                                             Filed:   October 7, 2002

                    UNITED STATES COURT OF APPEALS

                        FOR THE FOURTH CIRCUIT


                             No. 01-1242



Sons of Confederate Veterans, etc., et al.,

                                               Plaintiffs - Appellees,

           versus


Commissioner of the Virginia Department of
Motor Vehicles, etc.,

                                                Defendant - Appellant.



                              O R D E R



     The court amends its order on rehearing filed September 20,

2002, as follows:

     On page 6, first full paragraph, line 5 -- the extra “the” is

deleted.

                                          For the Court - By Direction



                                           /s/ Patricia S. Connor
                                                    Clerk
                              PUBLISHED

             UNITED STATES COURT OF APPEALS

                  FOR THE FOURTH CIRCUIT

4444444444444444444444444444444444444444444444447
SONS OF CONFEDERATE VETERANS,
INCORPORATED, a Tennessee
Corporation, by its Commander-in-
Chief Patrick J. Griffin; VIRGINIA
DIVISION OF SONS OF CONFEDERATE
VETERANS, INCORPORATED, a Virginia
Corporation, by its Commander
Robert W. Barbour, Sr.,
      Plaintiffs-Appellees,

      v.

COMMISSIONER OF THE VIRGINIA
DEPARTMENT OF MOTOR VEHICLES, in
his official capacity,                                 No. 01-1242
       Defendant-Appellant,

      and

COMMONWEALTH OF VIRGINIA, whose
agents and officers enacted and will
enforce, on its behalf, VA. CODE
ANN. 46.2-746.22; JAMES S.
GILMORE, III, as Governor of the
Commonwealth of Virginia, in his
official capacity; SHIRLEY YBARRA,
as Secretary of the Department of
Transportation of the State of
Virginia, in her official capacity,
       Defendants.
4444444444444444444444444444444444444444444444448

                     Filed September 20, 2002

____________________________________________________________

                              ORDER

   Upon a request for a poll of the court on rehearing en banc, the
court denies rehearing. Judges Niemeyer, Michael, Motz, King, and
Gregory voted for rehearing en banc. Chief Judge Wilkinson and
Judges Widener, Wilkins, Luttig, Williams, and Traxler voted to deny
rehearing en banc. Chief Judge Wilkinson and Judge Williams wrote
separate opinions concurring in the denial of rehearing en banc. Judge
Luttig wrote a separate opinion respecting the denial of rehearing en
banc. Judge Niemeyer and Judge Gregory wrote separate opinions
dissenting from the denial of rehearing en banc.

         FOR THE COURT

         _______________
              Clerk

WILKINSON, Chief Judge, concurring in the denial of rehearing en
banc:

    The closeness of the court's vote (6 to 5) leads me to explain my
own. I concur in the denial of rehearing en banc because the legisla-
tive action here seems to me to violate basic First Amendment princi-
ples. The Virginia General Assembly has approved over one hundred
special plates, and the statute authorizing the SCV special plate is the
only one with design and logo restrictions. When a legislative major-
ity singles out a minority viewpoint in such pointed fashion, free
speech values cannot help but be implicated. And it is as a free speech
case, not as a Confederate flag case, that this appeal must be resolved.

   It is important to keep the issue here in some perspective. The vast
majority of Virginians have no desire to display a Confederate logo
on their license plates. The vast majority of Virginians seek venues
other than a motor vehicle tag for the observance of their lineage, and
do not view the Confederate flag as symbolically celebrating their line
of descent. The vast majority of Virginians understand that one
motorist's proclamation of heritage is another's reminder of the
unspeakable cruelties of human bondage. The vast majority of Virgin-
ians recognize the sad paradox of Confederate history — namely, that
individual southerners, so many good and decent in themselves,
swore allegiance to a cause that thankfully was lost, and to practices
that no society should have sought to defend.

   But the First Amendment was not written for the vast majority of
Virginians. It belongs to a single minority of one. It is easy enough

                                  2
for us as judges to uphold expression with which we personally agree,
or speech we know will meet with general approbation. Yet pleasing
speech is not the kind that needs protection.

    Our Constitution safeguards contrarian speech for several reasons.
As the Civil Rights Movement demonstrates, yesterday's protest can
become tomorrow's law and wisdom. Other contrarian speech should
move popular majorities to reaffirm their own beliefs rather than sup-
press those of others. The reminders of history's most tragic errors
only deepen our commitment to the dignity of all citizens: The Con-
stitution that houses the First Amendment also shelters the Four-
teenth, an everlasting reminder that a nation betrothed to liberty and
equal justice under law must remain vigilant to realize both.

WILLIAMS, Circuit Judge, concurring in the denial of rehearing en
banc:

    There can be no doubt that the symbol desired by the SCV on their
special plate is a controversial and divisive one. But as Chief Judge
Wilkinson points out, this case must be resolved "as a free speech
case, not as a Confederate flag case." Ante at 2. In essence, the Com-
monwealth has opened its license plates to myriad private speakers
but wishes to restrict the message one of those speakers would
express based on its disagreement with the viewpoint contained
therein; this the First Amendment does not permit. I undertake herein
to respond briefly to several points raised in the separate opinions of
my colleagues respecting and dissenting from the denial of rehearing
en banc.

    My first dissenting colleague suggests that what is at issue here is
pure government speech. For the reasons stated in the panel opinion,
I disagree. I will respond here only to the suggestion that the Supreme
Court's opinion in Wooley v. Maynard, 430 U.S. 705 (1977), compels
the conclusion that government speech is at issue. As my first dissent-
ing colleague notes, the Supreme Court in Wooley found the require-
ment that New Hampshire drivers display license plates bearing the
slogan "Live Free or Die" to be impermissible because it forced the
complaining driver "to be an instrument for fostering public adher-
ence to an ideological point of view he finds unacceptable." Wooley,
430 U.S. at 715. My colleague thus concludes "that license plates are

                                  3
the State's speech." Post at 15. I believe this conclusion misappre-
hends Wooley's significance in this case. Wooley rested on the propo-
sition "that the right of freedom of thought protected by the First
Amendment against state action includes both the right to speak freely
and the right to refrain from speaking at all." Wooley, 430 U.S. at 714.
The complainant's First Amendment interests were implicated in
Wooley because the message in question, displayed on his license
plate, would be attributed to him. That the message the state created
and required to be displayed on all plates — "Live Free or Die" —
was the state's message is not a necessary component of Wooley's
holding. One might reason, of course, as my first dissenting colleague
appears to, that if the driver is compelled to speak, the message must
be the state's, and therefore anything on a license plate, under any cir-
cumstances, is government speech. Nowhere in Wooley, however, did
the Court suggest this was the case; the only speech interest identified
in Wooley was that of the driver. More significantly, the facts in Woo-
ley indicate that even if the Supreme Court concluded that the state
was the speaker, that conclusion would not control this case. In stark
contrast to the situation in Wooley, where the same state slogan was
required on nearly all license plates, the various mottos and logos on
most special plates in Virginia are created and selected by drivers
themselves.

    As to the concerns expressed in my second dissenting colleague's
opinion, I believe that they, too, are ultimately unpersuasive. My sec-
ond dissenting colleague suggests that the the speech in question here
is not easily placed on either side of the "blurry and sometimes over-
lapping line between private and government speech," post at 17, and
that the test employed in the panel opinion for determining whether
the government is the speaker was applied in a manner that did not
adequately address the Commonwealth's interest in avoiding attribu-
tion of the logo's message to the Commonwealth.

   As to the first concern, I believe that Wooley is again instructive.
I note that my colleague identifies as unpersuasive the panel opinion's
conclusion "that the private citizen bears the`ultimate responsibility'
for the speech" on Virginia's special plates, suggesting that this factor
"may very well be a key to the case." Post at 17 n.2. The Supreme
Court in Wooley, however, apparently concluded that the message on
New Hampshire's plate would be attributed to the driver, a conclu-

                                   4
sion strongly indicated by the success of the complaining driver's
First Amendment claim. If the message or slogan on a license plate
is ultimately attributable to the state that issues the plate, as both of
my dissenting colleagues suggest, then the First Amendment claim in
Wooley ought to have foundered for failure to implicate individual
speech rights.

    Indeed, the proposition that the state is ultimately responsible for
the license plate message in question is weaker here than it was in
Wooley. In Wooley, the slogan in question was required on all non-
commercial New Hampshire plates, a fact presumably apparent to
anyone driving in New Hampshire. 430 U.S. at 705. Individual driv-
ers thus had no control over the content of their license plates. Here,
in contrast, numerous messages, crafted and selected by the drivers
themselves, appear on Virginia's special plates. Plainly, anyone view-
ing a license plate bearing a motto or logo the viewer knows to have
been selected by the driver or owner of the vehicle is more likely to
associate the message with that driver or owner than would be the
viewer of a state-mandated logo appearing on all noncommercial
plates across the state.*

    My colleague writing respecting the denial of rehearing en banc
suggests that the panel opinion and the various opinions concurring
in and dissenting from the denial of rehearing en banc "focus[ ] on the
license plate as a whole in their respective analyses." Post at 7. I do
not believe that either the panel opinion or this opinion suggests that
any part of the SCV special plate's design other than the motto and
logo implicates private speech interests. Further, whatever the merits
____________________________________________________________
    *My second dissenting colleague concludes, as I understand his opin-
ion, that the government's interest in avoiding having a message that it
finds distasteful attributed to it justifies treating the logo restriction as a
time, place, and manner restriction. A time, place, and manner restric-
tion, however, must be "justified without reference to the content of the
regulated speech," a test the logo restriction surely fails. See, e.g., Ward
v. Rock Against Racism, 491 U.S. 781, 791 (1989). The Commonwealth,
as the panel opinion notes, has offered no justification for the restriction
in this case unrelated to the content of the logo it prohibits. See Sons of
Confederate Veterans v. Commissioner of the Va. Dep't of Motor Vehi-
cles, 288 F.3d 610, 626 & n.14 (4th Cir. 2002).

                                    5
of my colleague's suggestion that there is a government speech inter-
est in (as distinct from a government interest in regulating) the con-
tent of the motto and logo appearing on a special plate, it seems to
me that we do not differ substantially in our views that the private
speech interests implicated by the motto and logo must prevail in this
circumstance over any countervailing interest the government may
have.

    In sum, I believe that the government-speech issue in this case was
correctly decided and that rehearing en banc was appropriately
denied. Neither party in this case was sufficiently concerned by the
narrowly written panel opinion, centered on the unique factual cir-
cumstances of the logo restriction and the special plate program,
to seek en banc rehearing, and the number of my colleagues who
would have been willing to rehear this case en banc does not consti-
tute the majority required by Fed. R. App. Proc. 35(a) (stating that a
majority of judges in regular active service may order en banc
review). Moreover, through their separate opinions, my colleagues
have presented their views of the issues.

LUTTIG, Circuit Judge, respecting the denial of rehearing en banc:

    As have the other circuit courts that have addressed like issues, my
colleagues have struggled with this case because they have assumed,
in oversimplification, that all speech must be either that of a private
individual or that of the government, and that a speech event cannot
be both private and governmental at the same time. In their collective
defense, our court and our sister circuits have all so assumed because,
to this point, the Supreme Court has always held that speech is either
private or governmental, and it has never held that a message can be
both that of a private individual and that of the government. However,
the "government speech" doctrine is still in its formative stages, and,
as yet, it is neither extensively nor finely developed. And I believe
that it is as a consequence of this doctrinal underdevelopment that my
colleagues find themselves, at the same time, analytically unsatisfied
but insistent upon polar opposite conclusions with respect to what
seemingly should be a simple answer to a straightforward question.

   However, in the underdevelopment of the "government speech"
doctrine lies not only the source of the confusion, but also the simple

                                   6
answer — recognition that, although the doctrine may not have previ-
ously recognized such, speech in fact can be, at once, that of a private
individual and the government. Although the Supreme Court could
ultimately choose either to ignore or to refuse to recognize this
descriptive fact because of sheer practical considerations, I believe
that, with time, intellectual candor actually will force the Court
instead to fully recognize this fact doctrinally.

    When the Supreme Court is finally confronted with the case in
which this elaboration upon its "government speech" doctrine is com-
pelled, I am convinced that our court in turn will, upon reflection,
conclude that at least the particular speech at issue in this case is nei-
ther exclusively that of the private individual nor exclusively that of
the government, but, rather, hybrid speech of both. Indeed, as I have
thought about the matter, I believe that the speech that appears on the
so-called "special" or "vanity" license plate could prove to be the
quintessential example of speech that is both private and governmen-
tal because the forum and the message are essentially inseparable, the
consequence being that it is difficult if not impossible to separate suf-
ficiently what is indisputably the speech act by the private speaker
from what is equally indisputably the speech act by the government.

   While all of my colleagues have focused on the license plate as a
whole in their respective analyses, this aspect of their analyses is, too,
overly simplistic. It causes the one side of the debate to conclude,
unconvincingly, that the special plate is entirely private speech
(merely because it is a "special" plate), and it causes the other to con-
clude, no less unconvincingly, that there is no private speech at all
within the four corners of the license plate (because, and simply
because, the government owns and controls the plate).

   In truth, of course, when one focuses properly on the particular
speech in question here — only the background of the special license
plate in question, which comprises the words "Sons of Confederate
Veterans" and the confederate flag logo — it is (to borrow Judge Nie-
meyer's phrase in support of a quite different position from his) "im-
possible to avoid the conclusion" that not only the government, but
also the private individual who displays the license plate on his vehi-
cle, communicates via this speech.

                                    7
    Even if it is only a relatively small feature of the overall identifica-
tion package, the specially-authorized background is no less a feature
of the government's internal and external identification of the vehicle,
and therefore is government speech. And this is even putting aside the
facts that the government owns the license plate in perpetuity and
authorizes all special plates legislatively, and that there is always at
least some risk that the background message will be wrongly attri-
buted to the government.

    But it is equally clear that the requested background is also (indeed,
it would appear even more so) the private speech of the individual
owner of the vehicle. When a special license plate is purchased, it is
really the private citizen who engages the government to publish his
message, not the government who engages the private individual to
publish its message, as in cases like Rust v. Sullivan, 500 U.S. 173
(1991), and Wooley v. Maynard, for example. Indeed "but for" the
private organization's and the private individual's action, the special
license plate would not even exist; the private organization must
request that a special plate be made and propose its design, and pri-
vate individuals must request that they be issued such a plate and pay
for it over and above the cost exacted for a standard license plate. And
if the government has any nonpecuniary interest in the public identifi-
cation of individual vehicles with particular private organizations, it
is minimal.

    It was doubtless out of recognition of these facts that the Supreme
Court as much as held in Wooley v. Maynard, 430 U.S. 705 (1977),
that even license plate speech that is compelled by the government
implicates private speech rights, as Judge Williams correctly observes
in dismissal of Judge Niemeyer's contrary inference that Wooley
stands for precisely the opposite proposition. A fortiori must it be the
case that speech placed on a license plate by the government for a fee
at the request of a private organization or individual is at a minimum
partly the private speech of that organization or individual.

   No one, upon careful consideration, would contend that, simply
because the government owns and controls the forum, all speech that
takes place in that forum is necessarily and exclusively government
speech. Such would mean that even speech by private individuals in
traditional public fora is government speech, which is obviously not

                                    8
the case. While I suppose it is arguable that where the government
totally funds private speakers to convey a government message, the
speech of those private individuals is necessarily government speech
(and the Supreme Court has so held), this is certainly not the case
where, as here, the government voluntarily opens to the public at
large, for the purpose of designated speech, property that the private
individual is not merely entitled to access, but actually required to dis-
play. If this were not self-evident, it should be beyond debate after
Wooley. And in fact, not even Judge Niemeyer, though he inconsis-
tently concludes otherwise, can help but acknowledge that private, as
well as government, speech is implicated in a circumstance such as
this: "The fact that the licensee also speaks by choosing to display a
customized but authorized version of the license plate does not
change the fact that the license plate itself was the issue of the State
and therefore constitutes government speech." Post at 15-16 (Nie-
meyer, J., dissenting from denial of rehearing en banc).

    Of course, because the Supreme Court has yet to recognize that
speech can be both private and governmental at the same time, one
cannot be certain of the regulatory limitations that the Court will fash-
ion once it limits the government speech doctrine to recognize that
some speech hitherto deemed to be exclusively that of the government
is, inescapably, also private speech. But without even attempting to
foretell those limitations here, I think it is fair to assume that, at least
where the government has voluntarily opened up for private expres-
sion property that the private individual is actually required by the
government to display publicly; the private speech component of the
particular communication is significant (whether or not it is signifi-
cant in comparison to the government's like speech component in that
communication); and the government's interest in its speech compo-
nent is less than compelling, the government will be forbidden from
engaging in viewpoint discrimination among the various private
speakers who avail themselves of the government's offer.

   It is on the twin understandings outlined above — namely, that the
speech at issue in this case is both private and governmental in char-
acter (and actually, I believe, more the former), and that at a mini-
mum therefore the government may not engage in viewpoint
discrimination among those wishing to display the design of their
organization as the background for their license plates — that I do not

                                    9
believe that this case warrants further consideration by the full court,
at least in the absence of a petition for rehearing en banc by either
party to the litigation. For, given the view that I have stated herein
that the speech at issue is hybrid in nature, not exclusively private,
and the votes of those Members of our court who would rehear this
case en banc, it is unlikely that there is a majority of our court that
believes that the speech at issue in this case is purely private. Thus,
the conclusion reached by the panel on the threshold, and concededly
important, issue of whether private or government speech is at issue
does not appear (and certainly does not appear necessarily) to repre-
sent the final, considered judgment of the Circuit.

    In addition, if I am correct that, at the end of the day in this case,
the government is yet prohibited from engaging in viewpoint discrim-
ination, then the panel will have ultimately applied the correct stan-
dard to the government's regulatory action, and I do not believe that
its conclusion after application of that standard to the specific facts
here is particularly worthy of full court review. This is so, especially
given that the panel's conclusion on this issue was narrow in scope,
limited to the single statute in question, and the imposed prohibition
therein, which in turn was limited to the single organization Sons of
Confederate Veterans. And, even still, the panel's conclusion rested
in large part on an explicit representation by the Commonwealth
Commissioner that the purpose of the statute was in fact to ban the
confederate flag from the special plate authorized for that particular
organization.

    This is not to say, it seems clear to me, that the panel decision is,
in either fact or effect, beyond further consideration. It is to say,
rather, that should there arise a case where license plate speech is
again implicated, and where either the government's speech compo-
nent is at least greater if not compelling (for example where at issue
are the actual identifying numbers and letters that appear on all
license plates), or where there is reason to believe that the government
has, in this limited public or nonpublic forum engaged in no more
than content discrimination in furtherance of and consistent with the
purposes of the forum (or at least credibly argues such), there will be
ample opportunity for the full court to revisit the important issues
resolved by the panel.

                                   10
NIEMEYER, Circuit Judge, dissenting from the denial of rehearing
en banc:

    This case presents the important First Amendment issue of whether
a State may regulate and control the content included on state-issued
and state-owned license plates. Whether license-plate content is gov-
ernment speech has never been decided by our court, and the appro-
priate analysis is not clearly indicated by any Supreme Court
precedent. Moreover, the two other circuits that have reviewed license
plate speech have taken different analytical courses. Compare Perry
v. McDonald, 280 F.3d 159 (2d Cir. 2001) (holding that State owned
license plate is a nonpublic forum entitling the State to deny a license
plate with "SHTHPNS" (referring to "Shit Happens") on it as a rea-
sonable and viewpoint-neutral regulation), with Lewis v. Wilson, 253
F.3d 1077 (8th Cir. 2001) (concluding that whether the forum is non-
public or public is irrelevant because the State, in rejecting "ARYAN
1," operated under an unconstitutionally overbroad regulation that
violated the First Amendment). Coupled with the virtually even split
within our court (6-5) to deny rehearing en banc it appears clear that
this case presents an unsettled issue of First Amendment law that
should have been heard en banc.

    The specific question presented is whether the Commonwealth of
Virginia can refuse to include a Confederate Flag logo on the face of
a special license plate, authorized for issuance to members of the Sons
of Confederate Veterans. Virginia authorized the issuance of the spe-
cial license plates commemorating that organization but denied the
organization's request to include the Confederate Flag logo as part of
the plate's design. The Confederate Flag, while appreciated by an
organization commemorating the bravery of Civil War veterans as a
symbol of honor, is at the same time a racially hostile symbol to a
large segment of Virginia's citizens insofar as the Civil War included
a fight to preserve slavery. Nevertheless, the district court concluded
that Virginia's denial of the Sons of Confederate Veterans' request to
include the Confederate Flag logo was a restriction on speech that
violated the First Amendment and accordingly struck down that por-
tion of Virginia's law, essentially mandating that Virginia include the
logo on the special plates. Because this issue is important not only to
Virginia but also to the right of all States to regulate the issuance and

                                  11
content of their license plates, I submit it is worthy of our en banc
review.

    No one takes issue with the fact that Virginia has an important right
and responsibility to regulate motor vehicles and that essential to this
regulatory effort is the issuance of license plates evidencing the regis-
tration of the vehicle and its compliance with safety and insurance
requirements. See generally Va. Code Ann. §§ 46.2-701; -707; -708;
-709; -712. Because license plates serve an essential function for the
public health, safety, and welfare, Virginia retains an inherent and
important right to control the plates and their content.

    In order to retain control over this regulatory scheme, Virginia
manufactures its license plates, issues them to licensees in accordance
with strict regulations and requirements for their display, and reserves
the continuous right to revoke or recall them. See id. §§ 46.2-709;
-712; -713; -715; -716. Furthermore, Virginia expressly retains title
to all State-issued license plates, asserting that they may be repos-
sessed by the Department of Motor Vehicles at any time as provided
by statute. Id. §§ 46.2-713; -709. And consistent with this control,
Virginia directs that no person may alter the content of a license plate
issued by the State or display a license plate that has been altered. See
id. § 46.2-722.

    In addition to the role license plates serve in protecting public
health, safety, and welfare, the issuance of license plates produces
revenue that is used to pay for the administration of automobile regis-
tration and to support the uninsured motorist fund. See id. § 46.2-710.
To increase those revenues (and to honor certain organizations), the
State permits the Department of Motor Vehicles to issue customized
license plates and special license plates identifying specific groups,
ifsuch plates are authorized by the legislature. See id. §§ 46.2-725;
-726.

   One of the special plates authorized by the Virginia legislature is
for members of the Sons of Confederate Veterans. Id. § 46.2-746.22.
The authorizing statute provides:

          On receipt of an application therefor and written evidence
          that the applicant is a member of the Sons of Confederate

                                   12
          Veterans, the Commissioner shall issue special license
          plates to members of the Sons of Confederate Veterans. No
          logo or emblem of any description shall be displayed or
          incorporated into the design of license plates issued under
          this section.

Id. The text of this provision thus authorizes a special license plate
honoring the Sons of Confederate Veterans, but indicates that the
plate may not display the Confederate Flag logo, or any other logo for
that matter.

    The State may rationally have concluded that, despite the percep-
tion of the Confederate Flag by some as an emblem of honor, to issue
a license plate with the Confederate Flag logo on it would distress
African Americans and many others in the State. The State, however,
has not taken a position on this controversial symbol; rather, it has
removed itself from the fray, simply refusing to authorize the Confed-
erate Flag logo on license plates issued by it. In doing so, of course,
Virginia has not prohibited any citizen from displaying the Confeder-
ate Flag logo on his or her vehicle. Rather, the State has only indi-
cated that the Confederate Flag logo should not be included on a
license plate issued and owned by the state and bearing the name
"VIRGINIA" on the top. The State's decision mirrors a previous case
in which Virginia denied an applicant the right to include the phrase
"UNION YES" on its license plate.

    I respectfully submit that because Virginia owns the license plates
it issues and rightfully controls what appears on them, it can, as part
of its control, designate their content as its own speech. My position
is consistent with the "well settled [principle] that the government
need not permit all forms of speech on property that it owns and con-
trols." International Soc'y for Krishna Consciousness, Inc. v. Lee, 505
U.S. 672, 678 (1992).

    As the panel opinion in this case concedes, "It is well established
that `the government can speak for itself.'" Sons of Confederate Vet-
erans, Inc. v. Comm'r of the Va. Dep't of Motor Vehicles, 288 F.3d
610, 616 (4th Cir. 2002) (quoting Bd. of Regents of Univ. of Wis. Sys.
v. Southworth, 529 U.S. 217, 229 (2000)). And this "authority to
`speak' necessarily carries with it the authority to select from among

                                  13
various viewpoints those that the government will express as its own."
Id. at 617 (citing Rust v. Sullivan, 500 U.S. 173, 194 (1991)). But the
panel reached the remarkable conclusion that the content on license
plates owned and controlled by the State and bearing the State's name
is not the State's speech. I respectfully disagree. The State has mani-
fested its complete control over license plates, even dictating modifi-
cations, alterations, and special language or numbers that it will
accept. And with the name "VIRGINIA" at the top of the license
plates, any message conveyed by the plates' content is easily con-
nected to the State. As such, I would conclude that the content of the
license plates is government speech and that the State of Virginia did
not run afoul of the First Amendment by rejecting a request from an
applicant to authorize a license plate displaying a Confederate Flag
logo.

    The Supreme Court has recognized that the government may limit
speech when the speech is that of the government or when the govern-
ment uses private speakers to transmit its messages. This issue has
been addressed most directly in cases where the Court allowed the
government to restrict the speech of private individuals because those
individuals were essentially speaking for the government as partici-
pants in federally funded programs. See Nat'l Endowment for the Arts
v. Finley, 524 U.S. 569, 587-88 (1998) (upholding statutory criteria
used to determine what artists were eligible for federal funds distrib-
uted by the National Endowment for the Arts and noting that "the
Government may allocate competitive funding according to criteria
that would be impermissible were direct regulation of speech or a
criminal penalty at stake"); Rust v. Sullivan, 500 U.S. 173, 193 (1991)
(upholding regulations that prohibited Title IV projects from engaging
in abortion counseling, referral, or activities advocation abortion as in
method of family planning because "[t]he Government can, without
violating the Constitution, selectively fund a program to encourage
certain activities it believes to be in the public interest, without at the
same time funding an alternative program which seeks to deal with
the problem in another way"); see also Legal Servs. Corp. v. Velaz-
quez, 531 U.S. 533, 542 (2001) (striking down restrictions placed on
funding to Legal Services Corporation ("LSC") that prohibited recipi-
ents from engaging in representation involving challenges to the
validity of existing welfare laws because "the lawyer [receiving LSC
funds] is not the government's speaker," and thus "the LSC program

                                   14
was designed to facilitate private speech, not to promote a govern-
mental message"). The Supreme Court has recognized that these cases
stand for the general principle that the government is free to control
the content of its own speech. See Rosenberger v. Rectors & Visitors
of Univ. of Va., 515 U.S. 819, 833 (1995) (noting that the Court has
"permitted the government to regulate the content of what is or is not
expressed when it is the speaker or when it enlists private entities to
convey its own message").

    By force of this principle, which authorizes the government to reg-
ulate even the speech of others who speak on behalf of the govern-
ment, a State that owns and controls its license plates must be
authorized to regulate the content of speech on them. Even though the
applicant may request certain configurations of numbers and letters
on license plates, the State retains the right to approve the license
plates in accordance with its own preferences. At bottom, Virginia's
licensing regulation does not abridge anyone's speech. Those who
wish to display the Confederate Flag logo, even on their motor vehi-
cles, remain free to do so. They are merely deprived of the right to
demand that the Commonwealth of Virginia endorse their message by
issuing license plates containing that logo.

    The only license plate case to reach the Supreme Court seems to
embrace the notion that license plates are the State's speech. See
Wooley v. Maynard, 430 U.S. 705 (1977) (holding that requiring a
licensee to display the New Hampshire State slogan "Live Free or
Die" was compelled speech in violation of the First Amendment). In
Wooley, the Court acknowledged, albeit in concluding that license
plate matters were compelled speech, that what appeared on license
plates was the State's message, id. at 715, and that the licensee was
being required to act as a "courier for such message," id. at 717.

    I respectfully submit that it is impossible to avoid the conclusion
that the Commonwealth of Virginia, by manufacturing license plates,
placing its name at the top of those plates, and retaining ownership
of them, is the speaker of any message contained on those plates, even
though the message may have been adopted by the State pursuant to
an application submitted by a licensee. The fact that the licensee also
speaks by choosing to display a customized but authorized version of
the license plate does not change the fact that the license plate itself

                                  15
was the issue of the State and therefore constitutes government
speech.

   Because I believe we miss an important opportunity to air this issue
before the entire court and to provide the Supreme Court with a rea-
soned discussion of the issue, I dissent from our refusal to rehear this
case en banc.

GREGORY, Circuit Judge, dissenting from the denial of rehearing en
banc:

   I write, not to suggest that the ultimate result of the panel's deci-
sion would not be reached on full review, but to put forth my view
that the panel did not fully and adequately analyze the "government
speech" aspect of this case. What is, and what is not, "government
speech" is a nebulous concept, to say the least. Indeed, as the panel
recognized, "[n]o clear standard has yet been enunciated in our circuit
or by the Supreme Court for determining when the government is
`speaking' and thus able to draw viewpoint-based distinctions, and
when it is regulating private speech and thus unable to do so." Sons
of Confederate Veterans, Inc. v. Comm'r of the Virginia DMV, 288
F.3d 610, 618 (4th Cir. 2002).1 The panel utilized a four-factor test,
borrowed from our sister circuits, which may well be a good starting
point in tackling this difficult issue. However, I have two fundamental
problems with the panel's analysis.

    First, even assuming the test is the correct and only standard by
which we are to decide this issue, the panel's application of the test
is incomplete at best. The opinion, in almost cursory fashion, finds
each factor to weigh in favor of private speech. With these findings,
I respectfully disagree.2 I also believe there is more to be said about
____________________________________________________________
    1
      I must note that I do not necessarily agree with the panel's implication
in this statement that the government can always engage in viewpoint
discrimination when it is the speaker. It may be that "the values underly-
ing viewpoint neutrality should in some circumstances limit the govern-
ment's ability to skew the debate and suppress disfavored ideas or
information." Marjorie Heins, Viewpoint Discrimination, 24 Hastings
Const. L.Q. 99, 159 (1996).
   2
     For example, I am utterly unconvinced that the private citizen bears
the "ultimate responsibility" for the speech in this case. The panel gave

                                  16
the test, including how the factors relate to each other, and the relative
weight to be given each factor.

    Second, though I recognize the utility of the four-factor test, I sub-
mit that the test may not be sufficiently nuanced to resolve the under-
lying issue here. Whether or not an expressive event has a component
attributable to the government is not nearly as black and white as the
test would suggest. This case is a difficult one, not simply because it
involves the Confederate flag, but because license plate programs like
the one implemented here really have elements of both private and
government speech.3

   The opinion, in my view, fails to recognize the blurry and some-
times overlapping line between private and government speech. I
would have hoped, if rehearing were granted, that we would consider
the government's interest in avoiding "speech by attribution;" that is,
the government's right not to be compelled to speak by private citizens.4
"Speech by attribution," a largely unexplored concept of First Amend-
ment jurisprudence, demonstrates the tricky interplay and relationship
between the concepts of private and government speech.

    For even if the display of the Confederate flag is not considered
"pure" government speech, that there will be a perception of govern-
ment endorsement of the Confederate flag is undeniable. Though the
panel disagrees, the display of the Confederate flag will be attributed
to Virginia. In order to avoid any confusion about Virginia's official
position regarding its display, the Confederate flag has essentially
been "zoned off" state-issued license plates. In other words, the state
has enacted a time, place, and manner restriction, that is designed to
deal with a negative externality of what otherwise may be protected
____________________________________________________________
very short shrift to this factor—the factor I think may very well be a key
to the case. The panel opinion simply states, in what amounts to little
more than ipse dixit, that the government does not bear the ultimate
responsibility for the speech.
   3
     This is particularly true with respect to the Confederate flag, which
conveys a historically "governmental" message.
   4
     The Commonwealth is in a position very similar to that of objecting
drivers in Wooley v. Maynard, 430 U.S. 705 (1977).

                                   17
symbolic speech. Renton v. Playtime Theatres, Inc., 475 U.S. 41, 45-
49 (1986); see Young v. American Mini Theatres, Inc., 427 U.S. 50,
82 n.4 (1976) (Powell, J., concurring) ("If [the city] had been con-
cerned with restricting the message purveyed by adult theaters, it
would have tried to close them or restrict their number rather than cir-
cumscribe their choice as to location."). The most plausible explana-
tion for the statute is that it was aimed at this problem of "speech by
attribution." Cf. Boy Scouts of America v. Dale, 530 U.S. 640, 655-56
(2000) (recognizing private organization's interest in not communi-
cating message of individual member that is incompatible with orga-
nization's message). I believe this was the predominate concern that
motivated its enactment, not the content of SCV's message, or their
particular viewpoint. Renton, 474 U.S. at 48. Laws of this sort are
typically reviewed under the intermediate scrutiny standard. See Los
Angeles v. Alameda Books, Inc., ___ U.S. ___, 122 S. Ct. 1728, 1733-
34 (2002) (plurality opinion); Renton, 475 U.S. at 50.

    It is at least arguable, and I think quite likely, that this law would
survive intermediate scrutiny. As already stated, the ban on the Con-
federate flag is designed to serve the substantial government interest
of disassociating the Commonwealth from the Confederate flag. And
reasonable alternative avenues of communication remain available.
The only place the flag cannot be displayed is on the state-owned,
state-issued license plate. Moreover, the SCV can still have a license
plate, but without the flag. The SCV is therefore able to communicate
the message that the license plate provision was originally meant to
enable—that of membership in a particular organization. Thus, the
statute is more than reasonable; it is as narrowly tailored as it could
possibly be.

    The issues presented here are important ones, unresolved by prece-
dent, and, in my view, worthy of en banc review. Five members of
this Court have voted for rehearing en banc. This Court should take
pause and avail itself of its collective wisdom before striking down
a statute of the Commonwealth of Virginia that, in my view, makes
a rational attempt to balance government and private interests. This
Nation has yet to heal from the deep wounds left by the Civil War.
Ghosts from that terrible war and the issues of slavery still haunt
America's public institutions. Somehow we, as Americans, must tran-
scend this divide and find a way to "bind up the Nation's wounds."

                                   18
Abraham Lincoln, Second Inaugural Address (March 4, 1865), in The
Living Lincoln 640 (Paul M. Angle & Earl S. Miers eds., Barnes &
Noble Books 1992). Perhaps the legislature, duly elected by the peo-
ple of Virginia, got it right. Enacting a statute that allowed members
of the SCV to display their heritage in a proud and positive manner,
without the Commonwealth of Virginia being perceived as promoting
a symbol that has and continues to be the source of so much pain, was
truly a step toward healing our Nation. Perhaps it would give many
Virginians an opportunity to see the issues in a different light and
begin to appreciate the SCV's celebration of heritage, without seeing
"stars" or peering through "bars."

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