IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF VIRGINIA
`DANVILLE DIVISION
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`Case No. 7:99-cv-00530
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`MEMORANDUM OPINION
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`By: Hon. Jackson L. Kiser
` Senior United States District Judge
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`SONS OF CONFEDERATE VETERANS, )
`INC., & VIRGINIA DIVISION OF SONS )
`OF CONFEDERATE VETERANS, INC.,
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`Plaintiffs,
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`v.
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`RICHARD D. HOLCOMB, Commissioner )
`of the Virginia Department of Motor
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`Vehicles, in his official capacity,
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`Defendant.
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`In 2001, I held that specialty license plates issued by the Commonwealth of Virginia
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`(“the Commonwealth”) conveyed the speech of the driver. As such, Virginia Code § 46.2-
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`746.22, which created a specialty license plate honoring members of the Sons of Confederate
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`Veterans (“SCV”), but which specifically banned SCV’s logo from the plate, was an
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`impermissible restrictions on Plaintiffs’ speech. I enjoined Defendant from enforcing that
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`portion of the statute that banned SCV’s logo. The Fourth Circuit Court of Appeals agreed, and
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`the Defendant chose not to press the issue with the Supreme Court. Last month, the Supreme
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`Court issued its opinion in Walker v. Texas Division, Sons of Confederate Veterans, Inc., which
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`directly addressed the issue I decided in 2001, but reached the conclusion that specialty license
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`plates represent the state’s speech, not the driver’s. In light of the Supreme Court’s ruling,
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`Defendant asks that I vacate the judgment entered for Plaintiffs and dissolve the injunction. The
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`parties briefed the matter fully, and I heard oral argument on July 31, 2015. For the reasons
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`stated in open court and set forth more fully herein, I will grant the Commonwealth’s Motion,
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`vacate the judgment, and dissolve the injunction.
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`I.
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`STATEMENT OF FACTS AND PROCEDURAL BACKGROUND
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`According to the original opinion in this case:
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`Plaintiffs are the Sons of Confederate Veterans, Inc., a
`Tennessee non-profit corporation, and the Sons of Confederate
`Veterans, Inc., Virginia Division (“the Sons–VA”). The groups are
`suing by and through Patrick J. Griffin, the Sons’ Commander–in–
`Chief, and Robert W. Barbour, Commander of the Sons–VA. The
`Sons are qualified under Internal Revenue Code § 501(c)(3).
`Defendant is Richard D. Holcomb, the Commissioner of the
`Virginia Department of Motor Vehicles. The DMV is under
`Holcomb’s supervision and is responsible for the specialty license
`plate program that is at issue in this case. Specialty license plates
`in Virginia have been issued that incorporate designs honoring
`over 300 diverse organizations,
`including various military
`veterans’ organizations and fraternal organizations. Access to this
`program is restricted to only those groups so designated under
`Virginia statute.
`The statute authorizing the creation of the Sons’ specialty
`license plates, Va. Code Ann. § 46.2–746.22, reads as follows:
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`Special license plates; members of the Sons of
`Confederate Veterans.
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`On receipt of an application therefor and written
`evidence that the applicant is a member of the Sons
`of Confederate 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.
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`(Emphasis added).
`This language is identical to numerous other specialty license
`plate provisions with the sole exception of the ban on displaying
`any logos or emblems. This restriction was clearly aimed at
`excluding the organization’s official logo, which incorporates the
`Confederate battle flag. This logo has been the Sons’ official logo
`for over 100 years and is proprietary to the organization. Out of the
`scores of separate statutory provisions allowing hundreds of
`organizations to qualify for the special license plates, § 746.22 is
`the only one with any sort of speech restriction.
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`Sons of Confederate Veterans, Inc., v. Holcomb, 129 F. Supp. 2d 941, 942–43 (W.D. Va. 2001)
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`(hereinafter “SCV I”). Ultimately, I found “the restricting language in § 746.22 to be an
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`impermissible restriction on speech.” Id. at 942. Because I determined “the design at issue to be
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`the speech of the Plaintiffs,” the First Amendment prohibited enforcement of the second sentence
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`of § 746.22, which amounted to viewpoint discrimination. Id. at 943. As a result, I entered
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`summary judgment for SCV on February 14, 2001, and enjoined Holcomb from enforcing the
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`second sentence of § 746.22. That decision was affirmed by the Fourth Circuit. Sons of
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`Confederate Veterans, Inc. ex rel. Griffin v. Comm’n of Va. Dept. of Motor Vehicles, 288 F.3d
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`610 (2002) (hereinafter “SCV II”), reh’g denied 305 F.3d 241 (2002) (en banc).
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`On June 18, 2015, the Supreme Court issued its opinion in Walker v. Texas Division,
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`Sons of Confederate Veterans, Inc., 135 S. Ct. 2239 (2015), addressing whether Texas’s decision
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`to reject SCV’s proposed license plate design, a design which featured the Confederate battle
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`flag, abridged SCV’s First Amendment rights. Ultimately, the Supreme Court held that,
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`“specialty license plates issued pursuant to Texas’s statutory scheme convey government
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`speech.” Id. at 2246. Because “the government can speak for itself,” and because, “[w]hen the
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`government speaks, it is not barred by the Free Speech clause from determining the content of
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`what it says,” the Supreme Court held that Texas could constitutionally exclude from its license
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`plate SCV’s proposed design and logo. Id. at 2245–46.
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`In light of the ruing in Walker, and pursuant to Rule 60(b) of the Federal Rules of Civil
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`Procedure, Defendant Richard D. Holcomb, Commissioner of the Virginia Department of Motor
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`Vehicles, filed a motion to vacate the judgment and dissolve the injunction issued in 2001. [ECF
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`No. 46.]
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`II.
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`STANDARD OF REVIEW
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`Federal Rule of Civil Procedure 60(b)(5) permits a party to obtain relief from a judgment
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`or order if, among other things, “applying [the judgment or order] prospectively is no longer
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`equitable.” Fed. R. Civ. P. 60(b)(5). “The significant portion of Rule 60(b)(5) is the final
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`ground, allowing relief if it is no longer equitable for the judgment to be applied prospectively.
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`This is based on the historic power of a court in equity to modify its decree in the light of
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`changed circumstances.” 11 Charles A. Wright, Arthur R. Miller & Mark Kay Kane, Federal
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`Practice and Procedure § 2863 (3d ed. 2012). “Rule 60(b)(5) may not be used to challenge the
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`legal conclusions on which a prior judgment or order rests, but the Rule provides a means by
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`which a party can ask a court to modify or vacate a judgment or order if ‘a significant change
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`either in factual conditions or in law’ renders continued enforcement ‘detrimental to the public
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`interest.’” Horne v. Flores, 557 U.S. 433, 447 (2009) (quoting Rufo v. Inmates of Suffolk Cnty.
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`Jail, 502 U.S. 367, 384, (1992)). “The party seeking relief bears the burden of establishing that
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`changed circumstances warrant relief, but once a party carries this burden, a court abuses its
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`discretion ‘when it refuses to modify an injunction or consent decree in light of such changes.’
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`Agostini v. Felton, 521 U.S. 203, 215 (1997).” Horne, 557 U.S. at 447 (citing Rufo, 502 U.S. at
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`383).
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`III. DISCUSSION
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`Contrary to Plaintiffs’ argument, this case depends exclusively on the determination of
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`whether specialty license plates convey private or government speech. As I stated in 2001:
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`The initial inquiry, of course, is whether the license plate design
`implicates Plaintiffs’ rights at all, or whether the design is the
`speech of the Commonwealth. . . . Who is speaking . . . is pivotal.
`If Defendant is correct in asserting that the specialty plates
`represent government speech, then the First Amendment rights of
`the Plaintiffs are not implicated whatsoever. Under this view,
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`then, Plaintiffs’ action is nothing more than an attempt to compel
`the Commonwealth to speak. In the alternative, Defendant also
`argues that specialty plates represent at least some sort of “joint
`speech,” implicating both governmental and private speech. In
`either instance, Defendant maintains that it may veto the content
`because it cannot be compelled to speak unwillingly.
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`SCV I, 129 F. Supp. at 941 (citing Rosenberger v. Rectors & Visitors of the Univ. of Va., 515
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`U.S. 819, 833 (1995)). Ultimately I determined, “the design at issue [was] the speech of the
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`Plaintiffs.” SCV I, 129 F. Supp. 2d at 943. The Fourth Circuit agreed, holding, “the logo
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`restriction violates the Constitution . . . .” SCV II, 288 F.3d at 614.
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`In Walker, the Supreme Court explicitly held, “specialty license plates . . . convey
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`government speech.” Walker, 135 S. Ct. at 2246. Thus, contrary to my earlier holding, the
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`speech on the plates at issue does not represent the speech of Plaintiffs, but rather the speech of
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`the Commonwealth. Because “the government can speak for itself,” Bd. of Regents of Univ. of
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`Wis. System v. Southworth, 529 U.S. 217, 229 (2000), and because “[w]hen government speaks,
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`it is not barred by the Free Speech Clause from determining the content of what it says,” Walker,
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`135 S. Ct. at 2245 (citing Pleasant Grove City v. Summum, 555 U.S. 460, 467–68 (2009)), Va.
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`Code Ann. § 46.2-746.22 is a valid exercise of the Commonwealth’s rights.
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`There is no merit to Plaintiffs’ contention that Walker is limited solely to one of Texas’s
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`methods of selecting specialty plate designs. The Supreme Court’s decision did not rely on the
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`method used to select the plate designs, but on “the history of license plates,” id. at 2248, the fact
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`that “license plate designs ‘are often closely identified in the public mind with the [State],’” id.
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`(quoting Summum, 555 U.S. at 472), the fact that “license plates are, essentially, government
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`IDs,” id. at 2249, and the fact that “Texas maintain[ed] direct control over the messages
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`conveyed on its specialty plates,” id. Nothing in the Supreme Court’s decision suggests that if
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`the method used to select the plate is varied, the reasoning of the Court’s conclusion would be
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`altered. The factors the Supreme Court relied on in Walker apply with equal force here, and the
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`holding in Walker compels the conclusion that Virginia’s specialty license plates represent the
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`Commonwealth’s speech.
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`Plaintiffs argue that the Commonwealth does not exercise editorial discretion over the
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`content of the specialty plate designs, and therefore the speech remains the speech of the
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`individual. First, the Commonwealth does exercise control over the design of specialty plates.
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`Defendant, the agent of the Commonwealth, is responsible for designing and issuing specialty
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`plates. See Va. Code Ann. § 46.2-725(A) (“No series or special license plates shall be created or
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`issued by the Commissioner or the Department [of Motor Vehicles] except as authorized in this
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`article . . . .” (emphasis added)); id. § 46.2-725(B)(3) (“All special license plates issued pursuant
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`to this article shall be of designs prescribed by the Commissioner . . . .”). The fact that the
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`Commissioner often adopts the proposed designs of sponsoring groups in no way undermines the
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`Commonwealth’s authority to design the plates and, thus, speak by adopting the speech of
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`another. See Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 541 (2001) (noting the proposition
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`that viewpoint discrimination is permissible when the government speaks or, in “instances, like
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`Rust [v. Sullivan, 500 U.S. 173 (1991)], in which the government ‘used private speakers to
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`transmit specific information pertaining to its own programs’” (quoting Rosenberger, 515 U.S. at
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`833).)
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`Second, and more importantly, the structure of § 46.2-746.22 establishes that, in the
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`present case, the General Assembly did exercise the editorial discretion Plaintiffs contend is
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`lacking by explicitly overruling a specialty license plate design. The General Assembly clearly
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`stated that, on the SCV specialty plate, “[n]o logo or emblem of any description shall be
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`displayed or incorporated into the design of license plates issued under this section.” Va. Code
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`Ann. § 46.2-746.22. Unlike in other specialty license plate statutes, the Commonwealth has
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`identified speech it did not want to make. Because the First Amendment protects the
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`government’s right to speak and “the concomitant freedom not to speak publicly, one which
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`serves the same ultimate end as freedom of speech in its affirmative aspect,” Harper & Row
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`Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 559 (1985) (quoting Estate of Hemingway
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`v. Random House, 23 N.Y.2d 341, 348 (1968)), SCV can no longer force the Commonwealth to
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`include its logo on specialty plates issued pursuant to § 46.2-746.22. The judgment must be
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`vacated, and the injunction dissolved.
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`IV. CONCLUSION
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`When the Supreme Court speaks, district courts must listen. In light of the ruling in
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`Walker, the primary rationale for the 2001 judgment and injunction in this case is no longer good
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`law. Specialty license plates represent the government’s speech, and the Commonwealth may
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`choose, consonant with the First Amendment, the message it wishes to convey on those plates.
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`The Commonwealth’s rationale for singling out SCV for different treatment is no longer
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`relevant. According to the Supreme Court, the Commonwealth is free to treat SCV differently
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`from all other specialty groups. Because the underlying injunction violates that right, I have no
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`choice but to dissolve it.
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`The clerk is directed to forward a copy of this Memorandum Opinion and accompanying
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`Order to all counsel of record.
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`Entered this 6th day of August, 2015.
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`s/Jackson L. Kiser
`SENIOR UNITED STATES DISTRICT JUDGE
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