Filed: October 7, 2002
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE FOURTH CIRCUIT
`
`No. 01-1242
`
`Sons of Confederate Veterans, etc., et al.,
`
`Plaintiffs - Appellees,
`
`versus
`
`Commissioner of the Virginia Department of
`Motor Vehicles, etc.,
`
`Defendant - Appellant.
`
`O R D E R
`
`The court amends its order on rehearing filed September 20,
`
`2002, as follows:
`
`On page 6, first full paragraph, line 5 -- the extra “the” is
`
`deleted.
`
`For the Court - By Direction
`
`/s/ Patricia S. Connor
` Clerk
`
`

`
`PUBLISHED
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE FOURTH CIRCUIT
`
`4444444444444444444444444444444444444444444444447
`SONS OF CONFEDERATE VETERANS,
`INCORPORATED, a Tennessee
`Corporation, by its Commander-in-
`Chief Patrick J. Griffin; VIRGINIA
`DIVISION OF SONS OF CONFEDERATE
`VETERANS, INCORPORATED, a Virginia
`Corporation, by its Commander
`Robert W. Barbour, Sr.,
` Plaintiffs-Appellees,
`
` v.
`
`COMMISSIONER OF THE VIRGINIA
`DEPARTMENT OF MOTOR VEHICLES, in
`his official capacity,
` Defendant-Appellant,
`
` and
`
`No. 01-1242
`
`COMMONWEALTH OF VIRGINIA, whose
`agents and officers enacted and will
`enforce, on its behalf, VA. CODE
`ANN. 46.2-746.22; JAMES S.
`GILMORE, III, as Governor of the
`Commonwealth of Virginia, in his
`official capacity; SHIRLEY YBARRA,
`as Secretary of the Department of
`Transportation of the State of
`Virginia, in her official capacity,
` Defendants.
`4444444444444444444444444444444444444444444444448
`
`Filed September 20, 2002
`
`____________________________________________________________
`
`ORDER
`
` Upon a request for a poll of the court on rehearing en banc, the
`court denies rehearing. Judges Niemeyer, Michael, Motz, King, and
`
`

`
`Gregory voted for rehearing en banc. Chief Judge Wilkinson and
`Judges Widener, Wilkins, Luttig, Williams, and Traxler voted to deny
`rehearing en banc. Chief Judge Wilkinson and Judge Williams wrote
`separate opinions concurring in the denial of rehearing en banc. Judge
`Luttig wrote a separate opinion respecting the denial of rehearing en
`banc. Judge Niemeyer and Judge Gregory wrote separate opinions
`dissenting from the denial of rehearing en banc.
`
`FOR THE COURT
`
`_______________
` Clerk
`
`WILKINSON, Chief Judge, concurring in the denial of rehearing en
`banc:
`
` The closeness of the court's vote (6 to 5) leads me to explain my
`own. I concur in the denial of rehearing en banc because the legisla-
`tive action here seems to me to violate basic First Amendment princi-
`ples. The Virginia General Assembly has approved over one hundred
`special plates, and the statute authorizing the SCV special plate is the
`only one with design and logo restrictions. When a legislative major-
`ity singles out a minority viewpoint in such pointed fashion, free
`speech values cannot help but be implicated. And it is as a free speech
`case, not as a Confederate flag case, that this appeal must be resolved.
`
` It is important to keep the issue here in some perspective. The vast
`majority of Virginians have no desire to display a Confederate logo
`on their license plates. The vast majority of Virginians seek venues
`other than a motor vehicle tag for the observance of their lineage, and
`do not view the Confederate flag as symbolically celebrating their line
`of descent. The vast majority of Virginians understand that one
`motorist's proclamation of heritage is another's reminder of the
`unspeakable cruelties of human bondage. The vast majority of Virgin-
`ians recognize the sad paradox of Confederate history — namely, that
`individual southerners, so many good and decent in themselves,
`swore allegiance to a cause that thankfully was lost, and to practices
`that no society should have sought to defend.
`
` But the First Amendment was not written for the vast majority of
`Virginians. It belongs to a single minority of one. It is easy enough
`
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`

`
`for us as judges to uphold expression with which we personally agree,
`or speech we know will meet with general approbation. Yet pleasing
`speech is not the kind that needs protection.
`
` Our Constitution safeguards contrarian speech for several reasons.
`As the Civil Rights Movement demonstrates, yesterday's protest can
`become tomorrow's law and wisdom. Other contrarian speech should
`move popular majorities to reaffirm their own beliefs rather than sup-
`press those of others. The reminders of history's most tragic errors
`only deepen our commitment to the dignity of all citizens: The Con-
`stitution that houses the First Amendment also shelters the Four-
`teenth, an everlasting reminder that a nation betrothed to liberty and
`equal justice under law must remain vigilant to realize both.
`
`WILLIAMS, Circuit Judge, concurring in the denial of rehearing en
`banc:
`
` There can be no doubt that the symbol desired by the SCV on their
`special plate is a controversial and divisive one. But as Chief Judge
`Wilkinson points out, this case must be resolved "as a free speech
`case, not as a Confederate flag case." Ante at 2. In essence, the Com-
`monwealth has opened its license plates to myriad private speakers
`but wishes to restrict the message one of those speakers would
`express based on its disagreement with the viewpoint contained
`therein; this the First Amendment does not permit. I undertake herein
`to respond briefly to several points raised in the separate opinions of
`my colleagues respecting and dissenting from the denial of rehearing
`en banc.
`
` My first dissenting colleague suggests that what is at issue here is
`pure government speech. For the reasons stated in the panel opinion,
`I disagree. I will respond here only to the suggestion that the Supreme
`Court's opinion in Wooley v. Maynard, 430 U.S. 705 (1977), compels
`the conclusion that government speech is at issue. As my first dissent-
`ing colleague notes, the Supreme Court in Wooley found the require-
`ment that New Hampshire drivers display license plates bearing the
`slogan "Live Free or Die" to be impermissible because it forced the
`complaining driver "to be an instrument for fostering public adher-
`ence to an ideological point of view he finds unacceptable." Wooley,
`430 U.S. at 715. My colleague thus concludes "that license plates are
`
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`

`
`the State's speech." Post at 15. I believe this conclusion misappre-
`hends Wooley's significance in this case. Wooley rested on the propo-
`sition "that the right of freedom of thought protected by the First
`Amendment against state action includes both the right to speak freely
`and the right to refrain from speaking at all." Wooley, 430 U.S. at 714.
`The complainant's First Amendment interests were implicated in
`Wooley because the message in question, displayed on his license
`plate, would be attributed to him. That the message the state created
`and required to be displayed on all plates — "Live Free or Die" —
`was the state's message is not a necessary component of Wooley's
`holding. One might reason, of course, as my first dissenting colleague
`appears to, that if the driver is compelled to speak, the message must
`be the state's, and therefore anything on a license plate, under any cir-
`cumstances, is government speech. Nowhere in Wooley, however, did
`the Court suggest this was the case; the only speech interest identified
`in Wooley was that of the driver. More significantly, the facts in Woo-
`ley indicate that even if the Supreme Court concluded that the state
`was the speaker, that conclusion would not control this case. In stark
`contrast to the situation in Wooley, where the same state slogan was
`required on nearly all license plates, the various mottos and logos on
`most special plates in Virginia are created and selected by drivers
`themselves.
`
` As to the concerns expressed in my second dissenting colleague's
`opinion, I believe that they, too, are ultimately unpersuasive. My sec-
`ond dissenting colleague suggests that the the speech in question here
`is not easily placed on either side of the "blurry and sometimes over-
`lapping line between private and government speech," post at 17, and
`that the test employed in the panel opinion for determining whether
`the government is the speaker was applied in a manner that did not
`adequately address the Commonwealth's interest in avoiding attribu-
`tion of the logo's message to the Commonwealth.
`
` As to the first concern, I believe that Wooley is again instructive.
`I note that my colleague identifies as unpersuasive the panel opinion's
`conclusion "that the private citizen bears the`ultimate responsibility'
`for the speech" on Virginia's special plates, suggesting that this factor
`"may very well be a key to the case." Post at 17 n.2. The Supreme
`Court in Wooley, however, apparently concluded that the message on
`New Hampshire's plate would be attributed to the driver, a conclu-
`
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`

`
`sion strongly indicated by the success of the complaining driver's
`First Amendment claim. If the message or slogan on a license plate
`is ultimately attributable to the state that issues the plate, as both of
`my dissenting colleagues suggest, then the First Amendment claim in
`Wooley ought to have foundered for failure to implicate individual
`speech rights.
`
` Indeed, the proposition that the state is ultimately responsible for
`the license plate message in question is weaker here than it was in
`Wooley. In Wooley, the slogan in question was required on all non-
`commercial New Hampshire plates, a fact presumably apparent to
`anyone driving in New Hampshire. 430 U.S. at 705. Individual driv-
`ers thus had no control over the content of their license plates. Here,
`in contrast, numerous messages, crafted and selected by the drivers
`themselves, appear on Virginia's special plates. Plainly, anyone view-
`ing a license plate bearing a motto or logo the viewer knows to have
`been selected by the driver or owner of the vehicle is more likely to
`associate the message with that driver or owner than would be the
`viewer of a state-mandated logo appearing on all noncommercial
`plates across the state.*
`
` My colleague writing respecting the denial of rehearing en banc
`suggests that the panel opinion and the various opinions concurring
`in and dissenting from the denial of rehearing en banc "focus[ ] on the
`license plate as a whole in their respective analyses." Post at 7. I do
`not believe that either the panel opinion or this opinion suggests that
`any part of the SCV special plate's design other than the motto and
`logo implicates private speech interests. Further, whatever the merits
`____________________________________________________________
` *My second dissenting colleague concludes, as I understand his opin-
`ion, that the government's interest in avoiding having a message that it
`finds distasteful attributed to it justifies treating the logo restriction as a
`time, place, and manner restriction. A time, place, and manner restric-
`tion, however, must be "justified without reference to the content of the
`regulated speech," a test the logo restriction surely fails. See, e.g., Ward
`v. Rock Against Racism, 491 U.S. 781, 791 (1989). The Commonwealth,
`as the panel opinion notes, has offered no justification for the restriction
`in this case unrelated to the content of the logo it prohibits. See Sons of
`Confederate Veterans v. Commissioner of the Va. Dep't of Motor Vehi-
`cles, 288 F.3d 610, 626 & n.14 (4th Cir. 2002).
`
`5
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`

`
`of my colleague's suggestion that there is a government speech inter-
`est in (as distinct from a government interest in regulating) the con-
`tent of the motto and logo appearing on a special plate, it seems to
`me that we do not differ substantially in our views that the private
`speech interests implicated by the motto and logo must prevail in this
`circumstance over any countervailing interest the government may
`have.
`
` In sum, I believe that the government-speech issue in this case was
`correctly decided and that rehearing en banc was appropriately
`denied. Neither party in this case was sufficiently concerned by the
`narrowly written panel opinion, centered on the unique factual cir-
`cumstances of the logo restriction and the special plate program,
`to seek en banc rehearing, and the number of my colleagues who
`would have been willing to rehear this case en banc does not consti-
`tute the majority required by Fed. R. App. Proc. 35(a) (stating that a
`majority of judges in regular active service may order en banc
`review). Moreover, through their separate opinions, my colleagues
`have presented their views of the issues.
`
`LUTTIG, Circuit Judge, respecting the denial of rehearing en banc:
`
` As have the other circuit courts that have addressed like issues, my
`colleagues have struggled with this case because they have assumed,
`in oversimplification, that all speech must be either that of a private
`individual or that of the government, and that a speech event cannot
`be both private and governmental at the same time. In their collective
`defense, our court and our sister circuits have all so assumed because,
`to this point, the Supreme Court has always held that speech is either
`private or governmental, and it has never held that a message can be
`both that of a private individual and that of the government. However,
`the "government speech" doctrine is still in its formative stages, and,
`as yet, it is neither extensively nor finely developed. And I believe
`that it is as a consequence of this doctrinal underdevelopment that my
`colleagues find themselves, at the same time, analytically unsatisfied
`but insistent upon polar opposite conclusions with respect to what
`seemingly should be a simple answer to a straightforward question.
`
` However, in the underdevelopment of the "government speech"
`doctrine lies not only the source of the confusion, but also the simple
`
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`
`answer — recognition that, although the doctrine may not have previ-
`ously recognized such, speech in fact can be, at once, that of a private
`individual and the government. Although the Supreme Court could
`ultimately choose either to ignore or to refuse to recognize this
`descriptive fact because of sheer practical considerations, I believe
`that, with time, intellectual candor actually will force the Court
`instead to fully recognize this fact doctrinally.
`
` When the Supreme Court is finally confronted with the case in
`which this elaboration upon its "government speech" doctrine is com-
`pelled, I am convinced that our court in turn will, upon reflection,
`conclude that at least the particular speech at issue in this case is nei-
`ther exclusively that of the private individual nor exclusively that of
`the government, but, rather, hybrid speech of both. Indeed, as I have
`thought about the matter, I believe that the speech that appears on the
`so-called "special" or "vanity" license plate could prove to be the
`quintessential example of speech that is both private and governmen-
`tal because the forum and the message are essentially inseparable, the
`consequence being that it is difficult if not impossible to separate suf-
`ficiently what is indisputably the speech act by the private speaker
`from what is equally indisputably the speech act by the government.
`
` While all of my colleagues have focused on the license plate as a
`whole in their respective analyses, this aspect of their analyses is, too,
`overly simplistic. It causes the one side of the debate to conclude,
`unconvincingly, that the special plate is entirely private speech
`(merely because it is a "special" plate), and it causes the other to con-
`clude, no less unconvincingly, that there is no private speech at all
`within the four corners of the license plate (because, and simply
`because, the government owns and controls the plate).
`
` In truth, of course, when one focuses properly on the particular
`speech in question here — only the background of the special license
`plate in question, which comprises the words "Sons of Confederate
`Veterans" and the confederate flag logo — it is (to borrow Judge Nie-
`meyer's phrase in support of a quite different position from his) "im-
`possible to avoid the conclusion" that not only the government, but
`also the private individual who displays the license plate on his vehi-
`cle, communicates via this speech.
`
`7
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`

`
` Even if it is only a relatively small feature of the overall identifica-
`tion package, the specially-authorized background is no less a feature
`of the government's internal and external identification of the vehicle,
`and therefore is government speech. And this is even putting aside the
`facts that the government owns the license plate in perpetuity and
`authorizes all special plates legislatively, and that there is always at
`least some risk that the background message will be wrongly attri-
`buted to the government.
`
` But it is equally clear that the requested background is also (indeed,
`it would appear even more so) the private speech of the individual
`owner of the vehicle. When a special license plate is purchased, it is
`really the private citizen who engages the government to publish his
`message, not the government who engages the private individual to
`publish its message, as in cases like Rust v. Sullivan, 500 U.S. 173
`(1991), and Wooley v. Maynard, for example. Indeed "but for" the
`private organization's and the private individual's action, the special
`license plate would not even exist; the private organization must
`request that a special plate be made and propose its design, and pri-
`vate individuals must request that they be issued such a plate and pay
`for it over and above the cost exacted for a standard license plate. And
`if the government has any nonpecuniary interest in the public identifi-
`cation of individual vehicles with particular private organizations, it
`is minimal.
`
` It was doubtless out of recognition of these facts that the Supreme
`Court as much as held in Wooley v. Maynard, 430 U.S. 705 (1977),
`that even license plate speech that is compelled by the government
`implicates private speech rights, as Judge Williams correctly observes
`in dismissal of Judge Niemeyer's contrary inference that Wooley
`stands for precisely the opposite proposition. A fortiori must it be the
`case that speech placed on a license plate by the government for a fee
`at the request of a private organization or individual is at a minimum
`partly the private speech of that organization or individual.
`
` No one, upon careful consideration, would contend that, simply
`because the government owns and controls the forum, all speech that
`takes place in that forum is necessarily and exclusively government
`speech. Such would mean that even speech by private individuals in
`traditional public fora is government speech, which is obviously not
`
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`

`
`the case. While I suppose it is arguable that where the government
`totally funds private speakers to convey a government message, the
`speech of those private individuals is necessarily government speech
`(and the Supreme Court has so held), this is certainly not the case
`where, as here, the government voluntarily opens to the public at
`large, for the purpose of designated speech, property that the private
`individual is not merely entitled to access, but actually required to dis-
`play. If this were not self-evident, it should be beyond debate after
`Wooley. And in fact, not even Judge Niemeyer, though he inconsis-
`tently concludes otherwise, can help but acknowledge that private, as
`well as government, speech is implicated in a circumstance such as
`this: "The fact that the licensee also speaks by choosing to display a
`customized but authorized version of the license plate does not
`change the fact that the license plate itself was the issue of the State
`and therefore constitutes government speech." Post at 15-16 (Nie-
`meyer, J., dissenting from denial of rehearing en banc).
`
` Of course, because the Supreme Court has yet to recognize that
`speech can be both private and governmental at the same time, one
`cannot be certain of the regulatory limitations that the Court will fash-
`ion once it limits the government speech doctrine to recognize that
`some speech hitherto deemed to be exclusively that of the government
`is, inescapably, also private speech. But without even attempting to
`foretell those limitations here, I think it is fair to assume that, at least
`where the government has voluntarily opened up for private expres-
`sion property that the private individual is actually required by the
`government to display publicly; the private speech component of the
`particular communication is significant (whether or not it is signifi-
`cant in comparison to the government's like speech component in that
`communication); and the government's interest in its speech compo-
`nent is less than compelling, the government will be forbidden from
`engaging in viewpoint discrimination among the various private
`speakers who avail themselves of the government's offer.
`
` It is on the twin understandings outlined above — namely, that the
`speech at issue in this case is both private and governmental in char-
`acter (and actually, I believe, more the former), and that at a mini-
`mum therefore the government may not engage in viewpoint
`discrimination among those wishing to display the design of their
`organization as the background for their license plates — that I do not
`
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`
`believe that this case warrants further consideration by the full court,
`at least in the absence of a petition for rehearing en banc by either
`party to the litigation. For, given the view that I have stated herein
`that the speech at issue is hybrid in nature, not exclusively private,
`and the votes of those Members of our court who would rehear this
`case en banc, it is unlikely that there is a majority of our court that
`believes that the speech at issue in this case is purely private. Thus,
`the conclusion reached by the panel on the threshold, and concededly
`important, issue of whether private or government speech is at issue
`does not appear (and certainly does not appear necessarily) to repre-
`sent the final, considered judgment of the Circuit.
`
` In addition, if I am correct that, at the end of the day in this case,
`the government is yet prohibited from engaging in viewpoint discrim-
`ination, then the panel will have ultimately applied the correct stan-
`dard to the government's regulatory action, and I do not believe that
`its conclusion after application of that standard to the specific facts
`here is particularly worthy of full court review. This is so, especially
`given that the panel's conclusion on this issue was narrow in scope,
`limited to the single statute in question, and the imposed prohibition
`therein, which in turn was limited to the single organization Sons of
`Confederate Veterans. And, even still, the panel's conclusion rested
`in large part on an explicit representation by the Commonwealth
`Commissioner that the purpose of the statute was in fact to ban the
`confederate flag from the special plate authorized for that particular
`organization.
`
` This is not to say, it seems clear to me, that the panel decision is,
`in either fact or effect, beyond further consideration. It is to say,
`rather, that should there arise a case where license plate speech is
`again implicated, and where either the government's speech compo-
`nent is at least greater if not compelling (for example where at issue
`are the actual identifying numbers and letters that appear on all
`license plates), or where there is reason to believe that the government
`has, in this limited public or nonpublic forum engaged in no more
`than content discrimination in furtherance of and consistent with the
`purposes of the forum (or at least credibly argues such), there will be
`ample opportunity for the full court to revisit the important issues
`resolved by the panel.
`
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`
`NIEMEYER, Circuit Judge, dissenting from the denial of rehearing
`en banc:
`
` This case presents the important First Amendment issue of whether
`a State may regulate and control the content included on state-issued
`and state-owned license plates. Whether license-plate content is gov-
`ernment speech has never been decided by our court, and the appro-
`priate analysis is not clearly indicated by any Supreme Court
`precedent. Moreover, the two other circuits that have reviewed license
`plate speech have taken different analytical courses. Compare Perry
`v. McDonald, 280 F.3d 159 (2d Cir. 2001) (holding that State owned
`license plate is a nonpublic forum entitling the State to deny a license
`plate with "SHTHPNS" (referring to "Shit Happens") on it as a rea-
`sonable and viewpoint-neutral regulation), with Lewis v. Wilson, 253
`F.3d 1077 (8th Cir. 2001) (concluding that whether the forum is non-
`public or public is irrelevant because the State, in rejecting "ARYAN
`1," operated under an unconstitutionally overbroad regulation that
`violated the First Amendment). Coupled with the virtually even split
`within our court (6-5) to deny rehearing en banc it appears clear that
`this case presents an unsettled issue of First Amendment law that
`should have been heard en banc.
`
` The specific question presented is whether the Commonwealth of
`Virginia can refuse to include a Confederate Flag logo on the face of
`a special license plate, authorized for issuance to members of the Sons
`of Confederate Veterans. Virginia authorized the issuance of the spe-
`cial license plates commemorating that organization but denied the
`organization's request to include the Confederate Flag logo as part of
`the plate's design. The Confederate Flag, while appreciated by an
`organization commemorating the bravery of Civil War veterans as a
`symbol of honor, is at the same time a racially hostile symbol to a
`large segment of Virginia's citizens insofar as the Civil War included
`a fight to preserve slavery. Nevertheless, the district court concluded
`that Virginia's denial of the Sons of Confederate Veterans' request to
`include the Confederate Flag logo was a restriction on speech that
`violated the First Amendment and accordingly struck down that por-
`tion of Virginia's law, essentially mandating that Virginia include the
`logo on the special plates. Because this issue is important not only to
`Virginia but also to the right of all States to regulate the issuance and
`
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`

`
`content of their license plates, I submit it is worthy of our en banc
`review.
`
` No one takes issue with the fact that Virginia has an important right
`and responsibility to regulate motor vehicles and that essential to this
`regulatory effort is the issuance of license plates evidencing the regis-
`tration of the vehicle and its compliance with safety and insurance
`requirements. See generally Va. Code Ann. §§ 46.2-701; -707; -708;
`-709; -712. Because license plates serve an essential function for the
`public health, safety, and welfare, Virginia retains an inherent and
`important right to control the plates and their content.
`
` In order to retain control over this regulatory scheme, Virginia
`manufactures its license plates, issues them to licensees in accordance
`with strict regulations and requirements for their display, and reserves
`the continuous right to revoke or recall them. See id. §§ 46.2-709;
`-712; -713; -715; -716. Furthermore, Virginia expressly retains title
`to all State-issued license plates, asserting that they may be repos-
`sessed by the Department of Motor Vehicles at any time as provided
`by statute. Id. §§ 46.2-713; -709. And consistent with this control,
`Virginia directs that no person may alter the content of a license plate
`issued by the State or display a license plate that has been altered. See
`id. § 46.2-722.
`
` In addition to the role license plates serve in protecting public
`health, safety, and welfare, the issuance of license plates produces
`revenue that is used to pay for the administration of automobile regis-
`tration and to support the uninsured motorist fund. See id. § 46.2-710.
`To increase those revenues (and to honor certain organizations), the
`State permits the Department of Motor Vehicles to issue customized
`license plates and special license plates identifying specific groups,
`ifsuch plates are authorized by the legislature. See id. §§ 46.2-725;
`-726.
`
` One of the special plates authorized by the Virginia legislature is
`for members of the Sons of Confederate Veterans. Id. § 46.2-746.22.
`The authorizing statute provides:
`
`On receipt of an application therefor and written evidence
`that the applicant is a member of the Sons of Confederate
`
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`

`
`Veterans, the Commissioner shall issue special license
`plates to members of the Sons of Confederate Veterans. No
`logo or emblem of any description shall be displayed or
`incorporated into the design of license plates issued under
`this section.
`
`Id. The text of this provision thus authorizes a special license plate
`honoring the Sons of Confederate Veterans, but indicates that the
`plate may not display the Confederate Flag logo, or any other logo for
`that matter.
`
` The State may rationally have concluded that, despite the percep-
`tion of the Confederate Flag by some as an emblem of honor, to issue
`a license plate with the Confederate Flag logo on it would distress
`African Americans and many others in the State. The State, however,
`has not taken a position on this controversial symbol; rather, it has
`removed itself from the fray, simply refusing to authorize the Confed-
`erate Flag logo on license plates issued by it. In doing so, of course,
`Virginia has not prohibited any citizen from displaying the Confeder-
`ate Flag logo on his or her vehicle. Rather, the State has only indi-
`cated that the Confederate Flag logo should not be included on a
`license plate issued and owned by the state and bearing the name
`"VIRGINIA" on the top. The State's decision mirrors a previous case
`in which Virginia denied an applicant the right to include the phrase
`"UNION YES" on its license plate.
`
` I respectfully submit that because Virginia owns the license plates
`it issues and rightfully controls what appears on them, it can, as part
`of its control, designate their content as its own speech. My position
`is consistent with the "well settled [principle] that the government
`need not permit all forms of speech on property that it owns and con-
`trols." International Soc'y for Krishna Consciousness, Inc. v. Lee, 505
`U.S. 672, 678 (1992).
`
` As the panel opinion in this case concedes, "It is well established
`that `the government can speak for itself.'" Sons of Confederate Vet-
`erans, Inc. v. Comm'r of the Va. Dep't of Motor Vehicles, 288 F.3d
`610, 616 (4th Cir. 2002) (quoting Bd. of Regents of Univ. of Wis. Sys.
`v. Southworth, 529 U.S. 217, 229 (2000)). And this "authority to
``speak' necessarily carries with it the authority to select from among
`
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`various viewpoints those that the government will express as its own."
`Id. at 617 (citing Rust v. Sullivan, 500 U.S. 173, 194 (1991)). But the
`panel reached the remarkable conclusion that the content on license
`plates owned and controlled by the State and bearing the State's name
`is not the State's speech. I respectfully disagree. The State has mani-
`fested its complete control over license plates, even dictating modifi-
`cations, alterations, and special language or number