i
`
`APPENDIX TABLE OF CONTENTS
`
`Page
`
`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
`
`
`
`APPENDIX TABLE OF CONTENTS
`
`Page
`
`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
`
`
`
`App. 1
`
`UNPUBLISHED
`UNITED STATES COURT OF APPEALS
`FOR THE FOURTH CIRCUIT
`-----------------------------------------------------------------------
`No. 22-1282
`-----------------------------------------------------------------------
`
`NORTH CAROLINA DIVISION OF SONS OF CON-
`FEDERATE VETERANS, INC.,
`
`
`
`
`
` Plaintiff - Appellant,
`
`
`
` v.
`NORTH CAROLINA DEPARTMENT OF TRANS-
`PORTATION; J. ERIC BOYETTE, in his official capac-
`ity as Secretary of Transportation of the State of North
`Carolina; NORTH CAROLINA DIVISION OF MOTOR
`VEHICLES; WAYNE GOODWIN, in his official capac-
`ity as Commissioner of Motor Vehicles of the State of
`North Carolina,
`
`
`
`
`
` Defendants - Appellees.
`-----------------------------------------------------------------------
`Appeal from the United States District Court for the
`Middle District of North Carolina, at Greensboro. Wil-
`liam L. Osteen, Jr., District Judge. (1:21-cv-00296-WO-
`LPA)
`
`-----------------------------------------------------------------------
`Submitted: December 20, 2022 Decided: December 22, 2022
`-----------------------------------------------------------------------
`Before NIEMEYER and QUATTLEBAUM, Circuit
`Judges, and FLOYD, Senior Circuit Judge.
`
`
`
`App. 2
`
`-----------------------------------------------------------------------
`Affirmed by unpublished per curiam opinion.
`-----------------------------------------------------------------------
`ON BRIEF: James B. Wilson, Jr., JAMES BARRETT
`WILSON & ASSOCIATES, Winston Salem, North
`Carolina, for Appellant. Joshua H. Stein, Attorney
`General, Sarah G. Boyce, Deputy Solicitor General,
`Kathryne E. Hathcock, Special Deputy Attorney Gen-
`eral, NORTH CAROLINA DEPARTMENT OF JUS-
`TICE, Raleigh, North Carolina, for Appellees.
`
`-----------------------------------------------------------------------
`Unpublished opinions are not binding precedent in
`this circuit.
`
`PER CURIAM:
`
`North Carolina Division of Sons of Confederate
`
`Veterans, Inc. (“NCSCV”), appeals the district court’s
`order dismissing its 42 U.S.C. § 1983 complaint for fail-
`ure to state a claim upon which relief may be granted
`under Fed. R. Civ. P. 12(b)(6). NCSCV filed the com-
`plaint in state court, alleging that Defendants’ rejec-
`tion of NCSCV’s specialty license plate design violated
`its rights to free speech, due process, and equal protec-
`tion. The design included the NCSCV’s insignia, which
`features a Confederate battle flag. Defendants re-
`moved the action to federal court and moved to dismiss
`the complaint. The district court granted Defendants’
`motion. On appeal, NCSCV reasserts its claims that
`Defendants’ rejection of NCSCV’s specialty license
`plate design violated its rights under the First and
`
`
`
`App. 3
`
`Fourteenth Amendments. NCSCV also argues that
`North Carolina’s specialty license plate program ex-
`presses a state public policy that does not provide De-
`fendants discretion to regulate license plate designs.
`We affirm.
`
` We review de novo the grant of a motion to dismiss
`for failure to state a claim. Rockville Cars, LLC v. City
`of Rockville, 891 F.3d 141, 145 (4th Cir. 2018). “In con-
`ducting such a review, we accept the complaint’s fac-
`tual allegations as true and draw all reasonable
`inferences in favor of the plaintiff.” Dawson-Murdock
`v. Nat’l Counseling Grp., Inc., 931 F.3d 269, 274-75 (4th
`Cir. 2019) (cleaned up). We have thoroughly reviewed
`the briefs, joint appendix, and the entire record and
`find no reversible error. Accordingly, we affirm the dis-
`trict court’s judgment. N.C. Div. of Sons of Confederate
`Veterans, Inc. v. N.C. Dep’t of Transp., No. 1:21-cv-
`00296-WO-LPA (M.D.N.C. Apr. 8, 2022). We dispense
`with oral argument because the facts and legal conten-
`tions are adequately presented in the materials before
`this court and argument would not aid the decisional
`process.
`
`AFFIRMED
`
`
`
`
`
`
`
`
`App. 4
`
`FILED: December 22, 2022
`UNITED STATES COURT OF APPEALS
`FOR THE FOURTH CIRCUIT
`-----------------------------------------------------------------------
`No. 22-1282
`(1:21-cv-00296-WO-LPA)
`-----------------------------------------------------------------------
`
`NORTH CAROLINA DIVISION OF SONS OF
`CONFEDERATE VETERANS, INC.
`
`
`
` Plaintiff - Appellant
`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; WAYNE
`GOODWIN, in his official capacity as Commissioner
`of Motor Vehicles of the State of North Carolina
`
`
`
` Defendants - Appellees
`-----------------------------------------------------------------------
`JUDGMENT
`-----------------------------------------------------------------------
`In accordance with the decision of this court, the
`
`judgment of the district court is affirmed.
`
`This judgment shall take effect upon issuance of this
`
`court’s mandate in accordance with Fed. R. App. P. 41.
`/s/ PATRICIA S. CONNOR, CLERK
`
`
`
`
`
`
`
`App. 5
`
`IN THE UNITED STATES DISTRICT COURT FOR
`THE MIDDLE DISTRICT OF NORTH CAROLINA
`
`
`NORTH CAROLINA DIVISION
`OF SONS OF CONFEDERATE
`VETERANS, INC.,
`Plaintiff,
`
` v.
`NORTH CAROLINA DEPART-
`MENT 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.
`
`
`1:21CV296
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`MEMORANDUM OPINION AND ORDER
`(Filed Mar. 1, 2022)
`OSTEEN, JR., District Judge
`
`Presently before the court is a Motion to Dismiss
`in Lieu of an Answer filed by Defendants North Caro-
`lina Department of Transportation, North Carolina
`Division of Motor Vehicles, J. Eric Boyette (in his offi-
`cial capacity as Secretary of the North Carolina De-
`partment of Transportation), and Torre Jessup, (in his
`
`
`
`App. 6
`
`official capacity as Commissioner of North Carolina
`Division of Motor Vehicles) (together, “Defendants”).
`(Doc. 8.)1 The North Carolina Division of Sons of Con-
`federate Veterans, Inc. (“Plaintiff ”) responded in oppo-
`sition. (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 Plain-
`tiff ’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 com-
`plaint.” King v. Rubenstein, 825 F.3d 206, 212 (4th Cir.
`2016). The facts, taken in the light most favorable to
`Plaintiff, are as follows.
`
`Plaintiff is a nonprofit corporation organized un-
`
`der North Carolina law and is affiliated with the Sons
`of Confederate Veterans, Inc. (“SCV”). (Compl. (Doc.
`5)1.) Plaintiff ’s insignia “is a representation of the
`Confederate Battle Flag flanked on the left, top, and
`right sides by the words ‘SONS OF 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.
`
`
`
`
`App. 7
`
`1896,’ ” (id. ¶ 21), the year in which SCV was founded,
`(id. 19).2
`
`North Carolina’s Department of Transportation
`
`(“NCDOT”), through the Division of Motor Vehicles
`(“DMV”), issues specialty license plates3 that “set
`aside” a “designated segment of the plate” to feature
`the emblems of nationally recognized civic organiza-
`tions. (Id. ¶¶ 24-25 (quoting N.C. Gen. Stat. § 20-
`79.4(a3), (b)(44)).) As part of this program, Plaintiff ’s
`members “have held and renewed special commemora-
`tive license plates identifying them as members of the
`SCV” via the featuring of the organization’s insignia
`on their North Carolina license plates. (Id. ¶ 26.) But,
`beginning in July 2020, the DMV started withholding
`“the shipment of the specialty plates to SCV members.”
`(Id. ¶ 29.) In response, Plaintiff and its members
`“made numerous and varied efforts to engage with De-
`fendants regarding this matter, via telephone calls,
`emails, and visits to DMV offices.” (Id.) Eventually, the
`plates were released in December 2020. (Id.)
`
`However, effective January 1, 2021, Defendants
`
`decided to “no longer issue or renew specialty license
`
`
`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, “re-
`
`main the property of the State[.]” N.C. Gen. Stat. § 20-63(a).
`
`
`
`App. 8
`
`plates bearing the Confederate battle flag or any vari-
`ation 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 gov-
`ernment speech[,]” and “license plates bearing the
`Confederate battle flag have the potential to offend
`those who view them.” (Id. at 15.) The letter also notes
`that the DMV “will continue to recognize [Plaintiff ] as
`a civic organization entitled to the issuance of a spe-
`cialty plate[,]” and accordingly the “DMV remains open
`to considering alternative artwork” for Plaintiff ’s spe-
`cialty plate 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 injunc-
`tion claim, (3) a declaratory judgment claim, and (4) an
`attorney fees claim. (Id. ¶¶ 35-59.) On April 8, 2021,
`Defendants filed a petition with this court to 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,
`
`
`
`App. 9
`
`(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.) Addition-
`ally, pursuant to an order of this court, (Doc. 16), Plain-
`tiff filed a supplemental memorandum, (Doc. 17).
`
`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 opposi-
`tion, (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.
`
`
`III. ANALYSIS
`
`This court will grant Defendants’ motion to dis-
`miss and 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 pro-
`
`ceedings 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 dis-
`play of flags other than those of the United States,
`
`
`
`App. 10
`
`Massachusetts, and Boston. Shurtleff v. City of Bos.,
`986 F.3d 78, 82–85 (1st Cir. 2021). The plaintiffs
`claimed their First Amendment rights had been vio-
`lated 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 re-
`strictions.” Id. at 85, 94. In its decision, the First Cir-
`cuit applied a three-factor analysis that the Supreme
`Court has used to determine whether speech consti-
`tutes government speech. Id. at 86–94. One of the
`cases in which the Supreme Court has articulated that
`analysis is Walker v. Texas Division, Sons of Confeder-
`ate Veterans, Inc., a 2015 license plate case with strik-
`ingly 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 Con-
`federate Veterans’ request for a specialty license plate
`featuring the organization’s insignia).
`
`After losing at the First Circuit, the Shurtleff
`
`plaintiffs’ writ of certiorari was accepted by the Su-
`preme Court. 142 S. Ct. 55 (2021). The Court heard
`arguments on January 18, 2022. Docket Sheet,
`Shurtleff v. City of Bos., (No. 20-1158), https://www.
`supremecourt.gov/search.aspx?filename=/docket/docket
`files/html/public/20-1800.html. A decision can be ex-
`pected sometime before the Court ends its current
`term in late June 2022.
`
`
`
`App. 11
`
`Plaintiff argues that this court’s proceedings
`
`should be stayed until the Supreme Court decides
`Shurtleff because that case “implicates the govern-
`ment speech and public forum doctrines of First
`Amendment jurisprudence, both of which are involved
`in the case now before this court on Defendants’ motion
`to dismiss.” (Pl.’s Stay Br. (Doc. 19) at 4.) Therefore,
`Plaintiff “contends that the interests of justice and ju-
`dicial economy will be served by entering an order
`staying all proceedings in this matter pending a deci-
`sion by the Supreme Court.” (Id.)
`
`Defendants disagree. (Defs.’ Stay Br. (Doc. 21) at
`
`1.) They argue that judicial economy will not be served
`by waiting for the Court’s Shurtleff opinion because
`that decision is highly unlikely to impact the instant
`case. (Id.) Defendants claim that this is because “the
`Shurtleff petitioners have not asked the Court to mod-
`ify the test for identifying government speech. Instead,
`the Shurtleff petitioners have simply asked the Su-
`preme Court to apply the now-settled Walker test in a
`new factual context.” (Id. at 3.) Defendants thus con-
`clude that “while 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 dispo-
`sition of the causes on its docket with economy of time
`and effort for itself, for counsel, and for litigants.”
`
`
`
`App. 12
`
`Landis v. N. Am. Co., 299 U.S. 248, 254 (1936). “The
`grant or denial of a request to stay proceedings calls
`for an exercise of the district court’s judgment ‘to bal-
`ance the various factors relevant to the expeditious
`and comprehensive disposition of the causes of action
`on the court’s docket.’ ” Maryland v. Universal Elec-
`tions, 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 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 “[1]
`the interests of judicial economy, [2] the hardship and
`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, 141 F. Supp. 3d 428, 452
`(M.D.N.C. 2015). The moving party must establish
`that the first and second factors constitute “clear and
`convincing circumstances outweighing” the third fac-
`tor. Williford v. Armstrong World Indus., Inc., 715 F.2d
`124, 127 (4th Cir. 1983).
`
`Here, the first two factors – judicial economy and
`
`hardship to the moving party – fail to establish that
`clear and convincing circumstances warrant a stay.
`Accordingly, Plaintiff has failed to discharge its burden
`to show that those factors outweigh the third factor,
`prejudice to the non-moving party.4 In Rucho, a
`
`4 However, this court notes that Defendants have failed to
`
`articulate any concrete prejudice they will face if this case is
`
`
`
`
`App. 13
`
`political gerrymandering case, a three-judge panel de-
`nied a motion to stay proceedings. 2017 WL 3981300,
`at *8. The motion had requested that the case be placed
`in abeyance until the Supreme Court decided Gill v.
`Whitford, another political gerrymandering case. Id. at
`*2–3. The Rucho panel reasoned that because the Su-
`preme Court case differed significantly from the case
`before it, waiting for Whitford to be decided could prove
`futile since there was “a distinct possibility” it would
`provide “no additional guidance as to how to resolve
`Plaintiffs’ claims.” Id. at *6. Thus, the Rucho panel
`held, inter alia, that “[i]n light of the numerous . . . fac-
`tual differences between Whitford and the instant
`case, staying these proceedings will, at most, mini-
`mally advance the interests of judicial economy and
`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. Shurtleff involves flags. That distinction
`is meaningful because the Shurtleff petitioners have
`not fundamentally challenged the three-factor govern-
`ment speech analysis’ framework, see Br. for Pet’rs,
`No. 20-1158 (2021) (arguing that the First Circuit
`
`
`stayed. Instead, Defendants broadly assert that they and “the cit-
`izenry 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 Defendants have not shown in
`any tangible way that they will be prejudiced by a stay.
`
`
`
`App. 14
`
`applied the three factors too rigidly), which Walker al-
`ready 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 pos-
`sibility” that the thrust of the opinion will simply apply
`the doctrine to a novel factual context and conse-
`quently provide “no additional guidance as to how to
`resolve Plaintiff[’s] claims.” Rucho, 2017 WL 3981300,
`at *6. If 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, “[i]t makes little sense
`‘to delay consideration of this case . . . waiting for a
`decision that may not ultimately affect it.’ ” Id. (quot-
`ing 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 Plaintiff has failed to establish that judicial
`economy and the hardship it will suffer in the absence
`of a stay (factors one and two) constitute clear and con-
`vincing circumstances justifying staying this court’s
`proceedings.
`
`
`
`B. Motion to Dismiss
`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, ac-
`cepted as true, to ‘state a claim to relief that is plausi-
`ble on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678
`
`
`
`App. 15
`
`(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
`570 (2007)). A claim is plausible on its face “when the
`plaintiff pleads factual content that allows the court to
`draw the reasonable inference that the defendant is
`liable for the misconduct alleged” and demonstrates
`“more than a sheer possibility that a defendant has
`acted unlawfully.” Id. When ruling on a motion to dis-
`miss, this court accepts the complaint’s factual allega-
`tions as true. Id. Further, this court liberally construes
`“the complaint, including all reasonable inferences
`therefrom . . . in the plaintiff ’s favor.” Est. of Williams-
`Moore v. All. One Receivables Mgmt., Inc., 335
`F. Supp. 2d 636, 646 (M.D.N.C. 2004). This court does
`not, however, accept legal conclusions as true, and
`“[t]hreadbare recitals of the elements of a cause of
`action, supported by mere conclusory statements, do
`not suffice.” Iqbal, 556 U.S. at 678.
`
`Plaintiff asserts a 42 U.S.C. § 1983 claim on
`
`grounds that “its rights under the First, Fifth, and
`Fourteenth Amendments to the United States Consti-
`tution have been abridged and denied 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 claim on
`any of these constitutional grounds. Thus, this court
`will dismiss the claim as well as Plaintiff ’s related
`claims for injunctive relief, declaratory judgment, and
`attorney fees. (Id. ¶¶ 35–59).
`
`
`
`
`
`
`App. 16
`
`1. Free Speech Allegations
`Plaintiff claims its First Amendment free speech
`
`rights have been violated because “Defendants seek to
`bar Plaintiff H and its members from expressing their
`viewpoint while allowing other groups to express their
`viewpoint without restriction[.]” (Id. ¶ 37.) Defendants
`urge dismissal of this claim “because specialty license
`plates issued by North Carolina are government
`speech, and [thus] the State’s denial of a specialty li-
`cense plate bearing the confederate battle flag is not
`subject to First Amendment scrutiny.” (Defs.’ Br. (Doc.
`9) at 6.) Defendants insist the conclusion that North
`Carolina specialty license plates are government
`speech is required by binding and controlling case law
`– namely Walker, 576 U.S. 200, and ACLU v. 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’ re-
`jection 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 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 entirely outside the purview of the Free Speech
`Clause. Id. Thus, Texas “was consequently entitled to
`refuse to issue plates featuring SCV’s” logo without
`
`
`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).
`
`
`
`App. 17
`
`fear of infringing any private entity or individual’s free
`speech rights. Id. at 219–20. In its analysis, the Court
`applied three factors to Texas’ specialty license plates
`to determine whether they were government speech:
`(1) the history of using license plates to communicate
`messages to the public; (2) the extent in which license
`plate designs are identified in the public mind with
`government; and (3) the degree of control the state
`maintains over the message on specialty plates. Id. at
`210–13 (citing Pleasant Grove City v. Summum, 555
`U.S. 460, 472 (2009)). All three factors indicated the
`specialty plates were government speech. Id.
`
`In Tennyson, the Fourth Circuit applied Walker to
`
`North Carolina’s specialty license program, which it
`described as “substantively indistinguishable” from
`Texas’ specialty license plate program. 815 F.3d at 185.
`The Fourth Circuit held that “specialty license plates
`issued under North Carolina’s program amount to gov-
`ernment speech and that North Carolina is therefore
`free to reject license plate designs that convey mes-
`sages with which it disagrees.” Id. (citing Walker, 576
`U.S. at 207).
`
`Plaintiff strives to distinguish Walker and Tenny-
`
`son from the instant case. Plaintiff insists that Walker
`“does not control the outcome of [the] present case be-
`cause of significant factual and legal distinctions.”
`(Pl.’s Br. (Doc. 10) at 10.) Plaintiff argues that unlike
`North Carolina’s specialty license plate program, the
`statutes underpinning Texas’ program are “permeated
`with discretion.” (Id. at 11.) Plaintiff stresses that
`those statutes allow Texas to “refuse to create a new
`
`
`
`App. 18
`
`specialty license plate for a number of reasons, for ex-
`ample if the design might be offensive to any member
`of the public.” (Id. (internal quotation marks omitted)
`(quoting Tex. Transp. Code Ann. § 504.801(c)).) In con-
`trast, Plaintiff maintains that the statutes governing
`North Carolina’s program do not confer the State any
`discretion to deny a qualifying civic organization its re-
`quested plate design, so long as that design does “not
`obstruct the license plate number or render it unread-
`able.” (Id.)
`
`Plaintiff similarly tries to distinguish Tennyson,
`
`arguing that because the plate at issue was not a civic
`club plate – it was a “pro-choice” plate unaffiliated with
`any particular organization – the case has “nothing to
`do with the precise facts and statutory language in-
`volved in the case at bar[.]” (Id.) Moreover, Plaintiff ar-
`gues that Tennyson’s holding did not account for the
`North Carolina Court of Appeal’s “language [in] Faulk-
`ner that whether the Confederate Battle Flag should
`be displayed on state-issued license plates is a ques-
`tion of public policy reserved to the [State’s] General
`Assembly.” (Id. at 12 (referencing N.C. Div. of Sons of
`Confederate Veterans v. Faulkner, 131 N.C. App. 775,
`509 S.E.2d 207 (1998), which held that Plaintiff quali-
`fies as a civic club for purposes of North Carolina’s spe-
`cialty license plate statute).)
`
`This court is unpersuaded by Plaintiff ’s attempts
`
`to distinguish Walker and Tennyson from the instant
`case. As to Tennyson, the Fourth Circuit’s language in
`its holding was categorical and not contingent on the
`type of specialty plate at issue. 815 F.3d at 185. The
`
`
`
`App. 19
`
`Fourth Circuit stated, “we now conclude that specialty
`license plates issued under North Carolina’s program
`amount to government speech and that North 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 ex-
`empt it from Tennyson’s plain and unequivocal hold-
`ing.
`
`Furthermore, Plaintiff ’s reliance on Faulkner to
`
`undermine Tennyson is misplaced. Faulkner decided a
`narrow question of state law: whether Plaintiff quali-
`fies 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.l. Such speculation by the
`North Carolina Court of Appeals in 1998 was deci-
`sively rejected by the Supreme Court in its 2015
`Walker decision. Therefore, Faulkner in no way under-
`cuts Tennyson which relied on Walker. Accordingly,
`Tennyson’s holding that North Carolina’s specialty
`
`
`
`App. 20
`
`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), 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 mes-
`sages conveyed on its specialty plates. Texas
`law provides that the State has sole control
`over the design, typeface, color, and alphanu-
`meric 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 ac-
`tively 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 author-
`ity over their selection. This final approval au-
`thority allows Texas to choose how to present
`itself and its constituency.
`
`Id. (cleaned up). While this language discusses the par-
`ticulars of the discretion granted to Texas authorities
`in approving specialty plates, a court in this circuit has
`held that “[t]here is no merit to [the] [p]laintiff ’s con-
`tention that Walker is limited solely to one of Texas’s
`
`
`
`App. 21
`
`methods of selecting specialty plate designs. The Su-
`preme 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 Vir-
`
`ginia’s specialty license plate program. Id. The plain-
`tiffs, 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 individual.” Id. at
`*4. The court disagreed, finding that Virginia did “ex-
`ercise 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 pro-
`posed designs of sponsoring groups in no way under-
`mines the Commonwealth’s authority to design the
`plates and, thus, speak by adopting the speech of an-
`other.” Id.
`
`Likewise, North Carolina, via its Division of Motor
`
`Vehicles, exercises direct control over the design of spe-
`cialty license plates. The applicable statutes provide
`
`
`
`App. 22
`
`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). L
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