Federal Court Strikes Down California's Ban On 'Offensive' License Plates

from the California-drivers-will-now-have-to-be-offended-on-their-own-dime dept

License plate rules are weird. Vanity plates are something anyone can obtain for a fee to personalize their vehicle… just as long as they follow a set of shifting rules arbitrarily enforced by their license plate overseers. There's a lot of talk about only forbidding what's "objectively" offensive, but digging around in DMV databases -- as several litigants have done -- show there are a lot of rejections based on DMV employees' subjective ideas of what is or isn't offensive.

That's how we end up with ridiculous rejections like forbidding a former cop from tagging his own car with a self-deprecating "O1NK." On the other end of the spectrum, a man wanting to state the truth about law enforcement dishonesty saw his "COPSLIE" plate rejected. Ultimately, he prevailed -- thanks to a state Supreme Court ruling. But what did he win? Most likely, just a future filled with pretextual traffic stops.

It's a weird interaction of government and free speech, where citizens' free speech is tempered by the limitations imposed on government property the government mandates they must place on their vehicles. But the most disingenuous argument is that allowing "offensive" vanity plates -- plates that are inherently the expression of citizens who choose to pay extra for a personalized plate -- might give stupider constituents the impression the state government approves of the messages displayed on [checks notes] residents' personal vehicles.

Logic would dictate personalized plates reflect the opinions of the person paying for them. Courtroom logic is still all over the place, thanks mainly to the fact the government prints the plates. Is a normal plate -- one obtained after all personalized attempts are rejected -- compelled speech? Probably not. But there's definitely a First Amendment argument to be made that rejecting "offensive" personalized plates is the government deciding only certain forms of car-specific speech are acceptable.

A federal judge has decided California's rejection of "offensive" vanity plates violates the First Amendment. To do so, the court looked at Supreme Court precedent involving trademark registrations. In a case decided in 2017, the Supreme Court sided with a band calling itself "The Slants," a name that appropriated derogatory slang aimed at those of Asian descent. The Asian-American band hoped to reclaim a term its members may have been subjected to, but USPTO was of the firm belief anything considered "offensive" should be rejected out of hand. The Supreme Court disagreed, finding this to be "viewpoint discrimination" -- a violation of the First Amendment. The Supreme Court invalidated the Lanham Act's prohibition on "immoral or scandalous" trademark registrations two years later in its Brunetti decision.

Both cases are cited in this decision [PDF], which says the state's restrictions on speech are arbitrary and unjustifiable under the First Amendment. (h/t Courthouse News Service)

The court first runs down the list of things forbidden by the California DMV, which is everything it considers to be "offensive to good taste and decency."

1. The configuration has a sexual connotation or is a term of lust or depravity.

2. 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.

3. The configuration is a swear word or term considered profane, obscene, or repulsive.

4. The configuration has a negative connotation to a specific group.

5. The configuration misrepresents a law enforcement entity.

6. The configuration has been deleted from regular series license plates.

7. 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.

It must be noted DMV plate request reviewers familiarize themselves with unfamiliar slang via at least one credible source.

Third, “[i]f the configuration represents an unfamiliar slang term, foreign word, or acronym, or may be otherwise offensive,” the reviewer conducts “additional research.” This research includes the use of online resources such as Urban Dictionary, Google, and Google Translate.

The plaintiffs in this case represent a pretty decent cross-section of Californians. All of them had their plates rejected by the DMV.

Plaintiffs Paul Ogilvie, James Blair, Amrit Kohli, Andrea Campanile, and Paul Crawford are California residents whose requests for personalized license plates were denied by the DMV under Section 206.00(c)(7)(D). Ogilvie is an Army veteran who requested the plate configuration “OGWOOLF,” which reflects his military nickname, “OG,” and “his longtime interest in wolves.” The DMV denied this configuration because it “contained a gang reference.” Blair, a “long-time fan of the rock band ‘Slayer,’” requested the configuration “SLAAYRR.” The DMV rejected his submission on the ground that it “may be considered threatening, aggressive, or hostile.” Kohli is “gay and established Queer Folks Records in an effort to reclaim the word ‘Queer.’” The DMV rejected his request for the configuration “QUEER” because it “may be considered insulting, degrading, or expressing contempt for a specific group or person.” Campanile, who owns two Ducati motorcycles, requested the configuration “DUK N A,” which she intended to mean “Ducati and Andrea.” The DMV rejected the configuration because it “is a swear word, looks or sounds like a swear word, or represents a term or phrase that may be considered profane or obscene.” Crawford owns Shakespeare Pub, whose slogan is, “Real beer, proper food, no bollocks.” The DMV rejected his proposed configuration of “BO11LUX” because the configuration “has a discernable sexual connotation or may be construed to be of a sexual nature.”

Appended to that is this comical footnote, quoting DMV Director Steve Gordon's sworn statements.

Gordon explains that “Campanile’s ‘DUK N A’ plate is one letter away from ‘FUK N A,’ which is profane.”

The court says the DMV's guidelines closely track with the USPTO restrictions the Supreme Court previously found 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 Tam and Brunetti. 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,” ECF No. 41-15 at 2, 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.’” Brunetti, 139 S. Ct. at 2301 (summarizing the Tam holding). This is “discriminat[ion] against speech based on the ideas or opinions it conveys.”

The court also says the law isn't specific enough to minimize intrusions on protected expression. While the code provides a list of things the DMV won't allow, plate screeners are instructed to go beyond the listed restrictions when vetting plate applications.

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. Cal. Code Regs. tit. 13, § 206.00(c)(7)(D) (emphasis added). 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.

The court says the DMV's standards aren't actually standards. The word "standard" usually suggests consistent application. But the record shows the DMV is all over the place when it comes to approvals and denials.

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.

The same goes for other abbreviations and acronyms. The state approved "DUK N GO" but rejected the plaintiff's "DUK N A." If approved OG 69LRK but rejected OGWOOLF. The DMV can't explain these inconsistencies. And this routine inconsistency is the reason it's unconstitutional.

The fact that initial reviewers are reversed on appeal “approximately 65 to 75 percent of the time,” id. at 31, 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, Minn. Voters, 138 S. Ct. at 1888. 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 haphazardly enforced law is now the illegal-to-enforce law.

The Court declares that Section 206.00(c)(7)(D)’s ban of personalized license plate configurations “offensive to good taste and decency” violates the First Amendment to the United States Constitution.

The DMV will still be able to block profanities but the rest of its enforcement will have to be viewpoint-neutral. Certain letter combinations can still be banned, but they'll be banned for everyone, not just those reviewers subjectively believe are aiming to offend.

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Filed Under: 1st amendment, california, dmv, free speech, license plates, offensive speech


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  • identicon
    Anonymous Coward, 30 Nov 2020 @ 11:29am

    has a discernable sexual connotation or may be construed to be of a sexual nature.”

    Wow: To that we can replay: "your face has a discernable sexual connotation or may be construed to be of a sexual nature.”

    And actually make sense, and be serious (ok, I admit I'm not gonna bother providing any evidence of why faces could be reasonable connected to sexuality. you are either to have to take it on faith, find your own evidence, or attempt to call me out on it). Of course I wouldn't be surprised if may people disagree, but it doesn't necessarily fall into the category of hyperbole

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 Nov 2020 @ 12:10pm

    Last time I looked, license plates are not a platform for speech. It's a government issued identification that states your car is eligible to drive on public streets. I'd like to see how Orange County handles this

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 30 Nov 2020 @ 12:53pm

      Re:

      The state made it a platform for speech by authorizing people to determine its contents. Up to that point it was government speech.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 30 Nov 2020 @ 1:46pm

        Re: Re:

        I wonder if the government could get around that by changing the law to say that you may request a specific identification (i.e.: personal plate), but final decision lies with DMV and the additional fee is the "extra labor" required to determine if DMV finds the suggested ID appropriate.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 30 Nov 2020 @ 1:50pm

          Re: Re: Re:

          I don't see how. AFAIK DMVs are part of the local government. And even if they were not, I don't see a way that this action of there's could be construct as not being a state actor.

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 30 Nov 2020 @ 4:14pm

          Re: Re: Re:

          if DMV finds the suggested ID appropriate.

          Whether or not the government should be allowed to determine the "appropriateness" of speech on license plates is exactly the question that this court ruled on.

          reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 30 Nov 2020 @ 4:04pm

      Re:

      If it wasn't a vanity plate, it wouldn't be a free speech issue.
      But once they allow a citizen to buy a vanity plate and the citizen chooses the speech to go on the plate, then it's free speech. The citizen paid for the speech of their choice.

      But states allow vanity plates because they make millions$$ from it.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 Nov 2020 @ 12:13pm

    not free speech issue

    a license plate is basically a government 'document' attached to a vehicle.
    why can't the government fully control the content of its official documments, as it does with thousands of other official documents?

    doesn't seem like a First Amendment issue at all.

    must be some bigger issue with the overall concept of license plates?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 30 Nov 2020 @ 12:21pm

      Re: not free speech issue

      The answer to this question is simple: it would be fully under the governments jurisdiction... IF vanity plates didn't exist.

      The only reason vanity plates exist is as a platform for speech. Here the government has explicitly said: "we will let you put your own message here subject to some restrictions". The constitution restricts what those restrictions may be.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 30 Nov 2020 @ 12:30pm

        Re: Re: not free speech issue

        And the courts have ruled multiple times that obscene speech can be curbed without violating the free speech clause.

        reply to this | link to this | view in chronology ]

        • icon
          James Burkhardt (profile), 30 Nov 2020 @ 12:50pm

          Re: Re: Re: not free speech issue

          But how that speech is curbed remains a question.

          The Court therefore finds that even the straightforward ban on the number 69 has been arbitrarily applied.

          The fact that initial reviewers are reversed on appeal “approximately 65 to 75 percent of the time,” id. at 31, 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, Minn. Voters, 138 S. Ct. at 1888. 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.

          Just to highlight the passages of the very article that point that out. The court did not rule that the state couldn't control obscene speech, but that the standards for what constituted obscene speech were broad and arbitrary. For instance, Profanity is still barred.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 30 Nov 2020 @ 1:01pm

            Re: Re: Re: Re: not free speech issue

            Now we plow into the thick of it. Society's definition of profanity tends to evolve faster than the courts, and sometimes come to odds with it. What the court calls "haphazard" can also be called "reflective of current attitudes". To provide a humorous example, if Tobias were to apply for a "ANUSTART" license plate, it wouldn't be profanity on its face, but it certainly can be construed as obscene and it will certainly be offensive to some people. If I got the application, I'd be having a good laugh while explaining to poor Tobias what his license plate would look like. Steve, my hypothetical coworker, might blow a gasket over it. Who would be right in this situation, Steve or I?

            reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 1 Dec 2020 @ 6:45am

              Re: Re: Re: Re: Re: not free speech issue

              you do realize the constitution explicitly setup the judicial branch to be resistant to "current attitudes" right? Maybe there's a reason for that?

              Steve, my hypothetical coworker, might blow a gasket over it. Who would be right in this situation, Steve or I?

              Uh... it should be pretty obvious, but I guess I will say it: this is exactly the sort of thing the First Amendment is designed to prevent the government from settling right?

              reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 30 Nov 2020 @ 7:51pm

            Re: Re: Re: Re: not free speech issue

            For instance, Profanity is still barred.

            While it is true that the court explicitly (p.11) declined to “hold that the DMV cannot prohibit certain words from appearing on environmental license plates”, nonethless, the court did enjoin defendant against enforcement of 13 CCR § 206.00(c)(7)(D)(3) — the regulation barring any “swear word”.

            From the decision, on p.16 —

            Lines 5-7

            Enjoining the “offensive to good taste and decency” provision of the regulation necessarily prohibits the DMV from enforcing subparts 1-4, which merely elaborate criteria for the implementation of the unconstitutional phrase.

            Lines 17-19

            The Court therefore enjoins Defendant – including his officers, servants, and employees – from enforcing the “offensive to good taste and decency” provision in Cal. Code Regs. Tit. 13 § 206.00(c)(7)(D).

            Examining 13 CCR § 206.00(c)(7)(D).

            3. The configuration is a swear word or term considered profane, obscene, or repulsive.

            (Same as decision at p.2.)

            reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 1 Dec 2020 @ 2:47am

              Re: Re: Re: Re: Re: not free speech issue

              I admit i was paraphrasing the author of the article in stating profanity was still barred. that said my general point still stands.

              But the doesn’t prevent the DMV from rejecting license plates based on content. The DMV just can’t cite the authority of 13 CCR 206.00(c)(7)(D) to do so, because The standard was arbitrary and capricious. But so long as they institute a clear standard that would hold up to strict scrutiny, there is no reason the DMV couldn’t craft narrow rules to defend against basic obscenity (ie IHATECA is fine, FUCKCA is not, ANTICOP is fine, FCKDA5O is not)

              reply to this | link to this | view in chronology ]

              • identicon
                Anonymous Coward, 1 Dec 2020 @ 7:45am

                Re: Re: Re: Re: Re: Re: not free speech issue

                … paraphrasing the author of the article…

                What Cushing wrote in the article above used the words, “will still be able to”. There's a material distinction between that and the present-tense phrasing, “is still”.

                 

                … because [t]he standard was arbitrary and capricious.

                A search of the decision for both the words “arbitrary” and “capricious” fails to disclose the judge's use of those exact words here.

                Abitrary” and “capricious” are frequently used terms in admininistrative law — often employed with highly specific, technical meaning — particularly in federal administrative law (see e.g. federal 5 USC § 706(2)(A) ).

                The current context is within the intersection of the federal constitution and California state administrative law.

                Unless you'd care to elaborate on exactly what you mean, I'd suggest we simply avoid using the potential phrase-of-art “arbitrary and capricious” in this context. I don't know specifically what you mean by it here, and it seems rather likely to cause misunderstanding. The judge didn't use it, why should we?

                reply to this | link to this | view in chronology ]

                • identicon
                  Anonymous Coward, 1 Dec 2020 @ 10:30am

                  Re: Re: Re: Re: Re: Re: Re: not free speech issue

                  May I point you at XKCD.

                  reply to this | link to this | view in chronology ]

                  • identicon
                    Anonymous Coward, 1 Dec 2020 @ 10:56am

                    Re: Re: Re: Re: Re: Re: Re: Re: not free speech issue

                    May I point you at XKCD.

                    If you do really want to spelunk a deep hole, then do carefully consider the implications of a federal court applying 5 USC § 706's “arbitrary and capricious” standard to review the administrative actions of a California state agency.

                    reply to this | link to this | view in chronology ]

              • identicon
                Anonymous Coward, 1 Dec 2020 @ 8:20am

                Re: Re: Re: Re: Re: Re: not free speech issue

                … so long as they institute a clear standard that would hold up to strict scrutiny…

                Strict scrutiny” is a technical phrase in the first amendment context. It appears in numerous court decisions.

                It is not the standard that was applied in this decision.

                See pp.6-7, contrasting “strict scrutiny” against the standard of “reasonable and viewpoint neutral”.

                In both traditional and designated public forums, restrictions on private speech are subject to strict scrutiny. In limited and nonpublic forums restrictions on private speech must only be reasonable and viewpoint neutral.

                And then farther down on p.7, determing the nature of the forum, in order to decide on the applicable standard—

                Because the primary purpose of license plates is to identify vehicles, and people have to seek permission to get a personalized license plate, the Court agrees with the courts that have found license plates to be nonpublic forums.

                Thus concluding—

                Regulations governing speech on California’senvironmental license plates therefore must be both viewpoint neutral and reasonable.

                (Citations omitted in all excerpts.)

                reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 30 Nov 2020 @ 12:49pm

      Re: not free speech issue

      why can't the government fully control the content of its official documments

      From the immediate decision, on p.6:

      As explained in the Court’s order denying Gordon’s motion to dismiss, the alphanumeric combinations on California’s environmental license plates are not government speech. ECF No. 34 at 4-9.

      Order Denying Motion To Dismiss (Doc 34; Jul 8, 2020)

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 30 Nov 2020 @ 1:31pm

        Re: Re: not free speech issue

                  As explained in the Court’s order denying Gordon’s motion to dismiss…

        Order Denying Motion To Dismiss (Doc 34; Jul 8, 2020)

        From p.5

        Walker (2015) 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. See Hart [v Thomas] (E.D.Ky. 2019); Kotler v. Webb, No. CV 19-2682-GW-SKx, 2019 WL 4635168, at *8 (C.D. Cal. Aug. 29, 2019); Mitchell v. Md. Motor Vehicle Admin. (Md.Ct.App. 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.

        (Citations reformatted and hyperlinked. Note missing hyperlink for cited decision in Kotler v Webb.)

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 Nov 2020 @ 12:44pm

    Ogilvie v Gordon

    Docket for Ogilvie v Gordon (N.D.Cal 4:20-cv-01707)

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 30 Nov 2020 @ 1:13pm

    don't let the door hit cha...

    trying even harder and harder to pat ourselves on our own backs as we circle the drain all in the name of 'freedom'...stay classy US

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 30 Nov 2020 @ 2:39pm

      Stayin' classy

      ...stay classy US

      Mitchell argued that "mierda" has a variety of non-profane and non-obscene meanings… some of which, such as "compost," make sense in the context of the agricultural plate template and a rural lifestyle, although he conceded that it can also mean "shit."

                ——Mitchell v Maryland MVA (Md.Ct.App. 2016)

       

      reply to this | link to this | view in chronology ]

  • identicon
    Eric, 30 Nov 2020 @ 2:17pm

    What if vanity plates didn't exist...

    It is interesting that governments could get rid of this (I assume) by just eliminating vanity plates. I guess the revenue is higher than the legal costs (or at least I hope it is!)

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 30 Nov 2020 @ 2:54pm

      Re: What if vanity plates didn't exist...

      Yes, they're a revenue stream. In my state you pay an extra seventy five dollars per plate (and we require two) on top of normal registration fees, then get smacked for another thirty five dollars on renewal.

      reply to this | link to this | view in chronology ]


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