January 19, 2021

Federal Court Strikes Down California’s Ban On ‘Offensive’ License Plates

By Tim Cushing
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.

Source:: https://www.techdirt.com/articles/20201125/13350745777/federal-court-strikes-down-californias-ban-offensive-license-plates.shtml