Does This Woman Have a Constitutional Right to Her 'FCANCER' License Plate?
The Delaware DMV recalled Kari Overington’s plate over “perceived profanity.” Now the ACLU is helping her take on the state.
After Kari Lynn Overington survived an aggressive form of breast cancer, she wanted to celebrate her recovery. So she got an "FCANCER" vanity plate.
That F has led to a prolonged legal battle with the Delaware authorities, who moved to recall the plate for profanity. This week the state branch of the American Civil Liberties Union (ACLU) announced that it would take on her case.
In December 2020, Overington reserved the custom license plate through the Delaware Division of Motor Vehicles (DMV). She received it in the mail two months later. According to Overington, the license plate has helped her connect with others. "I received encouragement from other cancer survivors, family members of those lost to cancer, and many other community members," she said in an ACLU press release.
But in June 2021, the DMV notified Overington that it was recalling her plate. It didn't "represent the State and the Division in a positive manner," the authorities explained—and any plate "considered offensive in nature will be denied or recalled if issued in error." Delaware Transportation Secretary Nicole Majeski confirmed the recall in a July email to Overington, citing the need not to approve "vanity plates that contain obscenity, vulgarity, profanity, hate speech or fighting words."
Majeski continued: "Your vanity plate FCANCER contains a perceived profanity, the abbreviation for the work [sic] 'F*"k', and for that reason, it must be recalled."
Overington held that the average person wouldn't consider the vanity plate to be obscene, given that it doesn't contain the word fuck—the letter F merely implies it. Overington also noted that the Delaware DMV itself has used plays on profanity in its driver safety advisories, advertising messages like "Get your head out of your Apps" and "Oh Cell No."
Overington filed a lawsuit against the Dover DMV, saying the recall was "an arbitrary decision" that reflected "content-based and viewpoint-based restrictions on her speech." A judge then denied state officials' motion to dismiss, saying the case raises a "significant constitutional issue."
A central question in Overington's case is whether vanity plates qualify as government or individual speech. If they're government speech, then Delaware is justified in disallowing or recalling certain plates. If they're individual speech, the First Amendment enters the picture, though there might be a secondary debate over the profanity and public display of certain messages.
Reason's Christian Britschgi previously reported on a legal battle over vanity plates in California. The Pacific Legal Foundation (PLF), a public interest law firm, filed suit against the state DMV director for First Amendment violations. Among the PLF's clients were drivers with license plates reading QUEER, OGWOOLF, and SLAAYRR—all rejected by the California DMV for supposedly being offensive. A federal judge ultimately sided with the PLF and the drivers. More recently, Maine outlined a plan to limit profane plates, prompting similar concerns of viewpoint discrimination.