                                                      NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
                    _____________

                            No. 08-3131
                           _____________

             CHILDREN FIRST FOUNDATION, INC.
              a New York non-profit corporation duly
               registered in the State of New Jersey;
                      DR. ELIZABETH REX,

                                        Appellants,

                                   v.

     DIANE LEGREIDE, Individually and in her official capacity
        as former Chief Administrator of the New Jersey Motor
    Vehicle Commission; SHARON HARRINGTON, Individually
      and in her official capacity as acting Chief Administrator of
   the New Jersey Motor Vehicle Commission; DARIA GERARD,
   Individually and in her official capacity as Director of Customer
      Operations for the New Jersey Motor Vehicle Commission;
  STEVE ROBERTSON, Individually and in his official capacity as
  Director of Legal and Regulatory Affairs for the New Jersey Motor
  Vehicle Commission; PETER C. HARVEY, Individually and in his
   official capacity as Attorney General for the State of New Jersey;
 JAMES E. McGREEVEY, Individually and in his official capacity as
                   Governor of the State of New Jersey


           On Appeal from the United States District Court
                   for the District of New Jersey
                         No. 3:04-cv-02137
                District Judge: Judge Joel A. Pisano

                       Argued April 14, 2009

            Before: McKEE, SMITH, Circuit Judges and
                                 STEARNS,* District Judge

                               (Opinion filed : April 9, 2010)


Jeffrey A. Shafer
Alliance Defense Fund
801 G Street, N.W.
Suite 509
Washington, DC 20001-0000
Argued for Appellants

Andrea M. Silkowitz, Esq.
Office of Attorney General of New Jersey
124 Halsey Street
P.O. Box 45029
Newark, NJ 07102-0000
Argued for Appellees

Larry R. Etzweiler, Esq.
Office of Attorney General of New Jersey
P.O. Box 112, A2
25 Market Street
Trenton, NJ 08625-0000
Counsel for Appellees

                                           OPINION

McKEE, Circuit Judge.

       Plaintiffs brought this action under 42 U.S.C. § 1983, alleging that Defendants’

denial of their request for a speciality license plate was the result of unconstitutional

viewpoint discrimination. The district court dismissed the action after concluding that

Defendants were entitled to qualified immunity. For the reasons that follow, we will


       *
        The Honorable Richard G. Stearns, District Judge for the United States District
Court for the District of Massachusetts, sitting by designation.

                                              2
reverse and remand for further proceedings.1

                                             I.

       Inasmuch as we are writing primarily for the parties who are familiar with this

litigation, we need not detail its factual or procedural background. Rather, we briefly

note that the State of New Jersey has authorized the issuance of special organization

vehicle registration (“SOVR”) license plates to members of non-profit community

groups, alumni associations, and service organizations that comply with certain statutory

requirements. See N.J.S.A. 39:3-27.35. The Chief Administrator of the Motor Vehicle

Commission has final authority to approve an organization’s application for a SOVR

plate and to determine “the use and arrangement of the name, initials, or logotype of the

organization on the registration plates.” See N.J.S.A. 39:3-27.36 to -27.37.

       This suit arose after the Chief Administrator refused to approve Plaintiffs’

proposed SOVR plate design. Although the design had been initially approved,



       1
         As we discuss below, we reverse the order granting qualified immunity on
Plaintiffs’ First Amendment claim. We will also reverse the dismissal of Plaintiffs’
Equal Protection claim as, in accordance with our conclusion below that Plaintiffs
sufficiently plead viewpoint discrimination, we believe Plaintiffs have stated a claim for
which relief can be granted, and that qualified immunity is inappropriate at this point in
the proceedings. We will also vacate the dismissal of Plaintiffs’ Due Process claim as it
appears that the district court failed to address the crux of Plaintiffs’ argument, namely
that the requirements of New Jersey’s special license plate program are unconstitutionally
vague. See Appellants’ Br. 38 (Children First Foundation “brought its due process claim
against Defendants for their enforcement of vague laws which allow for unbridled
enforcement discretion.”).

                                             3
Plaintiffs were subsequently informed that the slogan included in their emblem, “Choose

Life,” was “controversial” and therefore would not be permitted. It is undisputed that

Plaintiffs complied with all of the procedural requirements for obtaining the SOVR plate,

and otherwise complied with the controlling statute.

       Plaintiffs filed this action pursuant to 42 U.S.C. § 1983, alleging that Defendants

abridged Plaintiffs’ First Amendment right to freedom of speech by rejecting their

application. More specifically, Plaintiffs alleged that Defendants rejected their proposed

design because of Defendants’ “disagreement with [the] life-affirming viewpoint

expressed by the plate.” JA-68. According to Plaintiffs, Defendants thereby “engaged in

and facilitated content-based and viewpoint-based discrimination.” Id.

       Defendants moved to dismiss Plaintiffs’ action pursuant to Fed. R. Civ. P.

12(b)(6) for failure to state a claim. In the alternative, Defendants asserted the defense of

qualified immunity and moved to dismiss Plaintiffs’ claims for damages. The district

court initially denied the motion to dismiss in its entirety on the grounds that judicial

economy favored addressing these issues only after a full and complete record had been

developed, and Defendants appealed. On appeal, we noted that the district court had not

had the benefit of our opinion in Thomas v. Independence Twp., 463 F.3d 285 (3d Cir.

2006), when it denied the motion to dismiss. See Children First Found., Inc. v. Legreide,

259 Fed. Appx. 444, 445 (3d Cir. 2007). In Thomas, we emphasized that when a

qualified immunity defense is raised, discovery should not proceed until the court


                                              4
evaluates whether the plaintiff has alleged the violation of clearly established rights. As

the district court had failed to do this, we vacated its denial of Defendants’ motion to

dismiss on grounds of qualified immunity, and remanded so that the court could address

the defense. Id. at 446.

       On remand, the district court concluded that Defendants were entitled to qualified

immunity,2 and this appeal followed.3

                                              II.

       Qualified immunity is an affirmative defense which must be decided as a matter of

law by the court. Carswell v. Borough of Homestead, 381 F.3d 235, 242 (3d Cir. 2004).

A state actor who infringes on a plaintiff’s constitutional rights is entitled to qualified

immunity if it appears that the challenged conduct “[did not] violate clearly established

statutory or constitutional rights of which a reasonable person would have known.”



       2
          Although qualified immunity protects government officials from liability only
for civil damages, see Bayer v. Monroe County Children and Youth Servs., 577 F.3d 186,
191 (3d Cir. 2009), the district court apparently dismissed Plaintiffs’ claims for
declaratory and injunctive relief also based on its conclusion that Plaintiffs had failed to
allege a violation of a clearly established right. However, since we disagree with the
district court’s conclusion that Defendants are entitled to qualified immunity in the first
instance, we need not separately address that error.
       3
        We exercise plenary review over a district court’s decision to grant a motion to
dismiss based on qualified immunity. McLaughlin v. Watson, 271 F.3d 566, 570 (3d Cir.
2001). We accept all well-pleaded factual allegations as true and draw all reasonable
inferences arising from those allegations in favor of the nonmoving party. Hayes v.
Gross, 982 F.2d 104, 105-06 (3d Cir. 1992).

                                               5
Kopec v. Tate, 361 F.3d 772, 776 (3d Cir. 2004) (quoting Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982)).

       In Saucier v. Katz, 533 U.S. 194, 201 (2001), the Supreme Court held that when

faced with a claim of qualified immunity, a court should first determine whether the

allegations establish a violation of a constitutional right when viewed in the light most

favorable to the plaintiff. If no constitutional violation is established, the court’s inquiry

is finished. However, if a constitutional violation is adequately alleged, the court must

then determine whether the claimed right was “clearly established” at the time of the

alleged violation.4 Id.

       In most instances, an inquiry into whether challenged restrictions on speech rise to

the level of a constitutional violation turns on the nature of the government property on

which expression is restricted. The Supreme Court has “adopted a forum analysis as a

means of determining when the Government’s interest in limiting the use of its property

to its intended purpose outweighs the interest of those wishing to use the property for

other purposes.” Cornelius v. NAACP Legal Def. and Educ. Fund, 473 U.S. 788, 800

(1985) (internal quotation marks and citations omitted). The Court has identified three

types of government fora: the traditional public forum, the designated forum, and the

       4
         In Pearson v. Callahan, 129 S.Ct. 808 (2009), the Court explained that the order
of these inquiries, though often advisable, should no longer be mandatory. “[T]here will
be cases in which a court will rather quickly and easily decide that there was no violation
of clearly established law before turning to the more difficult question whether the
relevant facts make out a constitutional question at all.” Id. at 820.

                                              6
nonpublic forum. See id. at 802.

       However, this forum analysis does not apply to restrictions on expression that are

based on a speaker’s viewpoint. Such restrictions have long been held to be

presumptively unreasonable regardless of the forum involved. Viewpoint-based

restrictions can only be upheld in the rare instance that they survive “strict scrutiny.” See

Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 828-30 (1995).

       Here, Plaintiffs alleged that Defendants rejected their proposed plate design

because of Defendants’ discomfort with the viewpoint it expressed. According to

Plaintiffs, Defendants’ agent informed them that the Motor Vehicle Commission would

not approve their plate because the slogan Plaintiffs wished to include, “Choose Life,”

was “controversial.” JA-59. The agent also informed them that “Pro Life” would be

unacceptable, but that they could use such alternate phrases as “Choose Adoption” or

“Adopt a Baby.” Id. Although Plaintiffs acknowledged that the Chief Administrator

later asserted that the denial was for a viewpoint-neutral reason, because all “advocacy

messages” were prohibited on SOVR plates, Plaintiffs also alleged that “other

organizations have been allowed to express their chosen messages via slogans, advocacy

phrases, commonly used phrase names, and/or other identifiers,” thereby calling into

doubt the Chief Administrator’s stated rationale. JA-54, 61-62.

       Accepting these factual allegations as true and drawing all inferences in Plaintiffs’

favor, as we must for the purposes of a motion to dismiss, Plaintiffs make plausible a

                                              7
claim of viewpoint discrimination. As already noted, engaging in viewpoint

discrimination when not necessary to further a compelling governmental purpose is a

violation of a clearly established constitutional right. Granting Defendants qualified

immunity is therefore patently inappropriate at this stage of the proceedings.

       The district court granted the motion to dismiss because it failed to correctly apply

the standard of review. At the first step of the qualified immunity analysis, the district

court reasoned that whatever Defendants’ agent said to Plaintiffs was immaterial because

“[t]he statute clearly provides that the Chief Administrator retains the sole discretion to

determine [what designs] are allowed on an SOVR plate.” JA-21. Accordingly, the

district court concluded that Plaintiffs’ application was denied for the viewpoint-neutral

reason asserted by the Chief Administrator – because advocacy messages were not

permitted on SOVR plates. The court could not have reached this conclusion, however,

without improperly disregarding the reasonable inference flowing from Plaintiffs’

allegations that the Chief Administrator’s explanation was a pretext for unconstitutional

viewpoint discrimination.

       Having found that the denial was viewpoint-neutral, the district court then

engaged in a forum analysis, determined that the SOVR license plate was a limited public

forum, and concluded that the Chief Administrator’s stated policy of not permitting

advocacy slogans on license plates was reasonable. On this basis, the court noted that it

would find no constitutional violation. The court, however, acknowledged that its


                                              8
analysis thus far was not consistent with the appropriate legal standard. It stated:

         The Court . . . recognizes that the present motion is a Rule 12(b)(6) motion
         to dismiss and, as such, the Court must accept as true all of the well-
         pleaded factual allegations. Thus, the Court will view Plaintiffs’ factual
         allegation of the July 2, 2003 phone conversation [in which defendants’
         agent allegedly said that Plaintiffs’ proposed design was unacceptable
         because it was “controversial”] as true, and finds that a constitutional
         violation is alleged. The Court now turns to whether there was a violation
         of clearly established law.


JA-21.

         At the second step of the qualified immunity analysis, however, the district court

failed to heed its own admonition, and again improperly applied the motion to dismiss

standard. The court reviewed the case law as it existed when Defendants rejected

Plaintiffs’ proposed plate design and found “a lack of consensus regarding how to

regulate controversial messages on license plates.” JA-23. It therefore concluded that a

reasonable actor could have believed that banning the use of advocacy messages on

plates was both reasonable, and as applied universally, viewpoint-neutral.

         This depiction of Defendants’ actions is again inconsistent with Plaintiffs’

allegations. As discussed above, Plaintiffs allege that Defendants objected to Plaintiffs’

proposed plate design because the advocacy message was “controversial,” and that

Defendants attempted to substitute less provocative messages, such as “Choose

Adoption” or “Adopt a Baby,” for the more evocative “Choose Life” and “Pro Life.”

Furthermore, according to Plaintiffs’ allegations, Defendants had permitted other


                                               9
organizations to include advocacy messages on their SOVR plates.5 Thus, the court

should not have focused its inquiry on whether a universal ban on advocacy messages

violated Plaintiffs’ clearly established rights. Rather, the court should have focused on

whether the prohibition of certain advocacy messages and the permission of others based

solely on the viewpoints expressed constituted such a violation.

        In concluding that Plaintiffs’ rights were not clearly established, the district court

relied heavily on two purportedly similar cases in which Courts of Appeals appeared to

reach different results. These cases, Sons of Confederate Veterans, Inc. v. Comm’r of the

Virginia Dep’t of Motor Vehicles, 288 F.3d 610 (4th Cir. 2002), and Perry v. McDonald,

280 F.3d 159 (2d Cir. 2001), simply do not support the district court’s conclusion in this

case.

        In Perry, the Court of Appeals for the Second Circuit held that the Vermont

Department of Motor Vehicles had not violated the plaintiff’s First Amendment right to

freedom of speech by revoking as erroneously issued her “vanity” license plate bearing

the letters: “SHTHPNS.”6 Under the applicable statute, a vehicle owner was permitted to

obtain a vanity plate by paying a fee, so long as the contents of the plate were not


        5
        The district court disregarded Plaintiffs’ allegations on this point, and instead
credited Defendants’ claims that they had not permitted other organizations to include
advocacy messages on their plates.
        6
        This lettering stood for “Shit Happens.” Perry, 280 F.3d at 163. Perry was
inspired to choose the message based on an Alcoholics Anonymous slogan, “Shit
happens (so don’t let life’s problems drive you to drink).” Id. at 164.

                                              10
“offensive or confusing to the general public.” Perry, 280 F.3d at 163. The Department

of Motor Vehicles sought to revoke plaintiff’s plate because it was “offensive.” Id. at

164. Discovery revealed that the Department generally did not approve any vanity plates

with “offensive scatological terms,” and that Perry’s plate had been approved in error.

Id. at 169-71.

       The court concluded that the Department’s restriction on Perry’s speech was

viewpoint-neutral, and therefore constitutional. The court explained:

              It is apparent that Vermont’s policy does not oppose Perry’s
       philosophical views as reflected in the vanity plate. Vermont’s policy
       prohibits Perry’s vanity plate not because it stands for “Shit happens (so
       don’t let life’s problems drive you to drink),” but because Perry chose to
       express that viewpoint using a combination of letters that stands in part for
       the word ‘shit.” This restriction does not discriminate on the basis of
       viewpoint.


Id. at 170.


       In Sons of Confederate Veterans, on the other hand, the Court of Appeals for the

Fourth Circuit held that Virginia had violated the plaintiff’s First Amendment right to

freedom of speech by precluding it from obtaining a license plate displaying the

Confederate flag. In that case, the state had allowed “supporters of various

organizations” to obtain special license plates. Sons of Confederate Veterans, 288 F.3d

at 613. Each organizational plate had to be separately authorized by the legislature

through “special-plate-authorizing statutes.” Id. at 626. Although the letter inviting


                                            11
organizations to submit proposed plate designs instructed each organization to include a

logo in its submission, the statute enacted for the Sons of Confederate Veterans stated

that “[n]o logo or emblem of any description shall be displayed or incorporated into the

design . . . .” Id. at 613. That restriction prevented the organization from displaying its

logo - the Confederate flag - on its specialty plate. Discovery revealed that none of the

other special-plate-authorizing statutes contained a logo restriction.

       In rejecting the defendants’ argument that the logo restriction was merely content-

based and not viewpoint-based, the court explained:

       [t]he nature of the restricted speech, the lack of a generally applicable
       content-based restriction, the breadth of the special plate program . . . and
       the lack of any restrictions in statutes authorizing special plates other than
       the [Sons of Confederate Veterans’s] belie the . . . argument that the
       restriction in question is merely a content-based restriction. Rather, the
       logo restriction works viewpoint discrimination against the [Sons of
       Confederate Veterans].


Id. at 626. Because the restriction was “not viewpoint-neutral, . . . the restriction [was]

presumptively unconstitutional in any forum.” Id. at 623.

       Together, the district court read these two cases to indicate a lack of clarity in the

applicable law. However, to the extent that the cases are arguably in tension, that tension

is not relevant here as both cases reinforce the constitutional limitation on viewpoint

discrimination. Although the two cases do highlight the difficulty of distinguishing




                                             12
content-based discrimination from viewpoint-based discrimination,7 Plaintiffs here

clearly alleged viewpoint discrimination. Neither Perry nor Sons of Confederate

Veterans in any way challenges the established principle that the 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, 515 U.S. at

829.

       Since Plaintiffs allege that Defendants violated clearly established rights of which

a reasonable person would have known, we will reverse the district court’s order granting

Defendants’ motion to dismiss on qualified immunity grounds, and remand for further

proceedings consistent with this opinion.




       7
        As the Supreme Court noted in Rosenberger, “discrimination against one set of
views or ideas is but a subset or particular instance of the more general phenomenon of
content discrimination. . . . And, it must be acknowledged, the distinction is not a precise
one.” 515 U.S. at 830-31.

                                             13
