I'm always happy to see someone add to the growing body of First Amendment/vanity license plate case law. Using a very limited amount of space, some applicants have managed to offend the delicate sensibilities of government agencies, even without using the number 5 twice to spell "A55."
A New Hampshire man applied for a license plate to make an uncontroversial statement about law enforcement (COPSLIE) only to have it rejected by the state, which claimed this fact was "offensive to good taste." He took his case to the state's Supreme Court and drove away with a free speech victory and a future full of hassling by law enforcement.
Completely conversely, the Indiana Supreme Court refused to give a cop his 01NK license plate, arguing rather absurdly that speech-via-vanity plate isn't protected because it's too… short. The court did not specify how many characters it takes for speech protections kick in, but presumably it's a larger number than the eight allotted for Indiana license plates.
Via Courthouse News comes another successful First Amendment challenge. A federal court in Kentucky has decided [PDF] that the state's refusal to give Bennie Hart his requested "IMGOD" license plate violates his First Amendment rights.
The state operates a specialty plate program that allows drivers to add logos to their license plates. That isn't the issue here, but since the state law governing vanity plates without vanity logos incorporates ("clunkily," the court notes) the logo statute, the same restrictions applied to logos control what words drivers can put on their plates.
Here are the guidelines:
(c) The group, or the group’s lettering logo, image or message to be placed on the license plate, if created, shall not discriminate against any race, color, religion, sex, or national origin, and shall not be construed, as determined by the cabinet, as an attempt to victimize or intimidate any person due to the person’s race, color, religion, sex, or national origin;
(d) The group shall not be a political party and shall not have been created primarily to promote a specific political belief;
(e) The group shall not have as its primary purpose the promotion of any specific faith, religion, or anti-religion;
(f) The name of the group shall not be the name of a special product or brand name, and shall not be construed, as determined by the cabinet, as promoting a product or brand name; and
(g) The group’s lettering, logo, image, or message to be placed on the license plate, if created, shall not be obscene, as determined by the cabinet.
The last specification is key. The final call is made by the Transportation Cabinet. Cabinet staffers are given no specific guidance on how to accomplish this job, leaving it up to them to determine what is "religious or anti-religious." In the plaintiff's case, the Cabinet decided "IMGOD" was unusable because of its religious reference… despite the fact the Cabinet had already approved plates bearing these phrases: GODLVS, TRYGOD, 1GOD, and NOGOD.
The government tried to argue the restriction of license plates was a restriction on government speech, not a restriction on citizens' speech. Because of the Transportation Cabinet's participation in the approval process, the state claimed any plate cleared by this government entity was an implicit endorsement of the plate's message. The court finds this assertion ridiculous.
[I]f this is true, and the Commonwealth only approves vanity plates whose message it officially adopts and endorses, then the Commonwealth is “babbling prodigiously and incoherently;” and “saying many unseemly things.” Matal v. Tam, 137 S. Ct. 1744, 1758 (2017).
The same year Mr. Hart was denied a plate reading “IM GOD”, the Transportation Cabinet approved the contradictory plates “NOGAS”, “EATGAS”, “VEGAN”, and “BBQ4U” among many others. [R. 49-25.] Under the Transportation Cabinet’s logic, the Commonwealth is not only contradicting itself, but spewing nonsense. If the Court finds that vanity plates are government speech, then the Court would also be finding that Kentucky has officially endorsed the words “UDDER”, “BOOGR”, “JUICY”, “W8LOSS” and “FATA55”.
The government's incoherent argument is rejected. The court says restrictions on vanity plates is a government restriction on citizens' free speech. It's not impossible for the government to restrict speech without violating the First Amendment. But it's almost impossible. To retain crucial viewpoint neutrality, restrictions must be consistently applied. The Transportation Cabinet has been anything but consistent.
The Transportation Cabinet argues that a statute banning religious reference is reasonable because it is necessary to support its legitimate government interest in “promot[ing] highway safety” because “potentially controversial messages . . . could lead to confrontation or distraction on its highways.”
If the Transportation Cabinet genuinely wants to avoid controversy on Kentucky’s highways by preventing “promotion of any specific faith, religion, or anti-religion” from appearing on vanity plates, then it should have denied “IM4GOD”, “ASKGOD”, GR8GOD”, “LUVGOD”. But it did not. [R. 49-12.] Instead, the Transportation Cabinet has approved multiplate vanity plates featuring the word “god”. Id. This suggests that the law as applied to Mr. Hart is neither reasonable nor viewpoint neutral. To allow such plates as “IM4GOD” and “LUVGOD” but reject “IM GOD” belies viewpoint neutrality.
Bennie Hart will get his plate. The court, however, limits itself to finding this rejection of Hart's request violated his free speech rights. It does not find the restrictions in the state's vanity plate program unconstitutional as a whole, although the state should now know it needs to apply them far more consistently than it has been. The state takes a loss and Hart can now inform other drivers of his ascendance into godhood.
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