The defendant argues that it is not necessary to apply the
SCV factors in this case because the State's “ownership” of the limited video lottery software is “inextricably bound with the legalization of video lottery machines.” (Def.'s Mem. in Opp. 6–7.) The defendant correctly points out that the factors applied in
SCV are neither exhaustive nor always applicable.
SCV, 288 F.3d at 619. The defendant fails to indicate, however, the significance of its ownership interest for assessing whether government speech or private speech is implicated. The state of Virginia owned the license plates at issue in
SCV, and ownership was not outcome determinative in that case.
Id. at 621. In fact, the Fourth Circuit applied the four-factor test regardless of who technically owned the license plate. Insofar as ownership was relevant in
SCV, it was ownership of the means of communication that was important.
Id. at 621 (“We note that the court in
Wells reasoned that ownership of the means of communication was a valid consideration in determining whether it contained government speech.”). Here, the limited video lottery is the subject of any communication, not the means. At some level, though, the defendant's argument, read generously, has appeal. The argument goes as follows: the State regulates, controls, owns, and operates the video lottery. It is the State's lottery; therefore any advertising of the lottery would be the State's speech, and the State should be able to decide whether to advertise or not. Indeed,
Rust has been characterized as standing for the principle that “when the government creates and manages its own program, it may determine the contents and limits of that program.”
Planned Parenthood of S. C., 361 F.3d at 796 (Michael, J., concurring).