The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Court Strikes Down Kentucky's Rejection of IM GOD Vanity Plate
Vanity plates are private speech in a nonpublic forum, the court holds; restrictions on such speech must be viewpoint-neutral and reasonable.
Kentucky allows nonprofit groups to arrange for license plate designs, subject to some conditions:
(c) The group, or the group's lettering, logo, image, or message to be placed on the license plate, if created, shall not discriminate against any race, color, religion, sex, or national origin, and shall not be construed, as determined by the cabinet, as an attempt to victimize or intimidate any person due to the person's race, color, religion, sex, or national origin;
(d) The group shall not be a political party and shall not have been created primarily to promote a specific political belief;
(e) The group shall not have as its primary purpose the promotion of any specific faith, religion, or antireligion.
(f) The name of the group shall not be the name of a special product or brand name, and shall not be construed, as determined by the cabinet, as promoting a product or brand name; and
(g) The group's lettering, logo, image, or message to be placed on the license plate, if created, shall not be obscene, as determined by the cabinet.
It also lets individuals set up their own vanity plates—the combinations of letters and numbers that identifies the car, not the overall plate design—but requires them "to comply with the conditions" set forth for the plate designs. Bennie Hart asked for a license plate that said IM GOD, but the request was denied "based on its reference to religion."
Unconstitutional, said Judge Gregory F. Van Tatenhove yesterday in Hart v. Thomas (E.D. Ky.).
[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. In this, the court rejected a recent contrary Indiana Supreme Court decision, and followed instead the reasoning in a recent Maryland high court decision.
[2.] The vanity plate program is a nonpublic forum, so the government has some power to restrict speech there—but only in a viewpoint-based and reasonable way. And
Based on the facts of this case, § 186.174(1) is unreasonable as applied to Mr. Hart. The Transportation Cabinet argues that a statute banning religious reference is reasonable because it is necessary to support its legitimate government interest in "promot[ing] highway safety" because "potentially controversial messages … could lead to confrontation or distraction on its highways." The Sixth Circuit has stated that avoidance of controversy is a valid ground for restricting speech in a nonpublic forum, because a nonpublic forum is not dedicated to general debate or the free exchange of ideas. See United Food & Commer. Workers Union, Local 1099 v. Southwest Ohio Reg'l Transit Auth., 163 F.3d 356 (6th Cir. 1998) (collecting cases). However, the Transportation Cabinet has been so inconsistent in its application of § 186.174 that it has ceased to be "consistent with [Kentucky's] legitimate government interest" in any way.
If the Transportation Cabinet genuinely wants to avoid controversy on Kentucky's highways by preventing "promotion of any specific faith, religion, or anti-religion" from appearing on vanity plates, then it should have denied "IM4GOD", "ASKGOD", GR8GOD", "LUVGOD". But it did not. Instead, the Transportation Cabinet has approved multipl[e] vanity plates featuring the word "god". This suggests that the law as applied to Mr. Hart is neither reasonable nor viewpoint neutral.
Seems right to me.
[3.] Given Matal v. Tam (the Slants case), I think that the exclusion of messages that "discriminate against any race, color, religion, sex, or national origin" (if understood as banning messages that support such discrimination) and messages that "attempt to victimize or intimidate any person due to the person's race, color, religion, sex, or national origin" would be unconstitutionally viewpoint-based. (A ban on speech that conveys true threats against people would be constitutional, but such threats are hard to communicate in six letters or numbers, especially if the threat specifically targets a certain group; and in any event, given R.A.V. v. City of St. Paul, even restrictions on true threats are unconstitutional if they discriminate against bigoted viewpoints.)
Likewise, given Rosenberger v. Rector and Matal, the exclusion of material that is primarily meant to "promot[e] … any specific faith, religion, or antireligion" would be unconstitutionally viewpoint-based even if it had been evenhandedly applied. But the court had no occasion to deal with the restrictions on "discriminatory," "victimizing," or "intimidating" messages, and it declined to consider a facial challenge to the restriction on religion-related messages.
Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.
