Case 1:11-cv-01049-SS Document 44 Filed 04/12/13 Page 1 of 47
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`AUSTIN DIVISION
`
`TEXAS DIVISION, SONS OF CONFEDERATE
`VETERANS, INC.; GRANVEL J. BLOCK; and
`RAY W. JAMES,
`
`Plaintiffs,
`
`-vs-
`
`Case No. A-11-CA-1049-SS
`
`VICTOR VANDERGRIFF in his official capacity
`as Chairman of the Texas Department of Motor
`Vehicles Board; CLIFFORD BUTLER in his
`official capacity as a member of the Board;
`RAYMOND PALACIOS, JR. in his official
`capacity as a member of the Board; BLAKE
`INGRAM in his official capacity as a member of
`the Board; CHERYL JOHNSON in her official
`capacity as a member of the Board; LAURA
`RYAN in her official capacity as a member of the
`Board; MARVIN RUSH in his official capacity as
`a member of the Board; and JOHN WALKER, III,
`in his official capacity as a member of the Board,
`Defendants.
`__________________________________________
`
`O R D E R
`
`BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and
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`specifically Plaintiffs Texas Division, Sons of Confederate Veterans, Inc, et al. (SCV)’s Motion for
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`Summary Judgment [#35], Defendants Victor T. Vandergriff et al. (DMVB)’s Response [#38]
`1
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`thereto; the DMVB’s Motion for Summary Judgment [#37], the SCV’s Response [#39] thereto, and
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`The Court will refer to the Defendant board members of the Board of the Texas Department of Motor Vehicles
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`collectively as the “DMVB” in this opinion.
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`

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`Case 1:11-cv-01049-SS Document 44 Filed 04/12/13 Page 2 of 47
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`the DMVB’s Reply [#43]. Having considered the documents, the file as a whole, and the governing
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`law, the Court now enters the following opinion and orders.
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`Background
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`The issue before the Court is this: does the First Amendment require a state government to
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`place the Confederate battle flag on customized, special license plates at the request of a nonprofit
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`organization which has otherwise complied with state rules governing issuance of such plates? The
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`Plaintiffs are the Texas Division of the Sons of Confederate Veterans, Inc., an organization dedicated
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`to preserving the memory of those Americans who fought for the Confederacy during the Civil War,
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`as well as the present and former “Commanders” of the Texas Division of the SCV. The SCV’s
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`membership is limited to male descendants of Confederate veterans. The Defendants are the board
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`members of the Texas Department of Motor Vehicles Board, and are sued in their official capacities.
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`Among its many duties, the DMVB is tasked with final approval of proposed “specialty license
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`plates.” The SCV claims its First Amendment rights have been violated by the DMVB’s refusal to
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`issue a proposed Sons of Confederate Veterans specialty license plate. The SCV’s seal prominently
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`incorporates the Confederate battle flag, which is the flag Confederate troops fought under during
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`most of the Civil War, and which is also the flag most closely associated with the Confederacy in
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`popular memory. The SCV seeks to compel the DMVB to approve its specialty license plate,
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`featuring the name and seal of the Sons of Confederate Veterans organization. Apparently, the SCV
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`has successfully had similar plates issued by the states of Alabama, Georgia, Louisiana, Maryland,
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`As its name suggests, however, the battle flag was not the national flag of the Confederacy, but rather was
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`adopted for field use because—when viewed at a distance, and through the smoke of battle—the first national flag of
`the Confederacy could not be readily distinguished from the American flag borne by Union troops. This accounts for
`the (immaterial) dispute before the DMVB (discussed below) as to whether the battle flag was ever “flown over” the state
`of Texas as a sovereign flag. It does bear noting the second and third Confederate national flags both prominently
`incorporated the battle flag in their cantons. Pls.’ Mot. Summ. J. [#35] at 3.
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`Case 1:11-cv-01049-SS Document 44 Filed 04/12/13 Page 3 of 47
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`Mississippi, North Carolina, South Carolina, Tennessee, and Virginia. Pls.’ Am. Compl. [#10]
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`¶ 4.18. The Court will now describe in turn (1) the various ways in which the state of Texas issues
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`specialty license plates, (2) the Confederate battle flag and its significance, and (3) the SCV’s
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`applications to obtain a specialty plate, the denial of which underlie this case.
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`I.
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`The Specialty Plate Programs
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`Texas has three avenues by which individuals or organizations may apply for the creation of
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`a new specialty plate. The first way is through direct legislative action, by which the Texas
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`legislature authorizes specific plates. These plates are codified in Chapter 504, subchapter G of the
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`Transportation Code. TEX. TRANSP. CODE §§ 504.601, .602–662; e.g., id. § 504.662(a) (“The
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`department shall issue specially designed license plates that include the words ‘Choose Life.’ The
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`department shall design the license plates in consultation with the attorney general.”). Taking the
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`latter as an example, $22 from the sale and renewal of each “Choose Life” plate goes to a fund
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`administered by the Texas Attorney General, to support nonprofit organizations which provide free
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`“counseling and material assistance to pregnant women who are considering placing their children
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`for adoption,” and which do not provide abortion-related services. Id. § 504.662(b); TEX. GOV’T
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`CODE § 402.036(g). Most of the other statutory plates relate to less controversial subjects, and
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`apparently the Texas Department of Transportation, which previously reviewed proposed specialty
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`plates, repeatedly rejected “Choose Life” designs as being too controversial, under prior regulations.
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`Regardless of their origin, once a plate is approved, drivers pay an extra fee in addition to the regular vehicle
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`registration fee to obtain the desired specialty plate. 43 TEX. ADMIN. CODE § 217.28(b)(2). The proceeds from the fee
`are divided in various ways depending on how the plate was created, but typically funds benefit both the entity which
`proposed the plate, and a state agency with similar goals. For example, proceeds from the SCV’s proposed plate would
`have benefitted both the SCV itself, and its sponsoring state agency, the General Land Office, for the purpose of
`preserving historical monuments and records.
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`Case 1:11-cv-01049-SS Document 44 Filed 04/12/13 Page 4 of 47
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`Pls.’ Mot. Summ. J. [#35-8], Ex. F, at 6. Like the DMVB-approved plates discussed below,
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`statutory plates are available to the public through the DMVB’s website.
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`The second route, at issue here, is through an agency approval process, originally overseen
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`by the Texas Department of Transportation, but then assigned to the Department of Motor Vehicles
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`Board. TEX. TRANSP. CODE § 504.702. Throughout this opinion, the Court will typically mean this
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`program, supervised by the DMVB, when referencing the “specialty plate program.” This route is
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`limited to nonprofit organizations. Id. § 504.801(b). If the nonprofit group’s plate is approved, a
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`share of the proceeds from sales of the plate is given to the nonprofit. Although the statute states,
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`“[t]he department shall design each new specialty license plate in consultation with the sponsor, if
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`any,” id. § 504.801(c), by rule and practice nonprofit groups, such as the SCV, propose the design,
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`while the DMVB’s input appears to be limited to (1) technical reformatting of a design to enable it
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`meet visibility, distinctiveness, and reflectivity requirements, and (2) rejecting applications which
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`otherwise do not conform to the various statutory and rule requirements for a specialty plate. Entities
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`seeking approval of a plate by the DMVB may affiliate with a state agency as a sponsor, in which
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`case a share of the proceeds (less administrative costs of $8) from sales of the plate ($22 per plate)
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`goes to the state agency, which in turn passes on a portion to the nonprofit entity. Id. § 504.801(e).
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`Otherwise, all proceeds go to the state highway fund. Id. Nonprofit organizations proposing a
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`Confusingly, the statute refers to plate applicants as sponsors, while certain DMVB publications refer to the
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`affiliated state agency supporting the plate as the sponsor. The Court will generally use “sponsor” to refer to any
`affiliated state agency, and “applicant” to refer to the nonprofit entity seeking issuance of a specialty plate.
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`Because the SCV seeks to compel issuance of its proposed plate, which would therefore result in additional
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`revenue for the state, the Court previously rejected DMVB’s argument this suit is barred by the Tax Injunction Act.
`Order of Mar. 7, 2012 [#27] at 6.
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`Case 1:11-cv-01049-SS Document 44 Filed 04/12/13 Page 5 of 47
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`specialty plate must pay an $8,000 deposit to cover the administrative costs for the first 1000 plates
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`sold, which is reimbursed if plate sales and renewals exceed 1000.
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`Both statutes and regulations govern the DMVB’s review of proposed plates. “The
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`department may refuse to create a new specialty license plate if the design might be offensive to any
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`member of the public, if the nominated state agency does not consent to receipt of the funds derived
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`from issuance of the license plate, if the uses identified for those funds might violate a statute or
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`constitutional provision, or for any other reason established by rule.” Id. § 504.801(c) (emphasis
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`added). Pursuant to the foregoing, the DMVB has promulgated rules which incorporate section
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`504.801, and which also direct the DMVB to consider the following:
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`(B) the proposed license plate design, including:
`(i) whether the design appears to meet the legibility and reflectivity standards
`established by the department;
`(ii) whether the design meets the standards established by the department for
`uniqueness;
`(iii) other information provided during the application process;
`. . .
`(v) whether a design is similar enough to an existing plate design that it may
`compete with the existing plate sales; and
`(C) the applicant’s ability to comply with Transportation Code[] §504.702 relating
`to the required deposit or application that must be provided before the manufacture
`of a new specialty license plate.
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`43 TEX. ADMIN. CODE § 217.28(i)(5)(B)–(C).
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`In addition, the prior version of the DMVB rules, in effect when the SCV plate was rejected,
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`also included factors under which a plate could be considered offensive under Transportation Code
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`section 504.801(c). As relevant here, one factor was whether the plate was “derogatory,” defined
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`as an “an expression of hate directed toward people or groups that is demeaning to people or groups,
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`Case 1:11-cv-01049-SS Document 44 Filed 04/12/13 Page 6 of 47
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`or associated with an organization that advocates such expressions.” Former 43 TEX. ADMIN. CODE
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`§ 217.28(c)(3); Pl.’s Mot. for Summ. J. [#35-12], Ex. J, at 1.
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`Once an application is complete, the DMVB makes the proposed design available for public
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`comment on its website. 43 TEX. ADMIN. CODE § 217.28(i)(6). No sooner than twenty-five days
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`thereafter, the proposed plate is considered as an agenda item at a DMVB meeting. Id. The DMVB,
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`at an open meeting, then determines whether to approve or reject the proposed design. Id.
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`§ 217.28(i)(7)(A). Even if a design is approved, the DMVB “has final approval authority of all
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`specialty license plate designs and may adjust or reconfigure the submitted draft design to comply
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`with the format or license plate specifications.” Id. § 217.28(i)(8)(B). When a design is rejected,
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`the DMVB will consider an amended design, in a new application, if “the design has been altered
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`to an acceptable degree.” Id. § 217.28(i)(7)(B)(ii).
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`Third, the state has also authorized a private vendor, MyPlates.com, to accept new plate
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`applications, and to sell specialty plates to the public, through its own website. Unlike the DMVB’s
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`program, this avenue is open to everyone, including for-profit entities. The DMVB nevertheless
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`must approve designs submitted through MyPlates.com. TEX. TRANSP. CODE § 504.6011(a); 43 TEX.
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`ADMIN. CODE § 217.40. The majority of the designs offered by MyPlates.com either offer a different
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`color and style from the standard Texas plate, or bear the logo and name of assorted colleges,
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`universities, and professional sports teams. However, a number of plates displaying the names and
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`As such, the motorist—or jurist—who wishes to review the full range of available plates must peruse two
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`different websites.
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`Including, in a rather odd juxtaposition (but one which is no doubt popular among persons who, not having
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`been fortunate enough to be born (or to attend school) in Texas, nevertheless got here as soon as possible), many designs
`for colleges and teams which are located outside the state of Texas. For example, persons who had the good fortune of
`attending the University of Kansas can purchase a Texas plate which features a certain blue and red bird, and the legend,
`“JAYHAWKS.” MYPLATES.COM, http://www.myplates.com/ (last visited Apr. 9, 2013). The parties have not suggested
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`Case 1:11-cv-01049-SS Document 44 Filed 04/12/13 Page 7 of 47
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`logos of nonprofit and for-profit entities are also available, including such stalwart enterprises as
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`Mighty Fine burgers, Freeb!rds burritos, and RE/MAX (“GET IT SOLD WITH RE/MAX”). Pl.’s
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`Mot. Summ. J. [#35-13], Ex. K, at 1; see also MYPLATES.COM, http://www.myplates.com/ (last
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`visited Apr. 9, 2013). Notably, one nonprofit plate, available through MyPlates, is the “Calvary Hill”
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`plate, sales of which “benefit at-risk Texas children.” Design Series, MYPLATES.COM,
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`http://www.myplates.com/DesignSeries/PLPD236 (last visited Apr. 9, 2013). The design of the
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`Calvary Hill plate features the legend “ONE STATE UNDER GOD,” and, with obvious Christian
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`symbolism, a silhouette of three crosses on a small rise. Id.; Pl.’s Mot. Summ. J. [#35-13], Ex. K,
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`at 1.
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`II.
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`The Confederate Battle Flag
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`The Confederate battle flag is a symbol which conveys different meanings to different
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`audiences. See A.M. ex rel. McAllum v. Cash, 585 F.3d 214, 222 & n.5 (5th Cir. 2009) (“As an
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`initial matter, plaintiffs agree that some view the Confederate flag in certain circumstances as a
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`symbol of racism and intolerance, regardless of whatever other meanings may be associated with
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`it. . . . This concession comports with other courts’ views of the meanings associated with the
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`Confederate flag.”). To some—including, but by no means limited to, the SCV and its
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`members—the flag is a symbol of pride, heritage, and sacrifice in a noble struggle to preserve states’
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`rights, and an agrarian way of life. However, to others it is a symbol of an unconstitutional rebellion,
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`aimed at keeping African-Americans in a state of slavery by destroying the Union, with the “states’
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`right” at issue being the right to own slaves. Unfortunately, it is also used by some modern racists
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`and white supremacists as a symbol of hatred directed towards African-Americans, some of whom
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`the Jayhawks plate is an endorsement of the historical Jayhawkers, however.
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`Case 1:11-cv-01049-SS Document 44 Filed 04/12/13 Page 8 of 47
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`in turn ascribe to it a racist meaning. See, e.g., Scott v. Sch. Bd. of Alachua Cnty., 324 F.3d 1246,
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`1249 (11th Cir. 2003) (noting the battle flag has multiple “emotionally charged” meanings, and is
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`viewed by some as a symbol of white supremacy and racism, while others view it as a positive
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`symbol of heritage).
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`It is the sincerely held view of many Americans, of all races, that the
`confederate flag is a symbol of racial separation and oppression. And, unfortunately,
`as uncomfortable as it is to admit, there are still those today who affirm allegiance
`to the confederate flag precisely because, for them, the flag is identified with racial
`separation. Because there are citizens who not only continue to hold separatist views,
`but who revere the confederate flag precisely for its symbolism of those views, it is
`not an irrational inference that one who displays the confederate flag may harbor
`racial bias against African–Americans.
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`United States v. Blanding, 250 F.3d 858, 861 (4th Cir. 2001) (per curiam).
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`The Eleventh Circuit has noted white supremacists began to adopt the battle flag during the
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`civil rights movement, as a symbol of opposition to efforts by the federal government to bring about
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`desegregation. Coleman v. Miller, 117 F.3d 527, 528 (11th Cir. 1997).
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`As many of Georgia’s politicians and citizens openly resisted the Supreme
`Court’s desegregation rulings, increasing numbers of white Southerners began
`expressing renewed interest in their Confederate heritage. It was in this environment
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`As the Eleventh Circuit noted:
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`This debate, which is being played out in state legislatures, newspaper editorial columns and
`classrooms across the South is exemplified in the expert witness disclosures offered by the two sides
`in this case. The plaintiffs’ experts plan to testify that “the Confederate battle flag is not a symbol of
`racism, but rather a historical symbol embodying the philosophical and political principals of a
`decentralized form of government in which states and local government retain all powers not expressly
`ceded to the centralized federal government under the constitution” and that thus the flag is merely “a
`symbol of southern heritage.” The defendant’s expert plans to testify that “from its inception, the
`confederacy was a political movement dedicated to the preservation of the institution of slavery.
`Therefore from its inception, the confederacy and its symbols represented approval of white
`supremacy” and that “the confederate flag is a symbol that has acquired numerous racist associations
`to the point that the flag itself has understandably come to be perceived as a racist symbol.”
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`The problem, of course, is that both of them are correct.
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`Scott v. Sch. Bd. of Alachua Cnty., 324 F.3d 1246, 1248–49 (11th Cir. 2003) (citations omitted).
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`Case 1:11-cv-01049-SS Document 44 Filed 04/12/13 Page 9 of 47
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`of open hostility to the Supreme Court’s civil rights rulings and of developing
`interest in Confederate history that the Georgia General Assembly acted to redesign
`its state flag. It chose as an official state symbol an emblem that historically had been
`associated with white supremacy and resistance to federal authority.
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`Id. At issue in Coleman was an Equal Protection and First Amendment challenge to the Georgia
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`state flag, adopted in 1956, which included the battle flag, along with the state seal. Indeed, although
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`several legislators did testify to the contrary, one member of legislature asserted the Georgia General
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`Assembly had deliberately incorporated the battle flag into the state flag “as a symbol of resistance
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`to integration.” Id. at 528. “James Mackay, who was a member of the General Assembly in 1956,
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`testified that ‘there was a movement across the South: “Let’s adopt the Confederate battle flag as a
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`symbol of resistance to the law of this land.”’” Id. at 529 n.4. The Eleventh Circuit ultimately
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`rejected the challenge, finding a lack of evidence of any disproportionate impact along racial lines
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`or of any government compulsion to endorse the state flag. Id. at 530–31. However, the court was
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`not shy about noting the following regarding the meaning of the Confederate battle flag:
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`We recognize that the Georgia flag conveys mixed meanings; to some it
`honors those who fought in the Civil War and to others it flies as a symbol of
`oppression. But because the Confederate battle flag emblem offends many
`Georgians, it has, in our view, no place in the official state flag. We regret that the
`Georgia legislature has chosen, and continues to display, as an official state symbol
`a battle flag emblem that divides rather than unifies the citizens of Georgia.
` 10
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`Notably, “while addressing the States’ Rights Council of Georgia at the beginning of the 1956 legislative
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`session, Governor Griffin announced that ‘the rest of the nation is looking to Georgia for the lead in segregation.’”
`Coleman, 117 F.3d at 528. In addition, while it was considering the flag bill, the General Assembly passed the
`Interposition Resolution, declaring the Supreme Court’s rulings in Brown v. Board of Education to be null and void.
`Id.
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`Although legal efforts to remove the battle flag failed, the Georgia Assembly appears to have ultimately
`10
`agreed, and adopted a new flag in 2001, which relegated the battle flag to a tiny lineup of former state flags along the
`bottom edge of the 2001 flag. Yet another flag was adopted by referendum in 2003, which abandoned the battle flag
`altogether, albeit in favor of a design apparently inspired by the first Confederate national flag. Edwin L. Jackson, State
`F l a g s o f G e o r g i a , N E W G E O R G I A E N C Y C L O P E D I A
`( M a r . 3 , 2 0 0 9 ) ,
`http://www.newgeorgiaencyclopedia.org/nge/Article.jsp?id=h-2671&hl=y.
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`Case 1:11-cv-01049-SS Document 44 Filed 04/12/13 Page 10 of 47
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`Id. at 530.
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`The SCV’s predecessor, the United Confederate Veterans, whose members were actual
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`veterans of the Civil War, used the battle flag as its symbol. Since at least 1924, the SCV has in turn
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`used a logo which includes the battle flag, surrounded by four tabs containing the words “Sons of
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`Confederate Veterans 1896.” Pl.’s Mot. Summ. J. [#35-5], Ex. C, at 4. There is no dispute the battle
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`flag logo is the only logo used by the SCV, although local divisions sometimes add additional
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`elements to it. In an apparent reaction to negative associations with the battle flag, the Sons of
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`Confederate Veterans nationally adopted a resolution on September 3, 2010, unequivocally
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`condemning “misuse of the Confederate Battle Flag by any extremist group or individual espousing
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`political extremism and/or racial superiority,” and denouncing “the use of the Confederate Battle
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`Flag and any other Confederate symbol by any hate group and/or the Ku Klux Klan as the
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`desecration of a symbol to which any hate group and/or the Ku Klux Klan has no claim.” Defs.’
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`Mot. Summ. J. [#37-4], Ex. 7, at 195.
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`III.
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`Sons of Confederate Veterans’ Plate Applications
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`The SCV applied to the Texas Department of Transportation (TxDOT)—which was then in
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`charge of specialty plate approval—for a plate on August 18, 2009. Pls.’s Mot. Summ. J. [#35-4],
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`Ex. B, at 1. Texas Land Commissioner Jerry Patterson, on behalf of the Texas General Land Office,
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`sponsored the application. Id. The proposed plate featured the SCV logo, and the legend “SONS
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`OF CONFEDERATE VETERANS” at the bottom. Id. [#35-10], Ex. H., at 1. The Sons of
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`Confederate Veterans specialty plates issued by other states include similar or identical versions of
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`the logo, and several likewise repeat the name of the organization at the top or bottom of the plate.
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`Case 1:11-cv-01049-SS Document 44 Filed 04/12/13 Page 11 of 47
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`Id. [#35-3], Ex. A, at 1–5. There is no dispute the SCV’s plate complied with the various technical
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`requirements, and there is no dispute the SCV stands ready then and now to pay the $8,000 deposit.
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`TxDOT, after acknowledging receipt of the application, proceeded to put the plate to an
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`anonymous vote by its seven-member special committee for reviewing proposed plates, via an
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`internal website. Id. [#35-2], Ex. 1, at 3. On December 21, 2009, TxDOT sent SCV a letter denying
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`the plate. Via an open-records request, the SCV subsequently obtained internal TxDOT emails
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`regarding the plate, which revealed at one point the voting stood 3–2 in favor of the SCV plate, but
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`with two members failing to vote, despite repeated pleas to do so by TxDOT officials. Although
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`TxDOT officials debated whether the plate had been approved by the three votes, the plate was not
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`moved to the public comment period required under the prior TxDOT regulations, but was instead
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`held for a second vote, at which time the vote was 4–1 against the plate, two TxDOT committee
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`members apparently being still too busy to click an online voting button.
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`Subsequently, review of specialty plate applications was transferred to the newly created,
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`nine-member DMVB. On October 27, 2010, the SCV sent a renewed application to the DMVB,
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`accompanied with a cover letter decrying apparent bias by TxDOT officials. Although the SCV
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`characterizes this action as an “appeal,” there is no statutory or regulatory basis for treating it as an
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`appeal. In any event, the DMVB, proceeding under the regulations described above, treated it as a
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`new application, and opened the plate for public comment. The DMVB apparently approved the
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`plate as to visibility and technical requirements on March 18, 2011. Id. Final review of the plate
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`was placed on the agenda for an April 14, 2011 DMVB meeting. At the April meeting, one board
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`member was absent, and the remaining eight members deadlocked 4–4 in two votes. DMVB
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`ChairmanVandergriff apparently sought to reschedule the agenda item for a meeting with all
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`Case 1:11-cv-01049-SS Document 44 Filed 04/12/13 Page 12 of 47
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`boardmembers in attendance, however various personal difficulties frustrated this, and the SCV plate
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`was ultimately taken up on November 10, 2011, again by only eight DMVB members.
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`This meeting was apparently well-attended by members of the public, and elicited numerous
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`public comments, some in favor, but most opposed to the plate (which the Court will describe in
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`more detail below). In the months leading up to the November hearing, the DMVB’s website also
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`recorded several hundred public comments, the balance of which were against the plate. Defs.’ Mot.
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`Summ. J. [#37-2], Ex. 4, at 1. Further, the DMVB received several letters urging rejection of the
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`plate, including from nineteen state representatives, and the mayor of Houston. Id. [#37-3], Ex. 5.
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`Also before the DMVB on November 10, with remarkable timing, was another plate
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`sponsored by Commissioner Patterson, the Buffalo Soldiers plate. This plate was sought by the
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`Buffalo Soldiers National Museum. The Museum honors all African-American soldiers throughout
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`American history, albeit with a focus on the “Buffalo Soldiers,” a term referring to those who joined
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`the federal army after the Civil War, and served in the nineteenth-century frontier wars with Native
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`Americans. The Buffalo Soldiers plate features a combined image, incorporating both the Buffalo
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`Soldiers Museum logo (which in turn contains an image of a buffalo, and the words “Buffalo
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`Soldiers National Museum, Houston, Texas”) and another logo, comprised of a crossed rifle and
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`sabre, with the words “Buffalo Soldiers” in large, cursive script superimposed. As noted below,
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`some of the comments regarding the SCV plate also referenced the proposed Buffalo Soldiers plate,
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`and the DMVB voted on both in close succession.
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`After receiving many public comments, the DMVB rejected the SCV plate by unanimous
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`vote.
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` This decision was memorialized in a resolution, which made the following findings:
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`11
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`The Buffalo Soldiers plate was approved 5–3, and is now available for purchase by Texas motorists.
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`Case 1:11-cv-01049-SS Document 44 Filed 04/12/13 Page 13 of 47
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`Transportation Code, §504.80l(c) authorizes the Board to refuse to create a
`new specialty license plate if the design might be offensive to any member of the
`public or for any other reason established by rule. The provision of Title 43, Texas
`Administrative Code, §217.28(c)(3) lists factors under which a license plate may be
`considered objectionable or misleading. The objectionable factors include, but are
`not limited to whether the plate is found to be derogatory. “Derogatory” is defined
`as an expression of hate directed toward people or groups that is demeaning to people
`or groups, or associated with an organization that advocates such expressions.
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`The Board has considered the information and finds it necessary to deny this
`plate design application, specifically the confederate flag portion of the design,
`because public comments have shown that many members of the general public find
`the design offensive, and because such comments are reasonable. The Board finds
`that a significant portion of the public associate the confederate flag with
`organizations advocating expressions of hate directed toward people or groups that
`is demeaning to those people or groups.
`
`Pls.’ Mot. Summ. J. [#35-12], Ex. J., at 1 (emphasis added). The DMVB resolution also included
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`an alternative reason for denying the SCV plate:
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`The Board also finds there is a compelling public interest in protecting a
`conspicuous mechanism for identification, such as a license plate, from degrading
`into a possible public safety issue. The department shares a common public mission
`with several state agencies to protect public safety. The extent of the controversy
`surrounding this plate may challenge public safety since the design could distract or
`disturb some drivers to the point of being unreasonably dangerous.
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`Id. at 1–2.
`
`The SCV then filed suit in this Court, asserting its First Amendment rights were violated by
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`the DMVB. Presently, both sides have moved for summary judgment.
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`Discussion
`
`I.
`
`A.
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`Legal Standards
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`Summary Judgment
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`Summary judgment shall be rendered when the pleadings, the discovery and disclosure
`
`materials on file, and any affidavits show that there is no genuine dispute as to any material fact and
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`

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`Case 1:11-cv-01049-SS Document 44 Filed 04/12/13 Page 14 of 47
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`that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a); Celotex
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`Corp. v. Catrett, 477 U.S. 317, 323–25 (1986); Washburn v. Harvey, 504 F.3d 505, 508 (5th Cir.
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`2007). A dispute regarding a material fact is “genuine” if the evidence is such that a reasonable jury
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`could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S.
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`242, 248 (1986). When ruling on a motion for summary judgment, the court is required to view all
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`inferences drawn from the factual record in the light most favorable to the nonmoving party.
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`Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); Washburn, 504 F.3d at 508.
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`Further, a court “may not make credibility determinations or weigh the evidence” in ruling on a
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`motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150
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`(2000); Anderson, 477 U.S. at 254–55.
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`Once the moving party has made an initial showing that there is no evidence to support the
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`nonmoving party’s case, the party opposing the motion must come forward with competent summary
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`judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere
`
`conclusory allegations are not competent summary judgment evidence, and thus are insufficient to
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`defeat a motion for summary judgment. Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343
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`(5th Cir. 2007). Unsubstantiated assertions, improbable inferences, and unsupported speculation are
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`not competent summary judgment evidence. Id. The party opposing summary judgment is required
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`to identify specific evidence in the record and to articulate the precise manner in which that evidence
`
`supports his claim. Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 164 (5th Cir. 2006).
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`Rule 56 does not impose a duty on the court to “sift through the record in search of evidence” to
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`support the nonmovant’s opposition to the motion for summary judgment. Id. “Only disputes over
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`facts that might affect the outcome of the suit under the governing laws will properly preclude the
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`

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`Case 1:11-cv-01049-SS Document 44 Filed 04/12/13 Page 15 of 47
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`entry of summary judgment.” Anderson, 477 U.S. at 248. Disputed fact issues that are “irrelevant
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`and unnecessary” will not be considered by a court in ruling on a summary judgment motion. Id.
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`If the nonmoving party fails to make a showing sufficient to establish the existence of an element
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`essential to its case and on which it will bear the burden of proof at trial, summary judgment must
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`be granted. Celotex, 477 U.S. at 322–23.
`
`B.
`
`First Amendment Forum Analysis
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`The Supreme Court distinguishes between three or four types of forum for First Amendment
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`purposes. The first is the traditional public forum, such as “streets and parks which ‘have
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`immemorially been held in trust for the use of the public, and, time out of mind, have been used for
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`purposes of assembly, communicating thoughts between citizens, and discussing public questions.’”
`
`Perry Educ