The Volokh Conspiracy
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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….