Utah Government Considering Canceling DEPORTM Personalized License Plate

|The Volokh Conspiracy |

The Salt Lake Tribune (Erin Alberty) reports:

[T]he Utah Tax Commission is considering recalling the license plate after complaints this week on social media.

"We're not sure how it got through," said Tammy Kikuchi, spokeswoman for the commission, which oversees the Utah Division of Motor Vehicles. "We're really quite surprised." … [O]fficials are reviewing the plate for compliance with provisions in state law that forbid vanity plates that "may carry connotations offensive to good taste and decency or that may be misleading" and express "contempt, ridicule or superiority of a race, religion, deity, ethnic heritage or political affiliation."

"I don't know why it was approved in 2015," [Kikuchi] said, adding: "The current DMV director was not the director then."

I think canceling the plate would violate the First Amendment:

[1.] Vanity plate contents are private speech, not government speech. Though Walker v. Sons of Confederate Veterans held that license plate designs are government speech, and the government can generally pick and choose which ones are allowed, vanity plates convey the owner's own views. Courts are split on the matter, with a recent Maryland high court decision and a federal district court decision in Kentucky taking the view I articulate here, and an Indiana Supreme Court decision taking the opposite view. To quote the Maryland court's analysis:

[Walker v. Texas Div., Sons of Confederate Veterans (2015)], the U.S. Supreme Court determined that a Texas-issued specialty license plate displaying a Confederate flag constituted speech by the government, not speech by the Texas Division of the Sons of Confederate Veterans, the organization that sought the plate design…. The First Amendment protects, however, private speech on government property, with some limitations.

In the present case, … a message on a vanity plate … is private speech. Applying the Supreme Court's first analytical factor [from Walker], historical usage, although license plates in general function historically as government IDs for vehicles, vanity plates display additionally "a personalized message with intrinsic meaning (sometimes clear, sometimes abstruse) that is independent of mere identification and specific to the owner."  The unique, personalized messages communicated via vanity plates contrast with the generic, depersonalized speech conveyed by a specialty plate: "[m]any Maryland vehicles display identical specialty plates; only the registration numbers, which on a specialty plate have no intrinsic meaning and carry no message, will vary."

Additionally, private citizens, not the State of Maryland, create and submit prospective vanity plate messages. "So, historically, vehicle owners have used vanity plates to communicate their own personal messages and the State has not used vanity plates to communicate any message at all. Unlike the license plate slogans that States use 'to urge action, to promote tourism, and to tout local industries[,]' vanity plates are personal to the vehicle owner, and are perceived as such."

Turning to the factor of audience perception, "[t]he personal nature of a vanity plate message makes it unlikely that members of the public, upon seeing the vanity plate, will think the message comes from the State."  Unlike the specialty plates at issue in Walker, vanity plates bear unique, personalized, user-created messages that cannot be attributed reasonably to the government.

The fact that this kind of speech takes place on government property—a license plate—is not transformative in this context of private speech into government speech.  Indeed, the Supreme Court's public forum doctrine … exists only because of the need to analyze government restrictions of private speech that takes place on government property. Nor does the juxtaposition of private speech on government property transform the public perception of the speaker's identity….

Considering the third factor of the government speech analysis, … the [government's] statutory and regulatory authority to deny or rescind a vanity plate based on the content of its message does not rise to the level of "such tight control that the personalized messages become government speech."  Maryland does not exercise "direct control" over the "alphanumeric pattern" displayed on vanity plates in the same or similar way that Texas controlled specialty plates.  In Texas, the State had "sole control" over the content of a specialty plate. With respect to vanity plates in Maryland, "vehicle owners, not the State, create the proposed messages and apply for them."  Although the MVA retains discretion to deny a prospective vanity message, its authority to recall vanity plates issued erroneously suggests that the MVA's control over vanity plates does not rise to the rigorous level required to transmogrify its regulatory approach into government speech.

Contrarily, a recent ruling by the Indiana Supreme Court held that vanity plates constitute government speech because "[l]icense plates have long been used for government purposes" such as vehicle identification, their messages are perceived to be communicated on behalf of the State, and the State "'maintains direct control'" over the messages they display…. [W]e reject the [Indiana] court's reasoning because vanity plates represent more than an extension by degree of the government speech found on regular license plates and specialty plates. Vanity plates are, instead, fundamentally different in kind from the aforementioned plate formats. Maryland has not communicated historically to the public with vanity messages. Observers of vanity plates understand reasonably that the messages come from vehicle owners. Moreover, the MVA does not exercise control over vanity plate messages to the extent that Walker informs us Texas controlled specialty plates.

[2.] Under the First Amendment precedents, the vanity plate program is either a so-called "nonpublic forum" or a "limited public forum," so the government has some power to restrict speech there—but only in a viewpoint-neutral and reasonable way.

[3.] Matal v. Tam (the Slants case) held that excluding speech that "disparage[s] … or bring[s] … into contemp[t] or disrepute" any "persons, living or dead"—including speech perceived as racist—is viewpoint-based. Likewise, excluding speech that expresses "contempt, ridicule or superiority of a race, religion, deity, ethnic heritage or political affiliation" is viewpoint-based (even if one concludes that urging the deporting of illegal aliens is based on "race" or "ethnic heritage," rather than based on their being illegally present in the U.S.). And once we conclude that the personalized license plate program involves private speech rather than government speech (see item 1 above), such viewpoint discrimination is unconstitutional.

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  1. “so the government has some power to restrict speech there—but only in a viewpoint-based and reasonable way.”

    Did you mean NON-viewpoint based and reasonable way?

    1. Or viewpoint-neutral.

    2. Yes, sorry, mistyped — just corrected it; thanks for pointing it out.

  2. As with the wrongfully decided Texas case, will people falling all over themselves to use government to silence opinions they don’t like be happy when some states allow anti-abortion sentiments, but ban pro-abortion ones “because they are offensive”?

    Be careful what you wish for, lest you end up with another predictable case of “Oh no! The right has weaponized our ideas against us! Us!

    1. “what you wish for”?!?

      What does wishing have to do with what is legal and what is right? Are you implying that constitutionality decisions should be based on wishes?

    2. …you think Utah is of the left?

      1. How else to explain Sen. Mike Lee turning on Pres. Trump?

  3. Maybe someone (not a state actor) could add an “E” to the end of the plate ????

  4. “”may carry connotations offensive to good taste and decency or that may be misleading” and express “contempt, ridicule or superiority of a race, religion, deity, ethnic heritage or political affiliation.””

    The plate facially does none of these things.

    1. Brett, leaving the legal analysis to EV, I would say the plate displays contempt for, “them,” which in the context of modern culture and politics can be accurately understood (want to bet against it?) to be brown skinned immigrants from Latin America. Absent that, the plate becomes incomprehensible. The person displaying it could not reasonably have anticipated it would be interpreted in any other way. It is an advertisement for solidarity among anti-Latin racists. As we all understand here, that kind of speech, in the abstract, is constitutionally protected.

      But more generally, I have trouble buying the argument that government is not implicated. It manufactures and authorizes the plate, and records its contents. If you have to be a professor of constitutional law to understand why a hateful message must be allowed, most folks—not being professors of constitutional law—will conclude that a process so tightly under government control must issue forth government-approved messages. And more than that, messages better liked by government than other messages which government excludes.

      A corollary to all that is that anti-government types—including libertarians—sometimes oppose policies which might prove popular and enduring. They do that apparently for no better reason than to deny public approval to government, arguing inwardly that disapproval of government is a meritorious outcome which outweighs any benefits the policies might otherwise deliver. Likewise, the same people show approval for policies calculated to bring government into disrepute—also because disapproval of government is deemed a meritorious outcome.

      This assertion that government, while making and issuing license plates, must cooperate with, and be a party to, the private advertisement of hateful messages, surely will bring government into disrepute among many. Maybe that is why anti-government types like it.

      1. Seems to me that the message of the plate advocates deporting people who enter or remain in the U.S. illegally — hardly prohibited by the statutory language.

      2. Yes, obviously it advocates deporting “them. Equally obviously, it doesn’t identify “them”.

        How can you express “contempt, ridicule or superiority of a race, religion, deity, ethnic heritage or political affiliation” without identifying a race, religion, deity, ethnic heritage or political affiliation? Answer: You can’t.

        “anti-government types—including libertarians—sometimes oppose policies which might prove popular and enduring. They do that apparently for no better reason than to deny public approval to government”

        We do so because we believe individuals have rights that are to be respected even if a significant fraction of the public wants to violate them.

        1. Brett, which rights? Do they include a right not to be taxed to support government expenditures of which you do not approve?

          1. A consistent application of the NAP precludes any real world government at all, so obviously libertarians who aren’t anarchists have to be inconsistent. But any libertarian for whom it isn’t just a pose is going to be at least a minarchist.

            Once you’ve arrived at some excuse for violating the NAP under limited circumstances, I suppose that would guide a judgement as to which expenditures people could justifiably be coerced into supporting, and which they couldn’t. Personally, though having concluded anarchism is not a feasible social arrangement under current circumstances, I’ve never found any account of a theoretical basis for minarchism persuasive.

            So you’ll have to ask somebody else for a principled account there, while I can identify things that the government shouldn’t be doing, I can’t really give a principled account of why anything should be funded coercively, beyond that the alternative of “nothing” doesn’t seem to be workable.

        2. The plate obviously refers to those who can be deported legally. Someone can’t be deported based on their race, religion and the like – that’s well established and well known. The government can deport those who have no right to remain in the country.

          This plate includes calling for deporting of pasty white Canadians who are in the US illegally.

          The plate is simply calling for enforcement of the law and it’s hard to see how that can be a message that the government can/should censor.

          “brown skinned immigrants from Latin America” may be what you think of. However, in the tech field, it’s common to hear bitter low skill technical people suggesting removing those holding H1-B and here legally because those workers will work harder and are more competent than the complainer who dislikes competing.

          1. I’m pretty sure you’re reading into those tech field complaints as much as Lathrop is reading into that license plate. Because nobody is going to be complaining, “Those damn H1-B visa holders work harder than me, and are more competent!”

            They’re probably actually complaining about them being paid less, and being forced to train their replacements before being fired, just to avoid being fired a few months earlier.

      3. I would say the plate displays contempt for, “them,” which in the context of modern culture and politics can be accurately understood (want to bet against it?) to be brown skinned immigrants from Latin America. Absent that, the plate becomes incomprehensible.

        It’s your position that the only possible explanation for desiring vigorous enforcement of immigration law? No other possibility suggests itself to you?

        Well, I don’t agree with you, but the strategy seems wonderfully productive.

        “Any desire to increase spending on rape tests can be accurately understood as misandry.”

        “Any desire to increase banking regulation can be accurately understood as antisemitism.”

        This is fun. Insane, but fun.

      4. Stephen:

        If it’s so terrible to have people driving around with “offensive” personalized plates, there is a wonderful option available to the government- give up the revenue and don’t issue them. Indeed, personally, I hate these things and would just as soon the government did that.

        But once the government issues them, yes, you can’t police viewpoints. Seriously, the danger here is so obvious that I am shocked, despite the general disdain you express for free speech around here, that you don’t understand it.

        Simply put, if “DEPORTM” is out of bounds, is “CIRNOW” OK? Because those are two sides of the same issue. Can a Democratic DMV head disallow “VOTEGOP”, while a Republican DMV head nixes “VOTEDEM”?

        I know, it sucks that sometimes messages that offend you are constitutionally protected. But it’s really outrageous to me that you strut around here pretending you know all about the Constitution and what it means and how it supposedly set up such a wise and amazing government, but when it actually comes to enforcing one of its most important provisions, you are completely ignorant. It’s not a good look.

  5. The disctinction between vanity and specialty plates vis-a-vis misattributing speech to the government seems thin. People get specialty plates for the purpose of customizing a personal message/symbol to display to others.

    If i get a display of a skull and crossbones on my plate im not sure if anyone will connect this to the state of New Mexico. I think walker was wrongly decided.

    How do you square Walker with Wooley v Maynard? The government cant compel you from serving as a billboard for the state’s ideological messages but it can prohibit you from carrying disfavored ones.
    One plausible rationale for restriction of certain license plate messages is preventing other drivers from becoming distracted and/or enraged.

    But the prospect of distraction extends beyond potentially offensive displays (Confederate Flag) and to garish and otherwise interesting displays with abstruse meanings that cause fellow drivers to stare in an attempt to deduce meaning. So even assuming the distraction rationale is legit, cabining any restriction to offensive displays would be viewpoint discriminatory.

    1. Given that a skull and cross bones design is government speech under Walker, I think the difference between one person displaying a vanity plate versus a large number of people displaying a specialty plate is not a thin distinction as to whether there is government speech.

      I don’t see a conflict between Wooley and Walker. In both cases, specialty plates are simultaneously government and private speech, and neither party can compel the display of a message that the other party objects to.

      1. Nah, sorry, that the logo plates need a minimum of 30 doesn’t obviate the government is selling off the space for cold hard cash.

        Under this ruling, the government is selling government speech. It’s silly.

  6. When did quasi-religious progressive censors ascend to power in Utah?

    1. Utah has never been great at being put into one of the two partisan boxes.

      This appears to flummox your simplistic worldview.

      1. The story is that Utah Territory was Democrat from its formation up through the next half century, up until the 1890s or so. The Democrats back in DC only made half hearted attempts to procure statehood for the territory. After that half century, they went to the Republicans, who made a deal with them – the Mormons got their statehood, while the Republicans got eight Senate seats (UT, ID, NV, and, I believe, WY). Plus a ban on polygamy. Everyone was happy. I expect that it was the unionization of the casino industry, and its rapid growth, that ended up losing NV Senate seats to the Democrats.

        Much of the inter mountain west has long been fairly libertarian. Not the Mormons in UT though. There are significant communialism Or communitarian strands running through Mormon communities. Some of it is very commendable (such as preference for church food banks over Food Stamps, etc). Some maybe not so much. In any case, no one who has spent significant time living in Utah is probably the least bit surprised at this. They may be Republicans, but not Republicans like I have known in CO, AZ, NV, or now MT.

  7. Possible compromise: allow the license plate, but require that the letter “e” be added to the end of it.

    DEPORTME

  8. I think canceling the plate would violate the First Amendment

    I assume you mean that it would be unconstitutional to cancel this particular plate.

    If the State of Utah decided to simply cancel vanity plates altogether, and merely issue random, meaningless license plate numbers to everyone, that would be fine. IMO.

    1. Well, with the occasional unfortunate random combination of letters which might be construed as compelled speech by their recipients.

      1. Yes even random plates are quasi-random as they now filter unfortunate random combos.

  9. BTW – one of the nice things about living in MT is that you pay a $40 one time fee for customized plates, and never have to pay for them again. I have had to pay extra every year in the other states in which I had custom plates. And after 10 years, you can get Permanent plates that never need to be renewed. As a result, all of my vehicles have custom plates, that are sequentially numbered, for easy memorization.

  10. That’s a great license plate. I should get this.

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