fifth Circuit, there have now been three circuit
`courts of appeals to address the type of specialty
`plates at issue here, and each one of them has con-
`cluded that the specialty plates at issue in this type of
`program implicate private speech and the state’s
`regulation of them must be viewpoint neutral.6
`
`
`6 The courts of appeals engage in a variety of linguistic
`
`formulations of the test to be applied to determine whether
`speech is “private” or “government.” See Sons of Confederate
`Veterans, Inc. ex rel. Griffin v. Commissioner of the Virginia
`Department of Motor Vehicles, 288 F.3d 610 (4th Cir. 2002)
`(applying a four-factor test which includes (1) the central
`purpose of the program in which the speech occurs, (2) the
`degree of “editorial control” exercised by the government or by
`private entities over the content of the speech, (3) the identity of
`the “literal speaker,” and (4) whether the government or the
`private entity bears the “ultimate responsibility” for the content
`of the speech); American Civil Liberties Union of Tennessee v.
`Bredesen, 441 F.3d 370, 375 (6th Cir. 2006), cert. denied, 548
`U.S. 906 (2006) (legislative “Choose Life” plate was government
`speech because “the Act determines the overarching message
`and Tennessee approves every word on such plates”); Choose Life
`Illinois, Inc. v. White, 547 F.3d 853 (7th Cir. 2008), cert. denied,
`558 U.S. 816 (2009) (distilling the four-factor test to whether,
`under all the circumstances, a reasonable person would consider
`the speaker to be the government or a private party); Arizona
`Life Coalition, 515 F.3d at 965 (applying Fourth Circuit’s
`(Continued on following page)
`
`

`
`9
`
`B. THE CIRCUIT SPLIT REGARDING
`PLATES DESIGNED BY STATE LEG-
`ISLATURES IS NOT APPLICABLE
`TO THIS CASE
`There is indeed a circuit split between the Fourth
`
`Circuit and the Sixth Circuit with regard to specialty
`plates, but the split only involves plates created by
`specific legislative enactment. The Sixth Circuit held
`in 2006 that Tennessee’s legislature did not violate
`the First Amendment by creating a “Choose Life”
`plate while not offering a pro-choice plate.7 ACLU v.
`
`four-factor test); Roach, 560 F.3d at 867 (“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.”); Texas Div.,
`Sons of Confederate Veterans, Inc., 759 F.3d at 394 (“the proper
`inquiry 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’ ”),
`quoting Pleasant Grove City, Utah v. Summum, 555 U.S. 467,
`487 (2009) (Souter, J., concurring). For the purposes of deciding
`the petition for certiorari, however, evaluating the different
`formulas for determining whether the First Amendment is
`implicated is unnecessary because every circuit to address the
`same specialty plate program as this case has held that private
`speech is implicated and the First Amendment applies, regard-
`less of the test applied.
`
`7 The Sixth Circuit stands alone in holding that specialty
`license plates do not implicate private speech concerns. All other
`circuits to address specialty plates, of any type, have held that
`they implicate private speech concerns and government regula-
`tion is subject to the First Amendment. See Sons of Confederate
`Veterans, Inc. ex rel. Griffin v. Comm’n of Virginia Dept. of Motor
`Vehicles, 288 F.3d 610, 621 (4th Cir. 2002) (“SCV’s special plates
`constitute private speech.”); Arizona Life Coalition, 515 F.3d at
`(Continued on following page)
`
`

`
`10
`
`Bredesen, 441 F.3d 370, 375-77 (6th Cir. 2006), cert.
`denied, 434 U.S. 1070 (2006). The court held that the
`plate created by legislative enactment was govern-
`ment speech, and did not implicate private speech
`rights. Id. at 375 (“Choose Life” plate was govern-
`ment speech because “the Act determines the over-
`arching message and Tennessee approves every word
`on such plates.”). The Fourth Circuit reached the
`opposite conclusion on similar facts in 2014, holding
`that North Carolina did violate the First Amendment
`in creating a “Choose Life” plate while not offering a
`pro-choice plate. American Civil Liberties Union of
`North Carolina v. Tata, 742 F.3d 563, 576 (4th Cir.
`2014), pet. filed. (“Because the specialty plate speech
`at issue implicates private speech rights and is not
`pure government speech, North Carolina’s authoriz-
`ing a ‘Choose Life’ plate while refusing to authorize a
`pro-choice plate constitutes viewpoint discrimination
`in violation of the First Amendment.”)8 Both of these
`
`965 (“Choose Life” plate was private speech); Choose Life Ill.,
`Inc. v. White, 547 F.3d 853, 863 (7th Cir. 2008) (“Messages on
`specialty license plates cannot be characterized as the govern-
`ment’s speech”); Roach, 560 F.3d at 867 (specialty plates are
`private speech); Texas Div., Sons of Confederate Veterans, Inc.,
`759 F.3d at 396 (same). See also Women’s Emergency Network v.
`Bush, 323 F.3d 937 (11th Cir. 2003) (noting, in dicta, that the
`specialty plates at issue were not government speech); Wooley v.
`Maynard, 430 U.S. 705, 717 (1977) (New Hampshire violated
`First Amendment rights of objecting drivers by requiring them
`to display the state motto “Live Free or Die” on their license
`plates).
`
`8 See Petition for a Writ of Certiorari, Berger v. ACLU of
`N.C., No. 14-35 (July 11, 2014).
`
`

`
`11
`
`cases considered the question of when a state legisla-
`ture authorizes a pro-life plate by statute, does the
`First Amendment require the issuance of a pro-choice
`plate? At issue was not a denial of a private speaker’s
`application for a specialty plate pursuant to a pro-
`gram established for such speech. These cases indeed
`constitute a split of authority, but they involve Legis-
`lative Plates and not a specialty plate program estab-
`lished for private parties to design specialty plates.
`The circuit split is therefore not applicable to the
`facts of this case, and this case is not a vehicle for
`addressing such a split.
`
`
`
`C. THE SEVENTH CIRCUIT’S DECI-
`SION IN CHOOSE LIFE ILLINOIS
`DOES NOT EVIDENCE A CIRCUIT
`SPLIT RELEVANT TO THIS CASE
`Petitioners also argue – despite no evidence in
`
`the record to support this theory – that Texas is
`purposefully avoiding the subject of the Confederate
`flag entirely, and thus there is no viewpoint discrimi-
`nation. See Pet. at 14-17. Petitioners argue there is a
`circuit split between the Fifth Circuit decision in this
`case and the Seventh Circuit decision in Choose Life
`Ill. Inc. v. White, 547 F.3d 853, 863 (7th Cir. 2008),
`cert. denied, 558 U.S. 816 (2009).
`
`In Choose Life Illinois, a pro-life advocacy group
`
`sought a specialty plate, which in Illinois required a
`specific legislative enactment. The General Assembly
`failed to pass enabling legislation to create a “Choose
`
`

`
`12
`
`Life” plate, and the advocacy group sued. The Sev-
`enth Circuit held that specialty license plates impli-
`cated private speech, but that the specialty plate
`forum was only a non-public forum. The court then
`concluded that Illinois had decided to exclude the
`entire subject of abortion, and thus the denial of the
`plate was content-based but viewpoint neutral. “It is
`undisputed that Illinois has excluded the entire
`subject of abortion from its specialty-plate program,”
`the court held. Id. at 855 (emphasis original).
`
`Petitioners argue that the Seventh Circuit’s
`
`holding means that Texas “can defend itself against a
`charge of ‘viewpoint discrimination’ if [it] has never
`issued or approved a license plate bearing a different
`viewpoint on the subject matter of the rejected license
`plate.” Pet. at 2. Under the Seventh Circuit’s ra-
`tionale, Petitioners argue, there is no viewpoint
`discrimination under the present facts because Texas
`has not issued any plates pro- or anti- the Confeder-
`ate flag. Pet. at 14-15. Petitioners urge this Court to
`hear this case based on an alleged circuit split be-
`tween the Fifth Circuit’s decision and Choose Life
`Illinois.
`
`There is no circuit split between the Fifth Circuit
`
`and the Seventh Circuit because the rationale of
`Choose Life Illinois cannot apply to the facts of this
`case. First, the DMVB expressly rejected Texas SCV’s
`plate because it was deemed “offensive,” not because
`Texas was avoiding an issue raised by the Texas SCV
`plate. The DMVB’s written denial says nothing about
`the State excluding an entire subject related to the
`
`

`
`13
`
`Texas SCV plate. Tellingly, Petitioners fail to point to
`any evidence in the record indicating that the State
`decided to exclude everything having to do with the
`Texas SCV or the Confederate flag. Nowhere in this
`record is there any evidence that the State has pur-
`posefully eschewed the entire “issue” raised by the
`Texas SCV plate, however that issue may be defined.
`The State’s decision to avoid an entire issue, akin to
`Illinois’s avoidance of the abortion debate, is simply
`absent from this record.
`
`Second, the specialty plate program in Illinois
`
`required a separate legislative enactment for every
`specialty plate. Choose Life Ill., 547 F.3d at 855. It did
`not involve the same specialty plate program at issue
`here, where individuals, non-profits, and businesses
`could design plates and apply to the DMV. Because
`the legislature in Illinois had to authorize each plate,
`there was an element of legislative discretion and
`control that is absent from the private parties’ spe-
`cialty plate program in Texas.
`
`Third, most issues are not binary, including
`
`whatever issues are implicated by the Texas SCV
`plate. Thus, the Seventh Circuit’s logic that the
`abortion debate can be neatly divided into two posi-
`tions – pro-choice or pro-life – is simply inapplicable
`to the Confederate flag. How would one even define
`the viewpoints about the Confederate flag or the Sons
`of Confederate Veterans? Is someone pro-Southern
`heritage or anti-Southern heritage, pro-historical
`reenactments or anti-historical reenactments, pro-
`civil war monuments or anti-civil war monuments, or
`
`

`
`14
`
`even pro-racism and anti-racism? It is impossible to
`divide the issues raised by the Texas SCV plate into
`distinct categories that could be purposefully avoided
`by the State like abortion was in Illinois.
`
`Finally, the Seventh Circuit itself noted in its
`
`opinion that if the case involved the Confederate flag,
`it would come out differently. The court noted, “Ex-
`cluding the Confederate flag from a specialty-plate
`design . . . [is a] fairly obvious instance[ ] of discrimi-
`nation on account of viewpoint.” Id. at 865. The
`Seventh Circuit recognized that the Confederate flag
`itself is a “viewpoint-specific symbol” and banning it
`is inherently viewpoint discrimination. Id. Thus, even
`if this case was decided by the Seventh Circuit, the
`Seventh Circuit would have reached the same conclu-
`sion as the Fifth Circuit.
`
`
`IS
`II. THE FIFTH CIRCUIT DECISION
`SQUARELY IN LINE WITH SUPREME
`COURT PRECEDENT
`Not only is there no circuit split applicable to the
`
`specific facts of this case, the Fifth Circuit’s decision
`is also correct on the merits.
`
`
`
`
`
`

`
`15
`
`A. WHETHER SPEECH “MIGHT BE OF-
`FENSIVE TO ANY MEMBER OF THE
`PUBLIC” IS NOT A CONSTITUTION-
`ALLY VALID STANDARD TO LIMIT
`SPEECH
`The DMVB denied Texas SCV’s specialty plate
`
`application because it determined “that many mem-
`bers of the general public find the design offensive.”
`App. 108, USCA5 322. It has long been an established
`rule of First Amendment law that speech cannot be
`curtailed simply because it may be offensive.
`
`If there is a bedrock principle underlying the
`First Amendment, it is that the government
`may not prohibit the expression of an idea
`simply because society finds the idea itself
`offensive or disagreeable. . . . [T]he Constitu-
`tion does not permit the government to de-
`cide which types of otherwise protected
`speech are sufficiently offensive to require
`protection for the unwilling listener or view-
`er. Rather . . . the burden normally falls upon
`the viewer to avoid further bombardment of
`[his] sensibilities simply by averting [his]
`eyes.
`
`Snyder v. Phelps, 131 S. Ct. 1207, 1219-20 (2011)
`(alterations in original, internal quotations and
`citations omitted). “[T]he fact that society may find
`speech offensive is not a sufficient reason for sup-
`pressing it. Indeed, if it is the speaker’s opinion that
`gives offense, that consequence is a reason for accord-
`ing it constitutional protection.” Simon & Schuster,
`Inc. v. Members of New York State Crime Victims Bd.,
`
`

`
`16
`
`502 U.S. 105, 118 (1991) (quotations omitted). “[I]n
`public debate [we] must tolerate insulting, and even
`outrageous, speech in order to provide adequate
`‘breathing space’ to the freedoms protected by the
`First Amendment.” Snyder, 131 S. Ct. at 1219 (inter-
`nal quotation omitted).
`
` Whether something “might be offensive to any
`member of the public” “is so nebulous and malleable
`[that it could mean] anything presently politically
`expedient.” See Lewis v. Wilson, 253 F.3d 1077, 1080
`(8th Cir. 2001) (alteration original, quotation omit-
`ted), cert. denied sub nom Fischer v. Lewis, 535 U.S.
`986 (2002) (rejecting “contrary to public policy” and
`“inflammatory” standards under personalized license
`plate regulations as unconstitutional and ordering
`Missouri to reissue personalized plate to applicant)
`(internal quotation omitted). The history of this case
`proves that the “might be offensive to any member of
`the public” standard provides no objective guidance to
`speakers, gatekeepers, and courts to evaluate speech.
`Four different votes were taken by TxDOT and the
`DMVB, with widely different results.9 The proposed
`
`9 In October 2009, at the initial vote on the Texas SCV
`
`plate, three out of five of the members of the TxDOT specialty
`plate committee apparently determined that Texas SCV’s plate
`was not offensive, and voted to approve the plate. App. 103,
`USCA5 280. In December 2009, TxDOT’s same committee voted
`again and determined by a majority that the plate was offensive.
`See App. 106, USCA5 293. In a vote on April 14, 2011, four
`members of the DMVB concluded that the Texas SCV plate was
`not offensive, and four other members disagreed. App. 80, ¶ 17,
`USCA5 254. However, in the vote on November 10, 2011, all
`(Continued on following page)
`
`

`
`17
`
`speech had not changed at all during this process,
`proving the “offensiveness” standard is completely
`subjective.
`
`There is almost no speech that does not offend
`
`someone. Non-Christians and atheists could be of-
`fended by the “One State Under God” plate with its
`depiction of three crosses on Calvary Hill, or the “One
`Nation Under God” Knigh

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