DocketNumber： No. 14-6020
Judges： Bacharach, Holmes, McHugh
Filed Date： 8/4/2015
Status： Precedential
Modified Date： 11/5/2024
In this case, we must decide whether Oklahoma’s depiction of a Native American shooting an arrow towards the sky on its standard vehicle license plates compels Appellant Keith Cressman to speak in violation of his First Amendment rights.
In a prior appeal, we determined that Mr. Cressman had alleged sufficient injury to confer standing and that he had stated a plausible compelled-speech claim at the motion-to-dismiss stage. See Cressman v. Thompson, 719 F.3d 1139, 1147-56 (10th Cir.2013) (“Cressman I”). On remand, and after a bench trial, the district court concluded that a reasonable person would not understand the vehicle license plate image to convey the pantheistic message to which Mr. Cressman objects; it thus held that he was not compelled to speak. See Cressman v. Thompson, No. CIV-11-1290-HE, 2014 WL 131715, at *5 (W.D.Okla. Jan. 14, 2014). Exercising our
I
A
In 2007, the Oklahoma legislature created the Oklahoma License Plate Design Task Force to update the design of the standard Oklahoma vehicle license plate. See Okla. Stat. tit. 47, § 1113.3. This change was motivated by the public-safety concern that the old license plates were difficult to read. However, the task force also viewed the redesign as an opportunity to “market Oklahoma as a tourist destination.” Aplt.App. at 171 (Okla. State Senate Press Release, dated Nov. 27, 2007). In 2008, the task force chose a design that included an image of a Native American man shooting an arrow towards the sky (the “Native American image”).
Mr. Cressman, an Oklahoma resident, professes “historic Christian beliefs,” including monotheism and the view that “Jesus Christ is the mediator between all people and God.” Id. at 91-92 (Trial Tr., dated Jan. 9, 2014). He learned about the new license plate design, the Sacred Rain Arrow sculpture, and the Native American legend that inspired Mr. Houser’s work from various news stories covering the redesign. He objected to the Native American image because, in his view, it conveys “the same message as the [Sacred Rain Arroio ] statue,” which he believes teaches that there are “multiple gods” and that “the arrow is an intermediary for prayer.” Id. at 97.
Finding the license plate image to be irreconcilable with his beliefs, Mr. Cress-man tried various means to avoid displaying it. He initially covered up the Native American image on the standard license plates affixed to his vehicles. However, he was advised by a tag agency that obscuring any part of the license plate might be illegal.
In March 2010, Mr. Cressman sent letters to the Attorney General of Oklahoma and various other state officials indicating that he no longer wished to pay the extra charge for the specialty plates and asking that he be allowed “either to cover up the image of the ‘Sacred Rain Arrow’ sculpture on a standard license plate or ... obtain a vanity plate free of charge.” ApltApp. at 169 (Letter, dated Mar. 10, 2010). He did not receive a response to these requests.
B
Mr. Cressman filed the present 42 U.S.C. § 1983 civil-rights lawsuit in November 2011, alleging that he was forced to display the Native American image— and thereby communicate its allegedly pantheistic message — in violation of his free-speech, free-exercise, and due-process rights under the First and Fourteenth Amendments.
On appeal, in Cressman I, we confirmed that Mr. Cressman did indeed meet the requirements for Article III standing. See 719 F.3d at 1144-47. However, we reversed and remanded to the district court for further proceedings based on our conclusion that Mr. Cressman’s complaint
After the case was remanded to the district court, the parties engaged in discovery and filed cross-motions for summary judgment and a joint stipulation of uncontested facts. The district court granted partial summary judgment to defendants Thomas Kemp, Jr., Jerry Johnson, and Dawn Cash (collectively, the “Tax Commission defendants”), concluding that it lacked subject-matter jurisdiction under the Tax Anti-Injunction Act to compel the Tax Commission to issue Mr. Cressman a specialty license plate at the same cost as a standard license plate.
The district court ultimately concluded that the Native American image, in isolation, did not provide a basis for Mr. Cressman’s First Amendment claim because:
a reasonable observer would not be likely to conclude that an identifiable message was conveyed simply from the inclusion of the image on the standard state license plate. Without further research, it is simply a depiction of an Indian shooting a bow and arrow. A reasonable observer, even one living in Oklahoma, would not be likely to know of All[a]n Houser’s intentions or thoughts in creating the “Sacred Rain •Arrow” statue or of the legend behind it, even if the observer assumed the image was an exact replica of the statue.
ApltApp. at 227 (Order, filed Jan. 14, 2014) (footnote omitted). Instead, the court found that, in the context of the license plate as a whole, the meaning a reasonable observer would likely perceive from the image was something “akin to
II
In a matter involving First Amendment rights, we review the district court’s decision de novo, conducting “an independent examination of the whole record in order to make sure that the judgment does not constitute a forbidden intrusion on the field of free expression.” Citizens for Peace in Space v. City of Colo. Springs, 477 F.3d 1212, 1219 (10th Cir.2007) (quoting Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 499, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984)); accord Horstkoetter v. Dep’t of Pub. Safety, 159 F.3d 1265, 1270 (10th Cir.1998). The factual findings, as well as the conclusions of law, are reviewed “without deference to the trial court.” Citizens for Peace in Space, 477 F.3d at 1219 (quoting Hurley, 515 U.S. at 567, 115 S.Ct. 2338).
Because we have previously considered and resolved certain questions in this case, we are bound by the findings of the previous panel in Cressman I regarding those issues under the law of the case doctrine. Under this doctrine, “the decision of the appellate court establishes the law of the case and ordinarily will be followed by both the trial court on remand and the appellate court in any subsequent appeal.” Zinna v. Congrove, 755 F.3d 1177, 1182 (10th Cir.2014) (quoting Rohrbaugh v. Celotex Corp., 53 F.3d 1181, 1183 (10th Cir.1995)); see Ute Indian Tribe of the Uintah & Ouray Reservation v. Utah, 114 F.3d 1513, 1520-21 (10th Cir.1997). We will only deviate from the law of the case “(1) when the evidence in a subsequent trial is substantially different; (2) when controlling authority has subsequently made a contrary decision of the law applicable to such issues; or (3) when the decision was clearly erroneous and would work a manifest injustice.” United States v. Irving, 665 F.3d 1184, 1192 n. 12 (10th Cir.2011) (quoting United States v. Alvarez, 142 F.3d 1243, 1247 (10th Cir.1998)). Neither party alleges, nor does it appear to be true, that any of these narrow exceptions are applicable here. Thus, our conclusions in Cressman I will continue to govern in this case.
Ill
As a preliminary matter, we briefly address the defendants’ contention that we need not rule on the merits of Mr. Cress-man’s First Amendment claim at all. Specifically, they assert that Mr. Cressman lacks standing to assert his First Amendment challenge and that, in any event, the Native American image on the license plate is government speech excepted from First Amendment scrutiny.
By way of preface to our detailed analysis below, we note that our court has already rejected these arguments in Cress-
A
The defendants argue that Mr. Cressman lacks Article III standing because he has not owned a vehicle with the standard Oklahoma license plate since 2009 and because he was never “threatened with a ticket or prosecuted for violating” the statutory prohibition on concealing license plates. Aplee Br. at 27. Therefore, the defendants claim that any alleged injury is merely speculative.
Addressing standing in Cressman /, we held that Mr. Cressman’s “alleged injuries are sufficient to support the first element [i.e., the injury-in-fact element] of Article III standing.” 719 F.3d at 1145. We noted that he faces three choices, each of which would impose a concrete injury. First, he could violate Oklahoma law by concealing the Native American image, yet he would face “a threat of prosecution and criminal penalties if he [were to do] so.” Id. Second, he could display the image, but, accepting his well-pleaded complaint allegations as true, this would “constitute[ ] compelled speech and [would be] an injury in fact.” Id. Finally, he could purchase a specialty license plate; however, “[t]he additional cost of the specialty license plates is a concrete, actual monetary injury.” Id. The defendants do not point to any intervening changes in Mr. Cress-man’s circumstances that would undercut the substance of our standing analysis in Cressman I, and thus we remain bound by that decision.
Even if we were not bound by the law of the case that Cressman I establishes, we would still conclude that the defendants’ arguments are meritless. It is well-established that a plaintiff need not “first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights.” Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). Instead, it is enough for him to demonstrate that he has been warned that he will be prosecuted if he continues in his desired behavior, or that he otherwise show that his “concern with arrest has not been ‘chimerical.’ ” Id. (quoting Poe v. Ullman, 367 U.S. 497, 508, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961)). For example, we have previously held that a plaintiff has standing when his actions are made illegal “by the plain language of the statute.” Citizens for Responsible Gov’t State Political Action Comm. v. Davidson, 236 F.3d 1174, 1193 (10th Cir.2000); see also Consumer Data Indus. Ass’n v. King, 678 F.3d 898, 902 (10th Cir.2012) (“[T]he existence of a statute implies the threat of its enforcement....”). Here, two different state officials — a clerk at the Oklahoma Tax Commission and a hearing officer at the Oklahoma Department of Public Safety — as well as a tag agent who, though an independent contractor, see Okla. Stat. tit. 47, § 1140(B), is supervised by the
The fact that Mr. Cressman does not currently possess a standard Oklahoma license plate containing the Native American image is of no consequence to his standing. He owned vehicles with standard plates at the time of the redesign and subsequently covered up the Native American image, thus exposing himself to the threat of prosecution. In addition, he still suffers an injury in fact because he is forced to buy a more expensive specialty plate rather than the standard plate. Requiring an additional fee or tax for a government service is the kind of “indirect discouragement” we have recognized as an injury in the First Amendment context. Axson-Flynn v. Johnson, 356 F.3d 1277, 1290 (10th Cir.2004) (citation omitted); see id. (finding that an injury, for standing purposes, may include “imprisonment, fines, injunctions or taxes” (quoting Phelan v. Laramie Cty. Cmty. Coll. Bd. of Trs., 235 F.3d 1243, 1247 (10th Cir.2000))). In short, we have no reason to doubt that Mr. Cressman has standing to sue.
B
The defendants also claim that “[t]he Native-American on Oklahoma’s official standard license plate does not implicate the First Amendment free-speech clause because it is government speech ... exempt from free-speech analysis.” Aplee. Br. at 47 (emphasis omitted). By way of helpful reference, the Supreme Court has recently offered insight regarding the content of the government-speech doctrine:
When government speaks, it is not barred by the Free Speech Clause from determining the content of what it says. That freedom in part reflects the fact that it. is the democratic electoral process that first and foremost provides a check on government speech. Thus, government statements (and government actions and programs that take the form of speech) do not normally trigger the First Amendment rules designed to protect the marketplace of ideas. Instead, the Free Speech Clause helps produce informed opinions among members of the public, who are then able to influence the choices of a government that, through words and deeds, will reflect its electoral mandate.
Walker v. Tex. Div., Sons of Confederate Veterans, Inc., — U.S. -, 135 S.Ct. 2239, 2245-46, 192 L.Ed.2d 274 (2015) (citations omitted).
However, as we held in Cressman I, on these facts, the defendants’ government-speech “argument misses the mark.” 719 F.3d at 1157. Regardless of whether the Native American image is the government’s message, private First Amendment rights can still be significantly implicated because state-issued standard license plates are “readily associated” with vehicle owners, Wooley, 430 U.S. at 717 n. 15, 97 S.Ct. 1428, and may force them to “use their private property as a ‘mobile billboard’ for the State’s ideological message,” id. at 715, 97 S.Ct. 1428; see Cressman I, 719 F.3d at 1157 (“[S]peech on a license plate is sufficiently linked to the driver of the automobile displaying the license plate to raise compelled speech concerns.”).
Furthermore, even if we were to consider this argument afresh, we would not reach a different outcome. The defendants primarily rely on Johanns v. Livestock Marketing Association, which involved the use of taxes collected from beef producers to market beef and beef products through government advertisements. See 544 U.S. at 553, 125 S.Ct. 2055. However, the Court in Johanns affirmed Wooley’s vitality as a “true ‘compelled-speech’ ease[], in which an individual is obliged personally to express a message he disagrees with,” and distinguished the beef-marketing scheme as a “government-compelled subsidy of the government’s own speech.” 544 U.S. at 557, 125 S.Ct. 2055 (emphases added). The Court explicitly acknowledged that “there might be a valid objection if ‘those singled out to pay the tax are closely linked with the expression’ in a way that makes them appear to endorse the government message.” Id. at 565 n. 8, 125 S.Ct. 2055 (citation omitted); see id. at 568, 125 S.Ct. 2055 (Thomas, J., concurring) (“The government may not, consistent with the First Amendment, associate individuals ... involuntarily with [government] speech by attributing an unwanted message to them____”).
The Supreme Court’s recent decision in Walker further reaffirms our view that the issue of whether a license plate is government speech is inapposite where, as here, the central question presented is whether an individual has been compelled to speak. In Walker, the Supreme Court held that Texas’s specialty license plate
In short, the government-speech and compelled-speech doctrines are concerned with different things: the former focuses on the government’s interest in expressing its own views, while the latter “involve[s] the government putting particular messages in the mouths of private speakers.” Note, The Curious Relationship Between the Compelled Speech and Government Speech Doctrines, 117 Harv. L.Rev. 2411, 2422 (2004). Compare Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 833, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) (noting that the government “is entitled to say what it wishes”), with W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 634, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943) (holding that the government may not “compel [an individual] to utter what is not in his mind”). Thus, the defendants’ argument that the Native American image is government speech “misses the mark,” Cressman I, 719 F.3d at 1157, and does not serve to rebut Mr. Cressman’s claim that he has been compelled to endorse the State’s message in violation of his individual First Amendment rights.
IV
Turning to the substance of Mr. Cressman’s appeal, the sole issue before us is whether he has been unconstitutionally compelled to speak by Oklahoma’s requirement that he either display the Native American image on his vehicle license plate or pay an extra fee for a specialty plate.
As we explain below, at bottom, Mr. Cressman’s claim fails because he cannot demonstrate that the Native American image is, in fact, speech to which he objects. At least in the context of its mass reproduction on Oklahoma’s standard vehicle license plate, the Native American image is not an exercise of self-expression entitled to pure-speech protection. The image may constitute symbolic speech, but the only conceivable message a reasonable observer would glean from the license plate is one to which Mr. Cressman emphatically
A
The First Amendment’s safeguard 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, 97 S.Ct. 1428. Thus, the Supreme Court, starting with Barnette, has consistently “prohibited] the government from telling people what they must say.” Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 61, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006). This constraint on state compulsion is not limited to ideological messages; compelled statements of fact are equally proscribed by the First Amendment. See Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 797-98, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988); accord Axson-Flynn, 356 F.3d at 1284 n. 4. “In order to compel the exercise or suppression of speech, the government measure must punish, or threaten to punish, protected speech by governmental action that is ‘regulatory, proscriptive, or compulsory in nature.’ ” Axson-Flynn, 356 F.3d at 1290 (quoting Phelan, 235 F.3d at 1247). In other words, in order to make out a valid compelled-speech claim, a party must establish (1) speech; (2) to which he objects; that is (3) compelled by some governmental action.
The Supreme Court’s decision in Wooley v. Maynard, which dealt with compelled speech on standard license plates, is a logical starting point for our analysis. In that case, the petitioners objected to the inclusion of New Hampshire’s motto— “Live Free or Die” — on the State’s standard license plates because it was “repugnant to their moral, religious, and political beliefs” as Jehovah’s Witnesses. 430 U.S. at 707, 97 S.Ct. 1428. They continued to display the license plate while covering up the motto, but after being cited for violating a state law that forbade covering any part of a license plate, they sued under a compelled-speech theory. See id. at 708-09, 97 S.Ct. 1428. The Supreme Court held that because a vehicle is “readily associated with its operator,” id. at 717 n. 15, 97 S.Ct. 1428, and driving an automobile is “a virtual necessity for most Americans,” the State had forced the petitioners to use their car as a “‘mobile billboard’ for the State’s ideological message,” id. at 715, 97 S.Ct. 1428. It concluded that pressing the petitioners into either “fostering public adherence to an ideological point of view [they found] unacceptable” or facing prosecution unconstitutionally compelled them to speak. Id.
Despite the similarities between Wooley and the facts of the present case, there is one critical distinction that Mr. Cressman must overcome. In Wooley, the objectionable content was printed words, which the Court had no trouble finding was speech. Here, in contrast, Mr. Cressman objects to an image — a Native American shooting an arrow into the sky. Before we can decide whether the State of Oklahoma has in fact compelled Mr. Cressman to speak, we must first determine whether the image is in fact speech and, if so, whether he objects to the message it conveys.
B
Although the First Amendment’s protections extend “beyond written or spoken words as mediums of expression,” all speech is not treated equally. Hurley, 515 U.S. at 569, 115 S.Ct. 2338; accord Cress-man I, 719 F.3d at 1148. While “pure speech” activities are rigorously protected regardless of meaning, symbolic speech or conduct must be “sufficiently imbued with
Mr. Cressman seeks to bring the Native American image displayed on Oklahoma’s standard license plate into the fold of pure speech by characterizing it as an “image of representational art.” Aplt. Opening Br. at 22. As such, he claims, the image need not stand for something else; “[d]ue to the expressive qualities inherent [to] images,” they should be accorded the same treatment as words. Id. at 23. However, all images are not inherently expressive for purposes of pure speech. Context matters. Here, the reproduction of the Native American image on many thousands of standard license plates is not an exercise of self-expression to which full First Amendment protection is accorded.
1
The concept of pure speech is fairly capacious. According to the Supreme Court, this expanding list includes: fiction, see Hurley, 515 U.S. at 569, 115 S.Ct. 2338; music without words, see Ward v. Rock Against Racism, 491 U.S. 781, 790-91, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989); dance, see Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65-66, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981); theater, see Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 557-58, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975); movies, see Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502-03, 72 S.Ct. 777, 96 L.Ed. 1098 (1952); and “pictures, ... paintings, drawings, and engravings,” Kaplan v. California, 413 U.S. 115, 119, 93 S.Ct. 2680, 37 L.Ed.2d 492 (1973). Our sister circuits have added, inter alia, tattoos, see Anderson v. City of Hermosa Beach, 621 F.3d 1051, 1060 (9th Cir.2010); the sale of original artwork, see White v. City of Sparks, 500 F.3d 953, 955-56 (9th Cir.2007); ETW Corp. v. Jireh Publ’g, Inc., 332 F.3d 915, 924-25 (6th Cir.2003); Bery v. City of N.Y., 97 F.3d 689, 694-96 (2d Cir.1996); custom-painted clothing, see Mastrovincenzo v. City of N.Y., 435 F.3d 78, 96 (2d Cir.2006); and stained-glass windows, see Piarowski v. Ill. Cmty. Coll. Dist. 515, 759 F.2d 625, 628 (7th Cir.1985), to the tally.
The justification for protecting these various media is “simply ... their expressive character, which falls within a spectrum of protected ‘speech’ extending outward from the core of overtly political declarations.” Nat’l Endowment for the Arts v. Finley, 524 U.S. 569, 602-03, 118 S.Ct. 2168, 141 L.Ed.2d 500 (1998). Thus, Arnold Schoenberg’s atonal compositions, Lewis Carroll’s nonsense verse, and Jackson Pollock’s abstract paintings-regardless of their meaning, or lack thereof-are “unquestionably shielded” as expressions of the creators’ perceptions and ideas. Hurley, 515 U.S. at 569, 115 S.Ct. 2338; see White, 500 F.3d at 956 (“A painting may express a clear social position, as with Picasso’s condemnation of the horrors of war in Guernica, or may express the artist’s vision of movement and color, as with ‘the unquestionably shielded painting of Jackson Pollock.’ ... So long as it is .an artist’s self-expression, a painting will be protected under the First Amendment....” (emphasis added) (quoting Hurley, 515 U.S. at 569, 115 S.Ct. 2338)); see also Piarowski, 759 F.2d at 628 (concluding that the First Amendment protects “art for art’s sake”).
Given the animating principle behind pure-speech protection—viz., safe
The context-driven nature of the inquiry helps to explain the lines courts have attempted to draw in applying pure-speech protection to images. For example, while an artist’s sale of his own original work is pure speech, this protection may not necessarily extend to reproductions of others’ artwork. See White, 500 F.3d at 956 n. 4 (expressly declining to decide “the protection accorded to paintings that are copies of another artist’s work or paintings done in an art factory setting where the works are mass-produced by the artist or others”); Mastrovincenzo, 435 F.3d at 85 (“distinguishing among artwork with presumptively expressive content ..., merchandise with potentially expressive content ..., and merchandise with no expressive content” (citation omitted)). Indeed, even Bery, which contains perhaps the most expansive language suggesting that images are pure speech under the First Amendment, does not establish a categorical rule. There, the court acknowledged instead that in analyzing various forms of visual expression, “[c]ourts must determine what constitutes expression within the ambit of the First Amendment and what does not.” Bery, 97 F.3d at 696; see also Mastrovincenzo, 435 F.3d at 85 (noting that Bery “left open the ‘difficult’ question of when the sale of assertedly artistic items constitutes protected speech”).
In short, Judge Noonan, concurring in Anderson, aptly and succinctly summarizes the guiding principle for our approach to examining whether an image is pure speech — “Context is all.” 621 F.3d at 1068 (Noonan, J., concurring).
2-
At issue here is a mass-produced image based on Allan Houser’s sculpture. As an initial matter, the fact that the image depicts another artist’s work does not necessarily remove it from the realm of pure speech. The Supreme Court has recognized that the First Amendment does not require “a speaker to generate, as an original matter, each item featured in [a] communication.” Hurley, 515 U.S. at 570, 115 S.Ct. 2338. For example, one could envision circumstances under which a pictorial rendition of the Sacred Rain Arrow sculpture could itself be an expressive act — perhaps if the creator depicted the sculpture in a stylized way or incorporated a replica into a larger collage in order to convey his perspective.
But it is the reproduction of the image on thousands of Oklahoma license plates that militates toward a different result here. That is because, in this context, the image no longer implicates concerns about self-expression. Bereft of the size, dimensions, spatial relations, and other features of the Sacred Rain Arrow sculpture, the depiction can hardly be said to convey Mr. Houser’s perception of the “strength, dignity, beauty and spirituality
Mr. Cressman suggests that courts have treated widely-reproduced images as pure speech without regard to whether the reproduction is a creative act. However, the two cases he points to — Center for Bio-Ethical Reform, Inc. v. City of Springboro, 477 F.3d 807 (6th Cir.2007), and R.J. Reynolds Tobacco Co. v. Food & Drug Administration, 696 F.3d 1205 (D.C.Cir.2012), overruled on other grounds by Am. Meat Inst. v. U.S. Dep’t of Agric., 760 F.3d 18 (D.C.Cir.2014) — do not support this assertion. In Center for Bio-Ethical Reform, the Sixth Circuit held that a pro-life organization’s use of “colorful pictures depicting graphic images of first-term aborted fetuses,” accompanied by the caption “Choice,” was protected under the First Amendment. 477 F.3d at 813, 821-22 (citation omitted). Similarly, in R.J. Reynolds Tobacco Co., the D.C. Circuit treated the FDA’s proposed inclusion on cigarette packaging of images showing the adverse health consequences of smoking — which, notably, were to be displayed alongside textual smoking warnings — as an attempt to compel cigarette manufacturers to convey the government’s anti-smoking message. See 696 F.3d at 1211-12.
Neither court provided any analysis of why the images themselves were speech. Instead, both courts dealt with the images in the context of the accompanying provocative text and thus assumed that the images were communicative. Id. at 1211 (analyzing the images as part of the anti-smoking label “incorporat[ing] the textual warnings, a corresponding graphic image, and the ‘1-800-QUIT-NOW cessation hotline number”); Ctr. for Bio-Ethical Reform, 477 F.3d at 821 (treating the aborted fetus images as part of the organization’s anti-abortion “signs”). Thus, these cases do not counsel that a mass-produced image by itself constitutes pure speech.
Ultimately, we cannot conclude that the “heavy machinery of the First Amendment is to be deployed in every case” involving images. Kleinman v. City of San Marcos, 597 F.3d 323, 327 (5th Cir.2010). Pure-speech treatment is only warranted for those images whose creation is itself an act of self-expression. The Native American image on Oklahoma’s standard license plate does not satisfy this criterion.
C
Even if an image is not protected as pure speech, it may nonetheless fall within the First Amendment’s purview as symbolic speech. However, because of the danger that “an apparently limitless variety of conduct can be labeled ‘speech,’” United States v. O’Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), a display will only constitute symbolic speech if it is “sufficiently imbued with
1
The test to determine whether a display is sufficiently communicative to warrant First Amendment protection was originally articulated in two seminal free-speech cases, Spence v. Washington and Texas v. Johnson. In Spence, a student displayed a United States flag upside down with a peace symbol attached to both sides. See 418 U.S. at 406, 94 S.Ct. 2727. He was prosecuted under a state statute that, as pertinent here, proscribed the placement of any “mark, picture, design, [or] drawing” on an American flag. Id. at 407, 94 S.Ct. 2727 (citation omitted). The Supreme Court found that the student’s display “was a pointed expression of anguish ... about the then-current domestic and foreign affairs of his government.” Id. at 410, 94 S.Ct. 2727. Because the act evinced “[a]n intent to convey a particularized message ..., and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it,” the Court concluded that the act was entitled to First Amendment protection. Id. at 410-11, 94 S.Ct. 2727.
In Johnson, a demonstrator was prosecuted under a Texas law after he burned the American flag outside the Republican National Convention. See 491 U.S. at 399, 109 S.Ct. 2533. “In deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play,” the Court stated, “we have asked whether ‘[a]n intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it.’ ” Id. at 404, 109 S.Ct. 2533 (alterations in original) (quoting Spence, 418 U.S. at 410-11, 94 S.Ct. 2727). The Court found both factors present because the “overtly political nature of th[e] conduct was both intentional and overwhelmingly apparent.” Id. at 406, 109 S.Ct. 2533. Thus, in summarizing these cases, we stated in Cressman I that the so-called Spence-Johnson test requires both “(1) an intent to convey a particularized message, and (2) a great likelihood that the message would be understood by those who viewed the symbolic act or display.” Cressman I, 719 F.3d at 1149.
Subsequently, the Supreme Court revisited this area of First Amendment jurisprudence. Specifically, six years after Johnson, the Court’s decision in Hurley “suggested the Spence-Johnson factors are not necessarily prerequisites for First Amendment protection for symbolic speech.” Cressman I, 719 F.3d at 1149. In Hurley, the Court considered whether a St. Patrick’s Day parade was symbolic speech deserving of First Amendment protection, such that the State could not require its organizers to allow a group of gay, lesbian, and bisexual descendants of Irish immigrants to march in the parade. Examining its precedents, the Court concluded that “a narrow, succinctly articulable message is not a condition of constitutional protection, which if confined to expressions conveying a ‘particularized message,’ would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schoenberg, or Jabberwocky verse of Lewis Carroll.” Hurley, 515 U.S. at 569, 115 S.Ct. 2338 (citation omitted).
Our sister circuits have taken divergent approaches to reconciling Hurley with the requirements of the Spence-Johnson test. At one end of the spectrum, the Second Circuit has “interpreted Hurley to leave intact the Supreme Court’s test for expressive conduct in Texas v. Johnson.” Church of Am. Knights of the Ku Klux
We have thus far refrained from articulating a precise post-Hurley symbolic-speech test and have “merely observe[d] that Hurley suggests that a Spence-Johnson ‘particularized message’ standard may at times be too high a bar for First Amendment protection.” Cressman I, 719 F.3d at 1150 (emphases added). We need go no further than this general observation here because, as explained below, neither the particularized nor general message Mr. Cressman divines from the image is one that a reasonable observer would perceive.
2
Mr. Cressman initially asserts that the message he objects to is “simple enough: [a] Native American crouched down and shooting an arrow into the clouds.” Aplt. Opening Br. at 34. This is the meaning, he claims, that he does not wish to convey. However, his argument appears to stretch the word “message” beyond recognition. If, as Mr. Cressman asserts, a description of the display is sufficient to constitute a message, this would defeat the very purpose of symbolic-speech analysis — viz., to determine whether a display has underlying communicative or expressive qualities.
We have previously concluded that Hurley is “consistent with Spence and Johnson in granting First Amendment protection for symbolic acts or displays that are sufficiently imbued with elements of communication.” Cressman I, 719 F.3d at 1150-51. Thus, even assuming arguendo that Hurley has diminished the particularized-message requirement, it has not eroded the bedrock principle that symbolic speech must involve “the expression of an idea” in order to warrant constitutional consideration. Spence, 418 U.S. at 411, 94 S.Ct. 2727. For example, the Court in Hurley discussed at length the expressive purpose of a parade, noting that it is more than just a “group of people [who] march from here to there” — viz., it not just the observable factual conduct of the parade’s participants — but, rather, involves “marchers
Our sister circuits’ post-Hurley decisions likewise do not suggest that a display itself constitutes a message for symbolic-speech purposes. While it is difficult to draw a common standard from their differing approaches, at a minimum they require that the display be of such a character that a viewer could draw an identifiable inference from it. See, e.g., Kaahumanu v. Hawaii, 682 F.3d 789, 799 (9th Cir.2012) (finding that “[w]edding ceremonies convey important messages about the couple, their beliefs, and their relationship to each other”); Holloman, 370 F.3d at 1270 (requiring that the appellant’s conduct demonstrate “some sort of message”); cf. Tenafly Eruv. Ass’n, 309 F.3d at 162 (finding no expressive conduct where the challenged display did not “demonstrate a belief or assert anything”).
Thus, the Spence-Johnson test— even if modified by Hurley — would oblige Mr. Cressman to articulate some inference drawn from the image that a viewer would perceive. A description of the image is not a message — particularized or general — for symbolic-speech purposes.
3
Mr. Cressman next suggests that it is “[e]minently reasonable” for anyone viewing the Native American image to associate it specifically with the legend of the Apache warrior or more broadly with ritualistic prayer and pantheism. Aplt. Opening Br. at 36. This is so, he claims, because of various matters of “common knowledge.” Id. at 35. First, he opines that the publicity surrounding the license plate redesign clearly linked the image to Houser’s Sacred Rain Arrow, and he notes that many of the news articles described the Apache warrior legend on which the statue is based. Second, Mr. Cressman suggests that any Oklahoman viewing the sculpture would connect it with Houser, a famous Oklahoma artist, and Sacred Rain Arrow, one of his most famous works. Finally, he claims that the “image itself conveys th[e] idea” (that is, the story) of the Apache warrior legend and related pantheistic notions: viz., the “Native American shoots the arrow from a kneeling position, recognized as a prayerful posture,” ostensibly indicating that he is not pursuing a practical or utilitarian purpose — such as hunting or shooting targets for practice — but, instead, a religious or spiritual one. Id. at 36-37.
Though we conclude that the Native American image is in fact symbolic speech, this does not avail Mr. Cressman’s compelled-speech claim. That is because the image’s message is one Mr. Cressman has explicitly indicated is not objectionable to him — that is, a message conveying Oklahoma’s Native American culture and heritage.
The district court and the parties have invoked the Establishment Clause’s “reasonable-observer test” as a guidepost for applying the symbolic-speech analysis. See, e.g., Aplt.App. at 226 (“[T]he essential question is what a reasonable observer of the image on the license plate would understand from it.”). In cases construing the Establishment Clause, courts have frequently employed the reasonable-observer test to discern “whether a ‘reasonable observer,’ aware of the history and context of the community in which the conduct occurs, would view the practice as communicating a message of government endorsement or disapproval” of religion. Bauchman ex rel. Bauchman v. W. High Sch., 132 F.3d 542, 551-52 (10th Cir.1997); accord Green v. Haskell Cty. Bd. of Comm’rs, 568 F.3d 784, 799 (10th Cir.2009). At least at first blush, the reasonable-observer test would appear to be congruent with symbolic-speech jurisprudence; in that area, courts have focused on whether a display communicates a message that is identifiable by reasonable persons. See Johnson, 491 U.S. at 409, 109 S.Ct. 2533 (assaying the perspective of the “reasonable onlooker”); Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 294, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984) (describing expressive conduct as that which, “in context, would reasonably be understood by the viewer to be communicative”); Holloman, 370 F.3d at 1270 (noting that the expressiveness of an appellant’s conduct is determined from the viewpoint of a “reasonable person”); see also Spence, 418 U.S. at 410, 94 S.Ct. 2727 (looking to the perspective of “the great majority of citizens” viewing the display); cf. Walker, 135 S.Ct. at 2251 (considering “observers’ reasonable interpretation of the messages conveyed by” specialty license plates).
As the contours of the Establishment Clause’s reasonable-observer test have been sketched over the years, it has become clear that this reasonable observer is not the everyday casual gawker. See, e.g., Weinbaum v. City of Las Cruces, 541 F.3d 1017, 1031 n. 16 (10th Cir.2008) (“Undoubtedly, the ‘objective observer’ is presumed to know far more than most actual members of a given community.”). For example, the knowledge of the Establishment Clause’s “reasonable observer” is not “gleaned simply from viewing the challenged display,” O’Connor v. Washburn Univ., 416 F.3d 1216, 1228 (10th Cir.2005) (quoting Wells v. City & Cty. of Denver, 257 F.3d 1132, 1142-43 (10th Cir.2001)); the reasonable observer is also aware of “the nature and history of the ... community, the circumstances surrounding the [display’s] placement ... [,][the] community’s response ... [and the] motivation for seeking the erection of the [display],” Green, 568 F.3d at 800; see generally Am. Atheists, Inc. v. Davenport, 637 F.3d 1095, 1104 (10th Cir.2010) (Kelly, J., dissenting from denial of reh’g en banc) (collecting cases that discuss the breadth of the reasonable observer’s knowledge).
Similarly, in the symbolic-speech context, the reasonable person focuses on “context [to] give meaning to [a] symbol” and is cognizant of the “then-current domestic and foreign affairs of his government,” “issue[s] of intense public concern,” the “environment” in which an expressive act occurs, and the reasons for the speaker’s expression. Spence, 418 U.S. at 410, 94 S.Ct. 2727; see also Walker, 135 S.Ct. at 2251 (looking to the “historical context” of license plate designs); Johnson, 491 U.S. at 405, 109 S.Ct. 2533 (interpreting the appellant’s flag-burning “as part ... of a political demonstration that coincided with the convening of the Republican Par
We are not obliged to (nor do we) definitively determine here whether the extent of congruence between the Establishment Clause’s reasonable-observer test and symbolic-speech jurisprudence makes that test the appropriate one to apply in every instance in symbolic-speech cases like this one. Given both parties’ invocation of the test and its seeming compatibility with symbolic-speech caselaw, it is sufficient for us to conclude that, in resolving this case, guidance is appropriately and helpfully sought from judicial decisions applying the Establishment Clause’s reasonable-observer test.
b
Here, the reasonable observer— though not omniscient — would have a much broader awareness than the selective knowledge Mr. Cressman attributes to him. Certainly, he would scrutinize the details and symbolism of the Native American image, and he would be acquainted with the Houser sculpture and the Apache warrior legend that inspired it. However, he would also be cognizant of many other contextual factors. Most obviously, he would be aware that the image was placed on Oklahoma’s standard-issue license plates by legislators who in no small measure had a secular tourism-promotion purpose in mind; they viewed license plates as potential “billboards for [the] state.” Aplt. App. at 171. A central feature of that tourism-promotion purpose relates to Oklahoma’s Native American history and cultural heritage. And the reasonable observer would known about those key aspects of the State. Cf. Weinbaum, 541 F.3d at 1033 (discussing the reasonable observer’s knowledge of the history of Las Cruces, New Mexico, including the fact that its name and seal derive “from its founding near the site of a make-shift cemetery”). In this regard, not only would he be aware of the news articles linking the Native American image to the Houser sculpture, but also those public documents explaining that the motive for selecting the image was to advance a promotional campaign to “rebrand” the State as “Native America.” Aplt.App. at 171; cf. Green, 568 F.3d at 800-01 (noting the objective observer’s familiarity with statements made by a member of a county board of commissioners regarding a Ten Commandments monument); Weinbaum, 541 F.3d at 1033 (considering an explanatory brochure describing the history of Las Cruces); O’Connor, 416 F.3d at 1220 (discussing a brochure that made clear that the challenged display was part of an art exhibit). Finally, he would know that the public, the Oklahoma Department of Tourism, and the Oklahoma Department of Public Safety had the opportunity to pro
Based on this wealth of background information — notably, the pertinent facts and history of the license plate redesign process — a reasonable observer viewing Oklahoma’s standard license plate would not conclude that the Native American image communicates the Sacred Rain Arrow legend. Indeed, even if we were to assume that Hurley diminishes the particularized-message requirement of the standard Spence-Johnson test, a reasonable observer would not conclude that the image, chosen by a legislative task force, with input from the public and various government agencies, was meant to generally advance pantheism or ritualistic prayer.
That said, the image does convey one identifiable message to a reasonable observer — namely, that Oklahoma’s history and culture has been strongly influenced by Native Americans. Indeed, this is the message that the task force wanted to convey by selecting this image. And because the image is sufficiently communicative in this regard, we conclude that it qualifies as symbolic speech.
4
The concurrence of our thoughtful and esteemed colleague suggests that we need not decide whether the Native American image is either pure or symbolic speech. Instead, it finds that the image is speech based on the Supreme Court’s decision in Walker, which treated license plates as government speech. After determining that we are dealing with speech — and deeming it “government speech,” Concurrence at 966 — the concurrence then purports to apply “traditional” compelled-speech principles, id. at 966, and concludes that Mr. Cressman has not been compelled to speak because no “third parties would interpret the graphic as a message promoting pantheism, the message with which he disagrees,” id. at 968. However, we are not persuaded that we can so deftly sidestep the question of whether the Native American image is pure speech or symbolic speech.
To begin, labeling speech as “government speech” only identifies the proponent of the message; it does not describe the type of speech at issue. The Supreme Court has recognized a clear distinction between symbolic speech and pure speech, see Johnson, 491 U.S. at 406, 109 S.Ct. 2533, and, just like individuals, the government can speak directly or through symbolic conduct. Compare Wooley, 430 U.S. at 715, 97 S.Ct. 1428 (involving the dissemination of the “State’s ideological message” through the written slogan “Live Free or Die” on standard license plates), with Walker, 135 S.Ct. at 2251 (concluding that Texas’s approval of various graphics for specialty license plates was government “expressive conduct”).
In this regard, to the extent that the concurrence relies on Walker, it is significant that the Supreme Court found the approval of specialty license plate graphics not just to be “government speech,” but also to be “expressive conduct,” 135 S.Ct. at 2251-a term which the Court has used synonymously with “symbolic speech,” see Cressman I, 719 F.3d at 1151 n. 13 (recognizing that “the Court has considered the expression in [Spence, Johnson, and Hurley] to be ‘symbolic speech’ and ‘expressive conduct’ ” (citation omitted)). Saliently, the Walker Court appeared to apply the symbolic-speech “reasonable onlooker” test of Johnson, 491 U.S. at 409, 109 S.Ct. 2533, by looking to, inter alia, the “historical context” and the “observers’ reasonable interpretation of the messages conveyed by” the specialty license plates, Walker, 135 S.Ct. at 2251; cf. Clark, 468 U.S. at 294, 104 S.Ct. 3065 (analyzing whether the
In any event, we recognized in Cress-man I that the question of whether the speech conveys the government’s message (i.e., constitutes government speech) “misses the mark,” 719 F.3d at 1157, because government speech, if foisted upon an unwilling private party, still implicates compelled — speech concerns. As the concurrence acknowledges, see Concurrence at 967-68, Walker has reaffirmed this principle: “the First Amendment stringently limits a State’s authority to compel a private party to express a view with which the private party disagrees,” 135 S.Ct. at 2253.
Notably, the question that the concurrence elides — whether the speech at issue is pure or symbolic — arguably does matter to the compelled-speech inquiry. While it is certainly true that an individual is protected from being compelled to speak, irrespective of whether the speech being compelled is pure speech or symbolic speech, it is also clear that the burden a compelled-speech plaintiff bears in an allegedly symbolic-speech case differs from the burden such a plaintiff bears in an allegedly pure-speech case. Specifically, a court will only find symbolic speech where a plaintiff can identify a message that a reasonable onlooker would perceive. See Johnson, 491 U.S. at 404, 109 S.Ct. 2533; Spence, 418 U.S. at 410-11, 94 S.Ct. 2727. In contrast, with respect to pure speech, it is not clear to us, and it is at least open to question, whether a plaintiff must identify any message at all-let alone one that a reasonable observer would discern. See, e.g., Anderson, 621 F.3d at 1059 (concluding that pure speech is “entitled to full First Amendment protection without any need to resort to Spence’s ‘sufficiently imbued’ test”); Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 296 (5th Cir.2001) (Barksdale, J., concurring) (“[W]here speech is pure, a particularized message has never been required .... ”); see also White, 500 F.3d at 956 (finding that art is protected under the First Amendment, regardless of any specific message it conveys, because “it is an artist’s self-expression”).
More specifically, like the concurrence, we believe that to state a proper compelled-speech claim, a plaintiff must object to a message conveyed by the speech he is required to utter. See Walker, 135 S.Ct. at 2253 (noting that the State may not “compel a private party to express a view with which the private party disagrees ” (emphasis added)). But, as we see it, if the speech is symbolic, then the only legally cognizable objectionable message is one that a reasonable observer would identify; if the plaintiff does not object to this reasonably discernible message, his compelled-speech claim fails. However, because the First Amendment protection accorded to pure speech is not tethered to whether it conveys any particular message — i.e., the speech at issue could mean different things to different people — it is not clear at all that the mes
The concurrence fails to grapple with the foregoing important matters. Indeed, the concurrence’s analysis illustrates the flaw in its suggestion that we need not identify the kind of speech at issue in this case. Far from applying “standard” compelled-speech principles, Concurrence at 967-68, the concurrence in effect conducts a symbolic-speech analysis in the compelled-speech context. It concludes that Mr. Cressman has not been compelled to speak because “third parties would [not] interpret the graphic as a message promoting pantheism, the message with which he disagrees.” Id. at 968. By invoking the perspective of “third parties,” id., the concurrence appears to apply a version of the reasonable-observer test, which is a commonplace feature of symbolic-speech analysis. Indeed, the cases the concurrence cites for support, see id., look to third parties’ interpretation of a symbol in order to determine whether any allegedly objectionable matter that is ostensibly being compelled may properly be classified as speech. See, e.g., Cressman I, 719 F.3d at 1154 (discussing whether third-party viewers would understand the Native American image as conveying a pantheistic message, in relation to the conclusion that Mr. Cressman’s complaint satisfied the Spence-Johnson symbolic-speech test); Troster v. Pa. State Dep’t of Corr., 65 F.3d 1086, 1092 (3d Cir.1995) (holding that an American flag patch on a uniform would not be viewed as “communicative or expressive” by “anyone (other than [the appellant])” in order to resolve the appellant’s “expressive conduct claim,” and concluding that the appellant could not succeed on the merits “with respect to his compelled expression claim, for he ha[d] not made the necessary threshold showing that he was ... coerced to engage in expressive conduct” (emphasis added)). The concurrence thus does not present any authority to indicate that the interpretation of a third party would matter in the compelled-speech context if we were dealing with pure speech.
Ultimately, because it is arguably unclear whether the compelled-speech analysis would proceed in the same manner regardless of whether the Native American image
D
Having determined that the Native American image is sufficiently- expressive to qualify as symbolic speech, we now turn to determining whether, in relation to this speech, Mr. Cressman has established that the State has compelled him to adhere to a “view he finds unacceptable.” Wooley, 430 U.S. at 715, 97 S.Ct. 1428. Throughout this litigation, the only reason Mr. Cressman has offered for objecting to the Native American image is what he views as its links to pantheistic Native American folklore. However, a reasonable person would not derive this meaning from the image. Instead, in light of the relevant facts and history of the license plate redesign process, those viewing the image would likely connect the image to Oklahoma’s Native American history and culture. Yet, Mr. Cressman has repeatedly stated, both before this court and the district court, that he does not object to this message. His lack of objection to the only message that a reasonable observer would discern from the image is fatal to his eompelled-speeeh claim; he has not been compelled to express a view he otherwise would not.
Mr. Cressman alternatively suggests that he can object to the Native American image just because it is speech required by the government — arguing that “[b]y requiring a disinclined person to speak any message, the government is treating that person like a puppet.” Aplt. Opening Br. at 49 (emphasis added). However, merely objecting to the fact that the government has required speech is not enough; instead, a party must allege some disagreement with the viewpoint conveyed by this speech. See Walker, 135 S.Ct. at 2253 (“[T]he First Amendment stringently limits a State’s authority to compel a private party to express a view with which the private party disagrees.” (emphasis added)); Little Sisters of the Poor, 794 F.3d at 1203, 2015 WL 4232096, at *38 (rejecting a compelled-speeeh claim, inter alia, because “the regulations do not require an organization seeking an accommodation to engage in speech it finds objectionable, or would not otherwise express”); see also Hurley, 515 U.S. at 562, 115 S.Ct. 2338 (parade organizers’ objection to the inclusion of an LGBT group was based on the parade’s “traditional religious and social values” (citation omitted)); Pac. Gas & Elec. Co. v. Pub. Utils. Comm’n of Cal., 475 U.S. 1, 14, 106 S.Ct. 903, 89 L.Ed.2d 1 (1986) (appellant was forced to express the messages of “those who disagree with [its] views and who are hostile to [its] interests”); Wooley, 430 U.S. at 707 n. 2, 97 S.Ct. 1428 (petitioners objected to the state motto, “Live Free or Die,” on the grounds that it was inconsistent with their views as Jehovah’s Witnesses); AxsonFlynn, 356 F.3d at 1281 (appellant stated that the use of certain expletives offended her religious beliefs).
Because Mr. Cressman must identify some message that he finds objectionable, and because he in fact does not object to the only message reasonably conveyed by the Native American image, we hold that he has not been compelled to speak in violation of his First Amendment rights.
V
For the foregoing reasons, we AFFIRM the district court’s judgment in favor of the defendants.
APPENDIX
[[Image here]]
Oklahoma License Plate Design (size reduced to fit page). Aplt. App. at 164
. We have appended a picture of the Oklahoma license plate design at issue to the end of this opinion. See Appendix, infra.
. The motto "Native America” had also been displayed on the old license plates, and representatives from the Department of Tourism and Recreation recommended retaining the phrase “because of the ongoing success of promotional campaigns associating the State of Oklahoma and the phrase 'Native America.' ” Aplt.App. at 172 (Progress Report of Okla. License Plate Design Task Force, dated Dec. 31, 2007).
. Allan Houser was an award-winning Chiricahua Apache sculptor whose work is displayed in numerous major art collections worldwide. Sacred Rain Arrow is one of Mr. Houser’s more prominent sculptures. Castings of the statue have been displayed at the 2002 Winter Olympic Games, the meeting room of the U.S. Senate Select Committee on Indian Affairs, the Smithsonian’s National Museum of the American Indian, and the Gilcrease Museum in Tulsa, Oklahoma.
.In Oklahoma, tag agents are private persons or entities that are self-employed independent contractors who are supervised by the State and charged with collecting and reporting to the State all motor vehicle taxes. See Okla. Stat. tit. 47, § 1140(B) (describing the appointment process for motor license agents and stating that "[a]ll motor license agents shall be self-employed independent contractors and shall be under the supervision of the [Oklahoma] Tax Commission”); Marton v. State, 809 P.2d 671, 675 (Okla.Crim.App.1991) (stating, in an embezzlement case, that the evidence showed that “as a tag agent,
. This provision of the Oklahoma Vehicle License and Registration Act states, in relevant part, that "[t]he operation of a vehicle in this state, regardless of where such vehicle is registered, upon which the license plate is covered, overlaid or otherwise screened with any material, whether such material be clear, translucent, tinted or opaque, shall be a violation of this paragraph.” Okla. Stat. tit. 47, § 1113(A)(2).
. The additional fee varies based on the type of specialty license plate. See Okla. Stat. tit. 47, §§ 1135.1-.6.
. Mr. Cressman also asserted a violation of the Oklahoma Religious Freedom Act ("ORFA").
. Because we found that Mr. Cressman had alleged sufficient facts to establish a plausible symbolic-speech claim under the traditional Spence-Johnson analysis, we did not decide whether the Supreme Court’s subsequent decision in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995), modified this inquiry. See 719 F.3d at 1153. We also did not reach the question of whether the image was pure speech that would automatically warrant First Amendment protection. See id.
. The district court subsequently granted the Tax Commission defendants' motion for judgment on partial findings under Federal Rule of Civil Procedure 52(c) at the close of Mr. Cressman's evidence. The court determined that the Tax Commission had no role in the enforcement of Okla. Stat. tit. 47, § 1113, and, because it lacked subject-matter jurisdiction to order the Tax Commission to issue a specialty plate at the same cost, it concluded that the Tax Commission defendants were not proper defendants in the case.
. The court only summarily discussed its rationale for concluding that the image was not pure speech, stating that:
The court disagrees with plaintiff’s suggestion that an image like that displayed here is "pure speech.” The Tenth Circuit’s discussion of the circumstances in this case [in Cressman I ] does not suggest any such view and it is difficult to see how, as a categorical matter, depicting an image of something can be viewed as necessarily different from depicting some other sort of "symbol.”
Aplt.App. at 223 n. 8 (emphasis omitted).
. The district court appropriately concluded that the law of the case governed when the defendants raised the issue of Mr. Cressman’s standing on remand, questioning why they would make such an argument when it was contrary to "the Court of Appeals’ determination,” Aplt.App. at 57 n. 8 (Order, filed Dec. 31, 2013), and affirming that "the factual matters addressed in [the] defendants’ [summary-judgment] motion do not appear to undercut the basis for the standing determination previously made,” id. at 57.
. Under Texas’s specialty license plate program, designs were submitted by individuals and organizations and were subject to approval by the Texas Department of Motor Vehicles Board. See Walker, 135 S.Ct. at 2244-45 (describing the various processes through which Texas issues specialty license plates). Because individuals voluntarily selected, and paid an annual fee for, the specialty license plates, compelled speech was not at issue in Walker. See id. at 2253; see also Ariz. Life Coal., Inc. v. Stanton, 515 F.3d 956, 964 (9th Cir.2008) (“Specialty license plate programs do not raise issues regarding 'compelled-speech’. ...”).
. Mr. Cressman does not challenge the district court’s ruling regarding its jurisdiction under the Tax Anti-Injunction Act or the grant of the Oklahoma Tax Commission defendants’ Rule 52(c) motion. These claims are therefore deemed abandoned and effectively waived. See Wyoming v. Livingston, 443 F.3d 1211, 1216 (10th Cir.2006) (noting that an issue not raised in an appellant's opening brief is waived). Mr. Cressman asserts that his free-exercise, due-process, and ORFA claims are subsumed under his compelled-speech claim, and he does not dispute the district court’s conclusion that these claims are "not separate from or different than his compelled speech claim.” Aplt.App. at 219. Thus, the success of these claims turns on our review of the compelled-speech issue.
. The Bery court recognized that this context-specific inquiry would “prove difficult at times,” 97 F.3d at 696, and we have noted that " [federal circuit courts have struggled to define the extent of First Amendment protection for visual artwork,” Cressman I, 719 F.3d at 1153 n. 14.
, Mr. Cressman points out an apparent inconsistency between the symbolic-speech and compelled-speech doctrines. Under Spence, Johnson, and even Hurley, there must be an "intent to convey” a message. Johnson, 491 U.S. at 404, 109 S.Ct. 2533 (citation omitted); Spence, 418 U.S. at 410-11, 94 S.Ct. 2727; see also Hurley, 515 U.S. at 568-69, 115 S.Ct. 2338 (discussing the expressive goal of parades). However, by definition, compelled speech requires that the speaker be forced to speak against his intentions. As such, Mr. Cressman argues that we should refrain from applying the Spence-Johnson framework entirely. We need not take such an extreme position. In Cressman I, we resolved this tension by assuming that the compulsion aspect of a compelled-speech claim would "satisfy any intent requirement under Spence and Johnson.” Cfessman I, 719 F.3d at 1154 n. 15. We adopt this assumption here and focus our attention on the second part of the symbolic-speech analysis — the likelihood that a reasonable observer would perceive a certain message.
. Although we have steadfastly adhered to the reasonable-observer test in the Establishment Clause context, we recognize that it has been subject to some criticism. See, e.g., Cty. of Allegheny v. ACLU, 492 U.S. 573, 668, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) (Kennedy, J., concurring in part and dissenting in part) (describing the reasonable-observer test as a "most unwelcome[] addition” to the Establishment Clause jurisprudence), abrogated on other grounds by Town of Greece v. Galloway, - U.S. -, 134 S.Ct. 1811, 1821, 188 L.Ed.2d 835 (2014); Am. Atheists, Inc., 637 F.3d at 1110 (Gorsuch, J., dissenting from denial of reh'g en banc) (questioning the continuing vitality of the reasonable-observer test). We do not enter into this debate. Controlling precedent from our court continues to apply the reasonable-observer test in the Establishment Clause context, see, e.g., Fields v. City of Tulsa, 753 F.3d 1000, 1010 (10th Cir.), cert. denied,-U.S.-, 135 S.Ct. 714, 190 L.Ed.2d 440 (2014), and in light of the parties' agreement that it provides a useful analytical lens, we are not called on to definitively decide its validity generally or as applied to the instant symbolic-speech setting.
. The concurrence takes the position that we should look at the license plate as a whole, rather than focusing on the Native American image. See Concurrence at 966 n. 2. However, "we rely on the parties to frame the issues,” Greenlaw v. United States, 554 U.S. 237, 243, 128 S.Ct. 2559, 171 L.Ed.2d 399 (2008), and throughout this litigation Mr. Cressman has made the deliberate choice to challenge the image of Houser’s Sacred Rain Arrow sculpture, not the other aspects of the license plate. See Concurrence at 966 n. 2 (noting that Mr. Cressman “raises no objection to the slogan! ] 'Native America' ”). Moreover, we cannot ignore our framing of the issue in Cressman I, where we identified the relevant question as whether “the license plate image constitute^] symbolic speech,” 719 F.3d at 1148 (emphasis added), and confined our analysis to the image, see, e.g., id. at
. Because we resolve Mr. Cressman’s compelled-speech claim on the basis that he does not object to the message conveyed by the Native American image, we need not decide whether the operation of Okla. Stat. tit. 47, § 1113, and the cost of specialty license plates combined to coerce him into displaying the image.