Untitled Document

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

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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,

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.
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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)

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.

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Affirmed by published opinion. Judge Williams wrote the opinion,in
which Judge Traxler and Judge Howard joined.

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COUNSEL

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: 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.

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OPINION

WILLIAMS, Circuit Judge:

This appeal arises out of a dispute regarding the constitutionality
of a provision in the Virginia statute authorizing the issuanceof spe-
cial license plates to members of the Sons of Confederate Veterans1
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1 The Sons of Confederate Veterans is a Tennessee non-profitcorpora-
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 oftheir ances-
tors served honorably in the armed forces of the Confederate Statesof
America." (Br. of Appellee at 4.)

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(SCV). In contrast to other Virginia statutes authorizing specialplates
for members or supporters of various organizations, this statutecon-
tains a restriction (the logo restriction) providing that "[n]ologo or
emblem of any description shall be displayed or incorporated intothe
design of license plates issued under this section." Va.Code Ann.
S 46.2-746.22 (Michie Supp. 2000).2 The SCV are thus prohibitedby
the logo restriction from receiving special plates bearing thesymbol
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 ordergranting
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 prohibitingthe
Commissioner from enforcing the restriction. Because we agreewith
the district court that the logo restriction violates the Constitution,we
affirm.

The General Assembly of Virginia has created a program through
which "special" Virginia license plates may be issuedto members and
supporters of various organizations or groups. Such plates mustbe
specifically authorized by statute. Va. Code Ann. S 46.2-725 (Michie
1998). Generally, the plates bear the organization's logo andmotto in
addition to letters and numbers as found on other Virginia license
plates. Ordinarily, a group or organization that would like tohave a
special license plate made available to its members contacts amember
of the General Assembly to request that a bill be introduced which,
if enacted, would authorize the issuance of a special plate. TheGen-
eral Assembly has authorized well over one hundred special platesin
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2 The statute states in full:

On receipt of an application therefor and written evidencethat
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 designof
license plates issued under this section.

Va. Code Ann. S 46.2-746.22 (Michie 2000).

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this fashion, a significant number of them for private organizationsor
associations.

The Virginia statute that created the special license plateprogram
gives the Commissioner authority to "prescribe" thedesign of any
special plate, stating that "[a]ll special license platesissued pursuant
to this article shall be of designs prescribed by the Commissioner
. . . ." Va. Code Ann. S 46.2-725(B)(3) (Michie 1998). Section46.2-
725(B)(3) does not merely create discretion in the Commissionerto
approve or reject plate designs; it also lays out substantivestandards
for those plate designs, requiring that they "bear uniqueletters and
numerals, clearly distinguishable from any other license platedesigns,
and be readily identifiable by law enforcement personnel."Id.

The record indicates that special plate designs ordinarilyare 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 ina 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 DesignCriteria"
are provided, which specifically state that "[y]ou can useyour 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 Courtfor
the Western District of Virginia by and through their Commanderin
Chief, Patrick J. Griffin, seeking a declaration that the logorestriction
is invalid under the First, Fifth, and Fourteenth Amendments tothe
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 requestthem,
and attorney's fees and costs pursuant to 42 U.S.C.A. S 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

logo restriction violated the First Amendment as incorporatedinto 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 injunctionenjoin-
ing the Commissioner from enforcing the logo restriction and requir-
ing the issuance of the special plates with the design soughtby the
SCV. The district court did not rule on the issues of costs orattor-
ney's fees, stating that those matters would be taken up at alater date.
Id. at 949.

In support of its rulings, the district court made severalfindings.
First, it found that plates authorized for private organizationsunder
Virginia's special license plate program constitute private, ratherthan
government, speech. Id. at 945 ("the design of [special plates]honor-
ing private entities is the speech of those entities"). Thedistrict court
then analyzed the effect of the logo restriction on the SCV'sspeech
rights, concluding that the prohibition of any logo or emblemon the
SCV's special plate discriminates on the basis of viewpoint andis
thus invalid. Id. at 947. The district court also conducted ananalysis
of the special license plate program as a forum for speech, concluding
that it would constitute a "designated public forum"under such analysis.3
Id. at 947-49. The district court found that strict scrutiny wouldbe
applied to restrictions in that forum, other than reasonable time,place,
and manner restrictions, and that the logo prohibition could notsur-
vive such scrutiny.

As to the appropriate remedy for the violation, the districtcourt
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 secondsentence
could not be severed from the first (and consequently the wholestat-
ute authorizing a special plate for the SCV would have to be invali-
dated), it would act pursuant to its inherent equitable powersto
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3 The district court stated that the forum analysis it conductedwas not
necessary to its holding because "impermissible viewpointdiscrimination
is sufficient and independent grounds for striking down the banat issue,
regardless of the forum in which the expression occurs."Sons of Confed-
erate Veterans, 129 F. Supp. 2d at 947.

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compel the Commissioner to comply with the requirements ofthe first
sentence of S 46.2-746.22 -- that is, to issue special platesto 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 theSCV,
and indeed all the special plates authorized in Virginia, areinstances
of "government speech." Second, the Commissioner arguesthat even
if the special plates contain private speech, that speech hasnot 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 andfinally,
the Commissioner contends that if section 46.2-746.22 is unconstitu-
tional, the district court erred when it severed what it foundto be the
offending portion of the authorizing statute, thereby creatinga statute
that the General Assembly did not pass and would not have passed.

We address each of these arguments in turn, reviewing de novothe
grant of the motion for summary judgment. Higgins v. E.I. DuPontde
Nemours and Co., 863 F.2d 1162, 1167 (4th Cir. 1988). In reviewing
the record, we "draw all reasonable inferences in favor ofthe non-
moving party, . . . and we may not make credibility determinations
or weigh the evidence." Edell & Assoc., P.C. v. Law Officesof 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 lawmust be nec-
essary to serve compelling governmental interests by the leastrestric-
tive means available." Id. (citing R.A.V. v. St. Paul, 505U.S. 377, 395
(1992)).4
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4 The Supreme Court has indicated that a viewpoint-based restrictionof
private speech rarely, if ever, will withstand strict scrutinyreview. See,
e.g., R.A.V. v. St. Paul, 505 U.S. 377, 395-96 (1992) (holdingthat a bias-
motivated disorderly conduct ordinance's viewpoint discriminationwas
not justified on the ground that the ordinance was narrowly tailoredto

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III.

With these background principles in mind, we turn first tothe ques-
tion of whether the speech on the special plates authorized bythe 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 aboutthe 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 platesconstitute gov-
ernment speech, the Commissioner argues, traditional First Amend-
ment inquiries do not apply, in light of the settled principlethat when
the government speaks, it may craft its message and cannot beforced
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.

It is well established that "the government can speakfor 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]hegovernment
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serve compelling state interest in ensuring basic human rightsof groups
historically discriminated against because a viewpoint-neutralordinance
would have the same beneficial effect). Thus, viewpoint-basedrestric-
tions of private speech are presumptively unconstitutional. Id.at 382. We
are mindful that the Supreme Court has not hewn unfailingly tothe 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 mustabstain from
regulating speech when the specific motivating ideology or theopinion
or perspective of the speaker is the rationale for the restriction"and that
First Amendment principles "forbid[ ] the State to exerciseviewpoint
discrimination, even when the limited public forum is one of itsown cre-
ation"). It is nevertheless clear that viewpoint discriminationin a forum
for private speech cannot stand, if ever, absent a compellingjustification
and narrow tailoring. As we will discuss, this principle is sufficientto
resolve the issues before us.

is entitled `to promote particular messages' . . ., and totake legitimate
and appropriate steps to ensure that its messages are neithergarbled
nor distorted" -- that is, the government may limit the scopeof the
message it sends. Griffin v. Dep't of Veterans Affairs, 274 F.3d818,
822 (4th Cir. 2001) (internal citations omitted). The governmentmay
promote its policies and positions either through its own officialsor
through its agents. This authority to "speak" necessarilycarries with
it the authority to select from among various viewpoints thosethat the
government will express as its own. See Rust v. Sullivan, 500U.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 governmentcon-
stitutionally could prohibit doctors from providing counselingor 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 includingdis-
cussion of abortion -- to the exclusion of another -- counseling
including discussion of abortion. See id. at 198-99. AlthoughRust is
considered to have been one of the first cases recognizing thegovern-
ment speech doctrine, see Legal Servs. Corp. v. Velazquez, 531U.S.
533, 541 (2001), nowhere in Rust did the Court rely explicitlyon the
government speech rationale.5 Rather, the Court simply statedthat
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5 Indeed, the proposition that Rust itself involved governmentspeech is
not universally accepted, see Legal Servs. Corp. v. Velazquez,531 U.S.
533, 554 (2001) ("If the private doctors' confidential adviceto their
patients at issue in Rust constituted `government speech,' itis hard to
imagine what subsidized speech would not be government speech.")
(Scalia, J., dissenting). There also is uncertainty regardingthe govern-
ment's role as speaker, in certain limited circumstances, whenit selects
from among private speakers those whose messages it will favoror sub-
sidize. When it does so, at least in the contexts of excellence-basedfund-
ing decisions and the exercise of "editorial" discretionin a forum
necessarily restricted by the medium of communication, the govern-
ment's actions may be subject to somewhat less restrictive FirstAmend-
ment limitations than would otherwise apply. See Nat'l Endowmentfor
the Arts v. Finley, 524 U.S. 569, 585 (1998) (noting that government,
insetting 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 considerationsare "a conse-
quence of the nature of arts funding," which, because ofits 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 thatgov-
ernment, acting as editor in public television broadcasting context,could
constitutionally deny access to a televised political debate toa candidate
on the basis that he did not have significant public support becausethe
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 broadcastersto eschew
televised debates altogether). Neither of these particular circumstancesis
present here.

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government is free to fund chosen activities to the exclusionof others.
Id.; see also Griffin v. Dep't of Veterans Affairs, 279 F.3d 818,822
(4th Cir. 2001) (noting that the government as speaker "isentitled to
promote particular messages"). In later cases, however, theCourt 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 Courtin Rust did
not place explicit reliance on the rationale that the counselingactivi-
ties of the doctors . . . amounted to governmental speech[,] when
interpreting the holding in later cases, . . . we have explainedRust 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 itsmessage.6
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6 While viewpoint-based distinctions drawn by the governmentare per-
missible where it sends its own message through its own program,as in
Rust, such distinctions are ordinarily not permissible where thegovern-
ment exercises editorial discretion to choose from among privatemes-
sages those it will favor or subsidize. See Forbes, 523 U.S. at676-77
(noting that viewpoint-based editorial decisions regarding whichcandi-
dates' messages should be included in a political debate broadcaston
public television would have been unconstitutional).

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Id. (citing Southworth, 529 U.S. at 229, for the propositionthat
"viewpoint-based funding decisions can be sustained in instancesin
which the government itself is the speaker," and Rosenbergerv. Rec-
tor and Visitors of Univ. of Va., 515 U.S. 819, 833 (1995), forthe
proposition that such distinctions may be sustained in "instances,like
Rust, in which the government `used private speakers to transmitspe-
cific information pertaining to its own program.'"). Therationale
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 messagethat
its speech sends, the danger ordinarily involved in governmental
viewpoint-based choices is not present.

No clear standard has yet been enunciated in our circuit orby the
Supreme Court for determining when the government is "speaking"
and thus able to draw viewpoint-based distinctions, and when itis
regulating private speech and thus unable to do so. Indeed, aswe 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 sistercircuits
have examined (1) the central "purpose" of the programin which the
speech in question occurs; (2) the degree of "editorial control"exer-
cised by the government or private entities over the content ofthe
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 whereboth
government and a private entity are claimed to be speaking. SeeWells
v. City and County of Denver, 257 F.3d 1132, 1141 (10th Cir.),cert.
denied, 122 S. Ct. 469 (2001) (analyzing these four factors inconsid-

ering whether a sign listing the private sponsors of a publicholiday
display constituted government speech); Knights of the Ku KluxKlan
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 wedo 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 conjunctionwith
consideration of applicable Supreme Court precedent, resolvesthe
government speech issue before us.7

Turning to application of the factors enumerated by our sistercir-
cuits to the case before us, we first consider the "purpose"of the spe-
cial plate program. While the purpose of a government programor
subsidy that implicates speech interests will in some cases beappar-
ent, see Wells, 257 F.3d at 1141 (citing evidence that the purposeof
the sign asserted to be government speech was "to thank thesponsors
and the citizens for the support of the cost of the display"),this will
not always be the case. Here, for instance, the Commissioner takesthe
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7 In considering the approaches taken by our sister circuits,we focus
primarily on the factors enunciated in Wells and Knights of theKKK
because Downs, while relevant in that the question of whetherthe speech
was government speech or private speech was squarely before thecourt,
decided the constitutionality of a restriction in the school context,a con-
text where First Amendment inquiries may be colored by recognitionof
the special necessities of the educational environment. See Wells,257
F.3d at 1141 (noting and describing Downs, but relying primarilyon fac-
tors enunciated in Knights of the KKK because of the "specialcharacter-
istics of the school environment" present in Downs).

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position that the purpose of the special plate program is toserve as
a vehicle for the expression of government messages honoring those
groups for which it authorizes special plates. The SCV, on theother
hand, contend that the purpose of the program is to allow individuals
to display their association with and express their pride in themes-
sages or goals of the group for which a special plate is authorized.

Examining the special plate program as a whole, we believeneither
party is entirely correct in its argument about the purposes ofthe pro-
gram. Several considerations lead us to conclude that the purposeof
the special plate program primarily is to produce revenue whileallow-
ing, on special plates authorized for private organizations, forthe pri-
vate expression of various views. First, the fees collected throughthe
special plate program are, as the Commissioner concedes, "asource
of additional revenue" for Virginia. (Br. of Appellant at50.) Indeed,
in fiscal year 2000, the net revenue from special plates totalednearly
$4.5 million. The Commissioner himself cites this revenue as apur-
pose of the program. While the mere fact that the program produces
revenue for Virginia is not conclusive as to its purpose, thenet 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 programimposes
a fee structure that suggests the program's revenue-producingaim.
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. S 46.2-725(B)(1). The supposed "honor"bestowed on
a group for whom a special license plate is authorized, in otherwords,
is conditioned on the willingness of 350 private persons to payextra
to obtain the plate expressing the "honor." If the GeneralAssembly

intends to speak, it is curious that it requires the guaranteedcollection
of a designated amount of money from private persons before its
"speech" is triggered.8 It is not the case, in otherwords, that the spe-
cial plate program only incidentally produces revenue for theCom-
monwealth. The very structure of the program ensures that only
special plate messages popular enough among private individualsto
produce a certain amount of revenue will be expressed.

Third, the special plate authorized for the SCV is availableonly to
members of the SCV who can provide "written evidence"that they
are members of the group. Va. Code Ann. S 46.2-746.22. This type
of restriction is common among the statutes authorizing specialplates
in Virginia. E.g., Va. Code Ann. S 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 recognizingthat
group); S 46.2-741 (Michie 1998) (requiring the same for survivorsof
the attack on Pearl Harbor); S 46.2-747.1 (Michie 1998) (requiringthe
same for members of the Gold Wing Road Riders Association). These
restrictions suggest that the special plates to which they applyare
intended by the General Assembly to allow the authorized recipients
to express their pride in membership in an organization whilefacili-
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 themas mem-
bers of the organization. Cf. Lewis v. Wilson, 253 F.3d 1077,1079
(8th Cir. 2001) (concluding that the purpose of any forum createdby
a vanity license plate program allowing individuals to selectthe com-
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8 It might be argued that the special plate program works byauthorizing
a variety of state-approved, if not state-created, messages andallowing
a private person to decide whether to select a plate expressinga particu-
lar one, and that it is therefore the equivalent of a programsubsidizing
the promulgation of government-chosen messages. Cf. Rust, 500U.S. at
193 (holding that the government may subsidize a program to express
selected views). This contention is unpersuasive, however, inlight of the
revenue produced by special plates and section 46.2-725's feestructure.
To obtain a special plate, the government requires a vehicle ownerto pay
a fee in excess of that required to obtain an ordinary Virginialicense
plate. It would be incongruous to term the government's providingthe
option of obtaining these plates, for an extra fee, a subsidylike that pro-
vided in Rust.

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binations of numbers and letters appearing on their plateswas "to give
vent to the personality, and reveal the character or views ofthe plate's
holder"), cert. denied, Fischer v. Lewis, 70 U.S.L.W. 3395(U.S. April
15, 2002) (No. 01-802).

Turning to the "editorial control" exercised by theCommonwealth
over the content of special plates in Virginia, the record revealsthat
little, if any, control ordinarily is exercised. The Commissionerargues
that his statutory discretion to approve or reject a given platedesign
demonstrates that the Commonwealth maintains control at all times
over the content of the special plates in question. See, e.g.,Va. Code
Ann. S 46.2-725(B)(3) (Michie 1998) (stating that "[a]llspecial
license plates issued pursuant to this article shall be of designspre-
scribed by the Commissioner . . . ."). The Commissioner,however,
has identified only one occasion on which this discretion wasexer-
cised, an instance in which the Commissioner rejected a platedesign
with the slogan "Union Yes." (Br. of Appellant at 45.)The rejection
was not challenged. Moreover, the information provided by theCom-
missioner, acting through a representative at the DMV, to sponsorsof
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 thatthe spon-
sor is to "provide DMV with electronic media art of the logoand leg-
end for the plate." (J.A. at 104.) Similarly, the "SpecialPlate Design
Criteria" sent to plate sponsors contains detailed instructionsfor
ensuring that the design submitted by the sponsor will conformto 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 at1142
(finding government speech in part because there was "noindication
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 "editorialcontrol"
over the content of these special plates. Indeed, the Commissioner
conceded at oral argument that the legislation authorizing theSCV's
special plate is the only legislation that the General Assemblyhas
passed containing a restriction on the design of the plate.

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, whichwould
seem not to suggest either government or private speech strongly,and
who bears "ultimate responsibility" for the speech isunclear. We note
that the court in Wells reasoned that ownership of the means ofcom-
munication was a valid consideration in determining whether itcon-
tained government speech, and the parties do not dispute herethat
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 thestate
motto "Live Free or Die" on their license plates). Accordingly,these
factors, like the others we have discussed, lead us to concludethat the
SCV's special plates constitute private speech.9

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
__________________________________________________________________________________

9 We note that our conclusion is consistent with the analysisemployed
by the Second and Eighth Circuits in cases arising in the similarcontext
of vanity plate programs that allow individuals to select specificcombi-
nations of letters and numbers that will appear on their otherwisestan-
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 "governmentregulation[ ] con-
cerning private individuals' speech on government-owned property"
(emphasis added)); Lewis, 253 F.3d at 1079 (analyzing a restrictionpro-
hibiting vanity plates that were "contrary to public policy"as a restriction
on private individuals' speech).

__________________________________________________________________________________

contend, and the district court found, that the logo restrictiondiscrimi-
nates on the basis of the viewpoint they would like to express,
through the logo incorporating the Confederate flag, on theirspecial
plate. Where the government is not expressing its own policy,either
directly or, as in Rust, through an intermediary, it presumptivelyvio-
lates the First Amendment when it discriminates on the basis ofviews
expressed by private speakers. See Ark. Educ. Television Comm'nv.
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 governmentmay
not regulate speech based on . . . the message it conveys."Rosenber-
ger, 515 U.S. at 828. Such viewpoint discrimination presumptivelyis
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).

The Supreme Court has adopted forum analysis as the means of
analyzing restrictions placed on private speech that occurs ongovern-
ment property or with government participation (financial or other-
wise) where the government is not expressing its own message.10See,
__________________________________________________________________________________

10 The Supreme Court's forum doctrine generally recognizesthree cate-
gories of fora that exist or arise on government property or wheregov-
ernment expends resources and creates them. Traditional publicfora
include streets, parks, and sidewalks -- places which, "bylong tradition
or by government fiat" have been "devoted to assemblyand debate."
Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37,45
(1983). These traditional public fora exist regardless of thegovernment'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 thenonpub-
lic forum, are created when the government grants access to propertyor
resources to private speakers. Id. at 679 (holding that the government
creates a speech forum when it makes access to government propertyor
funding available to a "certain class of speakers").A designated public

forum, whether limited or unlimited in scope, is one a statecreates "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 itwas
created . . . [by] reserving it for certain groups or for thediscussion of
certain topics." Rosenberger, 515 U.S. at 829. In a nonpublicforum, the
government "reserve[s] eligibility for access to the forumto a particular
class of speakers, whose members must then, as individuals, `obtainper-
mission' . . . to use it." Forbes, 523 U.S. at 679. Whilethe limitations
on the government's ability to regulate speech in these fora dependsin
part on the type of forum at issue, viewpoint discrimination ispresump-
tively impermissible in all fora for private speech. Rosenberger,515 U.S.
at 829-30.

__________________________________________________________________________________

e.g., Rosenberger, 515 U.S. at 829-30 (applying forum analysiswhere
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 evaluateFirst
Amendment rights on government owned property under a public
forum analysis"). The district court, applying forum analysisprinci-
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 thelogo
restriction is viewpoint-neutral. As we discuss below, we conclude
that the logo restriction is not viewpoint-neutral, renderingthe 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 bythe spe-
cial plate program. Instead, we next explain why the Commissioner's
argument that the logo restriction is viewpoint-neutral must fail.

In examining the Commissioner's argument that the logo restric-
tion is viewpoint-neutral, we begin with the language of the restric-
__________________________________________________________________________________

tion. The logo restriction directs that "[n]o logo oremblem of any
description shall be displayed or incorporated into the designof the
[SCV] license plates issued under this section." Va. CodeAnn.
S 46.2-746.22. Although the logo restriction itself makes no reference
to the Confederate flag, the Commissioner concedes that it wasthe
inclusion of the Confederate flag in the SCV's logo that led tothe
prohibition against the use of the logo on the SCV's special license
plate. (Br. of Appellant at 10 (conceding that the purpose ofthe logo
restriction is to "ensure that the battle flag does not appearon the spe-
cial license plate").) Having conceded that the logo restrictionis 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 (whichthe
Commissioner identifies as a category of "content" orsubject 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. 11 Cf. id. at829 ("When
the government targets not subject matter, but particular viewstaken
by speakers on a subject, the violation of the First Amendmentis all
the more blatant. Viewpoint discrimination is thus an egregiousform
of content discrimination."). Analysis of the basic FirstAmendment
principles that "provide the framework forbidding the stateto exercise
viewpoint discrimination," however, directs us to the considerations
that indicate such viewpoint-based discrimination here. Id. at829
(reviewing First Amendment cases stating basic principles following
from the precept that government may not regulate speech basedon
__________________________________________________________________________________

11 As the Ninth Circuit has noted, the "coherence of thedistinction
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 ofthe speech, and
the latter the specific positions taken on the matter, the levelat which
`subject matter' is defined can control whether discriminationis 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 discriminateamong
viewpoints about that subject matter.

__________________________________________________________________________________

its viewpoint or the message it conveys). For instance, "[i]nthe realm
of private speech or expression, government regulation may notfavor
one speaker over another." Id. at 828. Similarly, "[t]hegovernment
must abstain from regulating speech when the motivating ideologyor
the opinion or perspective of the speaker is the rationale forthe
restriction." Id. (citing Perry Educ. Ass'n v. Perry LocalEducators'
Ass'n, 460 U.S. 37, 46 (1983)). Thus, where an evaluation of agiven
restriction and the surrounding circumstances indicates that oneor
more speakers are favored over others, and further that the basisfor
the restriction is in fact the message the disfavored speakerseeks to
convey, the restriction violates the First Amendment. Moreover,
where restrictions or regulations of speech discriminate on thebasis
of the content of speech, there is an "inherent risk thatthe Govern-
ment seeks not to advance a legitimate regulatory goal, but tosup-
press unpopular ideas or information or manipulate the publicdebate
through coercion rather than persuasion . . ." -- in otherwords, 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 Confederateflag,
involves an inherent danger of viewpoint discrimination, a close
review of the context in which the restriction is imposed, aswell as
the effect of the restriction itself, is appropriate.

In analyzing the logo restriction's effect, we note first thatthe
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 symbolicacknowl-
edgment of pride in Southern heritage and ideals of independence."12
(Br. of Appellant at 40 (quotation and citation omitted)); seealso
American Legion Post 7 of Durham, N.C. v. Durham, 239 F.3d 601,
606 (4th Cir. 2001) (noting that "[f]lags, especially flagsof a political
sort, enjoy an honored position in the First Amendment hierarchy"
because they are "close[ ] to the core of political expressionprotected
by the First Amendment"). The logo restriction does not restrictthe
Confederate flag as such, but rather the Confederate flag as usedin
the SCV's logo. Va. Code Ann. S 46.2-746.22 ("no logo oremblem
__________________________________________________________________________________

12 A competing viewpoint of the Confederate flag is that itis "a symbol
of racial separation and oppression." United States v. Blanding,250 F.3d
860, 861 (4th Cir. 2001).

__________________________________________________________________________________

of any description shall be displayed or incorporated intothe design
of" SCV's special plates). Rather than prohibiting the Confederate
flag as subject matter, then, the logo restriction by its termsprohibits
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 speechof
only a single speaker in the forum. Cf. Arkansas Writers' Project,Inc.
v. Ragland, 481 U.S. 221, 227-29 (1987) (holding, where a salestax
was theoretically imposed on all magazines, but exemptions fromthe
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 Giebelv. Sylves-
ter, 244 F.3d 1182, 1188 (9th Cir. 2001) (concluding that theactions
of a professor at a state university in tearing down handbillsposted
on university bulletin boards publicizing a former colleague'sappear-
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 subjectof the restriction,
and thus that the SCV's speech is discriminated against becauseof 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 backdropfor
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 referenceto other
speech permitted in the forum); Lamb's Chapel, 508 U.S. at 393
(examining a restriction on religious uses of school facilitiesfor view-
point discrimination by reference to other speech permitted withinthe
forum). This inquiry is distinct from the question of which typeof
forum exists. See Cornelius, 473 U.S. at 797, 800-01 (noting that
proper definition of the scope of the relevant forum is necessaryto
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 beforeanaly-
sis of a restriction imposed on speech in that forum).

The relevant forum is defined by focusing on "the accesssought by
the speaker." Cornelius, 473 U.S. at 801. Here, the relevantforum is
Virginia's special plate program, consisting of the special plates
authorized and produced under the general rules established byVa.
Code Ann. S 46.2-725. It is to the special plate program thatthe SCV
seek "access" (here, access without restrictions ontheir speech within
the forum), and special plates authorized for other groups andorgani-
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 displaya dio-
rama in display case at O'Hare airport, that the airport's displaycases,
rather than the airport itself, constituted the relevant forum,because
it was to a display case that association sought access); Texasv.
Knights of the Ku Klux Klan, 58 F.3d 1075, 1078 (5th Cir. 1995)
(defining the forum in question, where the Ku Klux Klan soughtto
participate in an Adopt-A-Highway Program, as the program as a
whole rather than the State's highways or the particular signto which
participation would entitle the Klan).

That the Confederate flag as content is prohibited in thisforum, as
the Commissioner contends, is not borne out by the statute atissue,
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 onlyrestric-
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 platesautho-
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 thathave
distinct viewpoints in political or social debate. See, e.g.,Va. Code
Ann. S 46.2-746.10 (approving special plate for AFL-CIO supporters
without restriction); S 46.2-749.6 (approving special plate forsupport-
ers of the National Rifle Association without restriction).

The nature of the restricted speech, the lack of a generallyapplica-
ble content-based restriction,13 the breadth of the special platepro-
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 thathe
could rebut -- the presumption of unconstitutionality followingfrom
viewpoint discrimination against private speech by demonstratingthat
the viewpoint discrimination is "the least restrictive meansavailable"
to serve a "compelling governmental interest[ ]." AmericanLife
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 thoseprin-
ciples to the case at hand, we conclude that the logo restrictionin Va.
Code Ann. S 46.2-746.22 is an instance of viewpoint discrimination
that does not survive strict scrutiny review and accordingly isimpermis-
sible.14 The restriction, then, cannot stand. The proper remedyfor this
__________________________________________________________________________________

13 We note that we are not faced with a restriction generallyapplicable
to the design of special plates in Virginia. Thus, this case differsfrom 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 theappli-
cation of a vanity license plate regulation banning plates conveyingmes-
sages "offensive or confusing to the general public"to rescind license
plates bearing the letters "SHTHPNS" because the regulationwas a rea-
sonable, viewpoint-neutral restriction on speech in a nonpublicforum);
Lewis v. Wilson, 253 F.3d 1077, 1080-81 (8th Cir. 2001) (findinguncon-
stitutional a regulation banning vanity plates bearing messages"contrary
to public policy" because the regulation gave unbridled discretionto the
state official charged with enforcing it), cert. denied, Fischerv. 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 restrictionor regu-
lation would pass constitutional muster if applied to ban incorporationof
the SCV's logo into their special plate design.

14 Accordingly, we need not address the adequacy of the Commission-
er's proffered justifications under the standard applicable tocontent-

based but viewpoint-neutral restrictions in fora for privatespeech. Fur-
ther, the Commissioner has not advanced the argument that displayof the
Confederate flag on a private vehicle is equivalent to "fightingwords,"
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 inflictsinjury or tends to
incite immediate violence").

__________________________________________________________________________________

violation of the First Amendment's strictures, however, remainsto be
determined, and it is to that issue that we now turn.

Because we agree with the district court that the logo restrictionis
unconstitutional, we must determine whether the district courtprop-
erly severed the statute. The Commissioner argues that severingthe
statute was an improper incursion into the realm of legislativediscre-
tion. Moreover, if the statute was not severable, the Commissioner
claims, there was no legal basis for the district court's assertedexer-
cise of its "equitable power" and hence that portionof the district
court's ruling that compels the Commissioner's compliance withthe
non-restrictive portion of section 46.2-746.22 must likewise beinvali-
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 statestat-
ute); Environmental Technology Council v. Sierra Club, 98 F.3d774,
788 n.21 (4th Cir. 1996) (same). We review the district court'sdeter-
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, "inthe absence of
a severability clause, the test of severability is whether thelegislature
would be satisfied with what remains [of the statute] after theinvalid
part has been eliminated," an inquiry that makes the intentof the law-
makers controlling. City of Portsmouth v. Citizens Trust Company,
__________________________________________________________________________________

222 S.E.2d 532, 535 (Va. 1976) (internal quotation marks omitted).
Stated slightly differently, the inquiry enunciated by Virginia'shigh-
est court is whether the General Assembly has "manifestedan inten-
tion to deal with part of the subject matter covered, irrespectiveof 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 Assemblyhas
enacted a statutory provision dealing with severability of sectionsof
the Virginia Code. Section 1-17.1 of the Code provides that "thepro-
visions of all statutes are severable unless. . . it is apparentthat two
or more statutes or provisions must operate in accord with one
another." Va. Code Ann. S 1-17.1 (Michie 2001) (emphasesadded).
In other words, the Virginia legislature has stated clearly thatcourts
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. InJones
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 andthe 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 Cityof
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 effectof the
ordinance in fulfilling the purpose expressed'." Jones, 962F.2d at 311
(alterations in original) (quoting City of Portsmouth, 222 S.E.2dat
535). We went on to note our opinion that "the legislaturewould 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 aboutthe
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 inthe 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

"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. S 1-17.1. We see
no reason why the second sentence of S 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

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.15

VI.

For the foregoing reasons, we conclude that the district court prop-
erly held that the logo restriction in Va. Code Ann. S 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
__________________________________________________________________________________

15 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.