Case: 13-50411 Document: 00512697267 Page: 1 Date Filed: 07/14/2014
`
`IN THE UNITED STATES COURT OF APPEALS
`FOR THE FIFTH CIRCUIT
`
`United States Court of Appeals
`Fifth Circuit
`
`FILED
`July 14, 2014
`
`Lyle W. Cayce
`Clerk
`
`
`
`
`
`No. 13-50411
`
`TEXAS DIVISION, SONS OF CONFEDERATE VETERANS,
`INCORPORATED, a Texas Corporation; GRANVEL J. BLOCK, Individually;
`RAY W. JAMES, Individually,
`
`
`
`Plaintiffs–Appellants
`
`v.
`
`
`
`
`
`
`VICTOR T. VANDERGRIFF, In His Official Capacity as Chairman of the
`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; LAURA RYAN, In Her Official Capacity as a Member of the
`Board; VICTOR RODRIGUEZ, In His Official Capacity as a Member of the
`Board; MARVIN RUSH, in his official capacity as a Member of the Board;
`JOHN WALKER, III, In His Official Capacity as a Member of the Board;
`BLAKE INGRAM, In His Official Capacity as a Member of the Board,
`
`
`Defendants–Appellees
`
`
`
`Appeals from the United States District Court
`for the Western District of Texas
`
`Before SMITH, PRADO, and ELROD, Circuit Judges.
`EDWARD C. PRADO, Circuit Judge:
`The Texas Division of the Sons of Confederate Veterans and two of its
`officers (collectively “Texas SCV”) appeal the district court’s grant of summary
`judgment in favor of Victor T. Vandergriff, Chairman of the Texas Department
`of Motor Vehicles Board, and seven other board members (collectively “the
`Board”). Texas SCV argues that the Board violated its First Amendment right
`
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`No. 13-50411
`to free speech when the Board denied Texas SCV’s application for a specialty
`license plate featuring the Confederate battle flag. The district court rejected
`Texas SCV’s arguments and found that the Board had made a reasonable,
`content-based regulation of private speech. We disagree, and because the
`Board engaged in impermissible viewpoint discrimination, we reverse.
`I. BACKGROUND
`The State of Texas requires that all registered motor vehicles display a
`
`license plate. Tex. Transp. Code Ann. § 504.943; 43 Tex. Admin. Code § 217.22.
`Texas offers a standard-issue license plate, but, for an additional fee, drivers
`may display a specialty license plate on their vehicles. See Tex. Transp. Code
`Ann. § 504.008. Under Texas law, there are three different ways to create a
`specialty license plate. First, the legislature can create and specifically
`authorize a specialty license plate. See id. § 504.601–504.663. Second, any
`individual or organization can create a specialty plate through a third-party
`vendor. Id. § 504.6011(a). The Texas Department of Motor Vehicles Board
`must approve any plates created through the private vendor. 43 Tex. Admin.
`Code § 217.40.
`
`The third and final means of creating a specialty license plate is at issue
`in this case. The Texas Department of Motor Vehicles Board can issue a new
`specialty plate, either on its own or in response to an application from a
`nonprofit organization. Tex. Transp. Code Ann. § 504.801(a). When a
`nonprofit organization proposes a plate, the Board must approve the plate’s
`design and “may refuse to create a new specialty license plate if the design
`might be offensive to any member of the public.” Id. § 504.801(c). The proceeds
`from the sale of these specialty license plates go to either the Texas
`Department of Motor Vehicles or to a state agency of the nonprofit
`organization’s choosing. Id. § 504.801(b), (e).
`
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`No. 13-50411
`Texas SCV, a nonprofit organization that works to preserve the memory
`
`and reputation of soldiers who fought for the Confederacy during the Civil War,
`applied for a specialty license plate through this third process. Texas SCV’s
`proposed plate features the SCV logo, which is a Confederate battle flag framed
`on all four sides by the words “Sons of Confederate Veterans 1896.” A faint
`Confederate flag also appears in the background of the proposed plate. The
`word “Texas” is at the top of the plate in bold text, and “Sons of Confederate
`Veterans” runs in capitalized letters along the bottom of the plate. An outline
`of the state of Texas appears in the top, right corner of the proposed plate.
`Texas SCV submitted its application in August 2009 to the Texas
`Department of Transportation, which was the agency responsible for
`administering the specialty license plate program at the time. The
`Department of Transportation put Texas SCV’s proposed plate to a vote of its
`seven-member panel. During the first vote, three members voted to approve
`the plate, and two members voted against; two members failed to vote despite
`repeated efforts to encourage them to cast their vote. Instead of moving the
`plate to the public comment period, the Department of Transportation chose to
`hold another vote. During this second vote, one member voted to approve the
`plate, four voted against, and two members again failed to vote. The
`Department of Transportation then denied Texas SCV’s application.
`The Texas Department of Motor Vehicles subsequently assumed
`responsibility for administering the specialty license plate program, and Texas
`SCV renewed its application for a specialty license plate with the Board. The
`Board invited public comment on Texas SCV’s proposed plate on its website
`and set a date for final review of the plate. Eight of the nine members of the
`Board were present for the final review meeting, and their vote was
`deadlocked, four in favor and four against the plate. The Board rescheduled
`the vote, in the hope that all Board members would be able to be present for
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`No. 13-50411
`the vote. Many members of the public attended the Board meeting where the
`second vote was scheduled to occur. Texas SCV’s proposed plate elicited
`numerous public comments; while some were in favor, the majority were
`against approving the plate. At its second vote, the Board unanimously voted
`against issuing Texas SCV’s specialty plate. The Board’s resolution explaining
`its decision stated:
`The Board . . . finds it necessary to deny [Texas SCV’s] 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.
`Texas SCV sued in federal district court under 42 U.S.C. § 1983,
`asserting violations of its rights under the First and Fourteenth Amendments.
`Both parties moved for summary judgment, and the district court granted the
`Board’s motion. First, the district court found that the specialty license plates
`were private, not government, speech. The court then analyzed Texas SCV’s
`claims under the First Amendment and found that (1) the specialty license
`plate program was a nonpublic forum; (2) the Board’s rejection of Texas SCV’s
`plate “was a content-based restriction on speech, rather than a viewpoint-
`based limitation”; and (3) the content-based regulation was reasonable. Thus,
`the district court concluded that the Board had not violated Texas SCV’s rights
`under the First Amendment and entered judgment for the Board.1 Texas SCV
`timely appealed.
`
`
`
`
`
`
`1 The district court did not reach Texas SCV’s claim that the Board had violated its
`rights under the Fourteenth Amendment, and Texas SCV does not raise its Fourteenth
`Amendment argument on appeal.
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`No. 13-50411
`II. JURISDICTION
`Neither party has argued that this Court lacks jurisdiction, but federal
`courts have a duty to consider their subject matter jurisdiction sua sponte. See
`Gonzalez v. Thaler, 132 S. Ct. 641, 648 (2012). In Henderson v. Stalder, 407
`F.3d 351 (5th Cir. 2005), we were asked to decide whether Louisiana’s specialty
`license plate program discriminated against pro-choice views in violation of the
`First Amendment. Id. at 352. Instead of reaching the merits, we held that
`the Tax Injunction Act (“TIA”), 28 U.S.C. § 1341, barred the suit, and we
`vacated and remanded with instructions for the district court to dismiss the
`case for lack of jurisdiction. Id. at 360. Because this case involves a seemingly
`similar fact pattern, we first consider whether the TIA bars the instant case.
`Under the TIA, “[t]he district courts shall not enjoin, suspend or restrain
`the assessment, levy or collection of any tax under State law where a plain,
`speedy and efficient remedy may be had in the courts of such State.” 28 U.S.C.
`§ 1341. But, the TIA will not deprive federal courts of jurisdiction when “(a) the
`‘fees’ charged by the state are not taxes for purposes of TIA, or if (b) Hibbs v.
`Winn, 542 U.S. 88 . . . (2004) can be read to encompass this suit.” Henderson,
`407 F.3d at 354. Hibbs opens the doors to federal court where the TIA might
`otherwise bar the suit if “(1) a third party (not the taxpayer) files suit, and (2)
`the suit’s success will enrich, not deplete, the government entity’s coffers.” Id.
`at 359 (citing Hibbs, 542 U.S. at 105–09).
`
`We hold that the TIA does not bar this suit because this case falls under
`the Hibbs exception.2 The first part of Hibbs is met because Texas SCV is a
`
`
`2 In Henderson, this Court concluded that the charges Louisiana citizens paid for the
`state’s “Choose Life” specialty license plate were taxes, not fees. 405 F.3d at 356–59.
`Although there are differences between how the specialty license plate in Henderson and the
`specialty license plate here were created, we do not decide whether the charges for the
`specialty license plate here are taxes or fees. Because we hold that the Hibbs exception to
`the TIA applies, we have no reason to consider whether the first exception to the TIA applies.
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`No. 13-50411
`third party. See Hibbs, 542 U.S. at 108 (“[The TIA] has been read to restrain
`state taxpayers from instituting federal actions to contest their liability for
`state taxes, but not to stop third parties from pursuing constitutional
`challenges to tax benefits in a federal forum.”). The second part of Hibbs is
`also met because, if Texas SCV succeeds in having its specialty license plate
`issued, it will actually enrich the state. See Tex. Transp. Code § 504.801(e)
`(explaining that the fees collected for specialty license plates reimburse the
`Board for administrative costs and also go to the credit of the state’s specialty
`license plate fund or the Texas Department of Motor Vehicles fund).
`Because the TIA does not bar this suit, the district court had jurisdiction
`pursuant to 28 U.S.C. § 1331. We have jurisdiction over this appeal of a final
`decision of a district court under 28 U.S.C. § 1291.
`III. STANDARD OF REVIEW
`We review the district court’s grant of summary judgment de novo.
`
`Elizondo v. Green, 671 F.3d 506, 509 (5th Cir. 2012). We apply the same
`standard as the district court, and summary judgment is appropriate when
`“the movant shows that there is no genuine dispute as to any material fact and
`the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a);
`see also Elizondo, 671 F.3d at 509.
`IV. DISCUSSION
`This case presents two primary issues on appeal. First, we must
`
`determine whether the speech on specialty license plates is government speech
`or private speech. If we conclude that the speech is private speech, we must
`then ask whether the Board’s decision to reject Texas SCV’s specialty license
`plate was a permissible content-based regulation or impermissible viewpoint
`discrimination. We address each issue in turn.
`
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`No. 13-50411
`A. Government Speech or Private Speech
`As a threshold matter, we must decide if the speech at issue is
`government speech. “A government entity has the right to speak for itself.
`. . . [I]t is entitled to say what it wishes, and to select the views that it wants
`to express.” See Pleasant Grove City, Utah v. Summum, 555 U.S. 467, 467–68
`(2009) (alteration in original) (citations and internal quotation marks omitted).
`“The Free Speech Clause restricts government regulation of private speech; it
`does not regulate government speech.” Id. at 467. Thus, if we conclude that
`the speech in this case is government speech, the analysis ends because there
`has been no First Amendment violation—in fact, the First Amendment would
`not even apply. See id. (“If [Pleasant Grove City and its local officials] were
`engaging in their own expressive conduct, then the Free Speech Clause has no
`application.”). If, however, we determine that the speech in question is private
`speech, we must then apply traditional First Amendment principles and
`analyze whether the Board violated Texas SCV’s right to free speech.
`
`The parties disagree over the standard we should apply to determine
`whether Texas SCV’s proposed plate is government speech. Texas SCV
`maintains that Justice Souter’s concurrence in Summum sets out the best test
`for determining government speech: whether a reasonable and fully informed
`observer would understand the expression to be government speech. See id. at
`487 (Souter, J., concurring). Texas SCV argues that any reasonable observer
`would view a specialty license plate as the speech of the individual driving the
`car. The Board also relies on the Supreme Court’s opinion in Summum, but
`argues that speech is government speech when it is under the govenrment’s
`“effective control.” Because the specialty license plates are state-approved and
`the state owns the design, the Board urges this is government, not private,
`speech.
`
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`The government speech doctrine is “recently minted,” see id. at 481
`(Stevens, J., concurring), and neither the Supreme Court nor this Court has
`articulated a test to identify government speech. To determine whether the
`specialty license plates are government or private speech, we look to the two
`opinions where the Supreme Court has most clearly formulated the
`government speech doctrine, Johanns v. Livestock Marketing Ass’n, 544 U.S.
`550 (2005), and Summum. As we explain, when we compare this case to
`Johanns and Summum and consider the Supreme Court’s method of deciding
`those two cases, we conclude that the speech here is private speech.
`In Johanns, the Supreme Court held that a promotional campaign to
`encourage beef consumption that the government “effectively controlled” was
`government speech. Id. at 560. The government did not pay for the campaign
`itself; instead, it funded the campaign by charging an assessment on all sales
`and importation of cattle and on imported beef products. Id. at 554. The
`government, though, had “set out the overarching message and some of its
`elements” and had “final approval authority over every word used in every
`promotional campaign.” Id. at 561. Thus, because the message in the
`promotional campaign was “from beginning to end the message established by
`the Federal Government,” the campaign was government speech. Id. at 560.
`
`Summum, however, shows that “the Supreme Court did not espouse a
`myopic ‘control test’ in Johanns.” ACLU of N.C. v. Tata, 742 F.3d 563, 570 (4th
`Cir. 2014). In Summum, the Supreme Court held that Pleasant Grove City,
`Utah (“the City”) had not violated the First Amendment free speech rights of
`Summum, a religious organization, when the City refused to erect a permanent
`monument that Summum had tried to donate and place in a public park. The
`Court held there was no First Amendment violation because “the City’s
`decision to accept certain privately donated monuments while rejecting
`[Summum’s] is best viewed as a form of government speech.” Summum, 555
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`U.S. at 481. The Supreme Court noted that the City “‘effectively controlled’
`the messages sent by the monuments in the Park by exercising ‘final approval
`authority’ over their selection.” See Summum, 555 U.S. at 473 (quoting
`Johanns, 544 U.S. at 560–61)). But, the Court did not base its holding on City’s
`control over the permanent monuments. Instead, its conclusion focused on the
`nature of both permanent monuments and public parks. The Court explained
`that governments have historically used monuments, such as statues,
`triumphal arches, and columns, “to speak to the public.” Id. at 470. These
`“[p]ermanent monuments displayed on public property typically represent
`government speech.” Id. The Court also recognized that public parks are a
`traditional public forum. See, e.g., id. at 469 (“With the concept of the
`traditional public forum as a starting point . . . .”). “Public parks are often
`closely identified in the public mind with the government unit that owns the
`land.” Id. at 472. Thus, given the context, there was “little chance that
`observers [would] fail to appreciate” that the government was the speaker. Id.
`at 471.
`Considering the emphasis on context and the public’s perception of the
`speaker’s identity in Summum, we think the proper inquiry here is “whether
`a reasonable and fully informed observer would understand the expression to
`be government speech, as distinct from private speech the government chooses
`to oblige.” Id. at 487 (Souter, J., concurring); see also Roach v. Stouffer, 560
`F.3d 860, 867 (8th Cir. 2009) (“Our analysis boils down to one key question:
`whether, under all the circumstances, a reasonable and fully informed observer
`would consider the speaker to be the government or a private party.”); Choose
`Life Ill., Inc. v. White, 547 F.3d 853, 863 (7th Cir. 2008) (identifying
`government speech by asking “[u]nder all the circumstances, would a
`reasonable person consider the speaker to be the government or a private
`party”).
`
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`No. 13-50411
`Here, the differences between permanent monuments in public parks
`and specialty license plates on the back of personal vehicles convince us that a
`reasonable observer would understand that the specialty license plates are
`private speech. Unlike their treatment of permanent monuments, states have
`not traditionally used license plates to convey a particular message to the
`public. Rather, license plates have primarily been a means of identifying
`vehicles. See Wooley v. Maynard, 430 U.S. 705, 716 (1977) (explaining that one
`of the reasons the state had asserted an interest in including its motto on state
`license plates was to “facilitate[] the identification of passenger vehicles”); Tex.
`Transp. Code Ann. §§ 504.001–504.948 (effecting a vehicle registration
`scheme); see also id. § 504.005 (mandating that each license plate have a
`“unique identifier”). License plates also do not have the permanent character
`of monuments in public parks. See Summum, 555 U.S. at 464, 480 (contrasting
`permanent monuments with “temporary displays” and “transitory expressive
`acts”). An individual may choose a new specialty license plate every year
`simply by paying a fee, see Tex. Transp. Code Ann. § 504.008, and an individual
`registers for a new license plate any time he or she moves to a new state.
`Further, while public parks have traditionally been “closely identified in
`the public mind with the government” and have “play[ed] an important role in
`defining the identity [of] a city,” the same cannot be said for license plates and
`the backs of cars. See Summum, 555 U.S. at 472. In Wooley, the Supreme
`Court held that New Hampshire could not force its citizens (the plaintiffs were
`Jehovah’s Witnesses) to bear the “Live Free or Die” motto on standard issue
`license plates because it would be a violation of their First Amendment rights.
`430 U.S. at 717. The Court never discussed whether the plates were
`government or private speech. Instead, it presumed that the license plates
`were private speech, engaged in a First Amendment analysis, and explicitly
`stated that because a car was “private property,” the government could not
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`No. 13-50411
`force individuals to bear a license plate with New Hampshire’s motto. Id. at
`713. Thus, the “Supreme Court has indicated that license plates, even when
`owned by the government, implicate private speech interests because of the
`connection of any message on the plate to the driver or owner of the vehicle.”
`Sons of Confederate Veterans, Inc. ex rel. Griffin v. Comm’r of Va. Dep’t of Motor
`Vehicles, 288 F.3d 610, 621 (4th Cir. 2002) (citing Wooley, 430 U.S. at 717).
`And while the plates at issue in Wooley were standard-issue plates, here a third
`party designed and submitted the specialty license plate, making the
`connection between the plate and the driver or owner of the car even closer.
`See Matwyuk v. Johnson, No. 2:13–CV–284, 2014 WL 2160448, *13 (W.D.
`Mich. May 23, 2014) (discussing Summum and concluding that “vanity plates
`are viewed as defining the identity of the driver of the vehicle bearing them . .
`. . and that [t]herefore, no reasonable government official . . . would have
`believed that [the vanity plate] constituted government speech”).
`Moreover, this case does not present the unworkable system that the
`Supreme Court feared would be created “[i]f government entities must
`maintain viewpoint neutrality in their selection of donated monuments.” See
`Summum, 555 U.S. at 479. The Summum Court noted the “well founded”
`concerns that requiring viewpoint neutrality would force the City to “either
`‘brace themselves for an influx of clutter’ or face the pressure to remove
`longstanding and cherished monuments.” Id. at 479. By contrast, here there
`is no danger of having too many specialty license plates because they do not
`take up physical space, nor is there a finite amount of space available for
`specialty plates. Indeed, whereas the park in Summum contained fifteen
`monuments, there are currently over 350 specialty plates in Texas. The Board
`has given no indication that there is any limit to the number of designs it will
`accept. Thus, given the differences between permanent monuments in public
`
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`No. 13-50411
`parks and specialty license plates on the back of cars, Summum does not
`dictate that specialty license plates are government speech.
`Our conclusion that specialty license plates are private speech is
`consistent with the majority of other circuits that have considered the issue.
`See Roach, 560 F.3d at 867 (specialty plates are private speech); Arizona Life
`Coal. v. Stanton, 515 F.3d 956, 968 (9th Cir. 2008) (“Choose Life” plate with
`logo depicting the faces of two young children was private speech); White, 547
`F.3d at 863 (“Messages on specialty license plates cannot be characterized as
`the government’s speech”); Sons of Confederate Veterans, 288 F.3d at 621
`(“SCV’s special plates constitute private speech.”).3 Although only Roach was
`decided after Summum, the Eighth Circuit did not think that Summum
`mandated that the specialty license plates were government speech. 650 F.3d
`at 868 n.3. And for the reasons we explained above, we agree.
`The Board, though, urges us to follow the Sixth Circuit’s decision in
`ACLU of Tennessee v. Bredesen, 441 F.3d 370 (6th Cir. 2006), where the Sixth
`Circuit held that a specialty license plate was government speech. The Board
`claims Bredesen’s “holding extends to all specialty plates approved by state
`officials” and can serve as a model for this Court. We disagree. The Sixth
`Circuit’s conclusion that specialty license plates are government speech makes
`it the sole outlier among our sister circuits. And the Sixth Circuit reached that
`holding based on facts different from those in the instant case: the Tennessee
`legislature itself had passed an act specifically authorizing, creating, and
`
`
`3 In Byrne v. Rutledge, 623 F.3d 46 (2d Cir. 2010), the Second Circuit treated Vermont
`vanity plates as private speech. 623 F.3d at 53–54. The state did not argue that the vanity
`license plates were government speech before the district court, and though the state raised
`that argument on appeal, the Second Circuit declined to consider the issue. Byrne, 623 F.3d
`at 53 n.7 (explaining that it is “a well-established general rule that an appellate court will
`not consider an issue raised for the first time on appeal”). Because Byrne did not analyze
`whether the vanity license plates were government or private speech, we do not include it
`here.
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`issuing a “Choose Life” specialty license plate. Bredesen, 441 F.3d at 372, 376.
`We think this distinction alone is sufficient to warrant a different outcome
`here. But even if it were not, we would decline to follow Bredesen because the
`Sixth Circuit’s analysis cannot be reconciled with Supreme Court precedent,
`specifically Wooley. See id. at 386 (Martin, J., dissenting) (explaining that
`Wooley found the message on the license plate was private, even though the
`government had “crafted” and “had ultimate control over” the message); see
`also White, 547 F.3d at 863 (characterizing the Sixth Circuit’s conclusion in
`Bredesen as “flawed” in part because of the difficulty in squaring the decision
`with Wooley).
`As the Supreme Court has acknowledged, “[t]here may be situations in
`which it is difficult to tell whether a government entity is speaking on its own
`behalf or is providing a forum for private speech.” Summum, 555 U.S. at 470.
`But considering the situation here, we are confident that a reasonable observer
`would know that a specialty license plate is the speech of the individual driving
`the car. Thus, we hold that specialty license plates are private speech.4
`
`4 The dissent asserts that the majority’s “analysis presents a false dichotomy” that the
`speech must be only government or only private speech. But this is not so. Here, the
`reasonable observer test implicitly recognizes that specialty plates may have elements of both
`government and private speech. Ultimately, if “a reasonable and fully informed observer
`would understand the expression to be government speech,” then it is just that. As we explain
`in the opinion, however, a reasonable observer would understand specialty plates to be
`private speech. In any event, we need not discuss or adopt a hybrid speech doctrine. Neither
`party has briefed the concept of hybrid speech or asked for the court to adopt such a doctrine.
`Nor has the Supreme Court addressed a hybrid speech doctrine.
`Moreover, only the Fourth Circuit has discussed hybrid speech in evaluating
`restrictions of specialty license plates. See Tata, 742 F.3d at 568–69 & n.4; Planned
`Parenthood of S.C., Inc. v. Rose, 361 F.3d 786, 794, 800, 801 (4th Cir. 2004). In both opinions,
`the Fourth Circuit considered specialty license plates that the state legislature had
`specifically authorized. Tata, 742 F.3d at 566; Rose, 361 F,3d at 788. The Fourth Circuit
`used a traditional First Amendment analysis to hold, as we do, that a specialty license plate
`restriction constituted viewpoint discrimination. See Tata, 742 F.3d at 575; Rose, 361 F.3d
`at 794 (“My conclusion that the speech is mixed (both government and private) does not end
`the discussion, however. I must go on to consider whether the State has engaged in viewpoint
`discrimination and whether it may engage in viewpoint discrimination . . . .”).
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`No. 13-50411
`B. Content-Based Regulation or Viewpoint Discrimination
`Because the specialty plate program is private speech, we must next
`determine whether the Board’s rejection of Texas SCV’s proposed plate was a
`permissible
`content-based
`regulation
`or
`impermissible
`viewpoint
`discrimination. Making this determination can at times be difficult because
`the distinction between a content-based regulation and viewpoint
`discrimination “is not a precise one.” Rosenberger v. Rector & Visitors of the
`Univ. of Va., 515 U.S. 819, 831 (1995).
`“It is axiomatic that the government may not regulate speech based on
`its substantive content or the message it conveys.” Id. at 828. Thus, the
`government may not “favor one speaker over another,” “discriminat[e] against
`speech because of its message,” or target “particular views taken by speakers
`on a subject.” Id. at 828–29 (citations omitted). Viewpoint discrimination is
`presumptively impermissible for private speech. See id. at 830 (“[V]iewpoint
`discrimination . . . is presumed impermissible when directed against speech
`otherwise within the forum’s limitations.” (citation omitted)); Perry Educ. Ass’n
`v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46 (1983) (explaining that, in a
`nonpublic forum, the state may not regulate speech in “an effort to suppress
`expression merely because public officials oppose the speaker’s view” (citation
`omitted)). On the other hand, we are also aware that “content discrimination
`. . . may be permissible if it preserves the purposes of [the] limited forum.”
`Rosenberger, 515 U.S. at 830. In distinguishing between these two types of
`discrimination, the Supreme Court has explained viewpoint discrimination is
`“an egregious form of content discrimination” that is “a subset or particular
`instance of the more general phenomenon of content discrimination.” Id. at
`829–31 (citation omitted).
`Texas SCV argues that the Board’s denial of Texas SCV’s proposed plate
`was viewpoint discrimination, because the Board “endorsed the viewpoint of
`14
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` Case: 13-50411 Document: 00512697267 Page: 15 Date Filed: 07/14/2014
`
`No. 13-50411
`those offended by the Confederate battle flag and discriminated against the
`view [of Texas SCV] that the flag is a symbol honoring the Confederate soldier,
`history, and Southern heritage.” The Board counters that its decision was not
`viewpoint discrimination because it did nothing to disparage Texas SCV’s view
`of the Confederate flag, nor did it reject the proposed plate merely because the
`Board opposed Texas SCV’s view. The Board argues it made its decision based
`solely on the “objective inquiry” of how members of the public would react to
`Texas SCV’s license plate.
`We agree with Texas SCV and hold that the Board engaged in
`impermissible viewpoint discrimination and violated Texas SCV’s rights under
`the First Amendment. In explaining its denial of Texas SCV’s application, the
`Board stated it denied the plate, “specifically the confederate flag portion of
`the design, because public comments have shown that many members of the
`general public find the design offensive.” By rejecting the plate because it was
`offensive, the Board discriminated against Texas SCV’s view that the
`Confederate flag is a symbol of sacrifice, independence, and Southern heritage.
`The Board’s decision implicitly dismissed that perspective and instead credited
`the view that the Confederate flag is an inflammatory symbol of hate and
`oppression. Texas’s specialty license plate program features a number of
`plates that honor veterans, including Korea Veterans, Vietnam Veterans,
`Woman Veterans, Buffalo Soldiers, Operation Iraqi Freedom, and World War
`II Veterans. Given Texas’s history of approving veterans plates and the
`reasons the Board offered for rejecting Texas SCV’s pla