`
`No. _________
`================================================================================================================
`
`In The
`Supreme Court of the United States
`--------------------------------- ♦ ---------------------------------
`NORTH CAROLINA DIVISION OF SONS OF
`CONFEDERATE VETERANS, INC.,
`Petitioner,
`
`v.
`
`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,
`Respondents.
`
`--------------------------------- ♦ ---------------------------------
`On Petition For Writ Of Certiorari
`To The United States Court Of Appeals
`For The Fourth Circuit
`--------------------------------- ♦ ---------------------------------
`PETITION FOR A WRIT OF CERTIORARI
`--------------------------------- ♦ ---------------------------------
`JAMES BARRETT WILSON
`Counsel of Record
`411 Waughtown Street
`Winston-Salem, North Carolina 27127
`(336) 773-0059
`james@jbwilsonlaw.com
`H. EDWARD PHILLIPS III
`219 Third Avenue North
`Franklin, Tennessee 37604
`(615) 599-1785, ext. 229
`edward@phillipslawpractice.com
`Attorneys for Petitioner
`================================================================================================================
`COCKLE LEGAL BRIEFS (800) 225-6964
`WWW.COCKLELEGALBRIEFS.COM
`
`
`
`
`
`i
`
`QUESTIONS PRESENTED
`
`
`1. Did the district court and Fourth Circuit
`
`Court of Appeals err in applying the “Government
`Speech” doctrine to limit the speech of private citizens
`and organizations participating in a specialty license
`plate program which originated in a statute that did
`not vest the government agency with any discretion
`with regard to the eligibility of civic groups or the de-
`sign of the civic group’s emblem?
`2. Did the district court and Fourth Circuit
`
`Court of Appeals err in failing to apply the public fo-
`rum doctrine to a specialty license plate program
`which originated in a statute which did not vest the
`government agency with any discretion with regard to
`the design of such specialty plates other than to ensure
`the readability of such plates?
`3. Did the district court and Fourth Circuit
`
`Court of Appeals err in applying the “Government
`Speech” doctrine where there was an adequate and in-
`dependent state law basis which did not implicate the
`Constitution to hold that the NC-DMV exceeded its au-
`thority by denying members of Petitioner the ability to
`obtain and display a specialty license plate?
`
`
`
`ii
`
`PARTIES TO THE PROCEEDING
`
`
`
`Petitioner North Carolina Division of Sons of Con-
`
`federate Veterans, Inc. was the plaintiff in the district
`court proceedings and appellant in the Court of Ap-
`peals proceedings. Respondents North Carolina De-
`partment of Transportation; J. Eric Boyette, North
`Carolina Division of Motor Vehicles; and Torre Jessup
`were the defendants in the district court proceedings
`and appellees in the Court of Appeals proceedings.
`
`
`
`CORPORATE DISCLOSURE STATEMENT
`
`Pursuant to Rule 29.6, Petitioner North Carolina
`
`Division of Sons of Confederate Veterans, Inc. states
`that it has no parent corporation and no publicly held
`corporation holds 10% or more of its stock.
`
`
`
`RELATED CASES
`North Carolina Division of Sons of Confederate
`
`Veterans, Inc. v. North Carolina Department of Trans-
`portation; J. Eric Boyette, North Carolina Division of
`Motor Vehicles; and Torre Jessup; No. 1:21-cv-00296,
`United States District Court for the Middle District of
`North Carolina. Judgment entered April 8, 2022.
`
`North Carolina Division of Sons of Confederate
`Veterans, Inc. v. North Carolina Department of Trans-
`portation; J. Eric Boyette, North Carolina Division
`of Motor Vehicles; and Torre Jessup; No. 22-1292,
`United States Court of Appeals for the Fourth Cir-
`cuit. Judgment entered December 22, 2022.
`
`
`
`iii
`
`TABLE OF CONTENTS
`
`Page
`QUESTIONS PRESENTED ................................
`i
`PARTIES TO THE PROCEEDING ......................
`ii
`CORPORATE DISCLOSURE STATEMENT ......
`ii
`RELATED CASES ...............................................
`ii
`TABLE OF CONTENTS ......................................
`iii
`TABLE OF AUTHORITIES ................................. vi
`OPINIONS BELOW .............................................
`2
`STATEMENT OF JURISDICTION .....................
`2
`CONSTITUTIONAL AND STATUTORY PROVI-
`2
`SIONS INVOLVED...........................................
`5
`STATEMENT OF THE CASE..............................
`REASONS FOR GRANTING THE WRIT ............ 11
`INTRODUCTION ................................................ 11
`ARGUMENT ........................................................ 12
` 1. The district court and Fourth Circuit
`Court of Appeals erred when applying the
`“Government Speech” doctrine to limit the
`speech of private citizens and organiza-
`tions participating in a specialty license
`plate program which originated in a stat-
`ute that did not vest the government
`agency with any discretion with regard to
`the eligibility of civic groups or the design
`of the civic group’s emblem ....................... 12
`
`
`
`iv
`
`TABLE OF CONTENTS – Continued
`
`Page
` 2. The district court and Fourth Circuit
`Court of Appeals erred by failing to apply
`the public forum doctrine to specialty li-
`cense plates. Thereby, limiting the speech
`of private citizens and organizations par-
`ticipating in a specialty license plate pro-
`gram which originated in a statute which
`did not vest the government agency with
`any discretion with regard to the design of
`such specialty plates other than to ensure
`the readability of such plates .................... 20
` 3. The district court and Fourth Circuit
`Court of Appeals erred when applying the
`“Government Speech” doctrine to limit the
`speech of private citizens and organiza-
`tions participating in a specialty license
`plate program where there was an ade-
`quate and independent state law basis
`which did not implicate the Constitution
`to hold that the NC-DMV exceeded its au-
`thority by denying members of Petitioner
`the ability to obtain and display a spe-
`cialty license plate ..................................... 33
`SUMMARY OF PETITIONER’S CASE ............... 39
`CONCLUSION ..................................................... 41
`
`
`
`
`
`v
`
`TABLE OF CONTENTS – Continued
`
`Page
`
`APPENDIX
`United States Court of Appeals for the Fourth
`Circuit, Opinion, December 22, 2022 .............. App. 1
`United States Court of Appeals for the Fourth
`Circuit, Judgment, December 22, 2022 ........... App. 4
`United States District Court for the Middle Dis-
`trict of North Carolina, Memorandum Opinion
`and Order, March 1, 2022 ................................ App. 5
`
`
`
`vi
`
`TABLE OF AUTHORITIES
`
`Page
`
`CASES
`ACLU v. Tata, 742 F.3d 563 (4th Cir. 2012) ................. 7
`American Civil Liberties Union of N.C. v. Tenny-
`son, 815 F.3d 183 (4th Cir. 2016) ........................ 7, 16
`Amos v. Oakdale Knitting Co., 331 N.C. 348, 416
`S.E.2d 166 (1992) .................................................... 34
`Bachellar v. Maryland, 397 U.S. 564 (1970) .............. 22
`Bantam Books, Inc. v. Sullivan, 372 U.S. 58
`(1963) ....................................................................... 21
`Beauharnais v. Illinois, 343 U.S. 250 (1952) .............. 23
`Board of Airport Comm’rs of City of L.A. v. Jews
`for Jesus, Inc., 482 U.S. 569 (1987) ......................... 21
`Brandenburg v. Ohio, 395 U.S. 444 (1969) ................. 23
`Burson v. Freeman, 504 U.S. 191 (1992) ..................... 20
`Chaplinsky v. New Hampshire, 315 U.S. 568
`(1942) ....................................................................... 23
`City of Boerne v. Flores, 521 U.S. 507 (1997) .............. 20
`City of Lakewood v. Plain Dealer Publ’g Co., 486
`U.S. 750 (1988) ........................................................ 21
`Forsyth Cnty. v. Nationalist Movement, 505 U.S.
`123 (1992) ................................................................ 21
`Fox Film Corp. v. Muller, 296 U.S. 207 (1935) ..... 33, 38
`Giboney v. Empire Storage & Ice Co., 336 U.S.
`490 (1949) ................................................................ 23
`
`
`
`
`
`vii
`
`TABLE OF AUTHORITIES – Continued
`
`Page
`
`Good News Club v. Milford Central Sch., 533
`U.S. 98 (2001) .................................................... 32, 40
`Herb v. Pitcairn, 324 U.S. 117 (1945) ......................... 33
`Herndon v. Georgia, 295 U.S. 441 (1935) ............. 33, 38
`Hill v. Colorado, 530 U.S. 703 (2000) ....................... 20
`Hurley v. Irish – Am. Gay, Lesbian & Bisexual
`Grp. of Bos., Inc., 515 U.S. 557 (1995) ..................... 12
`Hustler Magazine, Inc. v. Falwell, 485 U.S. 46
`(1988) ....................................................................... 22
`In re Hatley, 291 N.C. 693, 231 S.E.2d 633 (1977) ........ 17
`Klinger v. Missouri, 80 U.S. (13 Wall.) 257 (1872) ....... 33
`Marcavage v. City of New York, 689 F.3d 98 (2d
`Cir. 2012) ................................................................. 25
`Matal v. Tam, 582 U.S. 218 (2017) ........ 25-27, 30-32, 39
`McCullen v. Coakley, 573 U.S. 464 (2014) .................. 21
`NAACP v. Button, 371 U.S. 415 (1963) ....................... 21
`National Socialist Party of Am. v. Skokie, 432
`U.S. 43 (1977) .......................................................... 27
`North Carolina Div. of Sons of Confederate Vet-
`erans v. Faulkner, 131 N.C. App. 775, 509
`S.E.2d 207 (1998) ................. 6, 7, 9, 11, 14, 16, 35-40
`Papish v. Board of Curators of Univ. of Mo., 410
`U.S. 667 (1973) .................................................. 22, 40
`Pleasant Grove City v. Summum, 555 U.S. 460
`(2009) ................................................................. 12, 30
`
`
`
`viii
`
`TABLE OF AUTHORITIES – Continued
`
`Page
`R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) .......... 23
`Reed v. Town of Gilbert, 576 U.S. 155 (2015) ....... 20, 21
`Rosenberger v. Rector and Visitors of Univ. of Va.,
`515 U.S. 819 (1995) ................................................. 12
`Roth v. United States, 354 U.S. 476 (1957) ................ 23
`Sable Commc’ns of Cal., Inc. v. FCC, 492 U.S. 115
`(1989) ....................................................................... 21
`Shurtleff v. City of Boston, 2020 WL 555248 (D.
`Mass., Feb. 4, 2020) ................................................. 30
`Shurtleff v. City of Boston, 986 F.3d 78 (1st Cir.
`2021) ........................................................................ 30
`Shurtleff v. City of Boston, 142 S. Ct. 1583
`(2022) ......................................... 28, 29, 31, 32, 39, 40
`Sochor v. Florida, 504 U.S. 527 (1992) ....................... 34
`Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) ......... 27
`Street v. New York, 394 U.S. 576 (1969) ...................... 22
`Texas v. Johnson, 491 U.S. 397 (1989) ........................ 22
`Tinker v. Des Moines Indep. Comm. Sch. Dist.,
`393 U.S. 503 (1969) ................................................. 22
`Town of Newton v. State Highway Comm’n of
`N.C., 192 N.C. 54, 133 S.E. 522 (1926) .................... 17
`United States v. Grace, 461 U.S. 171 (1983) ............... 24
`United States v. Schwimmer, 279 U.S. 644
`(1929) ....................................................................... 27
`United States v. Stevens, 559 U.S. 460 (2010) ...... 23, 24
`
`
`
`ix
`
`TABLE OF AUTHORITIES – Continued
`
`Page
`
`Village of Skokie v. National Socialist Party of
`Am., 69 Ill.2d 605, 373 N.E.2d 21 (1978) ................ 28
`Virginia Bd. of Pharmacy v. Virginia Citizens
`Consumer Council, Inc., 425 U.S. 748 (1976) ......... 23
`Walker v. Texas Div., Sons of Confederate Veter-
`ans, Inc., 576 U.S. 200 (2015) .......... 12, 13, 15-17, 19,
` ......................................................... 25, 30, 31, 39, 40
`Ward v. Rock Against Racism, 491 U.S. 781
`(1989) ....................................................................... 24
`
`
`CONSTITUTIONAL PROVISIONS
`U.S. Const. amend. I .................. 2, 12, 20-26, 37, 39, 40
`U.S. Const. amend. XIV, § 1 .................................... 3, 40
`
`STATUTES AND RULES
`15 U.S.C. § 1052(a) ...................................................... 26
`28 U.S.C. § 1254(1) ........................................................ 2
`28 U.S.C. § 1291 .......................................................... 10
`28 U.S.C. § 1331 .......................................................... 10
`28 U.S.C. § 1367 .......................................................... 10
`28 U.S.C. § 1441 .......................................................... 10
`28 U.S.C. § 1446 .......................................................... 10
`42 U.S.C. § 1983 .................................................... 10, 39
`43 Tex. Admin. Code § 217.45(i)(2)(C) ........................ 14
`43 Tex. Admin. Code § 504.005(a) .............................. 15
`
`
`
`x
`
`TABLE OF AUTHORITIES – Continued
`
`Page
`Tex. Transp. Code Ann. § 504.801(a) .......................... 14
`Tex. Transp. Code Ann. § 504.801(b) .......................... 14
`Tex. Transp. Code Ann. § 504.801(c) .......................... 14
`N.C.G.S. § 1-253 .......................................................... 10
`N.C.G.S. § 20-63 ............................................................ 6
`N.C.G.S. § 20-63(b) ...................................................... 16
`N.C.G.S. § 20-63(b1) .................................................... 17
`N.C.G.S. § 20-79.3A ....................................................... 9
`N.C.G.S. § 20-79.4 ................................................. 18, 35
`N.C.G.S. § 20-79.4(a) .................................................... 3
`N.C.G.S. § 20-79.4(a1) .................................................. 3
`N.C.G.S. § 20-79.4(a3) ............................................ 7, 18
`N.C.G.S. § 20-79.4(b) .............................................. 3, 39
`N.C.G.S. § 20-79.4(b)(5) .................................. 35, 36, 37
`N.C.G.S. § 20-79.4(b)(1)-(43) ......................................... 7
`N.C.G.S. § 20-79.4(b)(44) ......... 3, 7, 8, 16, 17, 18, 35, 39
`N.C.G.S. § 20-79.4(b)(45)-(265) ..................................... 7
`N.C.G.S. § 20-79.4(b)(189) .................................... 7, 8, 9
`N.C.G.S. § 105-130.11(a)(5) ........................................ 18
`Fed. R. Civ. P. 12(b)(6) ........................................... 10, 39
`
`
`
`
`
`
`
`xi
`
`TABLE OF AUTHORITIES – Continued
`
`Page
`
`OTHER AUTHORITIES
`Shea Riggsbee Denning, Whose Call on Confed-
`erate Flag License Plates?, UNC SCH. OF GOV’T
`(July 29, 2015, 3:40 PM), https://www.sog.
`unc.edu/blogs/nc-criminal-law/whose-call-
`confederate-flag-license-plates ............................. 25
`
`
`
`1
`
`No. _________
`--------------------------------- ♦ ---------------------------------
`In The
`Supreme Court of the United States
`--------------------------------- ♦ ---------------------------------
`NORTH CAROLINA DIVISION OF SONS OF
`CONFEDERATE VETERANS, INC.,
`Petitioner,
`
`v.
`
`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,
`Respondents.
`--------------------------------- ♦ ---------------------------------
`On Petition For Writ Of Certiorari
`To The United States Court Of Appeals
`For The Fourth Circuit
`--------------------------------- ♦ ---------------------------------
`PETITION FOR A WRIT OF CERTIORARI
`--------------------------------- ♦ ---------------------------------
`The North Carolina Division of Sons of Confeder-
`
`ate Veterans, Inc., (“SCV-NCD”)1 Petitioner in this
`
`1 Where the abbreviation “SCV” is used herein, it will refer
`
`to the national organization. When the abbreviation “SCV-NCD”
`is used herein, it will refer to the Petitioner.
`
`
`
`2
`
`action, respectfully requests that a writ of certiorari
`be issued to review the judgment of the United States
`Court of Appeals for the Fourth Circuit entered in this
`case on December 22, 2022.
`--------------------------------- ♦ ---------------------------------
`
`OPINIONS BELOW
`
`The December 22, 2022, opinion of the United
`
`States Court of Appeals for the Fourth Circuit is unre-
`ported, and it is reprinted in the Appendix to this Peti-
`tion. App. 1
`
`The prior opinion of the United States District
`
`Court for the Middle District of North Carolina, en-
`tered March 1, 2022, is reported at 2022 WL 604173,
`and it is reprinted in the Appendix to this Petition.
`App. 5.
`
`--------------------------------- ♦ ---------------------------------
`
`STATEMENT OF JURISDICTION
`
`The judgment of the Court of Appeals was entered
`
`on December 22, 2022. The jurisdiction of this Court is
`invoked pursuant to 28 U.S.C. § 1254(1).
`--------------------------------- ♦ ---------------------------------
`
`CONSTITUTIONAL AND STATUTORY
`PROVISIONS INVOLVED
`
`This case involves the First Amendment to the
`
`Constitution of the United States, which provides as
`follows:
`
`
`
`3
`
`Congress shall make no law respecting an es-
`tablishment of religion or prohibiting the free
`exercise thereof; or abridging the freedom of
`speech, or of the press; or the right of the peo-
`ple peaceably to assemble, and to petition the
`Government for a redress of grievances.
`
`This case also involves § 1 of the Fourteenth
`
`Amendment to the Constitution of the United States,
`which provides as follows:
`
`All persons born or naturalized in the United
`States, and subject to the jurisdiction thereof,
`are citizens of the United States and of the
`State wherein they reside. No State shall
`make or enforce any law which shall abridge
`the privileges or immunities of citizens of the
`United States; nor shall any State deprive any
`person of life, liberty, or property, without due
`process of law; nor deny to any person within
`its jurisdiction the equal protection of the
`laws.
`
`The above United States Constitutional protec-
`
`tions are actionable as this case involves N.C.G.S.
`§ 20-79.4(a), (a1), (b), and (b)(44) which provides, in
`pertinent part, as follows:
`(a) General. – Upon application and pay-
`ment of the required registration fees, a per-
`son may obtain from the Division a special
`registration plate for a motor vehicle regis-
`tered in that person’s name if the person qual-
`ifies for the registration plate. . . .
`
`
`
`4
`
`(a1) Qualifying for a Special Plate. – In order
`to qualify for a special plate, an applicant
`shall meet all of the qualifications set out in
`this section. The Division of Motor Vehicles
`shall verify the qualifications of an individual
`to whom any special plate is issued to ensure
`only qualified applicants receive the re-
`quested special plates.
`
`******
`(b) Types. – The Division shall issue the fol-
`lowing types of special registration plates:
`
`******
`(44) Civic Club. – Issuable to a member of a
`nationally
`recognized
`civic organization
`whose member clubs in the State are exempt
`from State corporate
`income tax under
`N.C.G.S. 105-130.11(a)(5). Examples of these
`clubs include Jaycees, Kiwanis, Optimist,
`Rotary, Ruritan, and Shrine. The plate shall
`bear a word or phrase identifying the civic
`club and the emblem of the civic club. A per-
`son may obtain from the Division a special
`registration plate under this subdivision for
`the registered owner of a motor vehicle or a
`motorcycle. The registration fees and the re-
`strictions on the issuance of a specialized reg-
`istration plate for a motorcycle are the same
`as for any motor vehicle. The Division may not
`issue a civic club plate authorized by this sub-
`division unless it receives at least 300 appli-
`cations for that civic club plate.
`--------------------------------- ♦ ---------------------------------
`
`
`
`5
`
`STATEMENT OF THE CASE
`
`Petitioner is a non-profit organization which exists
`
`for the purpose of honoring and remembering the sac-
`rifices made by those who served in the armed forces
`of the Confederate States of America. The SCV pro-
`vides services to communities through historical
`preservation, education, and other civic activities. The
`membership is open to all male descendants of Confed-
`erate veterans who served honorably without regard to
`ethnicity, race, or religious creed.
`
`The SCV was not created out of hate and is non-
`
`political, so it does not endorse politicians or political
`parties. The SCV has consistently opposed the use of
`the Confederate Battle Flag by individuals and organ-
`izations pursuing political agendas or seeking to dis-
`criminate against individuals or groups.
`
`The organization raises money for the conserva-
`
`tion and preservation of historical artifacts; identifies,
`preserves, and marks the graves of Confederate veter-
`ans; preserves memorials to veterans and military
`units; supports museums; preserves battlefields
`threatened by development; and educates children and
`adults about the life of the everyday soldier. All of these
`activities ensure that the history of the period from
`1861 to 1865 is preserved.
`
`The status of Petitioner SCV-NCD as a nationally
`
`recognized civic organization is objectively docu-
`mented in the following particulars:
`
`
`
`6
`
`A. The SCV has a long history as a nationally
`recognized civic organization, dating back
`over 125 years serving the community.
`
`B. The SCV-NCD has tax-exempt status under
`Section 501(c)(3) of the Internal Revenue
`Code of 1986 as a civic league or organization
`from the Internal Revenue Service, as well as
`under the provisions of Chapter 105 of the
`North Carolina General Statutes from the
`North Carolina Department of Revenue.
`
`C. The SCV’s nationally recognized emblem has
`been issued a trademark (service mark) by the
`United States Patent and Trademark Office.
`
`D. Petitioner SCV-NCD is in full compliance with
`all statutes and regulations applicable to non-
`profit entities in the State of North Carolina.
`
`Under North Carolina’s relevant statutes concern-
`
`ing civic club specialty plates and North Carolina Div.
`of Sons of Confederate Veterans v. Faulkner, 131 N.C.
`App. 775, 509 S.E.2d 207 (1998), it is settled law that
`the NC-DMV2 has no discretion over the design of a
`civic club’s emblem. North Carolina (“NC”)3 motorists
`are required to display license plates while traveling
`on the state’s public roads. N.C.G.S. § 20-63 (2020).
`Specialty license plates are available for motorists who
`wish to display a particular interest from a selection of
`
`
`2 Where the abbreviation “NC-DMV” is used herein, it will
`
`refer to the North Carolina Department of Transportation, Divi-
`sion of Motor Vehicles.
`3 Where the abbreviation “NC” (or “N.C.”) is used herein, it
`
`will refer to the state of North Carolina.
`
`
`
`
`7
`
`designs set forth in the statute or one created by a qual-
`ifying civic organization. N.C.G.S. §§ 20-79.4(a3) and
`(b)(44) (2020).4
`
`The statute expressly authorizes specialty plates
`
`for civic clubs. N.C.G.S. § 20-79.4(b)(44) (2020). If a
`civic club wants a specialty plate for its group, it must
`gather at least 300 applications from members, pro-
`vide proof of non-profit status, and request the statu-
`tory issuance of specialty plates “bear[ing] a word or
`phrase identifying the civic club and the emblem of the
`civic club” that shall be printed in a “designated seg-
`ment of the plate” “set aside for unique design[s] rep-
`resenting various groups and interests.” N.C.G.S. § 20-
`79.4(a3). Under the state statute, any qualifying civic
`organization may have its own specialty plate. Unlike
`the Texas (TX)5 statute relied upon by the lower courts
`and the NC personalized plate statute,6 NC’s civic club
`statute7 vests no discretion to the NC-DMV over the
`
`
`4 American Civil Liberties Union of N.C. v. Tennyson, 815
`
`F.3d 183 (4th Cir. 2016), and its companion case, ACLU v. Tata,
`742 F.3d 563 (4th Cir. 2012) dealt with the selection of designs
`expressly created by statute. Neither case dealt with the civic-
`club statute, N.C.G.S. § 20-79.4(b)(44) (2020), which is divisible
`from N.C.G.S. §§ 20-79.4(b)(1)-(43) and (45)-(265).
`5 Where the abbreviation “TX” is used herein, it will refer to
`
`the state of Texas.
`6 See N.C.G.S. § 20-79.4(b)(189) (2020).
`
`7 See N.C.G.S. § 20-79.4(b)(1)-(43); id. § 20-79.4(b)(45)-(265)
`
`(2020) (publishing the list of license plate designs approved by the
`North Carolina General Assembly). Subsection (b)(44) is distin-
`guishable within the specialty plate framework and should be
`considered a “civic club law” under Faulkner.
`
`
`
`8
`
`design of a civic club’s emblem or their name, which
`comprise the creative expression of the license plate.
`
`However, the Respondents have attempted to con-
`
`fuse the matter by suggesting that discretion granted
`to the NC-DMV under the “personalized” plate section
`of N.C.G.S. § 20-79.4(b)(189), which is based upon
`whether the “owner” of a motor vehicle requesting a
`personalized plate has chosen a letter combination
`that “is offensive to good taste and decency[,]” some-
`how extends to the emblem and name of an eligible
`“civic club” under N.C.G.S. § 20-79.4(b)(44). Their argu-
`ment is patently false. The discretionary standard for
`such plates under N.C.G.S. § 20-79.4(b)(189) provides
`as follows:
`
`Personalized. – Issuable to the registered
`owner of a motor vehicle. The plate will bear
`the letters or letters and numbers requested by
`the owner. The Division may refuse to issue a
`plate with a letter combination that is offen-
`sive to good taste and decency. The Division
`may not issue a plate that duplicates another
`plate.
`
`(Emphasis added.)
`
`The surreptitious masking of the lack of discretion
`
`under N.C.G.S. § 20-79.4(b)(44) by citing another sub-
`part of the same statute is a way to bootstrap the gov-
`ernment speech doctrine into a field in which the N.C.
`General Assembly has knowingly created a public fo-
`rum. Even if a motorist chose a hybrid (personalized
`and civic club) specialty plate, the provisions of
`
`
`
`9
`
`N.C.G.S. § 20-79.4(b)(189) only grant the NC-DMV dis-
`cretion over the combination of the personalized letters
`as requested by the motorist, not the emblem or name
`of the civic club upon the plate. Id.
`
`At all times relevant to the allegations in this com-
`
`plaint, the SCV was a qualifying civic organization un-
`der the NC statute; thus its members were eligible to
`be issued specialty plates identifying themselves as
`members of the SCV pursuant to N.C.G.S. § 20-79.3A
`and the decision rendered in Faulkner. Such specialty
`plates bear the emblem of the SCV (its USPTO Service
`Mark), which contains a representation of the Confed-
`erate Battle Flag. Petitioner SCV’s registered emblem
`represents its membership and their shared ancestry.
`The Respondents’ demand that the SCV adopt a differ-
`ent emblem is not only governmental censorship of
`public speech, but it is government requiring the Peti-
`tioner and its members change their identity to partic-
`ipate in a public forum, when NC law does not support
`such demand.
`
`On January 11, 2021, Respondent NC-DMV issued
`
`a letter in which it stated that it would no longer issue
`or renew specialty license plates bearing the Confeder-
`ate Battle Flag, which is contained in the service
`marked emblem of the SCV. A copy of such letter was
`appended to the complaint as Exhibit C. No other civic
`organization has received such a letter in the history
`of the NC specialty plate program.
`
`
`
`
`
`
`10
`
`Thereafter, on March 8, 2021, Petitioner filed the
`
`instant action for a declaratory judgment pursuant to
`the provisions of N.C.G.S. § 1-253, for preliminary and
`permanent injunction, and for relief pursuant to the
`provisions of 42 U.S.C. § 1983 in the Superior Court of
`Lee County, N.C. On April 8, 2021, Respondents filed a
`Notice of Removal, and the proceeding was removed to
`the United States District Court for the Middle Dis-
`trict of North Carolina pursuant to the provisions of 28
`U.S.C. §§ 1331, 1367, 1441, and 1446.
`
`On March 1, 2022, the Honorable William L.
`
`Osteen, Jr., United States District Court Judge for the
`Middle District of North Carolina, issued a memoran-
`dum opinion granting Respondents’ motion to dismiss
`for failure to state a claim and dismissing Petitioner’s
`complaint.8 Petitioner gave notice of appeal to the
`United States Court of Appeals for the Fourth Circuit
`in a timely manner from such decision on March 11,
`2022. On April 8, 2022, the district court filed a formal
`judgment dismissing the proceeding.
`
`The Circuit Court of Appeals had jurisdiction over
`
`the appeal pursuant to 28 U.S.C. § 1291 because the
`March 1, 2022, opinion and the April 8, 2022, order of
`the district court constituted final orders dismissing
`the proceeding in its entirety and leaving no matters
`for future resolution.
`
`
`
`
`
`
`8 See Fed. R. Civ. P. 12(b)(6).
`
`
`
`
`
`11
`
`On December 22, 2022, a panel of the United
`
`States Court of Appeals for the Fourth Circuit deliv-
`ered its per curiam opinion in which the judgment of
`the district court dismissing Petitioner’s complaint
`was affirmed without discussion.
`--------------------------------- ♦ ---------------------------------
`
`REASONS FOR GRANTING THE WRIT
`INTRODUCTION
`The present case is not one in which Petitioners
`
`seek the court to grant its writ of certiorari for the pur-
`pose of advancing a novel theory of constitutional in-
`terpretation; nor is it one in which Petitioners advance
`arguments in support of repudiating established con-
`stitutional jurisprudence. Instead, Petitioners seek a
`writ of certiorari to request the court correct the errors
`of lower courts in ignoring the controlling NC statute
`and Faulkner as settled law, as well as distinguishing
`government speech from a public forum in which view-
`point discrimination is unconstitutional.
`--------------------------------- ♦ ---------------------------------
`
`
`
`
`
`
`12
`
`ARGUMENT
`1. The district court and Fourth Circuit
`Court of Appeals erred when applying
`the “Government Speech” doctrine to
`limit the speech of private citizens and
`organizations participating in a spe-
`cialty license plate program which orig-
`inated in a statute that did not vest the
`government agency with any discretion
`with regard to the eligibility of civic
`groups or the design of the civic group’s
`emblem.
`
`The First Amendment works as a shield to protect
`
`private persons from “encroachment[s] by the govern-
`ment” on their right to speak freely, Hurley v. Irish –
`Am. Gay, Lesbian & Bisexual Grp. of Bos., Inc., 515 U.S.
`557, 566 (1995). “[T]he Free Speech Clause of the First
`Amendment restricts government regulation of pri-
`vate speech; it does not regulate government speech.”
`Pleasant Grove City v. Summum, 555 U.S. 460, 467
`(2009). “[A] government entity has the right to speak
`for itself,” which consists generally in the ability “to
`say what it wishes” and “to select the views that it
`wants to express.” Id. at 467-68.
`
`“[I]n the realm of private speech or expression,
`
`government regulation may not favor one speaker over
`another.” Rosenberger v. Rector and Visitors of Univ. of
`Va., 515 U.S. 819, 828 (1995). Because characterizing
`speech as government speech “strips it of all First
`Amendment protection” under the Free Speech Clause,
`Walker v. Texas Div., Sons of Confederate Veterans, Inc.,
`
`
`
`13
`
`576 U.S. 200, 220 (2015) (Alito, J., dissenting), a court
`should tread lightly in applying the government
`speech label to action undertaken by the Government.
`
`The analysis of the district court, as affirmed with-
`
`out discussion by the Fourth Circuit, in interpreting
`Walker to bring this case within the government
`speech doctrine must fail because the judge did not
`consider the factors enunciated in Walker as matters
`to weigh. Rather, the district court interpreted Walker
`as an inflexible bright-line rule. Government speech is
`not involved in this case; instead, this is a matter
`which requires application and understanding of the
`specific state statute involved. Petitioner SCV-NCD
`contends that the NC statute is substantially different
`from the TX statute considered in Walker and that
`such differences make a compelling argument that
`Walker’s application shoul
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