UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF VIRGINIA
`LYNCHBURG DIVISION
`
`
`CURTIS M. WHATELEY,
` Plaintiff,
`
`v.
`
`GERALD
` F. LACKEY,
` in his official capacity as the
`COMMISSIONER OF VIRGINIA
`DEPARTMENT OF MOTOR VEHICLES,
`
`Defendant.
`
`
`CASE NO. 6:25-cv-00010
`
`
`MEMORANDUM OPINION
`
`
`J
`UDGE NORMAN K. MOON
`
`Plaintiff Curtis Whateley brings this pro se civil rights action against the Commissioner
`of the Virginia Department of Motor Vehicles (DMV), Gerald F. Lackey, alleging that the
`Commissioner revoked his personalized license plate in violation of his First and Fourteenth
`Amendment rights. The license plate read “FTP&ATF,” which Plaintiff acknowledges stood for
`“Fuck the police & [the Bureau of] Alcohol, Tobacco, and Firearms.” Although DMV initially
`approved and issued the plate, the Commissioner later determined that the plate was offensive
`and invoked his authority under Virginia Code § 46.2-726 to prohibit its use. Based on these
`actions, Plaintiff now seeks declaratory and injunctive relief pursuant to 42 U.S.C. § 1983,
`claiming that:
`(i) Virginia Code § 46.2-726 is facially unconstitutional under the First Amendment
`because it is vague and overbroad;
`(ii) the statute is unconstitutional as applied to Plaintiff, because it discriminates
`based upon viewpoint and restricts his pure political speech regarding “the current
`state of policing in this country;” and
`  "#/  /'#/#$/ ("$/
`%/, )"
/+/
`

/
`("//(#$/  "/
`-/ ./"/$$
`!*&-/
`"/
`5/30/2025
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`(iii) the Commissioner’s decision to revoke his license plate provided insufficient
`process under the Fourteenth Amendment’s guarantee of procedural due process.
`See Dkt. 01. The Commissioner moves to dismiss the complaint for failure to state a claim under
`Federal Rule of Civil Procedure 12(b)(6). See Dkt. 07 (motion); Dkt. 08 (mem. in support).
`Upon review of the filings and the applicable law, the Court concludes that the motion
`shall be GRANTED. Because Plaintiff’s license plate amounts to an object of government
`speech, he neither has a First Amendment interest nor a Due Process interest at stake in this case.
`I. Legal Standard
`A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) tests the legal sufficiency of a
`complaint to determine whether a plaintiff has properly stated a claim. The complaint’s “[f]actual
`allegations must be enough to raise a right to relief above the speculative level,” Bell Atl. Corp. v.
`Twombly, 550 U.S. 544, 555 (2007), with all its allegations taken as true and all reasonable
`inferences drawn in the plaintiff’s favor. King v. Rubenstein, 825 F.3d 206, 212 (4th Cir. 2016).
`A motion to dismiss “does not, however, resolve contests surrounding the facts, the merits of a
`claim, or the applicability of defenses.” Id. at 214.
`Although the complaint “does not need detailed factual allegations, a plaintiff’s obligation
`to provide the ‘grounds’ of his entitle[ment] to relief requires more than labels and conclusions,
`and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at
`555. A court need not “accept the legal conclusions drawn from the facts” or “accept as true
`unwarranted inferences, unreasonable conclusions, or arguments.” Simmons v. United Mortg. &
`Loan Inv., LLC, 634 F.3d 754, 768 (4th Cir. 2011) (quotation marks omitted). This is not to say
`Rule 12(b)(6) requires “heightened fact pleading of specifics,” instead the plaintiff must plead
`“only enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at
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`570; see Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (“[O]nly a complaint that states a plausible
`claim for relief survives a motion to dismiss.”).
`II. Background
`In early 2023, Plaintiff “requested a personalized license plate” from DMV which read
`“FTP&ATF.” Dkt. 01 at 5. The plate was approved and issued to Plaintiff, and it was later re-
`issued when Plaintiff and DMV discovered that the “&” symbol had been erroneously omitted.
`Id. Plaintiff received the re-issued plates and began displaying them on his vehicle. Id. He used
`them for roughly one year. Id.
`In May 2024, DMV received a complaint about the license plate. A citizen claimed over
`email that the license plate was “most offensive” because “the F stands for Fuck and the plate
`means Fuck the Police & the [Bureau of] Alcohol, Tobacco, and Firearms.” Dkt. 01 at 5. DMV’s
`“Personalized License Plate Review Board” voted 9-1 to recall the license plate, as they believed
`“it could reasonably be viewed as profane, obscene, or vulgar” and because it could be used to
`condone or encourage violence. Id. Plaintiff received notice of DMV’s decision in the mail,
`along with a new set of randomized plates, which he began to use immediately. Id.
`Plaintiff then sought an “Informal Administrative Hearing” on the matter. Dkt. 01 at 5.
`After some delay by DMV, a hearing was scheduled. Id. at 5-6. Plaintiff represented himself at
`the hearing. Id. at 6. One month later, Plaintiff received notice of “the Informal Conference
`Decision upholding the revocation” of his license plate. Id.
`III. Discussion
`Plaintiff brings three claims. First, Plaintiff argues that Virginia Code § 46.2-726 is
`facially unconstitutional for overbreadth and vagueness, because it “grants unfettered discretion
`to the Commissioner on matters of content and viewpoint expression.” Dkt. 01 at 4. Second,
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`Plaintiff argues that the statute is unconstitutional as applied to him because it is viewpoint
`discriminatory and restricts “categories of protected [speech] including political” speech. Id.
`Finally, Plaintiff argues that revocation of his license plate violated his Fourteenth Amendment
`right to due process. Id. at 3.
`The Commissioner argues that all claims must be dismissed because Plaintiff fails the
`pleading standards of Rule 12(b)(6) or misapprehends the applicable Constitutional law. See Dkt.
`08. Among Commissioner’s substantive arguments, one takes priority: whether vanity plates in
`the Commonwealth of Virginia constitute government speech. The Commissioner argues that
`because the Commonwealth’s vanity plates constitute government speech, Plaintiff has no First
`Amendment right to expression on his vanity plate, and his free speech claims must therefore
`fail. If Plaintiff has no First Amendment interest, the Commissioner argues, then he also has no
`liberty interest protected by the Due Process clause, such that his Fourteenth Amendment claim
`must also fail. Accordingly, the government speech question is a threshold determination which
`we address first.
`A. Government Speech
`The First Amendment to the United States Constitution prohibits the government from
`“abridging the freedom of speech,” U.S.
` CONST. amend. I, but the First Amendment’s guarantee
`of free speech does not apply when the government is speaking for itself. See, e.g., Pleasant
`Grove City v. Summum, 555 U.S. 460, 467 (2009) (“The Free Speech Clause restricts
`government regulation of private speech; it does not regulate government speech.”). To assess
`whether speech is government speech, we conduct “a holistic inquiry designed to determine
`whether the government intends to speak for itself or to regulate private expression.”
`Shurtleff v. City of Boston, Massachusetts, 596 U.S. 243, 252 (2022). This review “is not
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`mechanical” and instead “is driven by a case’s context rather than the rote application of rigid
`factors.” Id. Nonetheless, past cases have looked consistently to three factors which guide the
`government speech inquiry: (1) “the history of the expression at issue;” (2) “the public’s likely
`perception as to who (the government or a private person) is speaking;” and (3) “the extent to
`which the government has actively shaped or controlled the expression.” Shurtleff, 596 U.S. at
`252 (citing Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. 200, 209-14
`(2015)). In Walker, the Supreme Court applied these factors in holding that specialty license
`plates issued by the state of Texas, pursuant to its statutory registration of motor vehicles,
`constituted government speech, such that the plaintiffs in that case (the Sons of Confederate
`Veterans) had no First Amendment right to display the Confederate flag on the specialty plates
`issued on their behalf. Walker, 576 U.S. at 208-14.
`Following Walker, courts in the Fourth Circuit have held that North Carolina’s and
`Virginia’s specialty plate programs are forms of government speech not subject to First
`Amendment scrutiny. See, e.g., ACLU v. Tennyson, 815 F.3d 183, 185 (4th Cir. 2016) (holding
`that, per Walker, North Carolina’s specialty plate program is government speech not subject to
`First Amendment scrutiny); Sons of Confederate Veterans, Inc. v. Holcomb, 2015 WL 4662435,
`at *4 (W.D. Va. Aug. 6, 2015) (holding that, per Walker, Virginia’s specialty license plate
`program is government speech). However, Walker only considered “specialty plates,” i.e., plates
`which bear a design other than the state’s default plate, often issued on behalf of a certain cause
`or organization, like wildlife conservation or Confederate veterans. It specifically did not address
`vanity plates, i.e., plates bearing a personalized series of alphanumeric characters. See Walker,
`576 U.S. at 204 (“Finally, Texas law provides for personalized plates (also known as vanity
`plates) . . . . Pursuant to the personalization program, a vehicle owner may request a particular
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`alphanumeric pattern for use as a plate number, such as ‘BOB’ or ‘TEXPL8.’ Here we are
`concerned only with the second category of plates, namely specialty license plates, not with the
`personalization program.”) (internal citations omitted).
`Thus, how Walker applies to vanity plates is an open question. Courts across the country
`are split. At least three courts have held that vanity plates are government speech. See Gilliam v.
`Gerregano, 2025 WL 617603, at *12 (Tenn. Feb. 26, 2025) (“personalized alphanumeric
`combinations on Tennessee’s license plates are government speech”); Comm’r of Ind. Bureau of
`Motor Vehicles v. Vawter, 45 N.E.3d 1200, 1204–05 (Ind. 2015); Odquina v. City & Cnty. of
`Honolulu, 2022 WL 16715714, at *9 (D. Haw. Nov. 4, 2022), aff’d on other grounds, 2023 WL
`4234232 (9th Cir. June 28, 2023).
`Meanwhile, at least six courts have held that vanity plates are private speech. See Kotler
`v. Webb, 2019 WL 4635168, at *7 (C.D. Cal. Aug. 29, 2019); Mitchell v. Md. Motor Vehicle
`Admin., 450 Md. 282, 148 A.3d 319, 325-26 (Md. 2016), as corrected on reconsideration (Dec.
`6, 2016); Overington v. Fisher, 733 F. Supp. 3d 339, 343 (D. Del. 2024); Ogilvie v. Gordon,
`2020 WL 10963944, at *5 (N.D. Cal. July 8, 2020); Carroll v. Craddock, 494 F. Supp. 3d 158,
`166 (D.R.I. 2020); Hart v. Thomas, 422 F. Supp. 3d 1227, 1233 (E.D. Ky. 2019).
`Accordingly, the majority of courts to address the issue have found that vanity plates are
`private speech. But, while instructive, none of these decisions are binding authority; and since
`Walker contemplates state-specific factors, court decisions in other states do not necessarily bear
`on the same question arising in the Commonwealth of Virginia. Thus, our analysis below
`employs the Walker factors as the guiding framework, while we remain mindful that our decision
`must be driven by our “case’s context.” Shurtleff, 596 U.S. at 252.
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`1. History of the Expression at Issue
`The first Walker factor instructs us to consider both the general history of license plates
`and the specific history of vanity plates as used in the Commonwealth of Virginia.1 The
`Commissioner has not introduced much in the way of historical at this stage of litigation. But
`considering what has been submitted, we find that the history and current practice of the
`Commonwealth’s use of vanity plates suggest that its vanity plates are government speech.
`At a general level, Virginia’s license plates allow the “public, administrative agencies,
`and law enforcement” to achieve various purposes, such as “regulation of vehicles, taxes, law
`enforcement actions[,] and tolls.” Dkt. 08 at 15. Virginia’s license plates “remain the property”
`of the Commonwealth and are “subject to [being] revoked, cancelled, and repossessed” at any
`time according to law. Va. Code § 46.2-713. Virginia’s license plates are therefore properly
`viewed as government-issued and government-owned decals. Attached to privately owned
`vehicles, these government decals serve a governmental purpose and communicate a
`governmental message: this vehicle is registered with the state.
`As to vanity plates, specifically, the fact that a person can customize the unique series of
`characters that make up the government’s message does not change the message’s general
`meaning. Furthermore, vanity plates in the Commonwealth operate “as a revenue generator for
`the DMV[,] as each personalized plate costs the customer an extra $10 fee that is maintained in a
`
`1 In Walker, for instance, the Supreme Court considered the general history of license plates, as well as the
`use of specialty plates by Texas. Walker, 576 U.S. at 210-11 (“[T]he history of license plates shows that, insofar as
`license plates have conveyed more than state names and vehicle identification numbers, they long have
`communicated messages from the States . . . . Texas, too, has selected various messages to communicate through its
`license plate designs. By 1919, Texas had begun to display the Lone Star emblem on its plates.”). In Summum, too,
`the Court considered how governments have used monuments to speak to the public throughout history, as well as
`the particular history of Pleasant Grove City’s use of monuments in that case. Pleasant Grove City, Utah v.
`Summum, 555 U.S. 460, 470-73 (2009) (“Governments have long used monuments to speak to the public . . . . The
`City has selected those monuments that it wants to display for the purpose of presenting the image of the City that it
`wishes to project to all who frequent the Park.”).
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`fund for the operation of the department.” Dkt. 08 at 15. The program has existed for over 50
`years. Dkt. 08 at 15 (citing Va. Code § 46.2-726). The Commissioner has discretion in issuing or
`revoking vanity plates, see Va. Code § 46.2-726, discussed infra, and the plates remain the
`property of the Commonwealth like any other non-customized license plate.
`Accordingly, although vanity plates are a distinct subset of the Commonwealth’s license
`plate program, all of the usual characteristics of the state’s license plates apply: the plates are
`government property issued for a governmental purpose: registering vehicles. Customization of
`the plates is merely an opportunity to raise government revenue while still achieving that primary
`purpose. While the government’s purpose or message in this case is not as archetypically
`‘expressive’ as, say, a government’s use of monuments or flags to convey a certain message (the
`speech at issue in Summum and Shurtleff), the Commonwealth’s vanity plate program still falls
`on the side of “the government intend[ing] to speak for itself,” rather than the government
`seeking to “regulate private expression.” Shurtleff, 596 U.S. at 252. License plates are the
`government saying “this car is registered,” vanity plate or not. Private expression does not take
`the wheel merely because a private individual gets to choose the specific characters that make up
`the message. As the Commissioner argues, the vanity plate program was not created to provide
`“individuals a means of expression,” and “[a]ny messages displayed” through vanity plates “are
`merely secondary to the government’s message and purpose” of identifying vehicles and raising
`revenue. Dkt. 08 at 15. We conclude that where the speech starts and ends with a governmental
`purpose and message, the first Walker factor weighs in favor of finding that the
`Commonwealth’s vanity plate program constitutes government speech.
`2. Public Perception of Who is Speaking
`Next, we consider “the public’s likely perception as to who (the government or a private
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`person) is speaking” vis-à-vis the Commonwealth’s vanity plates. Shurtleff, 596 U.S. at 252
`(citing Walker, 576 U.S. at 209-13.) Again, the Commissioner has not introduced record
`evidence on this factor at the motion to dismiss stage. However, Walker’s analysis on this factor
`is particularly illustrative and in fact minimizes the need for record evidence of the “public’s
`likely perception.”
`Namely, the Supreme Court in Walker (although dealing with specialty plates, not vanity
`plates), heavily emphasized that license plates in general are “essentially, government IDs,” such
`that all license plates must be “closely identified in the public mind with the State.” Walker, 576
`U.S. at 212 (quoting Summum, 555 U.S. at 472). The Court saw no need to employ other
`methods of ascertaining public perception, such as empirical evidence, and it instead relied
`strictly on characterizing license plates as government IDs based on Texas’s statutory framework
`and the nature of the state’s plates.
`The Court’s exposition of this issue controls here unless it is distinguishable from our
`case. But we find little ground for distinction. By way of example, in the excerpt from Walker
`below, we find that we can replace the word “Texas” with “Virginia” without doing any
`disservice to the facts of our case or Virginia’s statutory scheme. In other words, what was true
`for Texas in Walker is true for Virginia here.
`Each [Virginia] license plate is a government article serving the
`governmental purposes of vehicle registration and identification.
`The governmental nature of the plates is clear from their faces: The
`State places the name “[VIRGINIA]” in large letters at the top of
`every plate. Moreover, the State requires [Virginia] vehicle owners
`to display license plates, and every [Virginia] license plate is
`issued by the State . . . .2
`
`[Virginia] license plates are, essentially, government IDs. And
`
`2 Omitted and not applicable here are the facts that “T exas also own[ed] the designs on its license plates,”
`and that “Texas dictates the manner in which drivers may dispose of unused plates.” Walker, 576 U.S. at 212
`(internal citations omitted).
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`issuers of ID “typically do not permit” the placement on their IDs
`of “message[s] with which they do not wish to be associated.”
`Consequently, “persons who observe” designs on IDs “routinely—
`and reasonably—interpret them as conveying some message on the
`[issuer’s] behalf.”
`
`Walker, 576 U.S. at 212 (internal citations omitted).
` The only ground for distinction that we observe are the facts that “Texas also own[ed] the
`designs on its license plates,” and that “Texas dictates the manner in which drivers may dispose
`of unused plates.” Walker, 576 U.S. at 212 (internal citations omitted). Whether those facts are
`true for Virginia has not been briefed for the Court. But in any case, such facts are secondary to
`the thrust of the Supreme Court’s reasoning: Where license plates are “essentially” government
`IDs, the public perceives the speaker of the plate as the government. Here, Virginia’s
`personalized vanity plates “share enough of the prominent features of Texas’s specialty plates to
`warrant the same conclusion.” Gilliam, 2025 WL 617603, at *10. As the Commissioner notes,
`each of the Commonwealth’s plates “contains the word ‘Virginia’ at the top and the default plate
`contains the state slogan ‘Virginia is for Lovers’ at the bottom.” Dkt. 08 at 16. And “the
`Commonwealth strictly controls all other aspects of the license plates.” Id. Virginia law dictates
`“the number, placement, and type of plate required for each vehicle as well as the how the plates
`are to be fastened, which vehicles must display a plate, and when a plate is not required on any
`vehicle.” Dkt. 08 at 16; see Va. Code §§ 46.2-711 (number, placement, and type of license
`plate); § 46.2-712 (requirements for license plates generally); 46.2-715 (display of license
`plates); 46.2-716 (fastening plates to vehicles). These facts suggest that Virginia characterizes its
`license plates as government IDs no less than the state of Texas did, such that they must be
`identified in the public mind as government speech.
` We recognize the paradox inherent in concl uding that highly personalized license plates
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`speak for the state rather than the driver, 3 especially where the vanity plate message bears no
`understandable connection to governmental policy or, worse, forces the impression that the
`government is in fact “babbling prodigiously and incoherently.” Matal v. Tam, 582 U.S. 218, 236
`(2017). “But the dissenting opinion in Walker made the same appeal to common sense, to no
`avail.” Gilliam, 2025 WL 617603, at *10 (citing Walker, 576 U.S. at 221–22 (Alito, J.,
`dissenting)). The dissent in Walker criticized the majority for concluding that all of the “more
`than 350 varieties” of Texas specialty plates—ranging from plates in support of “numerous
`colleges and universities” to “the Masons, the Knights of Columbus, the Daughters of the
`American Revolution, a realty company, a favorite soft drink, a favorite burger restaurant, and a
`favorite NASCAR driver”—reflected “the views of the State of Texas and not those of the
`owners of the cars.” Walker, 576 U.S. at 221–22 (Alito, J., dissenting)). How “[c]an this possibly
`be correct?” the dissent asked.
`Yet the binding conclusion of the Court was that the public invariably associates license
`plates with the government because the public understands that license plates are government
`IDs. Based overwhelmingly on that premise, the Court concluded that the second Walker factor
`weighed in favor of Texas. Id. at 212-213. Here, where vanity plates in Virginia are equally
`likely to be perceived as government IDs as specialty plates were in Texas, the second Walker
`factor must also weigh in favor of finding that Virginia’s vanity plates are government speech.
`Other courts to reach a similar conclusion have confronted the paradox of this result and
`embraced the reality that two things can be true at once: the public knows that the driver
`customized the message on the license plate, and also knows that the message had to be
`approved by the government to be displayed at all. See, e.g., Odquina v. City and Cnty. of
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`3 Kotler, 2019 WL 4635168, at *7 ([I]t strains believability to argue that viewers perceive the government as
`speaking through personalized vanity plates.”).
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`Honolulu, 2022 WL 16715714, at *9 (D. Haw. Nov. 4, 2022), aff’d, No. 22-16844, 2023 WL
`4234232 (9th Cir. June 28, 2023) (“Although the general populace most certainly understands
`that vanity license plates are attributable in some respect to the vehicle owner, reasonable
`observers are also aware that vanity plates must be approved and printed by the government, and
`that they are used as official identification and registration numbers for the vehicle.”).
`Both things may be true as a matter of common sense. But only one is controlling as a
`matter of law: where license plates are government IDs, their message more likely constitutes
`government speech than private speech.
`3. State Control of the Message
`Finally, we consider the extent to which the Commonwealth “actively control[s]” or
`“shape[s]” the messages displayed on vanity plates. Shurtleff, 596 U.S. at 256. The
`Commissioner argues that Virginia employs “numerous and clear” efforts to exercise editorial
`control over vanity plates, to include (i) providing customers with guidelines on creating
`acceptable tags, (ii) maintaining an inventory of prohibited alphanumeric combinations, and (iii)
`accepting citizen complaints. Dkt. 08 at 17. The Commissioner emphasizes that DMV “long ago
`established license plate guidelines and a license plate committee to evaluate individual plates,”
`and that “[t]he guidelines are published on DMV’s website and available for all customers to
`review prior to requesting a specific license plate.” Dkt. 08 at 17. At this stage of litigation,
`DMV’s guidelines have not been introduced into the record, but the Court takes judicial notice of
`the publicly available guidelines.
`4 The guidelines state that “DMV will not approve an
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`4 Pursuant to Federal Rule of Evidence 201(b), the Court may judicially notice a fact that is not subject to
`reasonable dispute when it is either (1) generally known within the district court's jurisdiction, or (2) can be readily
`determined from an indisputably accurate source. See Fed. R. Evid. 201(b). The Fourth Circuit and courts within the
`Fourth Circuit “routinely take judicial notice of information contained on state and federal government websites.”
`U.S. v. Garcia, 855 F.3d 615, 621 (4th Cir. 2017).
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`application for a personalized license plate” if the requested plate “may reasonably be seen by a
`person viewing the license plate” as (i) profane, obscene, or vulgar in nature, (ii) sexually
`explicit or graphic, (iii) excretory-related, (iv) used to describe intimate body parts or genitals,
`(v) used to condone or encourage violence, or (vi) used to describe illegal activities or illegal
`substances.5
`Based on these facts, we have no doubt that the Commonwealth exercises ultimate
`editorial control over the messages displayed on vanity plates. The Commonwealth’s current
`editorial bent, as promulgated in DMV’s guidelines, largely reflects a concern for indecent
`speech. It does not reflect a broader array of policy concerns that might demonstrate the type of
`“selective receptivity” which supported a finding of government speech in cases like Summum
`and Shurtleff. But what matters is that the Commonwealth “maintains direct control over the
`messages conveyed” on its plates. Walker, 576 U.S. at 213. Two statutory provisions supply the
`Commissioner with plenary control and discretion over vanity plates: (1) “Every license plate
`and decal issued by the Department shall remain the property of the Department and shall be
`subject to be revoked . . . by the Department at any time,” see Va. Code § 46.2-713, and (2) “The
`Commissioner may, in his discretion, reserve license plates with certain registration numbers or
`letters or combinations thereof for issuance to persons requesting license plates so numbered and
`lettered.” See Va. Code § 46.2-726. Indeed, Plaintiff’s very gripe in this litigation is that the
`Commissioner has “unfettered discretion” in controlling the messages on vanity plates. Dkt. 01
`at 4. Even if the Commonwealth currently goes no further in its discretion than prohibiting
`various forms of speech for its indecency or offensiveness, the Commonwealth’s editorial
`control and final approval authority allows Virginia “to choose how to present itself and its
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`5 Personalized Message Information, VIRGINIA DEPARTMENT OF MOTOR VEHICLES, (last accessed May 28,
`2025) available at https://www.dmv.virginia.gov/vehicles/license-plates/personalized-plate-policy.
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`constituency.” Walker, 576 U.S. at 213.
`Furthermore, it does not count against the state that the DMV originally approved and
`later revoked the plate at issue here. The dissenting opinion in Walker argued that Texas’
`specialty plates were less likely government speech since “Texas [did] not take care to approve
`only those proposed plates that convey messages that the State supports.” Walker, 576 U.S. at
`232, (Alito, J., dissenting). But again, that argument did not carry the day. Whether the
`Commonwealth uses its discretion in a manner that is lax or heavy-handed, inconsistent or
`calculating, does not refute the underlying fact of its discretion. Here, Mr. Whately’s tags were
`approved and later revoked all the same, through the Commonwealth’s statutory and regulatory
`process for shaping the messages displayed on its vanity tags. Accordingly, the third Walker
`factor weighs in favor of the Commonwealth.
`***
`On balance, we conclude that the Commonwealth has shown that its vanity plates
`constitute government speech.
`B. Remaining First Amendment Issues
`Because the Commonwealth’s vanity plates are government speech, Plaintiff has no First
`Amendment interest in his license plate. Plaintiff’s First Amendment arguments regarding
`overbreadth, vagueness, and viewpoint discrimination must therefore fail.
`C. Due Process Claim
`Finally, Plaintiff’s due process claim must be dismissed because the claim (i) fails the
`pleading standards of Rule 12(b)(6) and (ii) is substantively untenable. Although the complaint
`does not clarify whether the due process claim is procedural or substantive, Plaintiff’s allegations
`do not plausibly state a claim under either branch of the Due Process clause.
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`To succeed on a substantive due process claim, Plaintiff must show that (1) he has a
`liberty or property interest; (2) the state deprived him of this liberty or property interest; and (3)
`“the state’s action falls ‘so far beyond the outer limits of legitimate governmental action that no
`process could cure the deficiency.’” Safety-Kleen, Inc. (Pinewood) v. Wyche, 274 F.3d 846, 862
`(4th Cir. 2001) (quoting Sylvia Dev. Corp. v. Calvert County, 48 F.3d 810, 827 (4th Cir.1995)).
`To succeed on a procedural due process claim, Plaintiff “must show that ‘there exists a liberty
`or property interest which has been interfered with by the State’ and that ‘the procedures
`attendant upon that deprivation’ were constitutionally insufficient.” Safety-Kleen, 274 F.3d at
`860 (quoting Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989). “At bottom, procedural
`due process requires fair notice of impending state action and an opportunity to be heard.” Snider
`Int’l Corp. v. Town of Forest Heights, Md., 739 F.3d 140, 146 (4th Cir. 2014) (citing Mathews v.
`Eldridge, 424 U.S. 319, 333 (1976)).
`Here, Plaintiff alleges that the Commissioner “[v]iolated” his “14th amendment right to
`Due Process,” Dkt. 01 at 3, yet the complaint paints a picture of a highly reasonable
`administrative process. The complaint generally alleges that (i) the Commissioner used his
`statutory authority to revoke Plaintiff’s license plate; (ii) Plaintiff sought an “Informal
`Administrative Hearing” on the revocation; (iii) a hearing was scheduled after some delay by
`DMV and Plaintiff appeared at the hearing; and (iv) one month later, Plaintiff received notice of
`“the Informal Conference Decision upholding the revocation” of his license plate. This suit
`followed. Dkt. 01 at 5-6.
`But Plaintiff nowhere explains how these allegations plausibly support the claim that his
`due process rights were violated, either substantively or procedurally. Plaintiff is obligated to
`“provide the ‘grounds’ of his entitle[ment] to relief” beyond the use of “labels and conclusions,”
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`Twombly, 550 U.S. at 555, but here Plaintiff largely places a due process label on the same set of
`facts used for his First Amendment claims. Regarding substantive due process, Plaintiff falls
`well short of alleging that “the state’s