Tennessee Supreme Court Rules State Can Revoke Personalized '69' License Plate Because It's Government Speech
Most courts have ruled that vanity license plates are private speech and protected from viewpoint discrimination under the First Amendment.
The Tennessee Supreme Court ruled Wednesday that personalized license plates are government speech and not subject to the First Amendment's ban on viewpoint discrimination.
At the center of the case was plaintiff Leah Gilliam's personalized Tennessee license plate, "69PWNDU," which she held for more than a decade before the state revoked it in 2021 on the grounds that it was offensive. Gilliam filed a civil rights lawsuit, arguing that the underlying state law used to revoke her plates was unconstitutional on its face.
Although the Tennessee Supreme Court noted that most other courts considering the issue had come to contrary conclusions, it nevertheless upheld the state's regulations: "Applying the three factors that the United States Supreme Court has traditionally employed in its government speech precedents, we conclude that personalized alphanumeric combinations on Tennessee's license plates are government speech," the court wrote.
Gilliam's attorney, Daniel Horwitz, a Nashville civil rights litigator, says in a statement to Reason that Gilliam will be appealing to the U.S. Supreme Court.
"There is a reason why nearly every other court to adjudicate this issue has concluded that personalized license plates are not communicating secret government messages," Horwitz says, "and we will be asking the United States Supreme Court to review the Tennessee Supreme Court's error."
The U.S. Supreme Court ruled in 2015 that Texas could deny a group's application for a specialty license plate design showing the Confederate flag. However, most lower courts interpreting that decision have held that, while government-run vanity plate programs are a nonpublic forum, meaning that they're subject to reasonable regulations, the specific content of the plate is private speech, which restricts the government from censorship based on viewpoints.
For example, last year a federal judge struck down Delaware's rules governing vanity plates for unconstitutional viewpoint discrimination; the plaintiff in that case was a breast cancer survivor whose application for a "FCANCER" plate was first approved and then recalled for offensiveness.
Over the last decade, similar rulings have come down against censorious state DMVs in California, Kentucky, and South Dakota. In 2016, Maryland's Court of Appeals held that, "Although mindful that we risk being haunted by the spirit of the late comedian and social commentator George Carlin…the characters or message on a vanity license plate represent private speech in a nonpublic forum."
And in 2014, New Hampshire's ban on vanity plates that were "offensive to good taste" was struck down after being challenged by a man whose application for a "COPSLIE" vanity plate was rejected.
The Indiana Supreme Court is one of the only others that has ruled that license plates constitute government speech.
Tennessee has rules restricting vulgar, racist, or drug-related messages from its vanity plates, but Gilliam was issued her "69PWNDU" plate in 2010 and kept it for 11 years without issue.
Then in 2021, the Tennessee Department of Revenue's director of personnel received a text on his personal cellphone alerting him to Gilliam's license plate.
The number 69 is a popular reference to a sex position. "PWNDU" is short for "pwned you," old video-gamer slang for "owning" or defeating an opponent. Based on these two pieces of evidence, the ace investigators at the Tennessee Department of Revenue decided to revoke Gilliam's plate "because it referred to sexual domination," according to the Tennessee Supreme Court opinion.
A lower trial court originally ruled against Gilliam in her lawsuit to reinstate her beloved license plate, but a state appeals court reversed that decision.
Although Gilliam's attorneys presented evidence that the state had accepted numerous other license plates with vulgar messages ("BLZDEEP," "IMCMMIN," and "69BOSS"), and even racist and white supremacist content ("88POWER" and "COONHTR," for instance), the Tennessee Supreme Court was unmoved.
"Although the Department makes mistakes in its review process, it retains the authority to revoke personalized plates that are erroneously issued," the court wrote.
