The Volokh Conspiracy

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Free Speech

Excluding "FCANCER" Personalized License Plate Violates First Amendment


So Judge Gregory Williams (D. Del.) held today, in Overington v. Fisher: Even if FCANCER is understood as meaning "Fuck Cancer" (rather than, say, "Fight Cancer"), the exclusion of "any plate considered offensive in nature" from the state's personalized plate program was unconstitutionally viewpoint-based and discretionary.

To reach this result, the judge had to decide whether the plates in the personalized plate program were private speech or government speech, and concluded that they were private speech. The court's analysis was close to the one I wrote about two years ago in this post about Ogilvie v. Gordon (N.D. Cal.).

Seems generally correct to me. Perhaps a narrow and specific prohibition on particular vulgarities might be viewpoint-neutral (even if content-based), and thus permissible in a "limited public forum" such as this one; but a ban on "any plate considered offensive in nature" doesn't qualify, see Iancu v. Brunetti (2019).

One error I noticed: The court cited Ogilvie for the proposition that "[O]bscenity, vulgarity, profanity, hate speech, and fighting words fall outside the scope of the First Amendment's protections"; but Ogilvie didn't hold that, and there are no First Amendment exceptions for vulgarity, profanity, or hate speech. Moreover, because "hate speech" is a viewpoint-based category (cf. Matal v. Tam (2017)), the government can't exclude "hate speech" even from limited public fora (or nonpublic fora), even if it could exclude "vulgarity" or "profanity."