for the Fourth Circuit for the Fourth Circuit for the Fourth Circuit Sons of… v. Commissioner of the Virginia Department of Motor Vehicles, in his official capacity

Filed: June 24, 2002
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 01-1242
(CA-99-530-7)
Sons of Confederate Veterans, Inc., etc., et
al.,
Plaintiffs - Appellees,
versus
Commissioner of the Virginia Department of
Motor Vehicles, etc.,
Defendant - Appellant.
O R D E R
The court amends its opinion filed April 29, 2002, and
reported at 288 F.3d 610 as follows:
On page 9, first paragraph, line 2 -- the cite to Griffin v.
Dep’t of Veterans Affairs is corrected to begin “274 F.3d ....”
On page 19, footnote 12, line 2 -- the cite to United States
v. Blanding is corrected to read “250 F.3d 858, 860 (4th Cir.
2001).
For the Court - By Direction
/s/ Patricia S. Connor
Clerk

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PUBLISHED PUBLISHED PUBLISHED PUBLISHED
UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT FOR THE FOURTH CIRCUIT FOR THE FOURTH CIRCUIT FOR THE FOURTH CIRCUIT
SONS OF CONFEDERATE VETERANS,
INCORPORATED, a Tennessee
Corporation, by its Commander-in-
Chief Patrick J. Griffin; VIRGINIA
DIVISION OF SONS OF CONFEDERATE
VETERANS, INCORPORATED, a Virginia
Corporation, by its Commander
Robert W. Barbour, Sr.,
Plaintiffs-Appellees,
v.
COMMISSIONER OF THE VIRGINIA
DEPARTMENT OF MOTOR VEHICLES, in
his official capacity,
Defendant-Appellant, No. 01-1242
and
COMMONWEALTH OF VIRGINIA, whose
agents and officers enacted and will
enforce, on its behalf, VA. CODE
ANN. 46.2-746.22; JAMES S.
GILMORE, III, Governor, as Governor
of the Commonwealth of Virginia,
in his official capacity; SHIRLEY
YBARRA, as Secretary of the
Department of Transportation of the
State of Virginia, in her official
capacity,
Defendants.
Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
Jackson L. Kiser, Senior District Judge.
(CA-99-530-7)

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Argued: October 31, 2001
Decided: April 29, 2002
Before WILLIAMS and TRAXLER, Circuit Judges, and
Malcolm J. HOWARD, United States District Judge for
the Eastern District of North Carolina,
sitting by designation.
____________________________________________________________
Affirmed by published opinion. Judge Williams wrote the opinion, in
which Judge Traxler and Judge Howard joined.
____________________________________________________________
COUNSEL COUNSEL COUNSEL COUNSEL
ARGUED: ARGUED: ARGUED: ARGUED: William Henry Hurd, Solicitor General, OFFICE OF
THE ATTORNEY GENERAL, Richmond, Virginia, for Appellant.
Arthur Patrick Strickland, STRICKLAND & HARDEN, P.C., Roa-
noke, Virginia, for Appellees. ON BRIEF: ON BRIEF: ON BRIEF: ON BRIEF: Randolph A. Beales, Act-
ing Attorney General, Jeffrey A. Spencer, Assistant Attorney General,
Alison P. Landry, Assistant Attorney General, OFFICE OF THE
ATTORNEY GENERAL, Richmond, Virginia, for Appellant. Steven
H. Aden, THE RUTHERFORD INSTITUTE, Charlottesville, Vir-
ginia, for Appellees.
____________________________________________________________
OPINION OPINION OPINION OPINION
WILLIAMS, Circuit Judge:
This appeal arises out of a dispute regarding the constitutionality
of a provision in the Virginia statute authorizing the issuance of spe-
cial license plates to members of the Sons of Confederate Veterans 1111
____________________________________________________________
1111 The Sons of Confederate Veterans is a Tennessee non-profit corpora-
tion.
Sons of Confederate Veterans, Inc. v. Holcomb, 129 F. Supp. 2d
941, 942 (W.D. Va. 2001). The members of the Sons of Confederate
Veterans are men "who can prove genealogically that one of their ances-
tors served honorably in the armed forces of the Confederate States of
America." (Br. of Appellee at 4.)
2

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(SCV). In contrast to other Virginia statutes authorizing special plates
for members or supporters of various organizations, this statute con-
tains a restriction (the logo restriction) providing that "[n]o logo or
emblem of any description shall be displayed or incorporated into the
design of license plates issued under this section." Va. Code Ann.
§ 46.2-746.22 (Michie Supp. 2000). 2222 The SCV are thus prohibited by
the logo restriction from receiving special plates bearing the symbol
of their organization, which includes the Confederate flag. Richard
Holcomb, Commissioner of the Virginia Department of Motor Vehi-
cles (the Commissioner), appeals from a district court's order granting
summary judgment to the SCV on their claim that the logo restriction
violates the First and Fourteenth Amendments to the United States
Constitution and granting an injunction to the SCV prohibiting the
Commissioner from enforcing the restriction. Because we agree with
the district court that the logo restriction violates the Constitution, we
affirm.
I.
The General Assembly of Virginia has created a program through
which "special" Virginia license plates may be issued to members and
supporters of various organizations or groups. Such plates must be
specifically authorized by statute. Va. Code Ann. § 46.2-725 (Michie
1998). Generally, the plates bear the organization's logo and motto in
addition to letters and numbers as found on other Virginia license
plates. Ordinarily, a group or organization that would like to have a
special license plate made available to its members contacts a member
of the General Assembly to request that a bill be introduced which,
if enacted, would authorize the issuance of a special plate. The Gen-
eral Assembly has authorized well over one hundred special plates in
____________________________________________________________
2222 The statute states in full:
On receipt of an application therefor and written evidence that
the applicant is a member of the Sons of Confederate Veterans,
the Commissioner shall issue special license plates to members
of the Sons of Confederate Veterans. No logo or emblem of any
description shall be displayed or incorporated into the design of
license plates issued under this section.
Va. Code Ann. § 46.2-746.22 (Michie 2000).
3

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this fashion, a significant number of them for private organizations or
associations.
The Virginia statute that created the special license plate program
gives the Commissioner authority to "prescribe" the design of any
special plate, stating that "[a]ll special license plates issued pursuant
to this article shall be of designs prescribed by the Commissioner
. . . ." Va. Code Ann. § 46.2-725(B)(3) (Michie 1998). Section 46.2-
725(B)(3) does not merely create discretion in the Commissioner to
approve or reject plate designs; it also lays out substantive standards
for those plate designs, requiring that they "bear unique letters and
numerals, clearly distinguishable from any other license plate designs,
and be readily identifiable by law enforcement personnel."
Id.
The record indicates that special plate designs ordinarily are settled
upon by a cooperative process between the Commissioner, repre-
sented by the Department of Motor Vehicles (DMV), and the group
authorized to receive a special plate. The group is invited in a letter
from the DMV to submit a design through a designated "sponsor," a
person authorized to communicate on the group's behalf with the
DMV regarding the plate. The letter instructs the sponsor to include
"electronic media art of the logo and legend for the plate" with its
submission. (J.A. at 104) (DMV form letter to plate sponsors). In
addition to these instructions, "Special License Plate Design Criteria"
are provided, which specifically state that "[y]ou can use your organi-
zation's logo or create a logo to be placed on the plate." (J.A. at 106.)
II.
The SCV brought this action in the United States District Court for
the Western District of Virginia by and through their Commander in
Chief, Patrick J. Griffin, seeking a declaration that the logo restriction
is invalid under the First, Fifth, and Fourteenth Amendments to the
United States Constitution, an injunction requiring the Commissioner
to issue special license plates bearing the logo of the SCV, including
the Confederate flag, to those members of the SCV who request them,
and attorney's fees and costs pursuant to 42 U.S.C.A. § 1988. The
SCV and the Commissioner filed cross-motions for summary judg-
ment. The district court granted the SCV's motion and denied the
Commissioner's motion on January 18, 2001. Concluding that the
4

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logo restriction violated the First Amendment as incorporated into the
Fourteenth, the district court declared it invalid on that ground.
Sons
of Confederate Veterans, Inc. v. Holcomb, 129 F. Supp. 2d 941, 947
(W.D. Va. 2001). The district court then entered an injunction enjoin-
ing the Commissioner from enforcing the logo restriction and requir-
ing the issuance of the special plates with the design sought by the
SCV. The district court did not rule on the issues of costs or attor-
ney's fees, stating that those matters would be taken up at a later date.
Id. at 949.
In support of its rulings, the district court made several findings.
First, it found that plates authorized for private organizations under
Virginia's special license plate program constitute private, rather than
government, speech.
Id. at 945 ("the design of [special plates] honor-
ing private entities is the speech of those entities"). The district court
then analyzed the effect of the logo restriction on the SCV's speech
rights, concluding that the prohibition of any logo or emblem on the
SCV's special plate discriminates on the basis of viewpoint and is
thus invalid.
Id. at 947. The district court also conducted an analysis
of the special license plate program as a forum for speech, concluding
that it would constitute a "designated public forum" under such analysis. 3333
Id. at 947-49. The district court found that strict scrutiny would be
applied to restrictions in that forum, other than reasonable time, place,
and manner restrictions, and that the logo prohibition could not sur-
vive such scrutiny.
As to the appropriate remedy for the violation, the district court
found that the two sentences of section 46.2-746.22 are severable
under Virginia law, and that the second, comprising the logo restric-
tion, could thus be invalidated while leaving the first intact.
Id. at 949.
The district court found alternatively that even if the second sentence
could not be severed from the first (and consequently the whole stat-
ute authorizing a special plate for the SCV would have to be invali-
dated), it would act pursuant to its inherent equitable powers to
____________________________________________________________
3333 The district court stated that the forum analysis it conducted was not
necessary to its holding because "impermissible viewpoint discrimination
is sufficient and independent grounds for striking down the ban at issue,
regardless of the forum in which the expression occurs."
Sons of Confed-
erate Veterans, 129 F. Supp. 2d at 947.
5

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compel the Commissioner to comply with the requirements of the first
sentence of § 46.2-746.22 — that is, to issue special plates to the SCV
containing their logo. To invalidate the authorizing statute entirely,
the district court found, would give effect to viewpoint discrimination
in violation of the First Amendment.
Id. The Commissioner timely
noted this appeal.
The Commissioner's argument on appeal has three parts. First, the
Commissioner contends that the special plate authorized for the SCV,
and indeed all the special plates authorized in Virginia, are instances
of "government speech." Second, the Commissioner argues that even
if the special plates contain private speech, that speech has not been
abridged impermissibly in violation of the First Amendment because
the logo restriction is a reasonable subject matter limitation, rather
than a bar to expression of a particular viewpoint. Third and finally,
the Commissioner contends that if section 46.2-746.22 is unconstitu-
tional, the district court erred when it severed what it found to be the
offending portion of the authorizing statute, thereby creating a statute
that the General Assembly did not pass and would not have passed.
We address each of these arguments in turn, reviewing de novo the
grant of the motion for summary judgment.
Higgins v. E.I. DuPont de
Nemours and Co., 863 F.2d 1162, 1167 (4th Cir. 1988). In reviewing
the record, we "draw all reasonable inferences in favor of the non-
moving party, . . . and we may not make credibility determinations
or weigh the evidence."
Edell & Assoc., P.C. v. Law Offices of Peter
G. Angelos, 264 F.3d 424, 435-36 (4th Cir. 2001). Where the Govern-
ment imposes viewpoint-based restrictions, we evaluate the restric-
tions pursuant to strict scrutiny.
American Life League, Inc. v. Reno,
47 F.3d 642, 648 (4th Cir. 1995). "To pass this test a law must be nec-
essary to serve compelling governmental interests by the least restric-
tive means available."
Id. (citing
R.A.V. v. St. Paul, 505 U.S. 377, 395
(1992)). 4444
____________________________________________________________
4444 The Supreme Court has indicated that a viewpoint-based restriction of
private speech rarely, if ever, will withstand strict scrutiny review.
See,
e.g.,
R.A.V. v. St. Paul, 505 U.S. 377, 395-96 (1992) (holding that a bias-
motivated disorderly conduct ordinance's viewpoint discrimination was
not justified on the ground that the ordinance was narrowly tailored to
6

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III.
With these background principles in mind, we turn first to the ques-
tion of whether the speech on the special plates authorized by the Vir-
ginia legislature is private speech or "government speech." The
Commissioner contends that any expressive content on a Virginia
special plate is a "statement" by the Commonwealth about the group
represented on the plate. In this vein, the Commissioner emphasizes
that the General Assembly authorized the SCV's special plate to
"honor" that organization. Because these special plates constitute gov-
ernment speech, the Commissioner argues, traditional First Amend-
ment inquiries do not apply, in light of the settled principle that when
the government speaks, it may craft its message and cannot be forced
to formulate or subsidize a message it does not choose. Accordingly,
he argues that because the SCV's special plates constitute government
speech, they are not subject to First Amendment challenge on the
grounds raised by the SCV.
A.
It is well established that "the government can speak for itself."
Bd.
of Regents of Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 229
(2000). Pursuant to its many and varied functions,"[t]he government
____________________________________________________________
serve compelling state interest in ensuring basic human rights of groups
historically discriminated against because a viewpoint-neutral ordinance
would have the same beneficial effect). Thus, viewpoint-based restric-
tions of private speech are presumptively unconstitutional.
Id. at 382. We
are mindful that the Supreme Court has not hewn unfailingly to the struc-
tured approach of strict scrutiny review when evaluating viewpoint-based
restrictions under forum analysis, discussed
infra, Part IV.B.
See Rosen-
berger, 515 U.S. at 829 (noting that "[t]he government must abstain from
regulating speech when the specific motivating ideology or the opinion
or perspective of the speaker is the rationale for the restriction" and that
First Amendment principles "forbid[ ] the State to exercise viewpoint
discrimination, even when the limited public forum is one of its own cre-
ation"). It is nevertheless clear that viewpoint discrimination in a forum
for private speech cannot stand, if ever, absent a compelling justification
and narrow tailoring. As we will discuss, this principle is sufficient to
resolve the issues before us.
7

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is entitled `to promote particular messages' . . ., and to take legitimate
and appropriate steps to ensure that its messages are neither garbled
nor distorted" — that is, the government may limit the scope of the
message it sends.
Griffin v. Dep't of Veterans Affairs, 274 F.3d 818,
822 (4th Cir. 2001) (internal citations omitted). The government may
promote its policies and positions either through its own officials or
through its agents. This authority to "speak" necessarily carries with
it the authority to select from among various viewpoints those that the
government will express as its own.
See Rust v. Sullivan, 500 U.S.
173, 194 (1991) (noting government's authority to select and fund
speech in a non-neutral way in order to send its own message).
In
Rust, the Supreme Court held that the federal government con-
stitutionally could prohibit doctors from providing counseling or other
information regarding abortion to patients while treating those
patients in a program set up and funded by the federal government.
The doctors' right to speak was not offended by the limitation
imposed by the federal government because the government had
merely chosen to fund one activity — counseling not including dis-
cussion of abortion — to the exclusion of another — counseling
including discussion of abortion.
See id. at 198-99. Although
Rust is
considered to have been one of the first cases recognizing the govern-
ment speech doctrine,
see Legal Servs. Corp. v. Velazquez, 531 U.S.
533, 541 (2001), nowhere in
Rust did the Court rely explicitly on the
government speech rationale. 5555 Rather, the Court simply stated that
____________________________________________________________
5555 Indeed, the proposition that
Rust itself involved government speech is not universally accepted,
see
Legal Servs. Corp. v. Velazquez, 531 U.S.
533, 554 (2001) ("If the private doctors' confidential advice to their
patients at issue in
Rust constituted `government speech,' it is hard to
imagine what subsidized speech would
not be government speech.")
(Scalia, J., dissenting). There also is uncertainty regarding the govern-
ment's role as speaker, in certain limited circumstances, when it selects
from among private speakers those whose messages it will favor or sub-
sidize. When it does so, at least in the contexts of excellence-based fund-
ing decisions and the exercise of "editorial" discretion in a forum
necessarily restricted by the medium of communication, the govern-
ment's actions may be subject to somewhat less restrictive First Amend-
ment limitations than would otherwise apply.
See Nat'l Endowment for
the Arts v. Finley, 524 U.S. 569, 585 (1998) (noting that government, in
8

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government is free to fund chosen activities to the exclusion of others.
Id.;
see also Griffin v. Dep't of Veterans Affairs, 274 F.3d 818, 822
(4th Cir. 2001) (noting that the government as speaker "is entitled to
promote particular messages"). In later cases, however, the Court con-
sistently has interpreted
Rust as indicating that the doctors' funded
counseling activities were government speech, and that where the
government is the speaker, it may choose and tailor its message.
Velazquez, 531 U.S. at 541 (stating that while"[t]he Court in
Rust did
not place explicit reliance on the rationale that the counseling activi-
ties of the doctors . . . amounted to governmental speech[,] when
interpreting the holding in later cases, . . . we have explained
Rust on
this understanding").
Thus, even ordinarily impermissible viewpoint-based distinctions
drawn by the government may be sustained where the government
itself speaks or where it uses private speakers to transmit its message. 6666
____________________________________________________________
setting criteria to be considered in arts funding decisions, could constitu-
tionally differentiate between applicants based on, inter alia, respect for
"general standards of decency" because such considerations are "a conse-
quence of the nature of arts funding," which, because of its inherently
subjective excellence-based character, makes "absolute neutrality . . .
simply `inconceivable'") (internal citation omitted);
Ark. Educ. Televi-
sion Comm'n v. Forbes, 523 U.S. 666, 681-83 (1998) (noting that gov-
ernment, acting as editor in public television broadcasting context, could
constitutionally deny access to a televised political debate to a candidate
on the basis that he did not have significant public support because the
restriction was reasonable in light of the need to avoid "cacophony" in
the debate; to require that access be granted to all speakers, regardless of
the level of support they enjoy, would lead public broadcasters to eschew
televised debates altogether). Neither of these particular circumstances is
present here.
6666 While viewpoint-based distinctions drawn by the government are per-
missible where it sends its own message through its own program, as in
Rust, such distinctions are ordinarily not permissible where the govern-
ment exercises editorial discretion to choose from among private mes-
sages those it will favor or subsidize.
See Forbes, 523 U.S. at 676-77
(noting that viewpoint-based editorial decisions regarding which candi-
dates' messages should be included in a political debate broadcast on
public television would have been unconstitutional).
9

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Id. (citing
Southworth, 529 U.S. at 229, for the proposition that
"viewpoint-based funding decisions can be sustained in instances in
which the government itself is the speaker," and
Rosenberger v. Rec-
tor and Visitors of Univ. of Va., 515 U.S. 819, 833 (1995), for the
proposition that such distinctions may be sustained in "instances, like
Rust, in which the government `used private speakers to transmit spe-
cific information pertaining to its own program.'"). The rationale
behind the government's authority to draw otherwise impermissible
viewpoint distinctions in the government speech context is the
accountability inherent in the political process:
When the government speaks, for instance to promote its
own policies or to advance a particular idea, it is, in the end,
accountable to the electorate and the political process for its
advocacy. If the citizenry objects, newly elected officials
later could espouse some different or contrary position.
Southworth, 529 U.S. at 235. In other words, where the government
itself is responsible, and therefore accountable, for the message that
its speech sends, the danger ordinarily involved in governmental
viewpoint-based choices is not present.
B.
No clear standard has yet been enunciated in our circuit or by the
Supreme Court for determining when the government is "speaking"
and thus able to draw viewpoint-based distinctions, and when it is
regulating private speech and thus unable to do so. Indeed, as we have
noted, there exists some controversy over the scope of the govern-
ment speech doctrine. Several other circuits, however, have addressed
the question in contexts that are instructive here. Our sister circuits
have examined (1) the central "purpose" of the program in which the
speech in question occurs; (2) the degree of "editorial control" exer-
cised by the government or private entities over the content of the
speech; (3) the identity of the "literal speaker "; and (4) whether the
government or the private entity bears the "ultimate responsibility"
for the content of the speech, in analyzing circumstances where both
government and a private entity are claimed to be speaking.
See Wells
v. City and County of Denver, 257 F.3d 1132, 1141 (10th Cir.),
cert.
denied, 122 S. Ct. 469 (2001) (analyzing these four factors in consid-
10

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ering whether a sign listing the private sponsors of a public holiday
display constituted government speech);
Knights of the Ku Klux Klan
v. Curators of the Univ. of Mo., 203 F.3d 1085 (8th Cir.),
cert. denied,
531 U.S. 814 (2000) (analyzing the same factors in considering
whether announcements of sponsors' names and brief messages from
sponsors on public radio station constituted government speech);
see
also Downs v. Los Angeles Unified Sch. Dist., 228 F.3d 1003, 1011
(9th Cir. 2000),
cert. denied, 121 S. Ct. 1653-54 (2001) (applying
similar reasoning in considering whether postings to school bulletin
boards were government or private speech). We find the recent
approaches of our sister circuits instructive here. Although we do not
conclude that the factors relied on in
Knights of the KKK,
Downs, and
Wells constitute an exhaustive or always-applicable list, we believe
that examination of those factors in this context, in conjunction with
consideration of applicable Supreme Court precedent, resolves the
government speech issue before us. 7777
C.
1.
Turning to application of the factors enumerated by our sister cir-
cuits to the case before us, we first consider the "purpose" of the spe-
cial plate program. While the purpose of a government program or
subsidy that implicates speech interests will in some cases be appar-
ent,
see Wells, 257 F.3d at 1141 (citing evidence that the purpose of
the sign asserted to be government speech was "to thank the sponsors
and the citizens for the support of the cost of the display"), this will
not always be the case. Here, for instance, the Commissioner takes the
____________________________________________________________
7777 In considering the approaches taken by our sister circuits, we focus
primarily on the factors enunciated in
Wells and
Knights of the KKK
because
Downs, while relevant in that the question of whether the speech
was government speech or private speech was squarely before the court,
decided the constitutionality of a restriction in the school context, a con-
text where First Amendment inquiries may be colored by recognition of
the special necessities of the educational environment.
See Wells, 257
F.3d at 1141 (noting and describing
Downs, but relying primarily on fac-
tors enunciated in
Knights of the KKK because of the "special character-
istics of the school environment" present in
Downs).
11

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position that the purpose of the special plate program is to serve as
a vehicle for the expression of government messages honoring those
groups for which it authorizes special plates. The SCV, on the other
hand, contend that the purpose of the program is to allow individuals
to display their association with and express their pride in the mes-
sages or goals of the group for which a special plate is authorized.
Examining the special plate program as a whole, we believe neither
party is entirely correct in its argument about the purposes of the pro-
gram. Several considerations lead us to conclude that the purpose of
the special plate program primarily is to produce revenue while allow-
ing, on special plates authorized for private organizations, for the pri-
vate expression of various views. First, the fees collected through the
special plate program are, as the Commissioner concedes, "a source
of additional revenue" for Virginia. (Br. of Appellant at 50.) Indeed,
in fiscal year 2000, the net revenue from special plates totaled nearly
$4.5 million. The Commissioner himself cites this revenue as a pur-
pose of the program. While the mere fact that the program produces
revenue for Virginia is not conclusive as to its purpose, the net finan-
cial impact of the program on the Commonwealth's fisc does indicate
that the General Assembly here is not making the kind of selective
funding decisions involved in cases like
Rust and
Finley.
Second, the legislation creating the special plate program imposes
a fee structure that suggests the program's revenue-producing aim.
Section 46.2-725 of the Virginia Code, which authorizes special
plates, states that
[n]o license plates provided for in this article shall be issued
until the Commissioner receives at least 350 prepaid appli-
cations therefor. In the event that 350 or more prepaid appli-
cations have not been received on or before the last day of
the third year from the date the license plates were last
authorized, no such license plates shall be issued unless the
license plates are reauthorized by the General Assembly.
Va. Code Ann. § 46.2-725(B)(1). The supposed "honor" bestowed on
a group for whom a special license plate is authorized, in other words,
is conditioned on the willingness of 350 private persons to pay extra
to obtain the plate expressing the "honor." If the General Assembly
12

-- 13 of 27 --

intends to speak, it is curious that it requires the guaranteed collection
of a designated amount of money from private persons before its
"speech" is triggered. 8888 It is not the case, in other words, that the spe-
cial plate program only incidentally produces revenue for the Com-
monwealth. The very structure of the program ensures that only
special plate messages popular enough among private individuals to
produce a certain amount of revenue will be expressed.
Third, the special plate authorized for the SCV is available only to
members of the SCV who can provide "written evidence" that they
are members of the group. Va. Code Ann. § 46.2-746.22. This type
of restriction is common among the statutes authorizing special plates
in Virginia.
E.g., Va. Code Ann. § 46.2-738.1 (Michie 1998) (requir-
ing written evidence that the applicant is a member of the American
Radio Relay League for issuance of the special plate recognizing that
group); § 46.2-741 (Michie 1998) (requiring the same for survivors of
the attack on Pearl Harbor); § 46.2-747.1 (Michie 1998) (requiring the
same for members of the Gold Wing Road Riders Association). These
restrictions suggest that the special plates to which they apply are
intended by the General Assembly to allow the authorized recipients
to express their pride in membership in an organization while facili-
tating the group's speech. If non-members cannot obtain the plates,
those motorists who have them send a personal message by carrying
the plates on their vehicles, because the plates identify them as mem-
bers of the organization.
Cf. Lewis v. Wilson, 253 F.3d 1077, 1079
(8th Cir. 2001) (concluding that the purpose of any forum created by
a vanity license plate program allowing individuals to select the com-
____________________________________________________________
8888 It might be argued that the special plate program works by authorizing
a variety of state-approved, if not state-created, messages and allowing
a private person to decide whether to select a plate expressing a particu-
lar one, and that it is therefore the equivalent of a program subsidizing
the promulgation of government-chosen messages.
Cf. Rust, 500 U.S. at
193 (holding that the government may subsidize a program to express
selected views). This contention is unpersuasive, however, in light of the
revenue produced by special plates and section 46.2-725's fee structure.
To obtain a special plate, the government requires a vehicle owner to pay
a fee in excess of that required to obtain an ordinary Virginia license
plate. It would be incongruous to term the government's providing the
option of obtaining these plates, for an extra fee, a subsidy like that pro-
vided in
Rust.
13

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binations of numbers and letters appearing on their plates was "to give
vent to the personality, and reveal the character or views of the plate's
holder"),
cert. denied,
Fischer v. Lewis, 70 U.S.L.W. 3395 (U.S. April
15, 2002) (No. 01-802).
2.
Turning to the "editorial control" exercised by the Commonwealth
over the content of special plates in Virginia, the record reveals that
little, if any, control ordinarily is exercised. The Commissioner argues
that his statutory discretion to approve or reject a given plate design
demonstrates that the Commonwealth maintains control at all times
over the content of the special plates in question.
See, e.g., Va. Code
Ann. § 46.2-725(B)(3) (Michie 1998) (stating that "[a]ll special
license plates issued pursuant to this article shall be of designs pre-
scribed by the Commissioner . . . ."). The Commissioner, however,
has identified only one occasion on which this discretion was exer-
cised, an instance in which the Commissioner rejected a plate design
with the slogan "Union Yes." (Br. of Appellant at 45.) The rejection
was not challenged. Moreover, the information provided by the Com-
missioner, acting through a representative at the DMV, to sponsors of
special plates suggests that it is they, not the Commissioner, who
make the substantive decisions regarding special plate content. The
form letter to special plate sponsors, for instance, states that the spon-
sor is to "provide DMV with electronic media art of the logo and leg-
end for the plate." (J.A. at 104.) Similarly, the "Special Plate Design
Criteria" sent to plate sponsors contains detailed instructions for
ensuring that the design submitted by the sponsor will conform to size
and space requirements, but it does not contain guidelines regarding
the substantive content of the plates or any indication of reasons,
other than failure to comply with size and space restrictions, that a
special plate design might be rejected.
Cf. Wells, 257 F.3d at 1142
(finding government speech in part because there was "no indication
that any of the [private speakers] . . . even knew about the . . . sign,
much less exercised any editorial control over its design or content").
Nor does the General Assembly ordinarily assert "editorial control"
over the content of these special plates. Indeed, the Commissioner
conceded at oral argument that the legislation authorizing the SCV's
special plate is the only legislation that the General Assembly has
passed containing a restriction on the design of the plate.
14

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3.
We next inquire into who is the "literal speaker" and who bears the
"ultimate responsibility" for the speech in this case. The "literal"
speaker here might be said to be the license plate itself, which would
seem not to suggest either government or private speech strongly, and
who bears "ultimate responsibility" for the speech is unclear. We note
that the court in
Wells reasoned that ownership of the means of com-
munication was a valid consideration in determining whether it con-
tained government speech, and the parties do not dispute here that
Virginia continues to own the special plates at all times. Importantly,
though, the special plates are mounted on vehicles owned by private
persons, and the Supreme Court has indicated that license plates, even
when owned by the government, implicate private speech interests
because of the connection of any message on the plate to the driver
or owner of the vehicle.
See Wooley v. Maynard, 430 U.S. 705, 717
(1977) (holding that New Hampshire violated the First Amendment
rights of objecting drivers when it required them to display the state
motto "Live Free or Die" on their license plates). Accordingly, these
factors, like the others we have discussed, lead us to conclude that the
SCV's special plates constitute private speech. 9999
IV.
Because the speech on the authorized special plate is the SCV's
rather than Virginia's, the SCV's First Amendment rights are impli-
cated by the logo restriction in the authorizing legislation, and we
must consider the impact of that restriction on their rights. The SCV
____________________________________________________________
9999 We note that our conclusion is consistent with the analysis employed
by the Second and Eighth Circuits in cases arising in the similar context
of vanity plate programs that allow individuals to select specific combi-
nations of letters and numbers that will appear on their otherwise stan-
dard license plates.
See Perry v. McDonald, 280 F.3d 159, 166 (2d Cir.
2001) (analyzing a restriction on vanity plates that might be "offensive
or confusing to the general public" as a "government regulation[ ] con-
cerning
private individuals' speech on government-owned property"
(emphasis added));
Lewis, 253 F.3d at 1079 (analyzing a restriction pro-
hibiting vanity plates that were "contrary to public policy" as a restriction
on private individuals' speech).
15

-- 16 of 27 --

contend, and the district court found, that the logo restriction discrimi-
nates on the basis of the viewpoint they would like to express,
through the logo incorporating the Confederate flag, on their special
plate. Where the government is not expressing its own policy, either
directly or, as in
Rust, through an intermediary, it presumptively vio-
lates the First Amendment when it discriminates on the basis of views
expressed by private speakers.
See Ark. Educ. Television Comm'n v.
Forbes, 523 U.S. 666, 677 (1998);
Cornelius v. NAACP Legal
Defense & Educational Fund, 473 U.S. 788, 805 (1985). As the
Supreme Court has stated, "[i]t is axiomatic that the government may
not regulate speech based on . . . the message it conveys."
Rosenber-
ger, 515 U.S. at 828. Such viewpoint discrimination presumptively is
impermissible whether it occurs within or outside a private speech
forum.
Forbes, 523 U.S. at 676 (stating that viewpoint discrimination
is impermissible even where no forum is created at all);
Rosenberger,
519 U.S. at 828 (stating that viewpoint discrimination is presumed
impermissible in any forum under forum analysis);
Multimedia Pub.
v. Greenville-Spartanburg Airport, 991 F.2d 154, 159 (4th Cir. 1993)
(same).
A.
The Supreme Court has adopted forum analysis as the means of
analyzing restrictions placed on private speech that occurs on govern-
ment property or with government participation (financial or other-
wise) where the government is not expressing its own message.10101010
See,
____________________________________________________________
10101010 The Supreme Court's forum doctrine generally recognizes three cate-
gories of fora that exist or arise on government property or where gov-
ernment expends resources and creates them. Traditional public fora
include streets, parks, and sidewalks — places which, "by long tradition
or by government fiat" have been "devoted to assembly and debate."
Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45
(1983). These traditional public fora exist regardless of the government's
intent to create or not to create a forum for speech.
Forbes, 523 U.S. at
678. The other forum types, the designated public forum and the nonpub-
lic forum, are created when the government grants access to property or
resources to private speakers.
Id. at 679 (holding that the government
creates a speech forum when it makes access to government property or
funding available to a "certain class of speakers"). A designated public
16

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e.g.,
Rosenberger, 515 U.S. at 829-30 (applying forum analysis where
government funds private speech, even in a "metaphysical" forum);
Good News Club v. Milford Cent. Sch., 121 S. Ct. 2093, 2100 (2001)
(applying forum analysis where speech occurs on government prop-
erty);
Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 508
U.S. 384, 390-91 (same);
see also Warren v. Fairfax County, 196
F.3d 186, 190 (4th Cir. 1999) (en banc) ("courts should evaluate First
Amendment rights on government owned property under a public
forum analysis"). The district court, applying forum analysis princi-
ples, concluded that the special plate program constituted a designated
or limited public forum. The Commissioner challenges this conclu-
sion, arguing that the special plate program is a nonpublic forum. The
type of forum that exists here, however, is relevant only if the logo
restriction is viewpoint-neutral. As we discuss below, we conclude
that the logo restriction is not viewpoint-neutral, rendering the restric-
tion presumptively unconstitutional in any forum.
Rosenberger, 515
U.S. at 829-30 (stating that viewpoint discrimination is presumptively
impermissible in all fora for private speech). Thus, we need not
resolve the parties' dispute over the type of forum created by the spe-
cial plate program. Instead, we next explain why the Commissioner's
argument that the logo restriction is viewpoint-neutral must fail.
B.
In examining the Commissioner's argument that the logo restric-
tion is viewpoint-neutral, we begin with the language of the restric-
____________________________________________________________
forum, whether limited or unlimited in scope, is one a state creates "by
intentionally opening a non-traditional forum for public discourse."
Cor-
nelius, 473 U.S. at 802. Further, the government may "confin[e] a [lim-
ited] forum to the limited and legitimate purposes for which it was
created . . . [by] reserving it for certain groups or for the discussion of
certain topics."
Rosenberger, 515 U.S. at 829. In a nonpublic forum, the
government "reserve[s] eligibility for access to the forum to a particular
class of speakers, whose members must then, as individuals, `obtain per-
mission' . . . to use it."
Forbes, 523 U.S. at 679. While the limitations
on the government's ability to regulate speech in these fora depends in
part on the type of forum at issue, viewpoint discrimination is presump-
tively impermissible in all fora for private speech.
Rosenberger, 515 U.S.
at 829-30.
17

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tion. The logo restriction directs that "[n]o logo or emblem of any
description shall be displayed or incorporated into the design of the
[SCV] license plates issued under this section." Va. Code Ann.
§ 46.2-746.22. Although the logo restriction itself makes no reference
to the Confederate flag, the Commissioner concedes that it was the
inclusion of the Confederate flag in the SCV's logo that led to the
prohibition against the use of the logo on the SCV's special license
plate. (Br. of Appellant at 10 (conceding that the purpose of the logo
restriction is to "ensure that the battle flag does not appear on the spe-
cial license plate").) Having conceded that the logo restriction is an
attempt to ban the display of the Confederate flag, the Commissioner
argues that the restriction is content-based, but viewpoint-neutral,
because it bans all viewpoints about the Confederate flag (which the
Commissioner identifies as a category of "content" or subject matter)
from the special plate forum.
As the Supreme Court has noted, the distinction between content
and viewpoint discrimination "is not a precise one."
Rosenberger, 515
U.S. at 831. Viewpoint discrimination is a kind of content discrimina-
tion, but is not always easily distinguishable. 11111111
Cf. id. at 829 ("When
the government targets not subject matter, but particular views taken
by speakers on a subject, the violation of the First Amendment is all
the more blatant. Viewpoint discrimination is thus an egregious form
of content discrimination."). Analysis of the basic First Amendment
principles that "provide the framework forbidding the state to exercise
viewpoint discrimination," however, directs us to the considerations
that indicate such viewpoint-based discrimination here.
Id. at 829
(reviewing First Amendment cases stating basic principles following
from the precept that government may not regulate speech based on
____________________________________________________________
11111111 As the Ninth Circuit has noted, the "coherence of the distinction
between `content discrimination' and `viewpoint discrimination'" may be
seen as "tenuous."
Giebel v. Sylvester, 244 F.3d 1182, 1188 n.10 (9th Cir.
2001). "While the former describes the subject matter of the speech, and
the latter the specific positions taken on the matter, the level at which
`subject matter' is defined can control whether discrimination is held to
be on the basis of content or viewpoint."
Id. Nevertheless, it is clear from
the Supreme Court's decisions that, given a properly defined subject
matter, the government is presumptively unable to discriminate among
viewpoints about that subject matter.
18

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its viewpoint or the message it conveys). For instance, "[i]n the realm
of private speech or expression, government regulation may not favor
one speaker over another."
Id. at 828. Similarly, "[t]he government
must abstain from regulating speech when the motivating ideology or
the opinion or perspective of the speaker is the rationale for the
restriction."
Id. (citing
Perry Educ. Ass'n v. Perry Local Educators'
Ass'n, 460 U.S. 37, 46 (1983)). Thus, where an evaluation of a given
restriction and the surrounding circumstances indicates that one or
more speakers are favored over others, and further that the basis for
the restriction is in fact the message the disfavored speaker seeks to
convey, the restriction violates the First Amendment. Moreover,
where restrictions or regulations of speech discriminate on the basis
of the content of speech, there is an "inherent risk that the Govern-
ment seeks not to advance a legitimate regulatory goal, but to sup-
press unpopular ideas or information or manipulate the public debate
through coercion rather than persuasion . . ." — in other words, to
exercise viewpoint discrimination.
Turner Broadcasting Sys., Inc. v.
F.C.C., 512 U.S. 622, 642-43 (1994)). Because the logo restriction,
admittedly aimed at prohibiting the display of the Confederate flag,
involves an inherent danger of viewpoint discrimination, a close
review of the context in which the restriction is imposed, as well as
the effect of the restriction itself, is appropriate.
In analyzing the logo restriction's effect, we note first that the
SCV's organizational logo, incorporating the Confederate flag, cer-
tainly represents a viewpoint. As the Commissioner concedes, the
logo would "advance [the] view that the flag [is] a symbolic acknowl-
edgment of pride in Southern heritage and ideals of independence."12121212
(Br. of Appellant at 40 (quotation and citation omitted));
see also
American Legion Post 7 of Durham, N.C. v. Durham, 239 F.3d 601,
606 (4th Cir. 2001) (noting that "[f]lags, especially flags of a political
sort, enjoy an honored position in the First Amendment hierarchy"
because they are "close[ ] to the core of political expression protected
by the First Amendment"). The logo restriction does not restrict the
Confederate flag as such, but rather the Confederate flag
as used in
the SCV's logo. Va. Code Ann. § 46.2-746.22 ("no logo or emblem
____________________________________________________________
12121212 A competing viewpoint of the Confederate flag is that it is "a symbol
of racial separation and oppression."
United States v. Blanding, 250 F.3d
858, 861 (4th Cir. 2001).
19

-- 20 of 27 --

of any description shall be displayed or incorporated into the design
of" SCV's special plates). Rather than prohibiting the Confederate
flag as subject matter, then, the logo restriction by its terms prohibits
the SCV's use of the Confederate flag. In other words, the logo
restriction not only prohibits speech on the basis of its content, as the
Commissioner concedes, but also, by its terms, burdens the speech of
only a single speaker in the forum.
Cf. Arkansas Writers' Project, Inc.
v. Ragland, 481 U.S. 221, 227-29 (1987) (holding, where a sales tax
was theoretically imposed on all magazines, but exemptions from the
tax were created for all but a few, that the tax scheme "treat[ed] some
magazines less favorably than others," and that the discriminatory
impact of the tax on the few magazines subject to it "burden[ed]
rights protected by the First Amendment");
cf. also Giebel v. Sylves-
ter, 244 F.3d 1182, 1188 (9th Cir. 2001) (concluding that the actions
of a professor at a state university in tearing down handbills posted
on university bulletin boards publicizing a former colleague's appear-
ance at an upcoming conference were viewpoint-discriminatory
because the professor "sought to silence speech by a particular
speaker"). This fact alone suggests that the SCV's viewpoint, rather
than the Confederate flag as "content," is the subject of the restriction,
and thus that the SCV's speech is discriminated against because of the
views it would express.
To examine the context in which the logo restriction is imposed,
we first define the scope of the forum in which the SCV wish to
speak, as definition of the forum's scope provides a backdrop for
analysis of the "viewpoint or content" question.
Cf. Rosenberger, 515
U.S. at 830-31 (determining that "the subjects discussed [by the pro-
hibited speech] were . . . within the approved category of publica-
tions" aside from their prohibited perspective by reference to other
speech permitted in the forum);
Lamb's Chapel, 508 U.S. at 393
(examining a restriction on religious uses of school facilities for view-
point discrimination by reference to other speech permitted within the
forum). This inquiry is distinct from the question of which type of
forum exists.
See Cornelius, 473 U.S. at 797, 800-01 (noting that
proper definition of the scope of the relevant forum is necessary to
analyze constitutionality of a restriction);
Air Line Pilots Ass'n, Int'l
v. Dept. of Aviation of Chicago, 45 F.3d 1144, 1151 (7th Cir. 1995)
(stating that identification of forum must be undertaken before analy-
sis of a restriction imposed on speech in that forum).
20

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The relevant forum is defined by focusing on "the access sought by
the speaker."
Cornelius, 473 U.S. at 801. Here, the relevant forum is
Virginia's special plate program, consisting of the special plates
authorized and produced under the general rules established by Va.
Code Ann. § 46.2-725. It is to the special plate program that the SCV
seek "access" (here, access without restrictions on their speech within
the forum), and special plates authorized for other groups and organi-
zations thus provide the relevant context for analyzing the restriction
imposed on the SCV.
Cf. Air Line Pilots, 45 F.3d at 1151-52 (deter-
mining, where an airline pilots' association sought to display a dio-
rama in display case at O'Hare airport, that the airport's display cases,
rather than the airport itself, constituted the relevant forum, because
it was to a display case that association sought access);
Texas v.
Knights of the Ku Klux Klan, 58 F.3d 1075, 1078 (5th Cir. 1995)
(defining the forum in question, where the Ku Klux Klan sought to
participate in an Adopt-A-Highway Program, as the program as a
whole rather than the State's highways or the particular sign to which
participation would entitle the Klan).
That the Confederate flag as content is prohibited in this forum, as
the Commissioner contends, is not borne out by the statute at issue,
the record before us, or any rules or restrictions generally applicable
to Virginia's special plate program. No general restrictions, save
those relating to space and legibility of identifying information, are
imposed on all special plates. The logo restriction is the only restric-
tion of its kind contained in any of the numerous special-plate-
authorizing statutes. A review of these numerous and varied statutes
does not reveal any intent on the Commonwealth's part to limit, on
the basis of content, the scope of speech within the special plate
forum in any principled way. Further, the "content" of the excluded
speech is similar, if not identical, to content allowed on plates autho-
rized under the special plate program for those with other viewpoints.
For example, many of the groups and organizations for which special
plates have been approved without restrictions are groups that have
distinct viewpoints in political or social debate.
See, e.g., Va. Code
Ann. § 46.2-746.10 (approving special plate for AFL-CIO supporters
without restriction); § 46.2-749.6 (approving special plate for support-
ers of the National Rifle Association without restriction).
21

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The nature of the restricted speech, the lack of a generally applica-
ble content-based restriction, 13131313 the breadth of the special plate pro-
gram in Virginia, and the lack of any restrictions in statutes
authorizing special plates other than the SCV's belie the Commission-
er's argument that the restriction in question is merely a content-based
restriction. Rather, the logo restriction works viewpoint discrimina-
tion against the SCV. Such discrimination, as we have noted, is "pre-
sumed to be unconstitutional."
Rosenberger, 515 U.S. at 828. The
Commissioner has not rebutted — indeed, has not contended that he
could rebut — the presumption of unconstitutionality following from
viewpoint discrimination against private speech by demonstrating that
the viewpoint discrimination is "the least restrictive means available"
to serve a "compelling governmental interest[ ]."
American Life
League, Inc. v. Reno, 47 F.3d 642, 648 (4th Cir. 1995). Thus, the logo
restriction cannot withstand strict scrutiny review.
Based upon our review of the government speech and forum princi-
ples enunciated by the Supreme Court, and application of those prin-
ciples to the case at hand, we conclude that the logo restriction in Va.
Code Ann. § 46.2-746.22 is an instance of viewpoint discrimination
that does not survive strict scrutiny review and accordingly is impermis-
sible. 14141414 The restriction, then, cannot stand. The proper remedy for this
____________________________________________________________
13131313 We note that we are not faced with a restriction generally applicable
to the design of special plates in Virginia. Thus, this case differs from the
vanity plate cases decided by the Second and Eighth Circuits.
See Perry
v. McDonald, 280 F.3d 159, 169-70 (2d Cir. 2001) (upholding the appli-
cation of a vanity license plate regulation banning plates conveying mes-
sages "offensive or confusing to the general public" to rescind license
plates bearing the letters "SHTHPNS" because the regulation was a rea-
sonable, viewpoint-neutral restriction on speech in a nonpublic forum);
Lewis v. Wilson, 253 F.3d 1077, 1080-81 (8th Cir. 2001) (finding uncon-
stitutional a regulation banning vanity plates bearing messages "contrary
to public policy" because the regulation gave unbridled discretion to the
state official charged with enforcing it),
cert. denied,
Fischer v. Lewis,
70 U.S.L.W. 3395 (U.S. April 15, 2002) (No. 01-802). We, therefore,
need not resolve whether such a generally applicable restriction or regu-
lation would pass constitutional muster if applied to ban incorporation of
the SCV's logo into their special plate design.
14141414 Accordingly, we need not address the adequacy of the Commission-
er's proffered justifications under the standard applicable to content-
22

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violation of the First Amendment's strictures, however, remains to be
determined, and it is to that issue that we now turn.
V.
Because we agree with the district court that the logo restriction is
unconstitutional, we must determine whether the district court prop-
erly severed the statute. The Commissioner argues that severing the
statute was an improper incursion into the realm of legislative discre-
tion. Moreover, if the statute was not severable, the Commissioner
claims, there was no legal basis for the district court's asserted exer-
cise of its "equitable power" and hence that portion of the district
court's ruling that compels the Commissioner's compliance with the
non-restrictive portion of section 46.2-746.22 must likewise be invali-
dated. The question of the severability of a state statute's provisions
is governed by state law.
See Department of Treasury v. Fabe, 508
U.S. 491, 509-10 (1993) (state law governs severability of a state stat-
ute);
Environmental Technology Council v. Sierra Club, 98 F.3d 774,
788 n.21 (4th Cir. 1996) (same). We review the district court's deter-
mination of severability de novo.
The Virginia Supreme Court has enunciated the test for severability
under Virginia law only in the absence of a blanket severability
clause, applying a presumption of nonseverability.
Robinson v. Vir-
ginia, 232 S.E.2d 742, 744 (Va. 1977) (noting that where an ordi-
nance "contained no severability clause . . . [,] the ordinance [was]
presumed to be non-severable"). Under this rule, "in the absence of
a severability clause, the test of severability is whether the legislature
would be satisfied with what remains [of the statute] after the invalid
part has been eliminated," an inquiry that makes the intent of the law-
makers controlling.
City of Portsmouth v. Citizens Trust Company,
____________________________________________________________
based but viewpoint-neutral restrictions in fora for private speech. Fur-
ther, the Commissioner has not advanced the argument that display of the
Confederate flag on a private vehicle is equivalent to "fighting words,"
the use of which the Commonwealth constitutionally may prohibit, and
we do not address any issues that might be raised by such an argument.
See Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942) (character-
izing as "fighting words" speech that "itself inflicts injury or tends to
incite immediate violence").
23

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222 S.E.2d 532, 535 (Va. 1976) (internal quotation marks omitted).
Stated slightly differently, the inquiry enunciated by Virginia's high-
est court is whether the General Assembly has "manifested an inten-
tion to deal with part of the subject matter covered, irrespective of the
rest of the subject matter[.]"
Robinson, 232 S.E.2d at 744 (1977)
(internal quotation marks omitted).
Since the decisions noted above, Virginia's General Assembly has
enacted a statutory provision dealing with severability of sections of
the Virginia Code. Section 1-17.1 of the Code provides that "the pro-
visions of
all statutes are severable unless. . . it is apparent that two
or more statutes or provisions
must operate in accord with one
another." Va. Code Ann. § 1-17.1 (Michie 2001) (emphases added).
In other words, the Virginia legislature has stated clearly that courts
are now to apply a presumption of severability unless two provisions
of a statutory section
must operate together.
We have had occasion to apply section 1-17.1 only once. In
Jones
v. Murray, 962 F.2d 302 (4th Cir. 1992), we concluded that a portion
of a Virginia statute was severable, citing section 1-17.1 and the pre-
section 1-17.1 case of
City of Portsmouth v. Citizens Trust Co., 216
Va. 695 (1976).
Jones, 962 F.2d at 311. We noted that in
City of
Portsmouth the Virginia Supreme Court had "sever[ed] [an] unconsti-
tutional mandate, even without a severability clause, because
`[d]eletion of the invalid [provision did] not alter the effect of the
ordinance in fulfilling the purpose expressed'."
Jones, 962 F.2d at 311
(alterations in original) (quoting
City of Portsmouth, 222 S.E.2d at
535). We went on to note our opinion that "the legislature would be
satisfied with what remains after the invalid part has been elimi-
nated."
Id. (citing
City of Waynesboro v. Keiser, 213 Va. 229, 191
S.E.2d 196, 200 (1972)) (internal quotation marks omitted).
The parties' arguments evidence considerable confusion about the
proper standard for determining severability of statutory provisions
under Virginia law. The Commissioner contends, citing to the district
court's opinion below, that "the test of severability in the Common-
wealth is whether the
legislature would be satisfied with what
remains after the invalid part has been eliminated." (Br. of Appellant
at 51) (internal citation omitted). The district court determined that
the quoted language was the proper test for severability, but that it is
24

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"buttressed by the modern-day Virginia Code, which requires that the
severed and remaining portions `must operate in accord with one
another'."
Sons of Confederate Veterans v. Holcomb, 129 F. Supp. 2d
941, 949 (W.D. Va. 2001). The SCV appear to concede that the intent
of the legislature is the proper standard for determining severability.
Indeed, the SCV do not even cite to section 1-17.1 in their brief.
Examining the statutory framework and relevant caselaw, we con-
clude that section 1-17.1 is the governing statement of the law of sev-
erability in Virginia. Accordingly, we apply the statute's presumption
of severability to section 46.2-746.22's provisions. The provisions are
thus "severable unless . . . it is apparent that . . . [the] provisions must
operate in accord with one another." Va. Code Ann. § 1-17.1. We see
no reason why the second sentence of § 46.2-746.22
must operate in
accord with the first, and the Commissioner has not suggested any
such reason in his brief. The first sentence is not rendered meaning-
less or nonsensical by the elimination of the second. Indeed, the oper-
ation of the first sentence is in a sense not affected at all by the
elimination of the second — it continues to authorize special plates
for the SCV, as it did before the second sentence was determined to
be unconstitutional. The only change in the statute's operation is the
excision of the unconstitutional logo restriction, a restriction that was
imposed entirely by the second sentence.
Cf. Jones, 962 F.2d at 311
(invalidating and severing five words of Virginia statute that violated
the Ex Post Facto Clause because severance did not alter the effect
of the statute in fulfilling its primary purpose).
Even assuming, as the parties apparently do, that the "intent of the
legislature" inquiry remains a valid consideration in determining sev-
erability under Virginia law, we find that it is overcome here by the
presumption of severability which applies to statutes enacted by the
General Assembly. The logo restriction may well have been the result
of a political compromise within the legislature that aided the passage
of section 46.2-746.22. Some legislators may have agreed to support
the authorizing statute only on condition of the addition of the logo
restriction. Under the current legal framework in Virginia, however,
the General Assembly enacts laws against the backdrop of section 1-
17.1's severability presumption. Without a clear indication that the
legislature's intent was to enact section 46.2-746.22 only with the
logo restriction in place, and without any expression of the statute's
25

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purpose, we cannot presume that the legislature would not be "satis-
fied" with what remains after the second sentence is severed. In sum,
our review of the severability issue here convinces us that the result
reached by the district court was the correct one. 15151515
VI.
For the foregoing reasons, we conclude that the district court prop-
erly held that the logo restriction in Va. Code Ann. § 46.2-746.22's
second sentence violates the First Amendment. We also conclude that
the second sentence of section 46.2-746.22 may be severed from the
remainder of the statute. The judgment of the district court is accord-
ingly affirmed.
AFFIRMED
____________________________________________________________
15151515 After finding that the logo restriction could be severed, the district
court stated that if it could not be severed, the court "would exercise
equitable power in enjoining the [Commissioner] from enforcing [the
logo restriction] and requiring the issuance of plates displaying the
[SCV's] logo." The Commissioner contends that such an exercise of
equitable power would be outside the realm of the court's discretion.
Because the district court properly severed the statute, we do not address
the injunctive relief that it stated it would, in the alternative, provide.
26

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