August 21, 2019

Tenth Circuit: Plaintiff’s Complaint Stated a First Amendment Compelled Speech Claim Concerning Image on Oklahoma License Plate

The Tenth Circuit Court of Appeals published its opinion in Cressman v. Thompson on Wenesday, June 12, 2013.

In August 2008, Keith Cressman learned that the State of Oklahoma had redesigned its vehicle license plate. The plate included an image depicting a sculpture of a Native American shooting an arrow toward the sky. Mr. Cressman discerned that it depicted and communicated Native American religious beliefs in contradiction to his own Christian religious beliefs.

To avoid displaying the image, Mr. Cressman purchased a specialty license plate, which cost more than the standard plate and had a $35 renewal fee. He then purchased a cheaper specialty license plate, which cost more than the standard plate, plus $16.50 for renewal. Eventually, he decided he no longer wanted to pay additional fees for a specialty license plate. Instead, he wanted to cover up the image. However, covering up the image is illegal under Oklahoma law.

Mr. Cressman sued several state officials for violation of his civil rights under 42 U.S.C. § 1983. Concluding that he failed to state a claim upon which relief could be granted, the district court dismissed his complaint. Mr. Cressman appealed.

Two issues were before the Tenth Circuit on appeal. First, the Defendants asserted that Mr. Cressman lacked Article III standing to sue them in their official capacities. Second, Mr. Cressman argued that the district court erred in dismissing his complaint for failure to state a First Amendment compelled speech claim

A. Article III Standing  

“When evaluating a plaintiff’s standing at [the motion to dismiss] stage, both the trial and reviewing courts must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party.” Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 1089 (10th Cir. 2006). Mr. Cressman’s “appeal cannot proceed on the merits in the absence of . . . [a] case or controversy” under Article III of the U.S. Constitution. Habecker v. Town of Estes Park, Colo., 518 F.3d 1217, 1223 (10th Cir. 2008). “To establish Article III standing, a plaintiff must establish (1) that he or she has ‘suffered an injury in fact;’ (2) that the injury is ‘fairly traceable to the challenged action of the defendant;’ and, (3) that it is ‘likely’ that ‘the injury will be redressed by a favorable decision.’” Awad v. Ziriax, 670 F.3d 1111, 1120 (10th Cir. 2012).

1. Injury in Fact

“First, the plaintiff must have suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). The credible threat of prosecution if Mr. Cressman covered up the license plate was sufficient to support an injury in fact. See Ward v. Utah, 321 F.3d 1263, 1267 (10th Cir. 2003.

2. Causation

Mr. Cressman had show there was “a causal connection between the injury and the conduct complained of—the injury had to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court.” Lujan, 504 U.S. at 560.  At oral argument, counsel for the Defendants conceded that all Defendants except for Ms. Allen had enforcement authority for the statute at issue. Accordingly, the Tenth Circuit concluded that Mr. Cressman showed causation as to every Defendant except for one, Ms. Allen.

3. Redressability

Finally, “it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Lujan, 504 U.S. at 561. Mr. Cressman sought forms of relief that all Defendants except Ms. Allen could provide. Accordingly, he demonstrated redressability.

In sum, Mr. Cressman demonstrated he had Article III standing to sue all Defendants in their official capacities, except for Ms. Allen.

B. First Amendment Compelled Speech Claim

The main issue on appeal was whether the district court erred in dismissing Mr. Cressman’s First Amendment compelled speech claim under Fed. R. Civ. P. 12(b)(6).

1. Legal Background

“The First Amendment, as applied to state and local governments through the Fourteenth Amendment, provides that state actors ‘shall make no law . . . abridging the freedom of speech.’” Hawkins v. City & Cnty. of Denver, 170 F.3d 1281, 1286 (10th Cir. 1999) (quoting U.S. Const. amend. I). This protection is multifaceted. “Just as the First Amendment may prevent the government from prohibiting speech, [it] may prevent the government from compelling individuals to express certain views.” United States v. United Foods, Inc., 533 U.S. 405, 410 (2001). Thus, “one important manifestation of the principle of free speech is that one who chooses to speak may also decide what not to say.” Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 573 (1995).

The issue was whether the license plate image was speech that qualified for protection under the First Amendment compelled speech doctrine. This issue included two questions. First, did displaying the license plate image constitute symbolic speech that qualified for First Amendment protection? Second, if the answer to the first question is yes, did requiring Mr. Cressman to display the image on the license plate affixed to his personal vehicles violate his First Amendment rights under the compelled speech doctrine?

a. Symbolic Speech

“The First Amendment literally forbids the abridgment only of ‘speech,’” but the Supreme Court has “long recognized that its protection does not end at the spoken or written word.” Texas v. Johnson, 491 U.S. 397, 404 (1989). The First Amendment protects certain expressive conduct. As part of the inquiry regarding what symbolic display is protected, the Court considered two relevant factors in Spence v. Washington, 418 U.S. 405 (1974): (1) an intent to convey a particularized message, and (2) a great likelihood that the message would be understood by those who viewed the symbolic act or display.

b. Compelled Speech

The compelled speech doctrine has its roots in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943). Over three decades later, the Court revisited Barnette in Wooley v. Maynard, 430 U.S. 705 (1977). Wooley concerned the constitutionality of New Hampshire’s requirement that noncommercial vehicles display license plates featuring the state motto, “Live Free or Die.” The plaintiffs were Jehovah’s Witnesses who wished not to display the motto because it was repugnant to their moral, religious, and political beliefs. Requiring the plaintiffs to use their personal property as a “mobile billboard for the State’s ideological message or suffer a [criminal] penalty” implicated First Amendment protections and could be justified only by a “sufficiently compelling” state interest. Id. at 715-16. The Court determined that New Hampshire’s interest in requiring drivers to display the state motto was not sufficiently compelling.

2. Sufficiency of Mr. Cressman’s Complaint

At the motion-to-dismiss stage, “[w]e must accept all the well-pleaded allegations of the complaint as true and must construe them in the light most favorable to the plaintiff.”Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007).

a. Mr. Cressman Alleges the License Plate Image is Symbolic Speech

Mr. Cressman’s complaint alleged that displaying the license plate image conveyed a particularized message that others would likely understand. The license plate image conveyed a message that promoted “pantheism, panentheism, polytheism, and/or animism,” to which he objected on religious grounds. Accepting these factual allegations as true, the Tenth Circuit concluded that Mr. Cressman alleged that displaying the image conveyed a particularized message that viewers likely would understand.

b. Mr. Cressman Has Plausibly Stated a Compelled Speech Claim

As required by Wooley, Mr. Cressman alleged that the license plate image was based on a “Sacred Rain Arrow” sculpture and conveyed a religious message that conflicted with his beliefs. His allegations were sufficient to show an ideological message.

In sum, Mr. Cressman plausibly alleged that the image on the Oklahoma license plate conveyed a particularized message that others would likely understand and therefore constituted symbolic speech that qualified for First Amendment protection. In addition, he plausibly alleged that he was compelled to speak because the image conveyed a religious/ideological message, covering up the image posed a threat of prosecution, and his only alternative to displaying the image was to pay additional fees for specialty license plates that did not contain the image. The allegations in his complaint therefore plausibly alleged a compelled speech claim under Wooley.

3. Government Speech

The Defendants argued the Oklahoma license plate image was government speech that did not trigger First Amendment scrutiny. See Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 467 (2009). However, the Defendants did not show, nor did the Tenth Circuit uncover, Supreme Court government speech decisions that have overruled or limited Wooley.


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