Minnesota apologizes for 'offensive' license plate; governor vows it won't happen again

|The Volokh Conspiracy |

According to a number of news outlets in Minnesota (see e.g. here), the state's Department of Public Safety has apologized for allowing a Minnesotan to receive a "personalized" license plate reading "FMUSLMS."

"This personalized license plate should never have been issued; it is offensive and distasteful," a statement from the Minnesota Department of Public Safety said. "The Department of Public Safety apologizes for this error."

And Minnesota Gov. Mark Dayton (D) expressed outrage that the plate was issued:

"I am appalled that this license plate was issued by the State of Minnesota. It is offensive, and the person who requested it should be ashamed. That prejudice has no place in Minnesota. I have instructed the Commissioner of Public Safety to retrieve this plate as soon as possible and re-review agency procedures to ensure it does not occur again."

Hmm. Looks like viewpoint-based and content-based discrimination to me, and I wonder whether it passes muster under the First Amendment.

Last term, in Walker v. Sons of Confederate Veterans, the Supreme Court rejected a First Amendment challenge to Texas's refusal to produce specialty plates featuring the Confederate flag and the SCV logo—but it did so expressly on the grounds that the specialty plates constitute "government speech," and the government is free, when it speaks, to choose which messages it wishes to convey, and which it wishes to avoid:

When government speaks, it is not barred by the Free Speech Clause from determining the content of what it says. That freedom in part reflects the fact that it is the democratic electoral process that first and foremost provides a check on government speech. Thus, government statements (and government actions and programs that take the form of speech) do not normally trigger the First Amendment rules designed to protect the marketplace of ideas. … In our view, the specialty license plates issued pursuant to Texas's statutory scheme convey government speech …"

It's a lot harder, however, to argue that the text of a personalized plate—which, unlike a "specialty plate," only appears on one person's license plate, and (fairly obviously) conveys not a state-sponsored message but the views of the license plate owner—is "government speech," and the court itself made it clear that its ruling did not extend to any claim that Texas had discriminated against the content of a personalized plate. ("Here we are concerned only with the … specialty license plates, not with [Texas's] personalization program."). Offensive speech is, of course, constitutionally protected, and if Minnesota allows people to obtain plates (7-character maximum) reading "JsusSvs," or "DylanFn," or "GoBlue," or "Buddhst," or "EatMeat," I wouldn't think it would be permitted to refuse a request to produce a plate just because it finds the expressive content "offensive."