                                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.

NICHOLAS J. TENNYSON, in his official capacity as Secretary
of the North Carolina Department of Transportation; KELLY J.
THOMAS, in his official capacity as Commissioner of the
North Carolina Division of Motor Vehicles,

                Defendants – Appellants,

          and

THOM TILLIS, North Carolina Speaker of the House of
Representatives; PHIL BERGER, President Pro Tempore of North
Carolina Senate,

                Intervenors,

          and

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

                Defendant.

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

NATIONAL LEGAL FOUNDATION,

                Amicus Supporting Appellants.
     On Remand from the Supreme Court of the United States.
                       (S. Ct. No. 14-35)


               Decided on Remand:   March 10, 2016


Before TRAXLER, Chief Judge, WYNN, Circuit Judge, and George L.
RUSSELL, III, United States District Judge for the District of
Maryland, sitting by designation.


Reversed and remanded with instructions by published opinion.
Chief Judge Traxler wrote the majority opinion, in which Judge
Russell joined. Judge Wynn wrote a dissenting opinion.


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.   Scott W. Gaylord, ELON UNIVERSITY SCHOOL OF LAW,
Greensboro, North Carolina, for Intervenors.          Steven W.
Fitschen,   THE   NATIONAL  LEGAL FOUNDATION,  Virginia   Beach,
Virginia, for Amicus Curiae.




                               2
TRAXLER, Chief Judge:

     In    our    previous     opinion    in    this      case,     we    affirmed     the

decision of the district court and held that North Carolina’s

specialty license plate program violated the First Amendment.

See ACLU v. Tata, 742 F.3d 563 (4th Cir. 2014).                              The State

sought review by the Supreme Court, which vacated our decision

and remanded the case to us for reconsideration in light of the

Court’s decision in Walker v. Texas Div., Sons of Confederate

Veterans, Inc., 135 S. Ct. 2239 (2015).                   See Berger v. ACLU, 135

S. Ct. 2886 (June 29, 2015).              After considering Walker and the

supplemental briefs filed by the parties, we now reverse the

decision of the district court and remand with instructions that

the district court enter judgment for the State.

                                         I.

     As    set    out   in   more    detail    in   our    now-vacated           decision,

North Carolina operates a specialty license plate program that

offers, inter alia, a “Choose Life” plate, but the State has

repeatedly       rejected    efforts     to    include     a   pro-choice          license

plate.     The ACLU and several vehicle owners brought this action

alleging     that    the     State    violated      the    First     and     Fourteenth

Amendments by refusing to offer a pro-choice license plate.                            The

district     court      granted      summary    judgment       in        favor    of   the

plaintiffs and issued an injunction prohibiting the State from



                                          3
issuing “Choose Life” plates without also offering a pro-choice

plate.   See Tata, 742 F.3d at 566-67.

     The State appealed the district court’s decision to this

court.      The   State    argued   that      the    message    conveyed     through

specialty license plates was government speech and that it was

therefore     permissible       for      it     to     engage      in     viewpoint

discrimination     when    administering       the    license     plate    program.

See Pleasant Grove City v. Summum, 555 U.S. 460, 467-68 (2009)

(“A government entity has the right to speak for itself . . .

and to select the views that it wants to express.” (internal

quotation marks omitted)).

     Applying     the     factors   identified       in   Sons    of    Confederate

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

Department of Motor Vehicles, 288 F.3d 610 (4th Cir. 2002), we

rejected the State’s argument and held that “the ‘Choose Life’

plate at issue here implicates private speech rights and cannot

correctly be characterized as pure government speech.”                        Tata,

742 F.3d at 575.        Because private speech rights were implicated,

we held 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.

     North    Carolina      filed   a   petition      seeking     review     of   our

decision by the Supreme Court.               While the State’s petition was

pending, the Supreme Court issued its decision in Walker, which

                                         4
involved a challenge to Texas’s specialty license plate program.

The Supreme Court held that “Texas’s specialty license plate

designs    constitute        government              speech     and        that     Texas     was

consequently entitled to refuse to issue plates featuring [the

plaintiff’s]        proposed        [Confederate              battle        flag]     design.”

Walker,    135   S.    Ct.     at    2253.            The    Supreme       Court    thereafter

granted the State’s petition in Tata, vacated our decision, and

remanded the case to us for reconsideration in light of Walker.

     The    specialty        license        plate       program       at    issue     here     is

substantively       indistinguishable                from    that   in     Walker,    and     the

Walker Court’s analysis is dispositive of the issues in this

case.      Accordingly,        we    now     conclude          that      specialty     license

plates     issued      under        North        Carolina’s         program         amount    to

government speech and that North Carolina is therefore free to

reject license plate designs that convey messages with which it

disagrees.       See Walker, 135 S. Ct. at 2245 (“When government

speaks,    it    is    not    barred        by       the     Free   Speech        Clause     from

determining      the   content       of     what        it    says.”).        We     therefore

reverse the district court’s grant of summary judgment in favor

of the plaintiffs and remand with instructions that the district

court enter judgment in favor of the defendants.



                                     REVERSED AND REMANDED WITH INSTRUCTIONS



                                                 5
WYNN, Circuit Judge, dissenting:

       In Walker v. Texas Division, Sons of Confederate Veterans,

Inc., 135 S. Ct. 2239 (2015), the Supreme Court majority did not

address,    much        less    overrule,         this     Circuit’s    common-sense

recognition that speech can be “mixed”—i.e., that it can have

elements    of   both     government        and    private    speech.         Insisting

otherwise is tantamount to “insisting that a mule must be either

a horse or a donkey.”            David A. Anderson, Of Horses, Donkeys,

and Mules, 94 Tex. L. Rev. See Also 1, 4 (2015).

       I refuse to believe that with Walker, the Supreme Court

meant to force us to choose that the mule in this case is either

a horse or a donkey.            Instead, Walker’s holding, when narrowly

understood,      does    not    lead   to    the    conclusion     that       the    North

Carolina specialty plate speech at issue here constitutes pure

government speech.         On the contrary, based on the specifics of

this    case,     it     presents      mixed       speech—with     private          speech

components that prohibit viewpoint discrimination.                      Accordingly,

the district court correctly held that in allowing a “Choose

Life”   specialty       plate    while      repeatedly      rejecting     a    “Respect

Choice”    plate,      North    Carolina        violated    the   First   Amendment.

Respectfully, I therefore dissent.




                                            6
                                                I.

                                                A.

       “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.         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.”         Rosenberger v. Rector & Visitors of Univ. of Va.,

515 U.S. 819, 829 (1995).

       The   First        Amendment’s       neutrality        protections         check   only

government regulation of private speech.                         By contrast, when the

government      engages          in   its   own       expressive     conduct,       the   Free

Speech Clause and its viewpoint neutrality requirements have “no

application.”             Pleasant Grove City, Utah v. Summum, 555 U.S.

460, 467 (2009).               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),

the government is generally “entitled to say what it wishes, and

                                                  7
to select the views that it wants to express,” Summum, 555 U.S.

at 468 (quotation marks and citations omitted).

       In this Circuit, we have recognized “mixed speech”—that is,

speech   that       is   “neither     purely      government   speech     nor      purely

private speech, but a mixture of the two.”                      Planned Parenthood

of S.C. Inc. v. Rose, 361 F.3d 786, 789 (4th Cir. 2004).                                In

deciding whether speech is private, government, or mixed, we

have looked to instructive factors including the purpose of the

program in which the speech has occurred and the identity of the

literal speaker.          Id. at 793; Sons of Confederate Veterans, Inc.

v. Comm’r of Va. Dep’t of Motor Vehicles, 305 F.3d 241, 245-46

(4th Cir. 2002); Sons of Confederate Veterans, Inc. v. Comm’r of

Va. Dep’t of Motor Vehicles, 288 F.3d 610, 618 (4th Cir. 2002).

And in the context of several states’ specialty license plates,

we have held that the instructive factors indicated mixed speech

but    tipped    in      favor   of     private    speech    interests    so       as   to

prohibit viewpoint discrimination.                 Id.

       Last    year      in   Walker,    the    Supreme     Court   deemed     a    Texas

specialty license plate to be government speech free from First

Amendment protections against viewpoint discrimination.                            135 S.

Ct. 2239.       In doing so, the Supreme Court relied on Summum, 555

U.S.    460,    a     case    dealing     with     privately    donated      permanent

monuments in public parks.               In Walker, as in Summum, the Court

focused on three factors: (1) “the history of license plates;”

                                            8
(2) observers’ “routine” and “reasonable” associations between

the speech at issue and the state; and (3) the extent of state

control over the message conveyed.                      Walker, 135 S. Ct. at 2248-

49   (quotation       marks        and    citation      omitted).          “These       [three]

considerations, taken together” convinced the Supreme Court that

the Texas specialty plate speech at issue was “similar enough”

to the privately donated monuments in public parks at issue in

Summum      “to   call       for    the     same       result”—that       is,     that     both

constituted pure government speech.                     Id.

                                                B.

         Applying the Walker framework here, I conclude that North

Carolina’s authorization of a “Choose Life” plate and rejection

of   a    “Respect     Choice”        plate      is    not    simply      pure    government

speech.      And because the speech is not just the government’s,

North Carolina’s allowing a “Choose Life” plate while rejecting

a    pro-choice       plate        constitutes         viewpoint        discrimination        in

violation of the First Amendment.

         Beginning    with     the       first       Walker   factor,      North    Carolina

began     putting     slogans       on    its    license      plates     in     1954,    adding

graphics in 1981.            J. Fox, License Plates of the United States

77   (1994).         North    Carolina’s         vast    array     of    specialty       plates

honoring, for example, Corvettes, Piedmont Airlines, and out-of-

state      universities,           substantially         postdates        the     use    of   a

standard state slogan.              See id.; N.C. Gen. Stat. § 20-79.4.

                                                 9
       The legislative history of North Carolina’s specialty plate

program indicates that it was intended to be a forum for private

expression of interests–that is, “‘voluntary speech that people

are    making     by     purchasing         the       license       plate.’”          Am.     Civil

Liberties Union of N.C. v. Tata, 742 F.3d 563, 572 (4th Cir.

2014) (citing Remark of Representative Tim Moore to the North

Carolina House Fin. Comm. (June 2, 2011)).                                Not surprisingly,

then,    North      Carolina      expressly           and    repeatedly        “invite[d]       its

vehicle    owners       to    ‘[m]ake       a    statement        with    a    specialized       or

personalized license plate’ and to ‘find the plate that fits

you.’”        Id.      (citations       omitted).             Further,         North      Carolina

“describe[d] its specialty plate program as ‘allow[ing] citizens

with     common       interests        to       promote      themselves         and/or       their

causes.’”        Id. (citation omitted).                     This history supports the

conclusion that the challenged speech was not the government’s.

       Regarding the second Walker factor, whether there exists a

“routine”       and    “reasonable”         association           between      the     speech    at

issue     and    the     government,            Walker,       135    S.       Ct.    at     2248-49

(quotation marks and citation omitted), the specifics before us

call    any     such     strong     association             into     serious        doubt.       In

analyzing the second Walker factor, for example, the Supreme

Court    considered          whether    “persons            who    observe[d]”         the    Texas

plates at issue there “routinely—and reasonably—interpret them

as conveying some message on the issuers’ behalf” and whether “a

                                                 10
person who displays a message on a . . . license plate likely

intends to convey to the public that the State has endorsed the

message.”         Walker,    135      S.    Ct.    at    2249     (quotation     marks,

brackets, and citation omitted).                    A person who sees a North

Carolina “I’d Rather Be Shaggin’” specialty plate during Monday

morning    rush     hour    surely      does     not    routinely      and   reasonably

believe that such a plate embodies the State of North Carolina’s

credo.     Nor is it likely that a North Carolina Libertarian who

applies for a “Don’t Tread On Me” specialty plate is motivated

by a desire to convey to the public the government’s seal of

approval.

       Again,     North    Carolina     repeatedly       told    its    citizens    that

they can “‘[m]ake a statement with a specialized or personalized

license plate,’” inviting them “to ‘find the plate that fits

you’” in a “specialty plate program . . .                       ‘allow[ing] citizens

with     common    interests       to      promote      themselves      and/or     their

causes.’”         Tata,    742   F.3d      at     572   (quoting       North   Carolina

Division of Motor Vehicles website).                    North Carolina’s refrain

has surely sunken in and must impact the way the North Carolina

public views its specialty plates—as a forum allowing them to

make a statement and promote themselves and their causes, just

as their government described.

       Finally, regarding the third factor, state control over the

messages conveyed on specialty plates, here, as in Walker, the

                                            11
state government controls the final wording and appearance of

specialty plates.        Id. at 2249; N.C. Gen. Stat. §§ 20-63, 20-

79.3A,     20-79.4.          North   Carolina’s        General     Assembly      must

authorize the issuance of any new specialty plates.                       Id.   And,

as    Plaintiffs’     own     verified     complaint         demonstrates,      North

Carolina exercises its authority not simply to authorize new

specialty plates but also to reject proposed plates:                      Plaintiffs

complain    that     North    Carolina     “has   expressly        and    repeatedly

rejected the development of a pro-choice license plate.”                         J.A.

11.    Plaintiffs concede that the control factor tilts in the

government’s favor.

      According to North Carolina, the control factor alone is

dispositive as to whether speech is the government’s.                           North

Carolina claims that “the Supreme Court’s Walker opinion sets

out   a   new   test”—the      so-called      “control       test”—that    “focuses

solely on the level of government control.”                     Appellants’ Supp.

Br. at 4.       Yet Walker does no such thing.                 Indeed, the words

“control test” appear nowhere in Walker, and for good reason.

The   Supreme    Court   surely      recognized       that    hinging     government

speech     on   government      control       alone    could     incentivize     the

government to increase its control over speech, thereby deem the

speech its own, and then use its freedom from First Amendment

constraints     to    discriminate     against        disfavored    speakers     and

messages at will.        Nothing in Walker suggests that the Supreme

                                         12
Court    supports    such     a   circular      inquiry    that    could    so    easily

enable a “subterfuge for favoring certain private speakers over

others based on viewpoint.”              Summum, 555 U.S. at 473.

     Applying all three of the factors the Supreme Court laid

out in Walker to the specifics of this case shows that the

speech at issue is a mixed picture tilting in favor of private

speech.     I do not deny that some elements of North Carolina’s

specialty      plates,   like      the   state    name    and    the   vehicle’s    tag

number,     are     unquestionably         government        speech.         But    the

“designated segment of the plate [that] shall be set aside for

unique design representing various groups and interests” can,

and here does, contain private speech.                     N.C. Gen. Stat. § 20-

79.4.

     On    appeal,      North     Carolina      argued    only    that    because   its

specialty      plates    are      government      speech,    North       Carolina    can

viewpoint-discriminate            free   from    First    Amendment      constraints.

On its lone issue, North Carolina should lose:                            Because the

speech    at    issue    is     not   purely     the     government’s,      the    First

Amendment’s constraints on viewpoint discrimination apply.                          And

in authorizing a “Choose Life” specialty plate while refusing to

authorize a pro-choice specialty plate, North Carolina violated

those discrimination constraints.                 The district court’s holding

to that effect, which is in no other respect challenged, should

therefore stand.

                                           13
                                              II.

      “Never has the line between the public and private sectors

been as blurred as it is today.                       Private companies run state

prisons     and     public       hospitals.           Public-private          partnerships

develop     real    estate       and    build       sports    facilities        and    office

buildings.        Management of public schools is delegated to private

companies.”        Anderson, 94 Tex. L. Rev. See Also at 4.                           And the

lines   have       blurred       in    the    speech    realm,      too,      as     “stadium

scoreboards of public universities tout not only the teams and

schools,    but     also     soft      drinks,      banks,    and   car    dealers”       and

cities and schools sell logos and logo placements to private

entities.          Id.     at    5.          Such   speech     need     not     be     viewed

simplistically as all government or all private.

      North    Carolina         invited       its   vehicle    owners      to      “[m]ake    a

statement” and “promote themselves and/or their causes”—but only

if   they   were     on    the    government’s         side   of    a   highly       divisive

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

specialty plate speech at issue is not pure government speech,

North Carolina’s allowing a “Choose Life” plate while rejecting

a    pro-choice      plate       constitutes         viewpoint      discrimination           in

violation of the First Amendment.                       For this reason, I would

affirm the district court’s ruling in Plaintiffs’ favor and must

respectfully dissent.



                                               14
