Filed: October 7, 2002

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 01-1242

Sons of Confederate Veterans, 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 order on rehearing filed September 20,

2002, as follows:

On page 6, first full paragraph, line 5 -- the extra “the” is

deleted.

For the Court - By Direction

/s/ Patricia S. Connor 

 Clerk 
PUBLISHED 

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

4444444444444444444444444444444444444444444444447

SONS OF CONFEDERATE VETERANS,

INCORPORATED, a Tennessee

Corporation, by its Commander-inChief 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, No. 01-1242 

 Defendant-Appellant,

 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, 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.

4444444444444444444444444444444444444444444444448

Filed September 20, 2002 

____________________________________________________________

ORDER 

 Upon a request for a poll of the court on rehearing en banc, the

court denies rehearing. Judges Niemeyer, Michael, Motz, King, and
Gregory voted for rehearing en banc. Chief Judge Wilkinson and

Judges Widener, Wilkins, Luttig, Williams, and Traxler voted to deny

rehearing en banc. Chief Judge Wilkinson and Judge Williams wrote

separate opinions concurring in the denial of rehearing en banc. Judge

Luttig wrote a separate opinion respecting the denial of rehearing en

banc. Judge Niemeyer and Judge Gregory wrote separate opinions

dissenting from the denial of rehearing en banc.

FOR THE COURT

_______________

 Clerk

WILKINSON, Chief Judge, concurring in the denial of rehearing en

banc:

 The closeness of the court's vote (6 to 5) leads me to explain my

own. I concur in the denial of rehearing en banc because the legislative action here seems to me to violate basic First Amendment principles. The Virginia General Assembly has approved over one hundred

special plates, and the statute authorizing the SCV special plate is the

only one with design and logo restrictions. When a legislative majority singles out a minority viewpoint in such pointed fashion, free

speech values cannot help but be implicated. And it is as a free speech

case, not as a Confederate flag case, that this appeal must be resolved.

 It is important to keep the issue here in some perspective. The vast

majority of Virginians have no desire to display a Confederate logo

on their license plates. The vast majority of Virginians seek venues

other than a motor vehicle tag for the observance of their lineage, and

do not view the Confederate flag as symbolically celebrating their line

of descent. The vast majority of Virginians understand that one

motorist's proclamation of heritage is another's reminder of the

unspeakable cruelties of human bondage. The vast majority of Virginians recognize the sad paradox of Confederate history — namely, that

individual southerners, so many good and decent in themselves,

swore allegiance to a cause that thankfully was lost, and to practices

that no society should have sought to defend.

 But the First Amendment was not written for the vast majority of

Virginians. It belongs to a single minority of one. It is easy enough

2 
for us as judges to uphold expression with which we personally agree,

or speech we know will meet with general approbation. Yet pleasing

speech is not the kind that needs protection.

 Our Constitution safeguards contrarian speech for several reasons.

As the Civil Rights Movement demonstrates, yesterday's protest can

become tomorrow's law and wisdom. Other contrarian speech should

move popular majorities to reaffirm their own beliefs rather than suppress those of others. The reminders of history's most tragic errors

only deepen our commitment to the dignity of all citizens: The Constitution that houses the First Amendment also shelters the Fourteenth, an everlasting reminder that a nation betrothed to liberty and

equal justice under law must remain vigilant to realize both.

WILLIAMS, Circuit Judge, concurring in the denial of rehearing en

banc:

 There can be no doubt that the symbol desired by the SCV on their

special plate is a controversial and divisive one. But as Chief Judge

Wilkinson points out, this case must be resolved "as a free speech

case, not as a Confederate flag case." Ante at 2. In essence, the Commonwealth has opened its license plates to myriad private speakers

but wishes to restrict the message one of those speakers would

express based on its disagreement with the viewpoint contained

therein; this the First Amendment does not permit. I undertake herein

to respond briefly to several points raised in the separate opinions of

my colleagues respecting and dissenting from the denial of rehearing

en banc.

 My first dissenting colleague suggests that what is at issue here is

pure government speech. For the reasons stated in the panel opinion,

I disagree. I will respond here only to the suggestion that the Supreme

Court's opinion in Wooley v. Maynard, 430 U.S. 705 (1977), compels

the conclusion that government speech is at issue. As my first dissenting colleague notes, the Supreme Court in Wooley found the requirement that New Hampshire drivers display license plates bearing the

slogan "Live Free or Die" to be impermissible because it forced the

complaining driver "to be an instrument for fostering public adherence to an ideological point of view he finds unacceptable." Wooley,

430 U.S. at 715. My colleague thus concludes "that license plates are

3 
the State's speech." Post at 15. I believe this conclusion misapprehends Wooley's significance in this case. Wooley rested on the proposition "that the right of freedom of thought protected by the First

Amendment against state action includes both the right to speak freely

and the right to refrain from speaking at all." Wooley, 430 U.S. at 714.

The complainant's First Amendment interests were implicated in

Wooley because the message in question, displayed on his license

plate, would be attributed to him. That the message the state created

and required to be displayed on all plates — "Live Free or Die" —

was the state's message is not a necessary component of Wooley's

holding. One might reason, of course, as my first dissenting colleague

appears to, that if the driver is compelled to speak, the message must

be the state's, and therefore anything on a license plate, under any circumstances, is government speech. Nowhere in Wooley, however, did

the Court suggest this was the case; the only speech interest identified

in Wooley was that of the driver. More significantly, the facts in Wooley indicate that even if the Supreme Court concluded that the state

was the speaker, that conclusion would not control this case. In stark

contrast to the situation in Wooley, where the same state slogan was

required on nearly all license plates, the various mottos and logos on

most special plates in Virginia are created and selected by drivers

themselves.

 As to the concerns expressed in my second dissenting colleague's

opinion, I believe that they, too, are ultimately unpersuasive. My second dissenting colleague suggests that the the speech in question here

is not easily placed on either side of the "blurry and sometimes overlapping line between private and government speech," post at 17, and

that the test employed in the panel opinion for determining whether

the government is the speaker was applied in a manner that did not

adequately address the Commonwealth's interest in avoiding attribution of the logo's message to the Commonwealth.

 As to the first concern, I believe that Wooley is again instructive.

I note that my colleague identifies as unpersuasive the panel opinion's

conclusion "that the private citizen bears the`ultimate responsibility'

for the speech" on Virginia's special plates, suggesting that this factor

"may very well be a key to the case." Post at 17 n.2. The Supreme

Court in Wooley, however, apparently concluded that the message on

New Hampshire's plate would be attributed to the driver, a conclu4 
sion strongly indicated by the success of the complaining driver's

First Amendment claim. If the message or slogan on a license plate

is ultimately attributable to the state that issues the plate, as both of

my dissenting colleagues suggest, then the First Amendment claim in

Wooley ought to have foundered for failure to implicate individual

speech rights.

 Indeed, the proposition that the state is ultimately responsible for

the license plate message in question is weaker here than it was in

Wooley. In Wooley, the slogan in question was required on all noncommercial New Hampshire plates, a fact presumably apparent to

anyone driving in New Hampshire. 430 U.S. at 705. Individual drivers thus had no control over the content of their license plates. Here,

in contrast, numerous messages, crafted and selected by the drivers

themselves, appear on Virginia's special plates. Plainly, anyone viewing a license plate bearing a motto or logo the viewer knows to have

been selected by the driver or owner of the vehicle is more likely to

associate the message with that driver or owner than would be the

viewer of a state-mandated logo appearing on all noncommercial

plates across the state.*

 My colleague writing respecting the denial of rehearing en banc

suggests that the panel opinion and the various opinions concurring

in and dissenting from the denial of rehearing en banc "focus[ ] on the

license plate as a whole in their respective analyses." Post at 7. I do

not believe that either the panel opinion or this opinion suggests that

any part of the SCV special plate's design other than the motto and

logo implicates private speech interests. Further, whatever the merits

____________________________________________________________

 *My second dissenting colleague concludes, as I understand his opinion, that the government's interest in avoiding having a message that it

finds distasteful attributed to it justifies treating the logo restriction as a

time, place, and manner restriction. A time, place, and manner restriction, however, must be "justified without reference to the content of the

regulated speech," a test the logo restriction surely fails. See, e.g., Ward

v. Rock Against Racism, 491 U.S. 781, 791 (1989). The Commonwealth,

as the panel opinion notes, has offered no justification for the restriction

in this case unrelated to the content of the logo it prohibits. See Sons of

Confederate Veterans v. Commissioner of the Va. Dep't of Motor Vehicles, 288 F.3d 610, 626 & n.14 (4th Cir. 2002).

5 
of my colleague's suggestion that there is a government speech interest in (as distinct from a government interest in regulating) the content of the motto and logo appearing on a special plate, it seems to

me that we do not differ substantially in our views that the private

speech interests implicated by the motto and logo must prevail in this

circumstance over any countervailing interest the government may

have.

 In sum, I believe that the government-speech issue in this case was

correctly decided and that rehearing en banc was appropriately

denied. Neither party in this case was sufficiently concerned by the

narrowly written panel opinion, centered on the unique factual circumstances of the logo restriction and the special plate program,

to seek en banc rehearing, and the number of my colleagues who

would have been willing to rehear this case en banc does not constitute the majority required by Fed. R. App. Proc. 35(a) (stating that a

majority of judges in regular active service may order en banc

review). Moreover, through their separate opinions, my colleagues

have presented their views of the issues.

LUTTIG, Circuit Judge, respecting the denial of rehearing en banc:

 As have the other circuit courts that have addressed like issues, my

colleagues have struggled with this case because they have assumed,

in oversimplification, that all speech must be either that of a private

individual or that of the government, and that a speech event cannot

be both private and governmental at the same time. In their collective

defense, our court and our sister circuits have all so assumed because,

to this point, the Supreme Court has always held that speech is either

private or governmental, and it has never held that a message can be

both that of a private individual and that of the government. However,

the "government speech" doctrine is still in its formative stages, and,

as yet, it is neither extensively nor finely developed. And I believe

that it is as a consequence of this doctrinal underdevelopment that my

colleagues find themselves, at the same time, analytically unsatisfied

but insistent upon polar opposite conclusions with respect to what

seemingly should be a simple answer to a straightforward question.

 However, in the underdevelopment of the "government speech"

doctrine lies not only the source of the confusion, but also the simple

6 
answer — recognition that, although the doctrine may not have previously recognized such, speech in fact can be, at once, that of a private

individual and the government. Although the Supreme Court could

ultimately choose either to ignore or to refuse to recognize this

descriptive fact because of sheer practical considerations, I believe

that, with time, intellectual candor actually will force the Court

instead to fully recognize this fact doctrinally.

 When the Supreme Court is finally confronted with the case in

which this elaboration upon its "government speech" doctrine is compelled, I am convinced that our court in turn will, upon reflection,

conclude that at least the particular speech at issue in this case is neither exclusively that of the private individual nor exclusively that of

the government, but, rather, hybrid speech of both. Indeed, as I have

thought about the matter, I believe that the speech that appears on the

so-called "special" or "vanity" license plate could prove to be the

quintessential example of speech that is both private and governmental because the forum and the message are essentially inseparable, the

consequence being that it is difficult if not impossible to separate sufficiently what is indisputably the speech act by the private speaker

from what is equally indisputably the speech act by the government.

 While all of my colleagues have focused on the license plate as a

whole in their respective analyses, this aspect of their analyses is, too,

overly simplistic. It causes the one side of the debate to conclude,

unconvincingly, that the special plate is entirely private speech

(merely because it is a "special" plate), and it causes the other to conclude, no less unconvincingly, that there is no private speech at all

within the four corners of the license plate (because, and simply

because, the government owns and controls the plate).

 In truth, of course, when one focuses properly on the particular

speech in question here — only the background of the special license

plate in question, which comprises the words "Sons of Confederate

Veterans" and the confederate flag logo — it is (to borrow Judge Niemeyer's phrase in support of a quite different position from his) "impossible to avoid the conclusion" that not only the government, but

also the private individual who displays the license plate on his vehicle, communicates via this speech.

7 
 Even if it is only a relatively small feature of the overall identification package, the specially-authorized background is no less a feature

of the government's internal and external identification of the vehicle,

and therefore is government speech. And this is even putting aside the

facts that the government owns the license plate in perpetuity and

authorizes all special plates legislatively, and that there is always at

least some risk that the background message will be wrongly attributed to the government.

 But it is equally clear that the requested background is also (indeed,

it would appear even more so) the private speech of the individual

owner of the vehicle. When a special license plate is purchased, it is

really the private citizen who engages the government to publish his

message, not the government who engages the private individual to

publish its message, as in cases like Rust v. Sullivan, 500 U.S. 173

(1991), and Wooley v. Maynard, for example. Indeed "but for" the

private organization's and the private individual's action, the special

license plate would not even exist; the private organization must

request that a special plate be made and propose its design, and private individuals must request that they be issued such a plate and pay

for it over and above the cost exacted for a standard license plate. And

if the government has any nonpecuniary interest in the public identification of individual vehicles with particular private organizations, it

is minimal.

 It was doubtless out of recognition of these facts that the Supreme

Court as much as held in Wooley v. Maynard, 430 U.S. 705 (1977),

that even license plate speech that is compelled by the government

implicates private speech rights, as Judge Williams correctly observes

in dismissal of Judge Niemeyer's contrary inference that Wooley

stands for precisely the opposite proposition. A fortiori must it be the

case that speech placed on a license plate by the government for a fee

at the request of a private organization or individual is at a minimum

partly the private speech of that organization or individual.

 No one, upon careful consideration, would contend that, simply

because the government owns and controls the forum, all speech that

takes place in that forum is necessarily and exclusively government

speech. Such would mean that even speech by private individuals in

traditional public fora is government speech, which is obviously not

8 
the case. While I suppose it is arguable that where the government

totally funds private speakers to convey a government message, the

speech of those private individuals is necessarily government speech

(and the Supreme Court has so held), this is certainly not the case

where, as here, the government voluntarily opens to the public at

large, for the purpose of designated speech, property that the private

individual is not merely entitled to access, but actually required to display. If this were not self-evident, it should be beyond debate after

Wooley. And in fact, not even Judge Niemeyer, though he inconsistently concludes otherwise, can help but acknowledge that private, as

well as government, speech is implicated in a circumstance such as

this: "The fact that the licensee also speaks by choosing to display a

customized but authorized version of the license plate does not

change the fact that the license plate itself was the issue of the State

and therefore constitutes government speech." Post at 15-16 (Niemeyer, J., dissenting from denial of rehearing en banc).

 Of course, because the Supreme Court has yet to recognize that

speech can be both private and governmental at the same time, one

cannot be certain of the regulatory limitations that the Court will fashion once it limits the government speech doctrine to recognize that

some speech hitherto deemed to be exclusively that of the government

is, inescapably, also private speech. But without even attempting to

foretell those limitations here, I think it is fair to assume that, at least

where the government has voluntarily opened up for private expression property that the private individual is actually required by the

government to display publicly; the private speech component of the

particular communication is significant (whether or not it is significant in comparison to the government's like speech component in that

communication); and the government's interest in its speech component is less than compelling, the government will be forbidden from

engaging in viewpoint discrimination among the various private

speakers who avail themselves of the government's offer.

 It is on the twin understandings outlined above — namely, that the

speech at issue in this case is both private and governmental in character (and actually, I believe, more the former), and that at a minimum therefore the government may not engage in viewpoint

discrimination among those wishing to display the design of their

organization as the background for their license plates — that I do not

9 
believe that this case warrants further consideration by the full court,

at least in the absence of a petition for rehearing en banc by either

party to the litigation. For, given the view that I have stated herein

that the speech at issue is hybrid in nature, not exclusively private,

and the votes of those Members of our court who would rehear this

case en banc, it is unlikely that there is a majority of our court that

believes that the speech at issue in this case is purely private. Thus,

the conclusion reached by the panel on the threshold, and concededly

important, issue of whether private or government speech is at issue

does not appear (and certainly does not appear necessarily) to represent the final, considered judgment of the Circuit.

 In addition, if I am correct that, at the end of the day in this case,

the government is yet prohibited from engaging in viewpoint discrimination, then the panel will have ultimately applied the correct standard to the government's regulatory action, and I do not believe that

its conclusion after application of that standard to the specific facts

here is particularly worthy of full court review. This is so, especially

given that the panel's conclusion on this issue was narrow in scope,

limited to the single statute in question, and the imposed prohibition

therein, which in turn was limited to the single organization Sons of

Confederate Veterans. And, even still, the panel's conclusion rested

in large part on an explicit representation by the Commonwealth

Commissioner that the purpose of the statute was in fact to ban the

confederate flag from the special plate authorized for that particular

organization.

 This is not to say, it seems clear to me, that the panel decision is,

in either fact or effect, beyond further consideration. It is to say,

rather, that should there arise a case where license plate speech is

again implicated, and where either the government's speech component is at least greater if not compelling (for example where at issue

are the actual identifying numbers and letters that appear on all

license plates), or where there is reason to believe that the government

has, in this limited public or nonpublic forum engaged in no more

than content discrimination in furtherance of and consistent with the

purposes of the forum (or at least credibly argues such), there will be

ample opportunity for the full court to revisit the important issues

resolved by the panel.

10 
NIEMEYER, Circuit Judge, dissenting from the denial of rehearing

en banc:

 This case presents the important First Amendment issue of whether

a State may regulate and control the content included on state-issued

and state-owned license plates. Whether license-plate content is government speech has never been decided by our court, and the appropriate analysis is not clearly indicated by any Supreme Court

precedent. Moreover, the two other circuits that have reviewed license

plate speech have taken different analytical courses. Compare Perry

v. McDonald, 280 F.3d 159 (2d Cir. 2001) (holding that State owned

license plate is a nonpublic forum entitling the State to deny a license

plate with "SHTHPNS" (referring to "Shit Happens") on it as a reasonable and viewpoint-neutral regulation), with Lewis v. Wilson, 253

F.3d 1077 (8th Cir. 2001) (concluding that whether the forum is nonpublic or public is irrelevant because the State, in rejecting "ARYAN

1," operated under an unconstitutionally overbroad regulation that

violated the First Amendment). Coupled with the virtually even split

within our court (6-5) to deny rehearing en banc it appears clear that

this case presents an unsettled issue of First Amendment law that

should have been heard en banc.

 The specific question presented is whether the Commonwealth of

Virginia can refuse to include a Confederate Flag logo on the face of

a special license plate, authorized for issuance to members of the Sons

of Confederate Veterans. Virginia authorized the issuance of the special license plates commemorating that organization but denied the

organization's request to include the Confederate Flag logo as part of

the plate's design. The Confederate Flag, while appreciated by an

organization commemorating the bravery of Civil War veterans as a

symbol of honor, is at the same time a racially hostile symbol to a

large segment of Virginia's citizens insofar as the Civil War included

a fight to preserve slavery. Nevertheless, the district court concluded

that Virginia's denial of the Sons of Confederate Veterans' request to

include the Confederate Flag logo was a restriction on speech that

violated the First Amendment and accordingly struck down that portion of Virginia's law, essentially mandating that Virginia include the

logo on the special plates. Because this issue is important not only to

Virginia but also to the right of all States to regulate the issuance and

11 
content of their license plates, I submit it is worthy of our en banc

review.

 No one takes issue with the fact that Virginia has an important right

and responsibility to regulate motor vehicles and that essential to this

regulatory effort is the issuance of license plates evidencing the registration of the vehicle and its compliance with safety and insurance

requirements. See generally Va. Code Ann. §§ 46.2-701; -707; -708;

-709; -712. Because license plates serve an essential function for the

public health, safety, and welfare, Virginia retains an inherent and

important right to control the plates and their content.

 In order to retain control over this regulatory scheme, Virginia

manufactures its license plates, issues them to licensees in accordance

with strict regulations and requirements for their display, and reserves

the continuous right to revoke or recall them. See id. §§ 46.2-709;

-712; -713; -715; -716. Furthermore, Virginia expressly retains title

to all State-issued license plates, asserting that they may be repossessed by the Department of Motor Vehicles at any time as provided

by statute. Id. §§ 46.2-713; -709. And consistent with this control,

Virginia directs that no person may alter the content of a license plate

issued by the State or display a license plate that has been altered. See

id. § 46.2-722.

 In addition to the role license plates serve in protecting public

health, safety, and welfare, the issuance of license plates produces

revenue that is used to pay for the administration of automobile registration and to support the uninsured motorist fund. See id. § 46.2-710.

To increase those revenues (and to honor certain organizations), the

State permits the Department of Motor Vehicles to issue customized

license plates and special license plates identifying specific groups,

ifsuch plates are authorized by the legislature. See id. §§ 46.2-725;

-726.

 One of the special plates authorized by the Virginia legislature is

for members of the Sons of Confederate Veterans. Id. § 46.2-746.22.

The authorizing statute provides:

On receipt of an application therefor and written evidence

that the applicant is a member of the Sons of Confederate

12 
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.

Id. The text of this provision thus authorizes a special license plate

honoring the Sons of Confederate Veterans, but indicates that the

plate may not display the Confederate Flag logo, or any other logo for

that matter.

 The State may rationally have concluded that, despite the perception of the Confederate Flag by some as an emblem of honor, to issue

a license plate with the Confederate Flag logo on it would distress

African Americans and many others in the State. The State, however,

has not taken a position on this controversial symbol; rather, it has

removed itself from the fray, simply refusing to authorize the Confederate Flag logo on license plates issued by it. In doing so, of course,

Virginia has not prohibited any citizen from displaying the Confederate Flag logo on his or her vehicle. Rather, the State has only indicated that the Confederate Flag logo should not be included on a

license plate issued and owned by the state and bearing the name

"VIRGINIA" on the top. The State's decision mirrors a previous case

in which Virginia denied an applicant the right to include the phrase

"UNION YES" on its license plate.

 I respectfully submit that because Virginia owns the license plates

it issues and rightfully controls what appears on them, it can, as part

of its control, designate their content as its own speech. My position

is consistent with the "well settled [principle] that the government

need not permit all forms of speech on property that it owns and controls." International Soc'y for Krishna Consciousness, Inc. v. Lee, 505

U.S. 672, 678 (1992).

 As the panel opinion in this case concedes, "It is well established

that `the government can speak for itself.'" Sons of Confederate Veterans, Inc. v. Comm'r of the Va. Dep't of Motor Vehicles, 288 F.3d

610, 616 (4th Cir. 2002) (quoting Bd. of Regents of Univ. of Wis. Sys.

v. Southworth, 529 U.S. 217, 229 (2000)). And this "authority to

`speak' necessarily carries with it the authority to select from among

13 
various viewpoints those that the government will express as its own."

Id. at 617 (citing Rust v. Sullivan, 500 U.S. 173, 194 (1991)). But the

panel reached the remarkable conclusion that the content on license

plates owned and controlled by the State and bearing the State's name

is not the State's speech. I respectfully disagree. The State has manifested its complete control over license plates, even dictating modifications, alterations, and special language or numbers that it will

accept. And with the name "VIRGINIA" at the top of the license

plates, any message conveyed by the plates' content is easily connected to the State. As such, I would conclude that the content of the

license plates is government speech and that the State of Virginia did

not run afoul of the First Amendment by rejecting a request from an

applicant to authorize a license plate displaying a Confederate Flag

logo.

 The Supreme Court has recognized that the government may limit

speech when the speech is that of the government or when the government uses private speakers to transmit its messages. This issue has

been addressed most directly in cases where the Court allowed the

government to restrict the speech of private individuals because those

individuals were essentially speaking for the government as participants in federally funded programs. See Nat'l Endowment for the Arts

v. Finley, 524 U.S. 569, 587-88 (1998) (upholding statutory criteria

used to determine what artists were eligible for federal funds distributed by the National Endowment for the Arts and noting that "the

Government may allocate competitive funding according to criteria

that would be impermissible were direct regulation of speech or a

criminal penalty at stake"); Rust v. Sullivan, 500 U.S. 173, 193 (1991)

(upholding regulations that prohibited Title IV projects from engaging

in abortion counseling, referral, or activities advocation abortion as in

method of family planning because "[t]he Government can, without

violating the Constitution, selectively fund a program to encourage

certain activities it believes to be in the public interest, without at the

same time funding an alternative program which seeks to deal with

the problem in another way"); see also Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 542 (2001) (striking down restrictions placed on

funding to Legal Services Corporation ("LSC") that prohibited recipients from engaging in representation involving challenges to the

validity of existing welfare laws because "the lawyer [receiving LSC

funds] is not the government's speaker," and thus "the LSC program

14 
was designed to facilitate private speech, not to promote a governmental message"). The Supreme Court has recognized that these cases

stand for the general principle that the government is free to control

the content of its own speech. See Rosenberger v. Rectors & Visitors

of Univ. of Va., 515 U.S. 819, 833 (1995) (noting that the Court has

"permitted the government to regulate the content of what is or is not

expressed when it is the speaker or when it enlists private entities to

convey its own message").

 By force of this principle, which authorizes the government to regulate even the speech of others who speak on behalf of the government, a State that owns and controls its license plates must be

authorized to regulate the content of speech on them. Even though the

applicant may request certain configurations of numbers and letters

on license plates, the State retains the right to approve the license

plates in accordance with its own preferences. At bottom, Virginia's

licensing regulation does not abridge anyone's speech. Those who

wish to display the Confederate Flag logo, even on their motor vehicles, remain free to do so. They are merely deprived of the right to

demand that the Commonwealth of Virginia endorse their message by

issuing license plates containing that logo.

 The only license plate case to reach the Supreme Court seems to

embrace the notion that license plates are the State's speech. See

Wooley v. Maynard, 430 U.S. 705 (1977) (holding that requiring a

licensee to display the New Hampshire State slogan "Live Free or

Die" was compelled speech in violation of the First Amendment). In

Wooley, the Court acknowledged, albeit in concluding that license

plate matters were compelled speech, that what appeared on license

plates was the State's message, id. at 715, and that the licensee was

being required to act as a "courier for such message," id. at 717.

 I respectfully submit that it is impossible to avoid the conclusion

that the Commonwealth of Virginia, by manufacturing license plates,

placing its name at the top of those plates, and retaining ownership

of them, is the speaker of any message contained on those plates, even

though the message may have been adopted by the State pursuant to

an application submitted by a licensee. The fact that the licensee also

speaks by choosing to display a customized but authorized version of

the license plate does not change the fact that the license plate itself

15 
was the issue of the State and therefore constitutes government

speech.

 Because I believe we miss an important opportunity to air this issue

before the entire court and to provide the Supreme Court with a reasoned discussion of the issue, I dissent from our refusal to rehear this

case en banc.

GREGORY, Circuit Judge, dissenting from the denial of rehearing en

banc:

 I write, not to suggest that the ultimate result of the panel's decision would not be reached on full review, but to put forth my view

that the panel did not fully and adequately analyze the "government

speech" aspect of this case. What is, and what is not, "government

speech" is a nebulous concept, to say the least. Indeed, as the panel

recognized, "[n]o 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." Sons

of Confederate Veterans, Inc. v. Comm'r of the Virginia DMV, 288

F.3d 610, 618 (4th Cir. 2002).1

 The panel utilized a four-factor test,

borrowed from our sister circuits, which may well be a good starting

point in tackling this difficult issue. However, I have two fundamental

problems with the panel's analysis.

 First, even assuming the test is the correct and only standard by

which we are to decide this issue, the panel's application of the test

is incomplete at best. The opinion, in almost cursory fashion, finds

each factor to weigh in favor of private speech. With these findings,

I respectfully disagree.2

 I also believe there is more to be said about

____________________________________________________________

 1 I must note that I do not necessarily agree with the panel's implication

in this statement that the government can always engage in viewpoint

discrimination when it is the speaker. It may be that "the values underlying viewpoint neutrality should in some circumstances limit the government's ability to skew the debate and suppress disfavored ideas or

information." Marjorie Heins, Viewpoint Discrimination, 24 Hastings

Const. L.Q. 99, 159 (1996).

 2 For example, I am utterly unconvinced that the private citizen bears

the "ultimate responsibility" for the speech in this case. The panel gave

16 
the test, including how the factors relate to each other, and the relative

weight to be given each factor.

 Second, though I recognize the utility of the four-factor test, I submit that the test may not be sufficiently nuanced to resolve the underlying issue here. Whether or not an expressive event has a component

attributable to the government is not nearly as black and white as the

test would suggest. This case is a difficult one, not simply because it

involves the Confederate flag, but because license plate programs like

the one implemented here really have elements of both private and

government speech.3

 The opinion, in my view, fails to recognize the blurry and sometimes overlapping line between private and government speech. I

would have hoped, if rehearing were granted, that we would consider

the government's interest in avoiding "speech by attribution;" that is,

the government's right not to be compelled to speak by private citizens.4

"Speech by attribution," a largely unexplored concept of First Amendment jurisprudence, demonstrates the tricky interplay and relationship

between the concepts of private and government speech.

 For even if the display of the Confederate flag is not considered

"pure" government speech, that there will be a perception of government endorsement of the Confederate flag is undeniable. Though the

panel disagrees, the display of the Confederate flag will be attributed

to Virginia. In order to avoid any confusion about Virginia's official

position regarding its display, the Confederate flag has essentially

been "zoned off" state-issued license plates. In other words, the state

has enacted a time, place, and manner restriction, that is designed to

deal with a negative externality of what otherwise may be protected

____________________________________________________________

very short shrift to this factor—the factor I think may very well be a key

to the case. The panel opinion simply states, in what amounts to little

more than ipse dixit, that the government does not bear the ultimate

responsibility for the speech.

 3 This is particularly true with respect to the Confederate flag, which

conveys a historically "governmental" message.

 4 The Commonwealth is in a position very similar to that of objecting

drivers in Wooley v. Maynard, 430 U.S. 705 (1977).

17 
symbolic speech. Renton v. Playtime Theatres, Inc., 475 U.S. 41, 45-

49 (1986); see Young v. American Mini Theatres, Inc., 427 U.S. 50,

82 n.4 (1976) (Powell, J., concurring) ("If [the city] had been concerned with restricting the message purveyed by adult theaters, it

would have tried to close them or restrict their number rather than circumscribe their choice as to location."). The most plausible explanation for the statute is that it was aimed at this problem of "speech by

attribution." Cf. Boy Scouts of America v. Dale, 530 U.S. 640, 655-56

(2000) (recognizing private organization's interest in not communicating message of individual member that is incompatible with organization's message). I believe this was the predominate concern that

motivated its enactment, not the content of SCV's message, or their

particular viewpoint. Renton, 474 U.S. at 48. Laws of this sort are

typically reviewed under the intermediate scrutiny standard. See Los

Angeles v. Alameda Books, Inc., ___ U.S. ___, 122 S. Ct. 1728, 1733-

34 (2002) (plurality opinion); Renton, 475 U.S. at 50.

 It is at least arguable, and I think quite likely, that this law would

survive intermediate scrutiny. As already stated, the ban on the Confederate flag is designed to serve the substantial government interest

of disassociating the Commonwealth from the Confederate flag. And

reasonable alternative avenues of communication remain available.

The only place the flag cannot be displayed is on the state-owned,

state-issued license plate. Moreover, the SCV can still have a license

plate, but without the flag. The SCV is therefore able to communicate

the message that the license plate provision was originally meant to

enable—that of membership in a particular organization. Thus, the

statute is more than reasonable; it is as narrowly tailored as it could

possibly be.

 The issues presented here are important ones, unresolved by precedent, and, in my view, worthy of en banc review. Five members of

this Court have voted for rehearing en banc. This Court should take

pause and avail itself of its collective wisdom before striking down

a statute of the Commonwealth of Virginia that, in my view, makes

a rational attempt to balance government and private interests. This

Nation has yet to heal from the deep wounds left by the Civil War.

Ghosts from that terrible war and the issues of slavery still haunt

America's public institutions. Somehow we, as Americans, must transcend this divide and find a way to "bind up the Nation's wounds."

18 
Abraham Lincoln, Second Inaugural Address (March 4, 1865), in The

Living Lincoln 640 (Paul M. Angle & Earl S. Miers eds., Barnes &

Noble Books 1992). Perhaps the legislature, duly elected by the people of Virginia, got it right. Enacting a statute that allowed members

of the SCV to display their heritage in a proud and positive manner,

without the Commonwealth of Virginia being perceived as promoting

a symbol that has and continues to be the source of so much pain, was

truly a step toward healing our Nation. Perhaps it would give many

Virginians an opportunity to see the issues in a different light and

begin to appreciate the SCV's celebration of heritage, without seeing

"stars" or peering through "bars."

19