The Volokh Conspiracy
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California allows drivers to select their own personalized license plates (not the designs, but the actual seven-letter/digit code); but Cal. Admin. Code § 206.00(c)(7)(D) imposes some limits:
The department shall refuse any configuration that may carry connotations offensive to good taste and decency, or which would be misleading, based on criteria which includes, but is not limited to, the following:
- The configuration has a sexual connotation or is a term of lust or depravity.
- The configuration is a vulgar term; a term of contempt, prejudice, or hostility; an insulting or degrading term; a racially degrading term; or an ethnically degrading term.
- The configuration is a swear word or term considered profane, obscene, or repulsive.
- The configuration has a negative connotation to a specific group.
- The configuration misrepresents a law enforcement entity.
- The configuration has been deleted from regular series license plates.
- The configuration is a foreign or slang word or term, or is a phonetic spelling or mirror image of a word or term falling into the categories described in subdivisions 1. through 6. above.
Earlier this year, Judge Jon S. Tigar held that this program provided a space for the drivers' own speech, rather than (as with the license plate designs in Walker v. Sons of Confederate Veterans (2015)) for the government's speech. This means that any restrictions on such private speech had to be viewpoint-neutral and reasonable; and yesterday, in Ogilvie v. Gordon, he held that these restrictions were unconstitutional:
First, the Court holds that California's prohibition on personalized license plate configurations "that may carry connotations offensive to good taste and decency" constitutes viewpoint discrimination under Matal v. Tam (2017) and Iancu v. Brunetti (2019). Kohli, who identifies as gay and established "Queer Folk Records" and the music label "Queer Folk"—which is trademarked by the United States Patent and Trademark Office—describes his "effort to reclaim the word 'Queer'" in a manner that mirrors Tam's efforts to "drain ['slants' of] its denigrating force." The DMV's determination that "QUEER" "may be considered insulting, degrading, or expressing contempt for a specific group or person," and thus "may be considered offensive," reflects both the assessment of a viewpoint—an assessment that may or may not be correct, depending on the context—and the regulation's effect of "disfavoring 'ideas that offend.'" This is "discriminat[ion] against speech based on the ideas or opinions it conveys."
Section 206.00(c)(7)(D)'s focus on "good taste and decency" likewise sets up a facial distinction between societally favored and disfavored ideas. As an example of how the Lanham Act's "immoral or scandalous" bar constituted viewpoint-based discrimination, Brunetti emphasized that "[l]ove rules" would be an acceptable mark, whereas "[h]ate rules" would not. The DMV's Environmental License Plates Review Procedures similarly lists "Hate" and "H8" as configurations that should be denied, ECF No. 48 at 24, but approves configurations that incorporate versions of the word "love." Compare ECF No. 41-23 at 9 (denying the configuration "GO AHDH8," which the applicant explained meant "go ahead hate") with id. at 8 (approving the plate "BLUVED," which the applicant translated as "beloved")….
Second, the Court rejects Gordon's contention that the "connotations offensive to good taste and decency" phrase is a "preamble" that is "defined with specificity in seven subparts." The plain text of Section 206.00(c)(7)(D) clarifies that the subparts do not define "offensive to good taste and decency." The regulation states that the DMV "shall refuse any configuration that may carry connotations offensive to good taste and decency, or which would be misleading, based on criteria which include, but [are] not limited to" the more specific subparts.
In addition, the DMV denial codes instruct reviewers to deny categories of speech that are not enumerated in the subparts. Configurations that the DMV has decided "may carry connotations offensive to good taste and decency," include those that contain a "reference to drugs," a reference "to guns, weaponry, shooting, or an instrument normally used to inflict harm," or "a number, color, phrase, or code commonly used to represent gang affiliation." Such categories of speech are not delineated in Section 206.00(c)(7)(D)'s subparts.
Finally, … the subparts are themselves likely viewpoint-based. The Court need not examine the individual subparts in depth, but notes that each of the four relevant subparts employs language that either echoes the "immoral" language in Brunetti, or "disfavor[s] 'ideas that offend,'" like the disparagement clause in Tam. The Court finds the following words and phrase to be examples of such language: "depravity," "repulsive," "degrading," and having a "negative connotation to specific group." See also Matwyuk v. Johnson (W.D. Mich. 2014) (holding that a state's internal guidelines for a statute banning personalized license plates that were "offensive to good taste and decency" "[did] not alleviate the potential for viewpoint discrimination" because precluding combinations "that negatively portray a given racial, religious, ethnic, or socioeconomic group, including persons of a particular gender or sexual orientation, explicitly sanction[s] viewpoint discrimination.").
Of course, not regulating for taste means allowing speech that many—including this Court—might find in poor taste or even offensive. But "[y]ou can't say you're going to ban something in the name of good taste, because then you have directed someone to play the role of good-taste police." And as the Supreme Court "ha[s] said time and again," "'the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.'"
Judge Tigar went on to say that the regulation was also not a "reasonable" restriction because "it fails to provide an 'objective, workable standard' and so is not 'capable of reasoned application'":
In Minnesota Voters Alliance v. Mansky (2018), the Supreme Court held that a Minnesota statute prohibiting wearing political insignia inside a polling place on election day was facially unconstitutional because the state failed "to articulate some sensible basis for distinguishing what may come in from what may stay out" and so the statute was not "capable of reasoned application." The Supreme Court determined that the statute was an unreasonable restriction on expression because its enforcement would "turn in significant part on the background knowledge and media consumption of the particular election judge applying it."
Section 206.00(c)(7)(D) presents a similar problem. Because there is no objective, workable standard of what is "offensive to good taste and decency," different reviewers can reach opposing conclusions on whether a certain configuration should be rejected based on their judgment of what might be "offensive" or not in "good taste." …
[T]he record does not support Gordon's argument that the review process employed by the DMV "ensure[s] consistency." The record reflects that even the DMV's denial codes and the Environmental License Plates Review Procedures' list of combinations that ought to be denied are not uniformly followed. For example, the current denial codes explain that "the number 69 is restricted to use on 1969 model vehicles only." In keeping with this policy, the license plate 1969Z was issued for a 1969 Camaro Z28, and the following plates were denied: 65VET69 (which the applicant explained was meant to represent "veteran from 1966 to 1969"); and 698 (which the applicant explained was to stand for June 1998). However, three other license plate configurations were denied despite the applicants explaining that 69 was the year each vehicle was made. Id. (69LUIE); ECF No. 41-23 at 4 (F9 69); id. at 8 (69MXNVW). And the license plate "SEPT369" was issued to an applicant who explained that it was his/her birthday. Finally, 69 LUV N—arguably the configuration most likely to be interpreted as a sexual reference—was accepted because the applicant described the meaning as "loving my 69 GMC." The Court therefore finds that even the straightforward ban on the number 69 has been arbitrarily applied.
Unsurprisingly, other configurations identified by the DMV as "offensive to good taste and decency" have also been treated inconsistently. The Environmental License Plates Review Procedures, for example, include "AF" as a reason to deny a configuration because it is recognized as an acronym for "as fuck," and so considered to be "profanity/repulsive." However, reviewers have recognized that "AF" also stands for "Air Force." The result of these conflicting interpretations is that some license plate configurations that include "AF" have been accepted, while others have been rejected.
The configuration AAFP51 was denied even though the applicant explained that the configuration was an "aviation reference," whereas 1USAF, AF81170, and AF91 were all approved, presumably because the reviewer decided "AF" was referencing the Air Force, In addition, Plaintiffs point to other instances of inconsistent applications of Section 206.00(c)(7)(D), including: the approval of SPAAAZ, but the rejection of RSPAZ; the approval of DUK N GO, but the rejection of DUK N A,; and the approval of FN RIDE, but the rejection of FNN LEXS. Finally, although Ogilvie was denied the configuration OGWOOLF, the DMV approved the configuration OG 69LRK for a 1969 Buick after flagging it for containing "OG."
In response to this inconsistency, Gordon explains that because "[l]anguage evolves and certain terms change in meaning," "'OG' may be approved in 2020 depending on the context." But Gordon offers no insight into who determines when language has sufficiently "evolved" so that a word or phrase is no longer "offensive to good taste and decency," or how that determination is made.
The fact that initial reviewers are reversed on appeal "approximately 65 to 75 percent of the time," supports the Court's conclusion that the DMV's "haphazard interpretations" of Section 206.00(c)(7)(D) apparent in the record are not anomalous. The Court therefore concludes that the DMV has failed "to articulate [a] sensible basis for distinguishing what may come in from what must stay out," and holds Section 206.00(c)(7)(D) to be unreasonable.
The court left open the possibility that the DMV could impose viewpoint-neutral bans, for instance on "profanity" (likely meaning vulgarities rather than "profanity" in the religious sense); Matal v. Tam and Iancu v. Brunetti itself left open that possibility as to the trademark registration program involved in those cases. But, "[o]nce [a court has] found that [Section 206.00(c)(7)(D)] 'aim[s] at the suppression of' views," it no longer "matter[s] that [the DMV] could have captured some of the same speech through a viewpoint-neutral [regulation]."
Congratulations to my friends at the Pacific Legal Foundation, Joshua Thompson and Wencong Fa, who represented the First Amendment claimants here.