            Certiorari granted by Supreme Court, June 29, 2015
           Vacated and Remanded by Supreme Court, June 29, 2015



                               PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 13-1030


AMERICAN CIVIL LIBERTIES UNION OF NORTH CAROLINA; DEAN
DEBNAM; CHRISTOPHER HEANEY; SUSAN HOLLIDAY, CNM, MSN; MARIA
MAGHER,

                 Plaintiffs - Appellees,

           v.

ANTHONY J. TATA, in his official capacity as Secretary of
the North Carolina Department of Transportation; JAMES L.
FORTE, in his official capacity as Commissioner of the North
Carolina Division of Motor Vehicles,

                 Defendants – Appellants,

           and

MICHAEL GILCHRIST, in his official capacity as Colonel of
the North Carolina State Highway Patrol,

                 Defendant.

------------------------

NATIONAL LEGAL FOUNDATION,

                 Amicus Supporting Appellants.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:11-cv-00470-F)


Argued:   October 30, 2013                Decided:    February 11, 2014
Before TRAXLER, Chief Judge, WYNN, Circuit Judge, and George L.
RUSSELL, III, United States District Judge for the District of
Maryland, sitting by designation.


Affirmed by published opinion. Judge Wynn wrote the opinion, in
which Chief Judge Traxler and Judge Russell joined.


ARGUED: Kathryne Elizabeth Hathcock, NORTH CAROLINA DEPARTMENT
OF   JUSTICE,    Raleigh,   North   Carolina,   for   Appellants.
Christopher Anderson Brook, AMERICAN CIVIL LIBERTIES UNION OF
NORTH CAROLINA LEGAL FOUNDATION, Raleigh, North Carolina, for
Appellees.     ON BRIEF: Roy Cooper, North Carolina Attorney
General, Neil Dalton, Special Deputy Attorney General, NORTH
CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellants.   Steven W. Fitschen, THE NATIONAL LEGAL FOUNDATION,
Virginia Beach, Virginia, for Amicus Supporting Appellants.




                               2
WYNN, Circuit Judge:

      The    First     Amendment      prohibits      the     making      of    any     law

“abridging the freedom of speech . . . .”                   U.S. Const. amend. I.

“Premised on mistrust of governmental power, the First Amendment

stands      against     attempts      to   disfavor        certain       subjects       or

viewpoints.”        Citizens United v. Fed. Election Comm’n, 558 U.S.

310, 340 (2010).         Chief amongst the evils the First Amendment

prohibits     are     government      “restrictions         distinguishing           among

different speakers, allowing speech by some but not others.”

Id.

      In    this    case,     North    Carolina      seeks    to    do    just       that:

privilege     speech     on    one    side      of   a     hotly   debated       issue—

reproductive          choice—while         silencing          opposing           voices.

Specifically, though North Carolina invites citizens to “[m]ake

a statement,” 1 and “promote themselves and/or their causes” 2 with

specialty     license    plates,      it   limits    this    invitation         to    only

those citizens who agree with North Carolina’s “Choose Life”

stance.      North Carolina contends that it may so discriminate

because     specialty     plate      messages    constitute        pure       government

speech      free      from      First      Amendment         viewpoint-neutrality

constraints.       With this, we cannot agree.



      1
          http://www.ncdot.gov/dmv/vehicle/plates/.
      2
          http://www.ncdot.gov/dmv/online/.


                                           3
       The Supreme Court and this Court have recognized individual

speech interests in license plate messages.                           And in this case,

too,   the   specialty       plate       speech       at    issue    implicates       private

speech     rights,     and    thus       First       Amendment       protections       apply.

Because issuing a “Choose Life” specialty license plate while

refusing     to     issue    a    pro-choice          specialty       plate     constitutes

blatant viewpoint discrimination squarely at odds with the First

Amendment,     we    affirm       the    district          court’s    grant     of    summary

judgment and a permanent injunction in Plaintiffs’ favor.



                                            I.

       In June 2011, the North Carolina General Assembly passed,

and the North Carolina Governor signed into law, House Bill 289

(“HB   289”).        The     resulting      law,       “An    Act     to   Authorize      the

Division of Motor Vehicles to Issue Various Special Registration

Plates,”     authorizes          the    North        Carolina        Division    of    Motor

Vehicles     (“NC    DMV”)       to    issue,       among    other    specialty       license

plates, a “Choose Life” plate.              2011 N.C. Sess. Laws 392.

       By contrast, this law authorizes no pro-choice specialty

license plate.         Id.        In fact, plates bearing slogans such as

“Respect Choice” were suggested but repeatedly rejected by the

North Carolina General Assembly.                    J.A. 61-62.

       A “Choose Life” plate, like many other specialty license

plates, costs a vehicle owner an additional $25 per year.                                N.C.

                                                4
Gen. Stat. § 20-79.7(a1).                  Of the $25, $15 go to the Carolina

Pregnancy Care Fellowship, a private organization that supports

crisis pregnancy centers in North Carolina. 3                        N.C. Gen. Stat. §§

20-79.7(b), 20-81.12(b84).                     The remaining $10 go to the North

Carolina         Highway    Fund,    as    is     the     case   with    other    specialty

plates.          N.C.    Gen.     Stat.    §    20-79.7(b).         Further,     the    funds

collected         from   “Choose     Life”       plates    are    expressly      prohibited

from “be[ing] distributed to any agency, organization, business,

or other entity that provides, promotes, counsels, or refers for

abortion . . . .”           N.C. Gen. Stat. § 20-81.12(b84).

       To develop a specialty license plate, NC DMV must receive

three hundred applications from individuals interested in that

plate.       Id.        Once the NC DMV issues the plate, any interested

vehicle      owner       registered       in    North     Carolina      may   purchase    it.

Over       two    hundred    specialty          plates    are    available,      and   North

Carolina invites vehicle owners to “find the plate that fits

you” and “[m]ake a statement with a specialized or personalized

license          plate.”            http://www.ncdot.gov/dmv/vehicle/plates/.

According to North Carolina, its specialty plate program “allows

citizens         with    common     interests        to   promote    themselves        and/or

their causes.”           http://www.ncdot.gov/dmv/online/.

       3
       The Carolina Pregnancy Care Fellowship also serves as the
official state contact for Choose Life, Inc., a national
organization devoted to getting “Choose Life” license plates on
the road in all fifty states.


                                                 5
       Because North Carolina refused to allow a specialized plate

to promote their cause, North Carolina vehicle owners who wanted

a pro-choice specialty plate, along with the ACLU, brought this

lawsuit in       the        United      States    District       Court      for    the   Eastern

District    of     North          Carolina.          They    sued     the     North      Carolina

Department        of        Transportation           (“NC     DOT”)     and       the    NC     DMV

(collectively called “North Carolina”) for First and Fourteenth

Amendment violations.

       In December 2011, the district court granted a preliminary

injunction    blocking             North    Carolina         from    issuing      the     “Choose

Life” plate.       Am. Civil Liberties Union of N.C. v. Conti, 835 F.

Supp. 2d 51 (E.D.N.C. 2011).                     One year later, in December 2012,

the    district        court      granted       summary      judgment       and    permanently

enjoined the “Choose Life” plate.                       Am. Civil Liberties Union of

N.C.   v.   Conti,          912    F.    Supp.    2d     363    (E.D.N.C.         2012).        The

district     court          held,       among    other       things,     that      “sufficient

private speech interests are implicated by the specialty license

plates to preclude a finding of purely government speech[,]” and

that “the State’s offering of a Choose Life license plate in the

absence      of         a      pro-choice            plate      constitutes             viewpoint

discrimination in violation of the First Amendment.”                                         Id. at

375.      North        Carolina      appealed,         and     our    review      is    de    novo.

Planned Parenthood of S.C. Inc. v. Rose, 361 F.3d 786, 789 (4th

Cir. 2004).

                                                 6
                                             II.

        At the outset, we note that North Carolina does not deny

that it engaged in viewpoint discrimination by approving the

“Choose Life” plate while refusing to allow a pro-choice plate.

Instead,       North        Carolina    contends        that      it    was      free   to

discriminate based on viewpoint because the license plate speech

at issue was solely its own.                   And under the government speech

doctrine, when the government speaks for itself, it can say what

it wishes.       Plaintiffs disagree, arguing that the license plate

speech at issue implicates private speech and all its attendant

First     Amendment         protections,       including       the     prohibition       on

viewpoint discrimination.              Determining whether the “Choose Life”

specialty      plate    embodies       pure    government      speech     or     something

else is therefore at the heart of this case.

                                              A.

        “Premised      on    mistrust    of        governmental      power,”     Citizens

United, 558 U.S. at 340, the First Amendment bars the government

from abridging freedom of private speech.                      U.S. Const. amend. I;

see also, Gitlow v. New York, 268 U.S. 652 (1925) (incorporating

the freedom of speech against the states).                           “It is axiomatic

that     the   government       may    not     regulate     speech       based    on    its

substantive content or the message it conveys.                         Other principles

follow from this precept.                In the realm of private speech or

expression, government regulation may not favor one speaker over

                                              7
another.     Discrimination against speech because of its message

is presumed to be unconstitutional.”                       Rosenberger v. Rector &

Visitors of Univ. of Va., 515 U.S. 819, 828 (1995) (citations

omitted).

       “[T]he violation of the First Amendment is all the more

blatant” when the government targets not simply subject matter,

but particular viewpoints speakers take on a subject.                              Id. at

829.        Indeed,     the      Supreme          Court       has      called    viewpoint

discrimination “an egregious form of content discrimination” and

has held that “[t]he government must abstain from regulating

speech when the specific motivating ideology or the opinion or

perspective     of      the      speaker          is     the     rationale       for     the

restriction.”       Id. at 829.

       By   contrast,       if    the     government           engages      in   its     own

expressive     conduct,       then      the       Free    Speech        Clause   and     its

viewpoint     neutrality          requirements            have      “no     application.”

Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 467 (2009).

Indeed,     under     the        “relatively           new,      and      correspondingly

imprecise”    government         speech       doctrine,        Johanns     v.    Livestock

Mktg. Ass’n, 544 U.S. 550, 574 (2005) (Souter, J., dissenting),

“[a] government entity has the right to speak for itself.                              It is

entitled to say what it wishes, and to select the views that it

wants to express.” (quotation marks, citations, and alterations

omitted).

                                              8
      Although       the     Supreme      Court      has   not       yet    recognized         that

speech   may    be     not    purely      government        or       private         but    instead

implicate      both,       this     Court       has.       In     Sons          of   Confederate

Veterans, Inc. ex rel. Griffin v. Commissioner of the Virginia

Department of Motor Vehicles (“SCV I”), this Court held that

Virginia’s      barring        the     Sons         of   Confederate            Veterans       from

obtaining a specialty license plate with a confederate flag logo

constituted unconstitutional viewpoint discrimination.                                     288 F.3d

610 (4th Cir. 2002).              While the panel opinion deemed the speech

at   issue    private       only,     Judge      Luttig,     in       a    separate         opinion

regarding      the     denial        of     rehearing           en    banc,          presciently

recognized that “speech in fact can be, at once, that of a

private individual and the government.”                              Sons of Confederate

Veterans, Inc. v. Comm’r of Va. Dep’t of Motor Vehicles (“SCV

II”), 305 F.3d 241, 245 (4th Cir. 2002) (Luttig, J.).                                      He noted

that specialty plates were perhaps the “quintessential example

of   speech    that    is     both    private        and   governmental              because    the

forum    and     the       message        are       essentially           inseparable,          the

consequence     being       that     it   is    difficult        if       not    impossible      to

separate sufficiently what is indisputably the speech act by the

private speaker from what is equally indisputably the speech act

by the government.”           Id.




                                                9
     Two years later, in Rose, this Court embraced the notion of

mixed speech.      361 F.3d at 794. 4         In Rose, a case strikingly

similar to this one, South Carolina had authorized the issuance

of a “Choose Life” specialty license plate but no plate bearing

a pro-choice message.         Id. at 787–88.        The plaintiffs in Rose,

as   here,   alleged   that    in    doing    so,   the   state   engaged   in

unconstitutional    viewpoint       discrimination.       Id.     Deeming   the

specialty plate speech at issue mixed speech implicating private

speech rights, we agreed.        Id.    We held that the speech at issue

there “appears to be neither purely government speech nor purely

private speech, but a mixture of the two.”                 Id. at 794.       We

applied a forum analysis, which the Supreme Court has instructed

courts to use when private speech occurs on government property,

noted that the government may not viewpoint-discriminate in any

forum, and held that South Carolina’s allowing a pro-life plate

but no pro-choice plate constituted viewpoint discrimination in

violation of the First Amendment.           Id. at 795-99.

     4
       While each member of the Rose panel wrote a separate
concurring opinion, Judge Michael authored the only opinion
laying out the Court’s analytical framework, and the other panel
members, Judge Luttig and Judge Gregory, essentially embraced
it. See, e.g., Rose, 361 F.3d at 800 (Luttig, J.) (“Needless to
say, I am pleased that the court adopts today the view that
speech can indeed be hybrid in character.”); Rose, 361 F.3d at
801 (Gregory, J.) (“[B]ecause I believe the judgment reached
today applies the factors set forth in Sons of Confederate
Veterans in a manner that begins to recognize the government
speech interests in the vanity license plate forum, I concur in
the judgment.”).


                                       10
                                        B.

      To   determine    whether      speech    is     that   of    the    government,

private    parties,    or   both,     this    Court    looks      to   “instructive”

factors laid out in SCV I:

      (1) “the central purpose of the program in which the
      speech in question occurs;”

      (2) “the degree of editorial control exercised by the
      government or private entities over the content of the
      speech;”

      (3) “the identity of the literal speaker;” and

      (4) “whether the government or the private entity
      bears the ultimate responsibility for the content of
      the speech[.]”

288 F.3d at 618 (quotation marks omitted).

      North Carolina argues that this Court abandoned the SCV

factors with Page v. Lexington County School District One, 531

F.3d 275 (4th Cir. 2008).            According to North Carolina, in Page

we   lopped   off     several   of    the     SCV   factors       in   favor   of   an

exclusive     focus    on   control    of     the     message     in     question   to

determine whose message it is.          We disagree.

      First, we note that “a panel of this court cannot over-

rule, explicitly or implicitly, the precedent set by a prior

panel of this court.            Only the Supreme Court or this court

sitting en banc can do that.”           United States v. Brooks, 524 F.3d

549, 559 n.17 (4th Cir. 2008) (quotation marks omitted).                        Page,




                                        11
which is neither a Supreme Court nor an en banc decision, thus

did not supplant SCV I.

      Second, Page does not suggest any attempt to overthrow the

SCV factors in favor of a single-factor control test.                      Instead,

in Page, a case about a school district’s speech, we cited to,

and considered, several factors—specifically, who disseminates

the   speech,     as    well   as     who   “establishes”      and   “controls”   the

speech.     Page, 531 F.3d at 281.                Our flexible approach in Page

is not surprising, given our express acknowledgment in SCV I

itself that the four factors identified there are “instructive”

but neither “exhaustive” nor always uniformly applicable.                         SCV

I, 288 F.3d at 619.            Therefore even Page does not support our

having embraced a single-factor approach to determining who is

speaking.

      Further,         in   opinions        postdating     Page,     we   explicitly

employed    the    SCV      factors    to    identify    the   pertinent   speaker.

See, e.g., Turner v. City Council of City of Fredericksburg,

Va., 534 F.3d 352, 354 (4th Cir. 2008) (noting that the “Fourth

Circuit    has    adopted      a    four-factor     test   for     determining    when

speech can be attributed to the government,” listing the SCV

factors, and “[a]pplying these factors, . . . [to] conclude that

the legislative prayer at issue . . . is governmental speech”).

Clearly, then, this Circuit has not recognized Page as having

displaced SCV I.

                                             12
       North Carolina nonetheless presses that the Supreme Court

implicitly overruled our SCV test with Johanns, 544 U.S. 550,

and Summum, 555 U.S. 460.         Specifically, North Carolina contends

that those cases instruct us to consider only “the level of

control the government exercises over the speech, not on who a

reasonable observer views as the literal speaker.”                 Appellants’

Br. at 7.      Again, we disagree with North Carolina’s argument and

thus decline its invitation to “follow the ‘control’ test for

government speech set forth in Johanns and affirmed in Summum.”

Id. at 14.

       Looking first at Johanns, we agree with the Ninth Circuit

that     the   case   is    factually    distinguishable    from     specialty

license plate cases.          “Johanns involved a government-compelled

subsidy of government speech. . . . In Johanns, the individual

harm was being forced to give the government money to pay for

someone else’s message.”         Ariz. Life Coal. Inc. v. Stanton, 515

F.3d 956, 964 (9th Cir. 2008) (quotation marks omitted).                    In

specialty license plate cases, by contrast, “private individuals

choose to pay the price for obtaining a particular specialty

license plate.        The First Amendment harm is being denied the

opportunity to speak on the same terms as other private citizens

within    a    government   sponsored    forum.”   Id.     (quotation    marks

omitted).



                                        13
      Further, the Supreme Court itself limited its holding to

compelled subsidies, expressly declining to address as not on

point even compelled speech arguments.                    Johanns, 544 U.S. at

564-65. 5     While      doing   so,    the    Supreme    Court      recognized   the

continued validity of Wooley v. Maynard, in which the Court held

that vehicle owners had a First Amendment right to cover the

“Live Free or Die” state motto on their New Hampshire license

plates.     Johanns, 544 U.S. at 565 n.8 (citing and distinguishing

Wooley, 430 U.S. 705 (1977)).            The Supreme Court also recognized

the continued validity of West Virginia State Board of Education

v.   Barnette,      in   which   the    Court    held    a     law   requiring    all

schoolchildren to recite the Pledge of Allegiance and salute the

American     flag     unconstitutional         under     the    First    Amendment.

Johanns,     544    U.S.    at    565    n.8    (citing        and   distinguishing

Barnette, 319 U.S. 624 (1943)).                  Yet if North Carolina were

correct in its assertion that government control of the message

is all that matters, both Wooley and Barnette would have been


      5
       We recognize that, upon closer consideration, government
subsidies may look more like government regulation than courts
have generally been willing to admit.         See, e.g., Joseph
Blocher, Viewpoint Neutrality and Government Speech, 52 B.C. L.
Rev. 695, 721 (2011) (noting, among other things, that funding
one group effectively singles out disfavored, unsubsidized
groups and thus looks like viewpoint-based regulation).   We do
not resolve that quandary here. We simply conclude that Johanns
did   not  overrule   the   four-factor   framework this  Court
established in SCV I and has applied repeatedly since to
determine who is speaking in cases like this one.


                                         14
wrongly decided—and they surely would not have been cited in

Johanns as good compelled speech law.

      Indeed, Summum underscores that the Supreme Court did not

espouse a myopic “control test” in Johanns.                        Specifically, in

Summum,    the    Supreme     Court     held   that      placement       of   permanent

monuments,       including     those     designed     and   donated       by    private

entities, in a city park constitutes government speech.                             555

U.S. at 481.        As in Johanns, the Supreme Court considered the

“control”     factor,        observing      that      the       city    “‘effectively

controlled’ the messages sent by the monuments in the [p]ark by

exercising    ‘final      approval      authority’       over    their    selection.”

Summum, 555 U.S. at 473 (quoting Johanns, 544 U.S. at 560–61).

      Importantly, however, the Supreme Court also focused on the

perceived     identity       of   the    speaker.        The     Court    noted    that

monuments installed on property are “routinely—and reasonably—

interpret[ed] as conveying some message on the property owner’s

behalf.”      Id. at 471.          Accordingly, the Court concluded that

“there is little chance that observers will fail to appreciate

the identity of the speaker” as the property owner.                      Id.

      Additionally,       context       mattered    in    Summum.         The   Supreme

Court focused on the fact that “public parks can accommodate

only a limited number of permanent monuments.”                     Id. at 478.       As

the   Court      noted,     “[s]peakers,       no     matter      how    long-winded,

eventually come to the end of their remarks[,]” while “monuments

                                          15
. . . endure.”           Id. at 479.          We cannot square the Supreme

Court’s multi-faceted, context-specific reasoning in Summum with

North Carolina’s blanket contention that all that matters is who

controls the message. 6

     The    third   Supreme    Court     case   upon   which     North   Carolina

seeks to rely—Hurley v. Irish-American Gay, Lesbian & Bisexual

Group of Boston—has absolutely no bearing on this one.                   515 U.S.

557 (1995).      North Carolina cites to Hurley for the proposition

that “[u]nder the government speech doctrine, North Carolina can

claim    the    ‘fundamental      rule   of    protection    under   the    First

Amendment, that a speaker has the autonomy to choose the content

of his own message.’”        Appellants’ Br. at 4 (quoting Hurley, 515

U.S. at 573).       But Hurley had nothing to do with the government

speech doctrine—which, by its very nature, does not implicate

the First Amendment.           See, e.g., Summum, 555 U.S. at 467-68

(noting that if the government engages in its “own expressive

conduct, then the Free Speech Clause has no application” because

“it does not regulate government speech”).                  Instead, that case

centered on private parties’ free speech rights, holding that

requiring      private   parade    organizers    to    include    amongst   their


     6
       The Supreme Court also noted “the legitimate concern that
the government speech doctrine not be used as a subterfuge for
favoring   certain   private speakers   over  others   based  on
viewpoint.”    Summum, 555 U.S. at 473.    We do not take this
concern lightly.


                                         16
marchers   a    group      whose   message    they       opposed   violated      the

organizers’ First Amendment rights.                Hurley, 515 U.S. at 559.

If anything, Hurley hurts North Carolina’s cause, not least due

to its recognition that government regulation may not “interfere

with   speech   for   no    better   reason    than   promoting      an   approved

message or discouraging a disfavored one, however enlightened

either purpose may strike the government.”                Id. at 579.

       In sum, for over a decade, this Circuit has found the SCV

factors instructive in determining whether speech is that of the

government,     private     parties,   or    both.       Sometimes   considering

those factors has led us to conclude that speech implicated both

government and private expression.             See, e.g., WV Ass’n of Club

Owners & Fraternal Servs., Inc. v. Musgrave, 553 F.3d 292, 299-

300 (4th Cir. 2009); Rose, 361 F.3d at 794.                    In other cases,

considering     the   SCV    factors   led    to   the    conclusion      that   the

speech at issue was purely government (see, e.g., Turner, 534

F.3d at 354) or purely private (see SCV I, 288 F.3d at 621).

But regardless of our conclusion in any particular case, we have

repeatedly looked to the SCV factors to help us identify the

pertinent speaker.          And neither an en banc decision from this

Court, nor one from the Supreme Court, has implicitly, much less

explicitly, suggested that to do so was to err.




                                       17
                                             C.

     Having         concluded        that     the     “instructive”         factors       we

identified         in    SCV    remain      appropriate      tools    for    evaluating

whether     speech       is    government,        private,   or    both,    we    turn    to

applying those factors here.

     1.       The Central Purpose Of The Program In Which The Speech
              In Question Occurs

     The first SCV factor, the central purpose of the program in

which the speech in question occurs, may—or may not—be readily

apparent.          SCV   I,    288   F.3d    at    619.      To   divine    the   central

purpose, this Court has considered, e.g., revenue generation and

allocation and legislative intent.                     See, e.g., id.; Rose, 361

F.3d at 793.

     Here, we must conclude that the purpose of the specialty

license plate program, including the “Choose Life” plate, is to

allow      North    Carolina      drivers     to     express      their    affinity      for

various special interests, as well as to raise revenue for the

state. 7     First, the legislative history of HB 289 indicates that


     7
       In his Rose opinion, Judge Michael focused exclusively on
the   “Choose  Life”   specialty  plate   and   its  authorizing
legislation, rather than on South Carolina’s specialty plate
program more broadly.   That narrow focus does not square with
SCV I’s instruction to look to the central purpose “of the
program in which the speech in question occurs.”     SCV I, 288
F.3d at 618 (emphasis added).     See also Am. Civil Liberties
Union of Tenn. v. Bredesen, 441 F.3d 370, 389-90 (6th Cir. 2006)
(Martin, J., dissenting) (“If we think of each individual
license plate in a vacuum, each one can be reasonably
(Continued)
                                             18
the specialty license plate program was intended to be a forum

for    private   expression    of   interests.      See,   e.g.,   Remark   of

Representative Tim Moore to the North Carolina House Fin. Comm.

(June 2, 2011), J.A. 19 ¶ 33 (stating that specialty license

plates constitute “voluntary speech that people are making by

purchasing the license plate”).            Fittingly, then, North Carolina

expressly invites its vehicle owners to “[m]ake a statement with

a specialized or personalized license plate” and to “find the

plate that fits you.”         http://www.ncdot.gov/dmv/vehicle/plates/.

It describes its specialty plate program as “allow[ing] citizens

with    common    interests    to    promote     themselves   and/or     their

causes.”         http://www.ncdot.gov/dmv/online/.            By   contrast,

nothing    before    us   suggests    that     North   Carolina    has    ever

communicated to the public that the specialty plate program is




characterized as a government message.       But, in order to
properly characterize the specialty license plate program for
First Amendment purposes, we cannot view each license plate in
isolation.    I suggest that when opening one’s eyes to the
license plate program as a whole, it is evident that the
government has created a program to encourage a diversity of
views and messages from private speakers.”).    Even were we to
focus on the authorizing legislation alone, as did Judge
Michael, the North Carolina law at issue here authorized a wide
array of specialty plates, on topics ranging from wild turkeys
to stock car racing. We therefore could not conclude here that
the purpose of the authorizing law “is specifically to promote
the expression of a pro-life viewpoint[,]” as opposed to
legislation “allowing . . . for the private expression of
various views[.]”   Rose, 361 F.3d at 793 (quotation marks and
citation omitted).


                                      19
government-only      speech      or   that    it    seeks   volunteers     to    help

disseminate a government-only message.

      The specialty license plate program also has a significant

revenue-raising component.            The NC DMV is authorized to develop

a   specialty    license   plate      only    after    it   has   received      three

hundred applications from North Carolina drivers interested in

the plate.       N.C. Gen. Stat. § 20-81.12(b84).                   The specialty

plate costs a vehicle owner an additional $25 per year.                          N.C.

Gen. Stat. § 20-79.7.            And $10 of that annual fee go to the

North Carolina Highway Fund.           Id.    As we noted in SCV I:

      If the General Assembly intends to speak, it is
      curious that it requires the guaranteed collection of
      a designated amount of money from private persons
      before its ‘speech’ is triggered. It is not the case,
      in other words, that the special plate program only
      incidentally produces revenue for the [government].
      The very structure of the program ensures that only
      special plate messages popular enough among private
      individuals to produce a certain amount of revenue
      will be expressed.

SCV I, 288 F.3d at 620 (footnote omitted).

      Finally,     the   large    number      and    wide   array    of   specialty

plates also weigh in favor of private speech.                       North Carolina

drivers may choose from over two hundred specialty plates.                       And

the subjects of those plates range from the controversial (Sons

of Confederate Veterans, whose confederate flag logo many “view

to be a symbol of racism and slavery,” Rose, 361 F.3d at 801

(Gregory,    J.,    concurring)),        to    the     religious      (Knights    of


                                        20
Columbus, a civic organization “which requires members to be

practicing Catholics,” Roach v. Stouffer, 560 F.3d 860, 868 (8th

Cir.    2009)),       to    the    seemingly       irrelevant       to    any   conceivable

North        Carolina        government         interest        (e.g.,          out-of-state

universities).             It defies logic, and may in fact create other

problems (such as Establishment Clause issues in the case of the

Knights      of     Columbus)       to    suggest     that     all       of   these     plates

constitute North Carolina’s—and only North Carolina’s—message.

       In sum, the first SCV factor, the central purpose of the

program in which the speech in question occurs, weighs in favor

of finding the speech at issue here private.

       2.     The Degree Of Editorial Control Exercised By The
              Government Or Private Party Over The Content

       The        second     factor,     “the      degree     of     editorial        control

exercised by the government or private entities over the content

of   the     speech,”        weighs      in   favor    of     the    government.          The

legislature determined, and the governor approved, the “Choose

Life” message.             2011 N.C. Sess. Laws 392 (“The plate shall bear

the phrase ‘Choose Life.’”).                  And the parties themselves agree

that    “complete          editorial     control”     rests    with       North    Carolina.

Appellees’ Br. at 12.

       3.     The Identity Of The Literal Speaker

       The third SCV factor, the identity of the literal speaker,

weighs       in     favor     of   private      speech.         In       coming    to    that


                                              21
conclusion, we first consider Wooley, in which the Supreme Court

held that New Hampshire residents had a First Amendment right to

cover the “Live Free Or Die” state motto on the standard state

license plate.            430 U.S. 705.           Significantly, the Supreme Court

there declared that New Hampshire’s citizens found themselves

“faced    with        a    state       measure”     that    “invades       the   sphere     of

intellect       and       spirit    which    it     is   the     purpose    of     the   First

Amendment       to    our       Constitution       to    reserve    from     all    official

control.”        Id.       at    715     (quotation      marks    omitted).         In   other

words,    the    Supreme         Court     deemed       license    plates    a     sphere   of

private     “intellect             and     spirit”       that     “implicat[es]          First

Amendment protections” from government control.                        Id. 8

     Moreover, any argument that the state alone is the literal

speaker is substantially weaker here than it was in Wooley.                                 In

Wooley, the slogan at issue was the state motto, and it appeared

on all non-commercial New Hampshire plates, “a fact presumably

apparent to anyone driving in New Hampshire.”                          SCV II, 305 F.3d

at 244 (Williams, J.).                   “A fortiori must it be the case that


     8
       North Carolina suggests that Wooley—which predates the
Supreme Court’s recognition of the government speech doctrine
and the “control test” North Carolina contends flows from
Johanns and Summum—is no longer good law.    Yet that contention
flies in the face of Johanns itself, in which the Supreme Court
majority    recognized   the    continued   validity   of,   and
distinguished, Wooley. Johanns, 544 U.S. at 565 n.8. Clearly,
the Supreme Court did not view Wooley as passé. Neither do we.


                                               22
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.”           Id. at 246 (Luttig, J.).

       Indeed, to any reasonable observer, the literal speaker of

a   message       on    a    specialty      plate       that       the    observer    knows    the

vehicle owner selected is surely the vehicle owner.                                  Messages on

some    specialty           license   plates,          such    as    the    dance    plate    “I’d

Rather Be Shaggin,” N.C. Gen. Stat. 20-79.4(b)(203) (emphasis

added), or the plate depicting a dog and cat and stating “I

care,” N.C. Gen. Stat. 20-79.4(b)(12) (emphasis added), make the

connection explicit.

       We    do    not      deny   that     specialty          license      plates    are    state

property.         Nor do we deny that even specialty plates, which must

be authorized by state law, to some extent bear North Carolina’s

imprimatur.         Nevertheless, the copious specialty license plates,

including         “Choose      Life,”      available          to    North   Carolina     drivers

constitute “voluntary speech that people are making . . . .”

Remark of Representative Tim Moore to the North Carolina House

Fin. Comm. (June 2, 2011), J.A. 19 ¶ 33.                                 Specialty plates are

closely associated with the drivers who select and pay for them.

And    the   driver,         on    whose    car    the        special      message    constantly

appears for all those who share the road to see, is the ultimate



                                                  23
communicator.             The third factor, the identity of the literal

speaker, thus weighs in favor of private speech.

       4.         Whether The Government Or The Private Party Bears
                  Ultimate Responsibility For The Speech’s Content

       Finally,          we    must       conclude       that    the     fourth    factor,     the

ultimate          responsibility            for   the       speech,    weighs     in   favor   of

private speech.               “When a special license plate is purchased, it

is    really       the    private         citizen      who    engages     the     government   to

publish his message,” not the other way around.                                    SCV II, 305

F.3d    at    246        (Luttig,         J.).      Indeed       “‘but    for’”    the    private

individual’s          action,         the    specialty        license     plate     would   never

exist.       Id.     North Carolina drivers must apply for the specialty

plate, which is issued only after at least three hundred seek

the plate.          Further, those private individuals must pay for the

specialty plate “over and above the cost exacted for a standard

license plate.”               Id.

       In sum, applying SCV’s instructive factors to the facts at

hand, we conclude that three of the four factors indicate that

the    specialty          plate          speech   at     issue    is     private,      while   one

suggests       that      the        specialty     plate      speech      is   government.      In

other words, we agree with the district court “that sufficient

private speech interests are implicated by the specialty license

plates       to    preclude          a    finding      of    purely      government      speech.”

Conti, 912 F. Supp. 2d at 375.


                                                    24
       Our conclusion is in line with those reached by our Sister

Circuits       in    similar       cases.      With       only    one    exception,     all

Circuits to have addressed the issue have held that specialty

license       plates     implicate        private     speech       rights     and    cannot

properly be characterized as solely government speech.                               Roach,

560 F.3d 860; Stanton, 515 F.3d 956; Choose Life Ill., Inc. v.

White, 547 F.3d 853 (7th Cir. 2008); Women’s Emergency Network

v. Bush, 323 F.3d 937 (11th Cir. 2003); cf. Perry v. McDonald,

280    F.3d    159     (2d   Cir.    2001).         The   sole     outlier,    the     Sixth

Circuit,       held     in    Bredesen       that     Tennessee’s         “Choose    Life”

specialty plate constituted pure government speech.                             441 F.3d

370.    For the many reasons discussed above, we must agree with

the Seventh Circuit that “this conclusion is flawed . . . .”

White, 547 F.3d at 863.                We have no hesitation in holding that

the “Choose Life” plate at issue here implicates private speech

rights and cannot correctly be characterized as pure government

speech.

                                             D.

       On     appeal,    North      Carolina       argues    only    that    because    its

specialty       plates       are    government       speech,      North     Carolina     can

viewpoint-discriminate             free     from    First    Amendment      constraints.

North Carolina did not argue, for example, that even if we were

to    deem    specialty       plates      mixed    speech,       North    Carolina     still

wins.       North Carolina did not challenge in any way the district

                                             25
court’s     conclusion      that,     upon    finding      private      speech   rights

implicated, “the State’s offering of a Choose Life license plate

in   the   absence     of    a     pro-choice     plate    constitutes       viewpoint

discrimination in violation of the First Amendment.”                        Conti, 912

F. Supp. 2d at 375.                That conclusion, which is supported by

Rose, therefore stands.            See Rose, 361 F.3d at 799 (“By limiting

access to a specialty license plate to those who agree with its

pro-life position, the State has distorted the forum in favor of

its own viewpoint.          This it may not do.”).

       North Carolina nevertheless laments that if it has created

a forum, it “must allow all viewpoints to be heard via specialty

plates.”     Appellants’ Br. at 30.               This complaint seems at odds

with     North     Carolina’s       contention      that    its      vast   array    of

specialty plates “celebrat[es]” the “diversity of its citizen’s

interests . . . .”           Id. at 18, 41.         Apparently, North Carolina

wishes to celebrate only some interests of some of its citizens—

namely those with which it agrees.                This, it may not do.

       North Carolina then sounds the death knell for specialty

plates,     predicting      a    “flood”     of   “Kill    The    Sea    Turtles”    and

“Children Last” plates that will force it to end its specialty

plate program.        Appellants’ Br. at 27-29.              Melodrama aside, our

ruling     today    “does    not    render      [North]    Carolina      powerless   to

regulate its specialty license plate forum.”                      Rose, 361 F.3d at

799.     But it must do so in a viewpoint-neutral fashion—which it

                                           26
already     does,    to      some       extent,       by    requiring       three     hundred

applicants before issuing a new specialty plate.                             Surely such a

requirement can filter out “frivolous license plate proposals”

and prevent the roads from being inundated with “license plates

advocating reckless pet breeding.”                         Bredesen, 441 F.3d at 391

(Martin, J., dissenting).

       Another alternative:               North Carolina can choose to avoid

the    reproductive         choice      debate        altogether.           Illinois,       for

example,    “excluded        the     entire         subject    of    abortion       from    its

specialty-plate program.”                White, 547 F.3d at 865.                  The Seventh

Circuit upheld that viewpoint-neutral restriction, noting that

“the State has effectively imposed a restriction on access to

the specialty-plate forum based on subject matter: no plates on

the topic of abortion.                  It has not disfavored any particular

perspective    or    favored        one       perspective      over       another    on    that

subject; instead, the restriction is viewpoint neutral.”                               Id. at

866.    But see Stanton, 515 F.3d 956.                        After all, “[i]t is one

thing for states to use license plates to celebrate birds and

butterflies    .    .   .    .     It    is    quite       another    for    the    state    to

privilege    private        speech      on    one    side-and       one    side    only-of   a

fundamental        moral,        religious,          or      political       controversy.”

Planned Parenthood Of S.C. Inc. v. Rose, 373 F.3d 580, 581 (4th

Cir. 2004) (Wilkinson, J., voting to deny rehearing en banc).



                                               27
                                       III.

      In   sum,     North   Carolina    invites     its    vehicle    owners   to

“[m]ake a statement” and “promote themselves”—but only if they

are   on   the    government’s   side   of    a   highly   divisive   political

issue.     This, North Carolina may not do.           Because the specialty

plate speech at issue implicates private speech rights and is

not   pure   government     speech,     North     Carolina’s   authorizing      a

“Choose Life” plate while refusing to authorize a pro-choice

plate constitutes viewpoint discrimination in violation of the

First Amendment.

                                                                        AFFIRMED




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