Restrictions on Personalized License Plates "Offensive to Good Taste and Decency" Likely Unconstitutional

A federal court in California has allowed a First Amendment challenge to go forward, and the reasoning suggests that the plaintiff will eventually win.

|The Volokh Conspiracy |

Today's decision by Judge Jon S. Tigar in Ogilvie v. Gordon (N.D. Cal.) concludes that the personalized license plates (unlike license plate background designs) are private speech, not government speech:

Walker v. Sons of Confederate Veterans [which held that license plate designs were government speech -EV] explicitly did not consider whether the alphanumeric combinations approved via Texas's personalization program were government speech. Of the four courts that, to the Court's knowledge, have attempted to answer this question since, three have concluded that personalized license plate numbers are private speech [citing two district court cases and] Mitchell v. Md. Motor Vehicle Admin. (Md. 2016); but see Comm'r of Ind. Bureau of Motor Vehicles v. Vawter (Ind. 2015) (holding that personalized license plate numbers are government speech). This Court agrees with these courts' conclusion.

First, the State has not historically used the alphanumeric combinations on license plates to communicate messages to the public. Although California may have "historically relied upon registration numbers displayed on license plates to convey a vehicle's status as validly registered and its specific identity," displaying information is not the equivalent of sending messages. License plate numbers "do not express a government-approved message in the same way as specialty plate designs," which states have used "to urge action, to promote tourism, and to tout local industries." …

Second, "it strains believability to argue that viewers perceive the government as speaking through personalized vanity plates." Although Californians may understand that personalized plates are "approved, manufactured, and issued by the State, and interpret [them] as conveying information on behalf of the State," it does not follow that Californians believe that the State is using the plates to send a message. Does the State seriously argue that someone viewing the license plate "KNG KOBE," for example, would infer that the California government was declaring Kobe Bryant the king of basketball, or of California, or of something else? Or that California believes that its coastline belongs to the holder of the vanity license plate reading "MY COAST"? …

This conclusion is supported by "the sheer number of personalized Environmental License Plates" on California's roads. As the Supreme Court remarked in holding that registering a trademark does not transform it into government speech, "[i]f the federal registration of a trademark makes the mark government speech, the Federal Government is babbling prodigiously and incoherently. It is saying many unseemly things. It is expressing contradictory views. It is unashamedly endorsing a vast array of commercial products and services." Matal v. Tam (2017)…. Rather, "common sense dictates that the public attributes any message on an Environmental License Plate to the driver."

As for the third factor, the California DMV at first glance appears to exercise a degree of control over Environmental License Plates similar to the control that the Texas DMV Board exercised over the specialty designs in Walker…. Plaintiffs allege that the DMV actively exercises final approval authority over proposed Environmental License Plates by denying more than 30,000 applications per year. But Walker based its control analysis on Pleasant Grove City v. Summum, which evaluated a municipality's decision to erect certain donated statues, but not others, in a public park. Because "the City ha[d] selected those monuments that it want[ed] to display for the purpose of presenting the image of the City that it wishe[d] to project to all who frequent[ed] the Park," the Court found that it had "'effectively controlled' the messages sent by the monuments in the Park." In applying Summum to Texas's specialty license plates, the Court found a similar degree of control because the Board's "final approval authority allow[ed] Texas to choose how to present itself and its constituency." As discussed above, however, California's personalized license plates do not send any message on behalf of the State and thus do not present an "image" of the State or its constituency….

Once the plate program is found to be private speech, not government speech, the government can't discriminate based on viewpoint in the program. And here,

Plaintiffs have plausibly alleged that the regulation discriminates on the basis of viewpoint …. California's prohibition on personalized license plate numbers "that may carry connotations offensive to good taste and decency" constitutes viewpoint discrimination under [Matal v. Tam]. Kohli, who applied for the license plate configuration "QUEER" in an "effort to reclaim the word," is in an analogous position to [Simon Tam, who sought to register the trademark "The Slants"]. The DMV's determination that "QUEER" "may be considered 'insulting, degrading, or expressing contempt for a specific group or person,' and thus 'offensive to good taste and decency,'" reflects an assessment of a viewpoint—an assessment that may or may not be correct, depending on the context. This is nothing if not "discriminat[ion] against speech based on the ideas or opinions it conveys."

This conclusion is further supported by Iancu v. Brunetti, which invalidated the Lanham Act's bar on the registration of "immoral[] or scandalous trademarks" because "[i]t too disfavor[ed] certain ideas." The Court reasoned that the statute facially distinguished "between two opposed sets of ideas: those aligned with conventional moral standards and those hostile to them; those inducing societal nods of approval and those provoking offense and condemnation. The statute favors the former, and disfavors the latter." The California regulation's focus on "good taste and decency" likewise sets up a facial distinction between societally favored and disfavored ideas….

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  1. So the only way to limit what the plates could say would be to stop allowing vanity plates at all?

    1. I thought that long ago when I first heard of vanity plates; how can the government censor them? I honestly never thought any court would agree, considering the only two choices are “anything goes” and “nothing goes”. This is going to be interesting.

      1. The government is selling speech space to anyone with money, to help with its voracious needs. So, no. They can’t censor it.

        Hence the sarcastic dissent in the picture plates case, that, since the pictures “are Texas speaking”, and Texas isn’t just selling space (everyone looks around knowingly) so the state can control it, here’s the wonder of the State of Texas with full-throated support of colleges from other states, implications with which some Texas ones fight on the field.

    2. That’s exactly right – all or none.

  2. So some dimwits or trolls will request the N word spelled out, or the F word, or a vile or hateful message (let’s say DIEGAYS or FUKCOPS or SUKC*CK or something). Geez, what could go wrong? The law is an ass if this happens, IMO.

    1. Nick Gillespie’s Jacket: Why is that such a horrible result, given that those drivers can have precisely the same message on a bumper sticker near the license plate?

      I realize that one can also say that this is a reason not to get too exercised about speech restrictions on vanity plates — there’s not really that much lost to public debate from that sort of restriction. But if your argument is that things “could go wrong” in a big way from allowing offensive vanity plates, I don’t really see it.

      1. That’s a very Libertarian response. (I’m not being facetious or snarky.) Let’s just say that I can imagine state-issued license plates with those or similar messages being a real negative for society in general.

        1. The purpose of speech is to have an effect on other people. This is always why those in power seek to control it.

          I remember when the Egyptian government outlawed CNN, because the military felt it would be a real negative for society in general*. See how that works?

          *The Egyptian people were not ready for uncontrolled news and speech from abroad.

          1. The Egyptian government was eerily prescient.

        2. Today people are shocked that the first amendment might protect a license plate with the word, “Nigger”, fifty years ago people were shocked that the first amendment might protect cartoons depicting policemen raping the Statue of Liberty. Whatever the current sensibilities are, hopefully courts will have the courage to protect transgressions of them. They did in the statue of Liberty case, but the didn’t in the SCV case.

      2. I’d imagine putting the n-word on a license plate would promptly lead to destruction of the vehicle.

        1. By those who survive until the gun is empty?

          1. Both sides will have guns. I’ve seen articles about the police stopping cars for so called offensive bumper stickers too, especially in the south. I think this will lead to state’s banning of vanity lic plates, if they are completely open by connection to this decision.

          2. Whne it’s parked with no one around.

      3. Agreed. Some years ago, I saw a guy driving around in the Silverlake area of Los Angeles, with a custom-made license plate frame that read, “Tight Butts Drive Me Nuts.”
        While I may or may not endorse the sentiment, I see no harm being done.

    2. A law rejecting obscene license plates would likely be constitutional, and would likely cover at least some of your parade of horribles.

      1. It’s unlikely that any alphanumeric combination short enough to appear on a plate could appeal to the prurient interest and thus qualify as “obscene” under current 1st Amendment law.

        1. Some Latin letters look like Cyrillic, which means you can get away with saying dirty Russian things on license plates. So “CTO XYEB” means a hundred dicks (you can google for an image of this on a Virginia license plate), and “COCAT6” means to suck, as in to give a blowjob.

          1. Seamus is wrong. Die Jew, Die fits on lic plates, kill cons, there’s no end of things. I L boog for the gun nuts and rt wing terrorists? Die libs, F libs? “ILL KILL U” coming soon.

            1. Uh, how does that make him wrong? None of those are obscene (in the legal sense).

    3. I display no bumperstickers or political messages fearing violent retribution from the Anti-First Amendment troops.

      Who will be most credible when an ‘anti’ complains to the police that I brandished my legal gun and I am found in possession?

  3. Eugene, I hope you will keep us informed.

    I have wanted I LV TOFU (or, alternately, I [heart] TOFU) for more than 30 years. Sadly, my beloved food is also, apparently subject to being interpreted as an acronym for “to fuck you.” So, no luck for me at the DMV. But if you are correct that this is unconstitutional, then I suspect that my two desired plates will be available for only days, if not hours. So, please make sure your loyal VC readers have as much advance notice as possible.

    1. In Florida 25 years ago, I saw a sleek, forest green Mustang convertible with a tiger print top, and the plate “Tigress”. I never did see her.

      1. Suzanne Sommers?

  4. I am not sure the private public speech distinction here is legally correct when compared to the Texas plates case. Texas gives so many options for customization its infinitely easier to convey a political, or otherwise, message on a place using the custom plates. Its quite tedious to communicate “Cowboys Fan” using the plate numbers, particularly because plates have to be unique.

    Unless you highly value something obscure and succinct, plat numbers are useless for you. Sorry newfound anime fans NARUTO and GOKU have been taken for years.

  5. So we can look forward to the reinstatement of the Virginia vanity plate “EAT THE”, used on a specialty plate with the legend “KIDS FIRST” immediately underneath the alphanumeric identifier.

  6. “[i]f the federal registration of a trademark makes the mark government speech, the Federal Government is babbling prodigiously and incoherently. It is saying many unseemly things. It is expressing contradictory views. It is unashamedly endorsing a vast array of commercial products and services.”

    And this would be different because… ?

  7. The basic question is who owns the licence plate and its message.

    It seems to me that there is a lot of gray between saying the state can’t force you to put its message (“Live free or die”) on your car when you find its message objectionable, and saying you can force the state to put your message on its license plate when it finds your message objectionable.

    If we except that you own the car but the state owns the license plate, it would follow that both get a veto.

  8. Or do away with license plates?

    We are not required (yet) to wear an identifying number in plain sight on our clothing when we go outside.
    If we are going to defund the police, then we do not need this identifier that is there to help the cops. The revenue from the plates will no longer be as needed with no cops.
    If a right to privacy lets women kill babies, WHY do we have to advertise who we are when driving? According to the supreme court, it is unconstitutional to give a right to privacy to only one sex.

    1. Defund the police means replace the police force with a new group that has some armed response, but also non-police people like more emts and social workers. I’m sure you know and are just attempting to make a proactive point. If it helps you understand, try using “replace with the police with a new, more variegated force”.

      You hit a bunch of obvious incorrect comments there, good job. You are not advertising with your license plate, it’s for criminal tracing and proof of registration, and now of course it’s used by our lovely law enforcement groups for mass tracing via license plate readers.

  9. By extension, wouldn’t this invalidate all public nudity laws? After all what is more personal property than showing my own body?

    1. It’s pretty likely that the state can’t allow male toplessness and disallow the same for females, that’s why generally p.a. are very reluctant to bring those cases up. They just harass women protesting for it. I don’t believe you can extend this decision to connect one’s body with public speech. You could claim showing your bits is making a political statement but that would be a new thing, not generally agreed on today.

  10. Interesting. I believe there’s an old California Court of Appeal decision upholding that statute.

  11. Just so everyone knows, the plate that was denied was OGWOOLF. I have used some form of Woolf in every screen name I’ve had since 1998. OG came from my time in the military. Drill sergeants would call me OG because it was faster and easier to yell at me instead of Ogilvie lol. Thanks for the interest in the case guys. I’m loving the comments.

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