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."

Comments

[Frank Drackman]

Sucks if your name's Frank Cancer

[gVOR08]

Entertaining that this who TF cares post about one guy's license plate posted just after Somin's post on prioritizing issues.

[Eugene Volokh]

I prioritize blogging about things that interest me.

[Frank Drackman]

You should start your own Blog, oh wait a minute......

[Kazinski]

Yeah why isn't he blogging about the....

Actually I haven't looked at the news yet today, but I'm sure there is something that outrages me.

[ObviouslyNotSpam]

If you can't be reliably outraged, perhaps you could just be scared a bit?

[santamonica811]

As a matter of First Amendment (or similar state-based free speech) protections; do you think a DMV official can ban my license plate of [I apologize in advance, but I see no way to avoid using the actual words): nigger, spick, wop, kike . . . either as isolated words, or as part of a longer message [eg, “I [heart symbol] wops”, or the like].

I assume it’s still okay to ban “simple” profanity, like Fuck, Shit, Asshole, et al, yes? But it’s interesting to read (if I’m understanding correctly) that far worse words (in terms of effecting offense in the average views) will be permitted, since–as you note–hate speech is NOT an exception to the First Amend.

I have to admit that I’m not looking forward to driving in rush hour, and being stuck, staring at some car's version of “n***er” for the next half hour. On the other hand; years ago I tried to get the license plate “I [heart] TOFU,” and it was rejected by the DMV. I wouldn’t mind taking a second crack at it, if it’s now allowed.

(As a public service; do you mind giving a link to a California case holding, if there is/are one, that I could use with the DMV, if push came to shove?) ????

[Kazinski]

Well that’s probably why the analysis that its government speech (which I guess it actually doesn't) does allow the government to refuse to issue offensive license plates, when they couldn’t ban bumper stickers with the same message (but just be prepared to get pulled over a lot).

Seems to me its a lot like advertising on municipal bus lines, can’t refuse based on content, but can refuse based on content neutral guidelines, like profanity, racial slurs, or general tastelessness.

[MikeFr]

Is racial slur really a content neutral guideline?

And what about "CHINK", "NIP", and "SPIC" which are also perfectly valid inoffensive words?

[ObviouslyNotSpam]

Old L.A. punk band, "Nip Drivers", weren't Asian, but "The Slants" are. Which one should be banned?

[gormadoc]

Is that me in particular or just a general "U"?

[Frank Drackman]

I’d let peoples have whatever they want on their license plates, and then suffer the consequences. There’s a reason you don’t see many cars with Confederate License Plates any more (OK, used to have one, in my defense it was the Georgia State Flag) or Swastikas and ironically, in the South you’ll see way more Biden bumper stickers than “MAGA” (OK, we’re not stupid, we might like him, but replacing 4 slashed tires gets expensive)

Frank

[WuzYoungOnceToo]

I assume it’s still okay to ban “simple” profanity, like Fuck, Shit, Asshole, et al, yes?

"Shit", "piss", "fuck", "cunt", "cocksucker", "motherfucker", and "tits". And "tits" doesn't even belong on the list, man!

[ChristopherJLinas]

Is there a typo in the blog post's summary of the D. Del. opinion? The post says that the opinion held that the personalized plates were government speech, but page 11 of the opinion seems to hold that the personalized text on the plates, at least, are private speech.

[Eugene Volokh]

Whoops, fixed, thanks!

[theobromophile]

Florida maintains a list of license plates that it rejects due to profanity. Here is the 2023 list:

https://www.wfla.com/wp-content/uploads/sites/71/2024/02/PLP-Rejected-in-2023.pdf

They rejected "75 HARD," which is a weight loss programme; perhaps someone thought it was a reference to male anatomy?

There is a long list of variants of FJB, sex, more sex, the N word, and such. Male anatomy references seem to exceed references to female anatomy. "IMPCH 46" is political, not profane, and was rejected.

I seem to recall previous lists having more LGB in the reject pile. Perhaps people stopped asking for the workaround or maybe they are letting it through.

And this all reminds me of high school. License plates in our town were produced and given out in order, and we had this spate of wildly inappropriate license plates: 3169EZ, 5869EZ, and, on someone's dad's car, who didn't think to object when handed it, 6969EZ.

Because it's always legal when the government does it.

[kevrob]

I guess this would be OK, then?

ASSMAN

[WuzYoungOnceToo]

It was a million-to-one shot, Doc! A million-to-one!

[Dilan Esper]

75 hard, even if it's centimeters, would be the longest piece of equipment in the history of human males.

[theobromophile]

Maybe it refers to circumference? Maybe the unit isn't length... time, tensile strength, force, power, work....

[Noscitur a sociis]

I’m not sure I follow how this is a viewpoint-based restriction. Is there really any question that that any other use of (or similar allusion to) “fuck” would be treated similarly? Is there any suggestion that Delaware is hostile to anti-cancer perspectives?

[TwelveInchPianist]

I haven't read the op, put according to the post the criteria isn't any plate that alludes to "fuck", but any plate considered offensive in nature. It seems clear that that's viewpoint based.

[ReaderY]

What view exactly is being articulated?

[Bwaaah]

In practice, the view of the government official who makes the judgement call.

[Noscitur a sociis]

So you think the Delaware secretary of transportation is a big fan of cancer?

[Noscitur a sociis]

How so? Surely the putatively offensive part is that it implies “fuck”, not that it is anti-cancer?

[TwelveInchPianist]

Do you think the standard applied here is distinguishable from that applied in Brunetti?

[Dilan Esper]

FWIW, if they banned F as abbreviation of the f-word, I think that would be viewpoint neutral under the Ogilvie case.

I also am not sure Ogilvie is rightly decided, though.

[Gasman]

MTHFR
A real metabolic disorder with real support groups. Try and get that on a license plate.

[ReaderY]

I think is absurd. The speech on license plates is government speech. Giving people some measure of choice doesn’t convert everything to private speech.

In addition, road rage is a thing. The fact that people are traveling at high speeds and can kill each other if distracted has to be taken into account. I think government has a heightened safety interest.

[Krayt]

That was the ruling not too long back, where Texas I think, let people generate custom icons on license plates, as long as they got a group of at least 30 to buy one. The state rejected the confederate flag, and the SC ruled that was government speech, so they had the honor of such.

It made political sense, but not logical sense, as they’re selling advertising space for profit as surely as on the side of a bus, to all comers. Well, almost all.

So after this topic’s ruling, perhaps we could have an infographic of which parts of the plate are government speech as proxy for citizen speech and which are not.

[ReaderY]

I think the prior ruling was correct. I also think the courts need to make allowances for considerations of highway safety. I don’t see this as a place for First Amendment absolutism.

[Krayt]

I’m not arguing for insulting or awful things on license plaes. Just pointing out the reasoning to get there seems all over the place.

Why would the side of a bus, much more visible, suffer the protections of no viewpoint discrimination, but a plate icon does not. But a plate’s vanity license number does? And someone putting tape over a state motto they disagree with does as well?

[kevrob]

Buses?

See:

https://reason.com/volokh/2022/01/24/policy-excluding-transit-ads-that-are-political-controversial-offensive-objectionable-or-in-poor-taste-violates-first-amendment/

[TwelveInchPianist]

"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,"

Interesting. The opinion cites this language in Oglive as citing CJ Roberts in his concurrence/dissent in Brunetti. But Roberts didn't say that at all.

As noted on the VC by Prof. V, this language comes from a brief filed by the California AG in the Ogilvie case. The Ogilvie opinion quotes this brief in a slightly confusing way that implies that Roberts may have said this.

This language somehow found its way verbatim into an email from the Delaware DOT Secretary to the pro se plaintiff in this case. (Exhibit 3 attached to Document 8 from the page on courtlistener).
Then Delaware's MTD (Document 8 on courtlistener) refers to this language and seems to imply that it came from CJ Roberts instead of the CA AG.

The D Del. court seems to have picked up on this and attributed the language to CJ Roberts.

I don't have access to pacer so I can't tell if this is discussed further in any of the other documents.

[David Nieporent]

I don’t have access to pacer

Unless you’re Amish, you do. (If you are, I find it odd that you’re posting on the VC.)

(I guess the other possibility is that you're unable to afford the 10¢ per page. But I assume otherwise based on the amount of time you spend commenting here.)

[TwelveInchPianist]

OK, you got me. What I meant was that I don’t want to set up an account and enter my card for the minimal amount of time I would use it.

Consider that nit picked.

And please let me know if you happen to see anything up there that sheds more light on how judges and lawyers, presumably employing perfectly natural intelligence, managed to hallucinate a cite from the Chief Justice.

[TwelveInchPianist]

Here’s a case from the District of Hawaii that cites Roberts in Brunetti correctly, then two paragraphs later cites him incorrectly via Ogilvie:

However, Ogilvie explicitly explained it was not holding that “the DMV [could ]not prohibit certain words from appearing on . . . license plates.” Id. at 929 (specifically highlighting Chief Justice Roberts’ Brunetti partial concurrence that “obscenity, vulgarity, profanity, hate speech, and fighting words fall outside the scope of the First Amendment’s protections

[Brett Bellmore]

Seems absurd; Even if the state can rightfully reject an obscenity, rejecting a single word from an obscenity seems over-inclusive. Are there any safe letters, if that's the rule?

[MikeNY]

Walker v. Sons of Confederate Veterans relevant?

[jimc5499]

Pennsylvania rejected "HS15LSE" when I applied for it. I was told that they didn't understand what it meant and that's why it was denied. It means HS-15 the designation of the Navy helicopter squadron that I was in and "LSE" means Landing Signalman Enlisted.

[David Nieporent]

That sounds less like a government policy and more like the relevant individual bureaucrat covering his ass by refusing to approve something if it could come back later and bite him if it turns out to be a vulgarity he didn't realize at the time.

[jimc5499]

I think you have that exactly right. However if the text on the plate is considered Personal Speech instead of Government Speech it kind of removes his reason for denying it. Then again it is Pennsylvania. In my experience dealing with the State Government, it wouldn't surprise me if "the relevant individual bureaucrat" was flipping a coin and saying "heads approved, tails denied".