Vista-Graphics, Inc. v. Virginia Department of Transportation

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-1404
VISTA-GRAPHICS, INC.; RANDAL W. THOMPSON,
Plaintiffs – Appellants,
v.
VIRGINIA DEPARTMENT OF TRANSPORTATION; VIRGINIA TOURISM
CORPORATION; AUBREY L. LAYNE, JR., in his official capacity as Secretary
of Transportation; CHARLES A. KILPATRICK, P.E., in his official capacity as
Commissioner of the Virginia Department of Transportation,
Defendants – Appellees,
and
HIGHWAY INFORMATION MEDIA, LLC,
Defendant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Norfolk. Robert G. Doumar, Senior District Judge. (2:15-cv-00363-RGD-RJK)
Argued: December 7, 2016 Decided: March 29, 2017
Before KING, DUNCAN, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Kevin Edward Martingayle, BISCHOFF MARTINGAYLE, P.C., Virginia
Beach, Virginia, for Appellants. Trevor Stephen Cox, OFFICE OF THE ATTORNEY
GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees. ON BRIEF: Mark R.
Herring, Attorney General of Virginia, Jeffrey M. Bourne, Deputy Attorney General,
Jeffrey R. Allen, Janet W. Baugh, Eric K.G. Fiske, Senior Assistant Attorneys General,
Elizabeth B. Myers, Grant E. Kronenberg, Assistant Attorneys General, Stuart A.
Raphael, Solicitor General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA,
Richmond, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Vista-Graphics, Inc. and its president, Randal Thompson (collectively, the
plaintiffs), are the private publishers of three informational guides for tourists visiting
Virginia (the guides). The plaintiffs seek to display these guides at publicly accessible
“rest areas” and “welcome centers” (collectively, rest areas) operated by the
Commonwealth of Virginia.
The plaintiffs brought this lawsuit against the defendants, the Virginia Department
of Transportation (VDOT) and other Virginia entities, officials, and contractors
(collectively, the defendants or the Commonwealth), challenging the Commonwealth’s
decision to require payment of fees for the display of guides at rest areas. The plaintiffs
also alleged that the Commonwealth’s limitations on the content of such guides has
caused the plaintiffs to engage in “self-censorship” and violates the plaintiffs’ rights
under the First Amendment.
After considering the plaintiffs’ arguments, we hold that the guides constitute
government speech at the time of their placement in rest areas operated by the
Commonwealth. Accordingly, the publishers’ placement of these guides in the rest areas
is not subject to protection under the Free Speech Clause of the First Amendment. In
addition, we find no merit in the plaintiffs’ remaining arguments. We therefore affirm
the district court’s judgment.
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I.
The plaintiffs publish three informational guides for tourists visiting Virginia,
namely, the “Virginia Beach Visitors Guide,” the “GoWilliamsburg Visitors Guide,” and
the “Virginia Guide.” The guides include a variety of information for travelers in the
Commonwealth, including maps, lists of lodging options, restaurants, and attractions, as
well as “advice, guidance and opinions relating to products, services and potential
destinations in Virginia.” For more than eight years, the plaintiffs have displayed the
guides at rest areas administered by VDOT that are located along public highways in
Virginia. Until 2012, the Commonwealth did not require that the plaintiffs pay a fee
before displaying the guides in rest areas.
In 2012, in an effort to increase revenue at rest areas, VDOT instituted the
“Sponsorship, Advertising, and Vending Enhancement” (SAVE) program. Under the
SAVE program, any vendor placing sponsorships, products, or advertising in a rest area
is “charged a commercially reasonable fee.”
The SAVE program also established restrictions on the content of materials
displayed at rest areas. For example, the subject matter of displayed materials is “limited
to commercial speech, VDOT or government information . . . relating to highways, the
safety and welfare of the traveling public, and other activities of the Commonwealth.”
Additionally, the content of such materials cannot “include subject matter that . . . states
or implies that the Commonwealth or any of its agencies endorse a commercial vendor
product or service,” “demeans or disparages an individual or group of individuals,”
“promotes a political candidate or issue,” is obscene, promotes illegal activity, or is
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deceptive. VDOT retains the right of prior approval of all such materials and has
established procedures for review of its decisions should disputes arise.
In June 2015, the Commonwealth entered into a contract with Highway
Information Media LLC (HIM) (the 2015 contract) “to plan, implement, deliver and
manage a comprehensive and quality Partnership Marketing and Advertising Program”
(PMA program). Among other restrictions, the 2015 contract prohibited HIM from
“align[ing] itself with advertisements on behalf of the [Commonwealth] that would in any
way have a negative impact, dishonor or discredit” the Commonwealth, as well as from
entering into contracts that would result in advertising “for religious purposes,” to
promote political candidates, for alcohol or tobacco products, or that would result in the
“rating” of tourist attractions. On the same day, the Commonwealth issued another
document titled “Virginia Welcome Centers & Safety Rest Areas Partnership Marketing
& Advertising Program Policies,” which similarly limited the content permitted in
materials displayed at rest areas.
The plaintiffs filed suit against the Commonwealth, challenging: (1) the fees
charged to place displays in the rest areas; and (2) the content restrictions in the SAVE
and PMA programs (collectively, the content restrictions 1). The plaintiffs alleged that the
1
In addition to the content restrictions in the SAVE and PMA programs, the
plaintiffs also challenged the more general restrictions set forth in Virginia
Administrative Code Title 24, Section 30-50-10(L), which prohibits the use of
“threatening, abusive, boisterous, insulting or indecent language or gesture[s]” at rest
areas, and requires authorization from the Commonwealth before a person may engage in
a public demonstration at a rest area.
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fees and content restrictions violated the First Amendment, the Due Process and Equal
Protection Clauses of the Fourteenth Amendment, and certain provisions of Virginia law.
The plaintiffs alleged that they previously included political and religious information in
their guides that would violate the new content restrictions, and that they have “engaged
in self-censorship and have refrained from soliciting and distributing many forms of
information” because of those content restrictions.
The defendants filed a motion to dismiss the complaint under Federal Rule of
Civil Procedure 12(b)(6). The district court dismissed the plaintiffs’ challenge to the
content restrictions for lack of standing under Article III of the Constitution, concluding
that the plaintiffs failed to allege an injury-in-fact. The court also held that although the
plaintiffs had standing to challenge the fee requirements, the guides at issue conveyed
government speech and therefore are not governed by the Free Speech Clause. The court
also rejected the plaintiffs’ due process, equal protection, and state law claims. The
plaintiffs filed this appeal.
II.
A.
The plaintiffs first argue that the district court erred in dismissing their challenge
to the content restrictions for lack of standing. 2 The district court reasoned that because
2
We agree with the parties that the court correctly concluded that the plaintiffs
have standing to challenge the Commonwealth’s imposition of fees, which fees the
plaintiffs have paid.
6
the plaintiffs’ guides had never been rejected by the Commonwealth, and the plaintiffs
had not sought clarification from the Commonwealth regarding what information might
be prohibited, any alleged harm, or “chilling” effect, was unreasonable. We disagree, and
conclude that the plaintiffs adequately have alleged an injury-in-fact for purposes of
Article III standing.
We review the district court’s dismissal for lack of subject matter jurisdiction de
novo. Cooksey v. Futrell, 721 F.3d 226, 234 (4th Cir. 2013). Although it is the
plaintiffs’ burden to establish standing, the requirements for standing are “somewhat
relaxed” in First Amendment cases. Id. at 234-35. A plaintiff may establish an injury-in-
fact “by a sufficient showing of self-censorship,” that is, by demonstrating that he was
“chilled” from engaging in free expression. Id. at 235 (quoting Benham v. City of
Charlotte, 635 F.3d 129, 135 (4th Cir. 2011)) (internal quotation marks omitted). Any
alleged “chilling effect” must be objectively reasonable, and “[s]ubjective or speculative
accounts” of a chilling effect are insufficient to establish an injury-in-fact. Id. at 236
(quoting Benham, 635 F.3d at 135). Accordingly, “[g]overnment action will be
sufficiently chilling when it is likely to deter a person of ordinary firmness from the
exercise of First Amendment rights.” Id. (quoting Benham, 635 F.3d at 135).
We agree with the district court that the Commonwealth’s lack of threatened or
actual enforcement against the plaintiffs, and the plaintiffs’ failure to seek guidance from
the Commonwealth regarding compliance with the content restrictions, undermine the
strength of the plaintiffs’ standing allegations. Nevertheless, at this early stage of the
case, we conclude that the plaintiffs sufficiently have alleged an injury-in-fact. See
7
Clatterbuck v. City of Charlottesville, 708 F.3d 549, 553 (4th Cir. 2013) (explaining that
a plaintiff’s burden to show standing “tracks the manner and degree of evidence required
at each successive stage of litigation”), abrogated on other grounds by Reed v. Town of
Gilbert, 135 S. Ct. 2218 (2015).
As we explained in Clatterbuck, we will not impose on plaintiffs at the pleading
stage an unduly burdensome specificity requirement to show precisely how their First
Amendment rights may be impacted by a government regulation. Id. at 554. Applying
this somewhat relaxed requirement to the plaintiffs’ complaint alleging violation of their
First Amendment rights, we conclude that the plaintiffs have met their burden to allege
an injury-in-fact with regard to their allegations that: (1) they previously have included
prohibited information in their guides; (2) they think that their guides may violate the
existing content restrictions; and (3) the plaintiffs have refrained from including certain
information in their guides based on the restrictions. Accordingly, we hold that the
plaintiffs have standing to challenge the content restrictions.
B.
We turn to consider whether the district court erred in applying the government
speech doctrine in dismissing the plaintiffs’ First Amendment claims. The plaintiffs
argue that their guides should not be considered government speech, because the guides
are produced by a private entity, and because the Commonwealth has prohibited private
entities from implying that the content of the guides has been endorsed by the
Commonwealth. We disagree with the plaintiffs’ arguments.
8
We review de novo the district court’s dismissal of the plaintiffs’ complaint under
Rule 12(b)(6). E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440
(4th Cir. 2011). In conducting our review, we accept the factual allegations in the
complaint as true, drawing all reasonable inferences in favor of the plaintiffs. 3 Id.
The Free Speech Clause of the First Amendment applies only to the government’s
regulation of private speech, and not to the government’s own expressive conduct.
Pleasant Grove City v. Summum, 555 U.S. 460, 467 (2009). The government “has the
right to speak for itself” and “is entitled to say what it wishes.” Id. (citations and
quotation marks omitted). The government speech doctrine is premised on the rationale
that, were such speech subject to analysis under the Free Speech Clause, the government
would be unable to advance its own policy interests by promoting a particular viewpoint. 4
Id. at 468; see also Walker v. Tex. Div., Sons of Confederate Veterans, 135 S. Ct. 2239,
2246 (2015); Ill. Dunesland Pres. Soc’y v. Ill. Dep’t Nat. Res., 584 F.3d 719, 725 (7th
Cir. 2009).
The Supreme Court has defined the contours of our government speech analysis in
two recent cases. In the first, the Court held that permanent monuments erected on public
3
To the extent that the plaintiffs rely on a statement in their complaint that “[t]he
information distributed by [the plaintiffs] is not ‘government speech’ on behalf of the
Commonwealth of Virginia,” this allegation plainly is a legal conclusion that we need not
accept as true. See Kerr v. Marshall Univ. Bd. of Governors, 824 F.3d 62, 71 (4th Cir.
2016).
4
Although the Free Speech Clause does not apply to government speech, such
speech is otherwise limited by, for example, the Establishment Clause, as well as
applicable statutes and regulations. Summum, 555 U.S. at 468-69.
9
property “typically” constitute government speech, even when the monument is created
and donated by a private entity. Summum, 555 U.S. at 470-71. The Court reasoned that
monuments on public property “are meant to convey and have the effect of conveying a
government message.” Id. at 472. The Court thus concluded that the Free Speech Clause
did not apply to the city’s decision to reject a particular monument from display in a
public park. Id. at 481.
In the second recent case, the Court considered a Free Speech claim brought by
the Texas Division of the Sons of Confederate Veterans (SCV). See Walker, 135 S. Ct.
2239. SCV challenged the State of Texas’ decision to reject SCV’s request for the state
to issue a specialty license plate displaying the organization’s name and a depiction of a
confederate flag. Id. at 2245. Relying on its prior decision in Summum, the Court
identified three factors for use in determining whether certain expression constitutes
government speech. The Court listed: (1) the government’s history of using the particular
mode of expression to communicate with the public; (2) whether that mode of expression
is “often closely identified in the public mind” with the state; and (3) the extent to which
the state regulated the content of messages contained in the mode of expression and
exercised “final approval authority” over these messages. Id. at 2248-49 (quoting
Summum, 555 U.S. at 472-73).
After considering these factors, the Court observed that license plates “long have
communicated messages” from states, that state-issued license plates operate as a means
of state identification for vehicles, and that the state fully controlled the messaging on
such license plates in order to “choose how to present itself and its constituency.” Id. at
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2248-49. The Court therefore concluded that messages on state-issued license plates
represent government speech not subject to analysis under the Free Speech Clause. Id. at
2248-50, 2253.
Applying the reasoning from Walker to the present case, we easily conclude that
the plaintiffs’ guides displayed at rest areas operated by the Commonwealth constitute
government speech. The plaintiffs alleged in their complaint that the Commonwealth
historically has used rest areas to disseminate information to visitors and to promote
tourism generally. See Walker, 135 S. Ct. at 2248. Moreover, the gravamen of the
plaintiffs’ complaint is that the Commonwealth regulates too heavily the content of
guides displayed at such centers. 5 See id. at 2249.
And, most importantly, the rest areas are operated by the Commonwealth and are
located along public highways. Some of these facilities are designated explicitly by the
Commonwealth as “welcome centers” for travelers in Virginia. VDOT is authorized to
create maps and provide other information at these locations, alongside the guides
produced by the plaintiffs. See Va. Code Ann. § 33.2-1217(D). Under these
circumstances, we are confident that the public will associate the plaintiffs’ guides with
the Commonwealth of Virginia, regardless whether the government itself produces the
5
The plaintiffs argue that the Supreme Court in Summum based its conclusion on
the permanent nature of the monuments proposed to be erected in a city park whereas,
here, the plaintiffs’ guides are not permanent fixtures. The Court in Walker, however, did
not find the issue of permanence dispositive when it concluded that non-permanent
license plates constitute government speech. Walker, 135 S. Ct. at 2249-50.
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guides. 6 See Walker, 135 S. Ct. at 2249; see also Summum, 555 U.S. at 468 (“A
government entity may exercise [the] same freedom to express its views when it receives
assistance from private sources for the purpose of delivering a government-controlled
message.”).
We also agree with the observation of the Seventh Circuit that states ordinarily
choose to display tourist-related materials on public property in order to promote state
attractions. Ill. Dunesland Pres. Soc’y, 584 F.3d at 725. Like the Seventh Circuit, we
decline to adopt a rule that would require a state to display guides espousing every
potential point of view, even those contrary to the state’s chosen message. See id. The
infirmity of such a proposed rule is obvious. For example, under such a rule, a state
would be required to display information denigrating state facilities or promoting out-of-
state tourist attractions. A sweeping rule of this nature also could yield the reverse effect
of having the state cease displaying such guides in order to avoid First Amendment
challenges. See id. at 725-26. Accordingly, we conclude that the guides displayed at the
rest areas are government speech not subject to protection under the Free Speech Clause. 7
6
Our conclusion is not altered by the fact that the content restrictions prohibit
material from suggesting that the Commonwealth endorses a particular product or
service. A message may still be “closely identified in the public mind” with the
Commonwealth irrespective of an explicit governmental endorsement. See Walker, 135
S. Ct. 2248 (citation omitted).
7
In light of our holding that the guides are government speech, we do not address
the plaintiffs’ contention that the content restrictions and fees violate the Free Speech
Clause.
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C.
The plaintiffs do not plead separately other claims for relief, but have presented in
group format various other challenges to the content restrictions and fees. We conclude
that the district court properly dismissed these additional claims.
Like the district court, we reject any contention by the plaintiffs that their rights
under the Due Process Clause were violated because the content restrictions are
inconsistent with each other and with Virginia Administrative Code Title 24, Section 30-
50-10(L). As previously noted, Section 30-50-10(L) provides:
No threatening, abusive, boisterous, insulting or indecent language or
gesture shall be used within [waysides and rest areas]. Nor shall any
oration, or other public demonstration be made, unless by special authority
of the commissioner.
The plaintiffs fail to explain why this provision allegedly is in conflict with the content
restrictions, thereby depriving them of their due process rights. Nor do the plaintiffs
identify in what respect the guides might violate Section 30-50-10(L). Moreover, as
previously explained, to the extent that the content restrictions have deterred the plaintiffs
from engaging in certain conduct, any such expression was government speech not
protected by the Free Speech Clause. 8
Finally, the plaintiffs make a single passing reference in their complaint to the
Equal Protection Clause. This conclusory assertion is insufficient to state a claim to
8
To the extent that the plaintiffs challenge “the content review/approval schemes”
in the SAVE and PMA programs as well as Section 30-50-10(L), the plaintiffs have not
been denied approval pursuant to these procedures and, therefore, lack standing to
challenge them.
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relief. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). We likewise reject the plaintiffs’
conclusory attempt to allege violations of Virginia Administrative Code Title 24,
Sections 30-50-10(L) and 30-151-670, without plausible supporting factual allegations.
Id. at 678-79.
III.
For these reasons, we affirm the district court’s judgment.
AFFIRMED
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