License Plate Politics

At the top of New Hampshire license plate, it boldly reads, “Live Free or Die.” This is an important lesson. Never believe license plates, as a Dover man learned when he applied for the “vanity” plate, COPSLIE.  From WMUR9 :

The Department of Motor Vehicles refused to issue a plate to a Dover man in 2010 that read “COPSLIE,” calling the text “insulting.” The DMV cited a state statute that says a vanity plate can’t be “ethnically, racially (insulting) or which a reasonable person would find offensive to good taste.”
While I personally can’t imagine spending hard earned money on a vanity plate in the first place, that’s just my parochial sensibility.  Apparently, others are happy to do so. But would a reasonable person find “COPSLIE” to be “offensive to good taste?”  The problem was exacerbated by what happened next:

Months later, the man was again denied “COPSLIE,” but the DMV approved his second choice, which can be read to say, “Great government.”

“If you praise the government, that’s OK. You can get a plate that does that,” he said. “If you criticize the government or agents of the government, that’s not OK. That’s how the petitioner is trying to frame his argument here.”
To say this raises huge First Amendment issues is an understatement.  The argument that political speech on a license plate is perfectly acceptable as long as it favors the government, and its armed personnel, but unacceptable otherwise is deeply troubling. 

Then there is the question of “good taste.”  What the heck does that mean? Who decides what tastes good? To the extent the states refusal to allow plates that say COPSLIE must pass constitutional muster under strict scrutiny, can anyone seriously argue that “good taste” is sufficiently narrowly tailored? But then, tailored to do what, not offend? Is the government’s interest in no one being offended on the road sufficiently legitimate a purpose to infringe on speech at all?

Or are license plates different?

Some might argue that a license plate, issued by DMV, reflects some degree of governmental approval of the message, though I doubt anyone would buy the argument that the role of the DMV is anything more than a vendor selling an opportunity for people who want to throw money away by putting dopey crap on tin. Others might contend that people have no right to use license plates to express what a government grocery clerk thinks are unpleasant thoughts, though having required plates on cars, and it being perfectly lawful for a person to own a motor vehicle subject to registration with the state, I fail to see what authority the state has to censor content. Having mandated plates, and the registrant complying with the mandate, the business of what the plate expresses isn’t a privilege.

The saving grace for most states is that the cost/benefit analysis of a person whose content is rejected by the state weighs against taking the matter to court. It’s upsetting, perhaps, but not worth the cost and effort to challenge. In this instance, however, the Dover man has decided to take a stand.  Curiously, the New Hampshire Supreme Court appears to be remarkably open to the idea that the state is doing it all wrong.

In the New Hampshire case, the state Supreme Court is doing something uncommon, soliciting opinions from people not directly connected to the case. The American Civil Liberties Union is planning to present an opinion, saying the state DMV made a mistake.

The ACLU was  similarly involved in a Nevada case where the owner has a license plate that read “HOE” until

2006 when a single DMV employee decided arbitrarily that the word was offensive after consulting only the Urban Dictionary, an online source which defines words through user-generated content. Because someone on the Urban Dictionary defined “hoe” as “whore,” Mr. Junge’s plate was revoked.

Junge, however, selected “HOE” for his plate because he drove a Tahoe, and the word “Tahoe” was already taken.

The Court agreed with the ACLU’s arguments that the DMV cannot make First Amendment decisions arbitrarily. Instead, the DMV must show substantial evidence proving that a requested plate is inappropriate. While the Urban Dictionary may be an entertaining website about the English language, the Court acknowledged that it is not a reliable source for decisions about acceptable speech. In relying solely on the Urban Dictionary to deny Mr. Junge’s license plate, the DMV violated the First Amendment. The ACLU of Nevada applauds the Nevada Supreme Court for its decision to permit the “HOE” plate.
The Urban Dictionary isn’t a reliable source? What? Well, in any event, the ruling still leaves much confusion as to what “inappropriate” means, who decides and why the state has any business in deciding what words in likes and what words it doesn’t. 

When it comes to political expressions like COPSLIE, as opposed to abbreviation of Chevy truck models, however, the infringement of free speech goes to the core of what the government should never be permitted to do. Much as it might offend some (and invite unwanted attention from your local police cruiser), that’s the choice of the individual, not a clerk in the bowels of the motor vehicle department.

And if that’s the way somebody wants to squander their money, what business is it of the state? Live free or die, but have happy license plates?  How about government let people put whatever foolishness they want on their license plates, with only those limitations that can pass strict scrutiny. If people want to spend their money engaged in foolish expressive pursuits, then who is government to stop them?

13 comments on “License Plate Politics

  1. REvers

    Driving a car with that plate would get you pulled over more often than a black guy driving a Chrysler 300.

  2. Dr. Sigmund Droid

    But I’m pretty sure the DMV would have no problem with a plate that said YOULIE, correct?

  3. John Neff

    It seems to me that a vanity plate is a state approved message. Why would a state want get involved in approving messages?

  4. SHG

    It only becomes a state approved message when the state becomes integrally involved in approving messages. Otherwise, it’s just a basic revenue raiser, or no other significance.

  5. C. N. Nevets

    I find this troubling, but the First Amendment issues, as such, seem slippery from my lay perspective. Is a vanity plate protected speech? It’s essentially a government publication medium. As the publisher, is the government violating the First Amendment by exercising editorial rights over the content via the medium? Does the government have to hold itself a higher standard of content agnosticism simply because it’s the government?

    He can still spray paint COPSLIE on the trunk of his car if he wishes to express that message, just as my buddy Royce spray painted DIE PIGS DIE on the hood his Camaro when we were in high school.

    I’m trying to think law here, because my personal reaction is simply that this is a crock.

  6. Brett Middleton

    IANAL, either, but your question seems to imply a comparison that eludes me. Does the 1st Amendment hold government to a higher standard of content agnosticism? Higher that what? Than the standard it applies to anyone else?

    But, the last time I looked, the 1st Amendment doesn’t apply ANY standard to ANYONE other than the government. The government is the one and only target of that amendment, which exists for the sole purpose of restraining government interference in speech, religion, assembly and petition. The 1st Amendment does, in fact, apply to the government simply because it’s the government, and the standard it must meet is pretty darned high since “shall make no law” can only be fudged so much without making a complete mockery of the phrase.

  7. Bruce Coulson

    The State also issues broadcasting licenses as well. And has regulatory power over stations. So, if a radio personality stated that ‘Cops Lie’, could the State then refuse to approve a renewal of that license? Openly stating your hostility to a group that has the power to make any road trip long and arduous is rather short-sighted, but since police are people, and people lie, I don’t see that this is a factually incorrect statement.

  8. C. N. Nevets

    The point I was trying to make is that, as I see it, this is the government exercising editorial control over their own publication medium. This is not the government saying, “You are not allowed to make this speech.” This is the government saying, “We are not going to publish this speech.”

    Any other publisher has the right to manage content that they publish.

    It’s not even as if an outside government agency is coming in and “policing” speech on license plates. It’s the publishing agency itself refusing to publish content.

    I would rather just object to their doing this, but I’m not sure I see the First Amendment grounds to do so.

  9. SHG

    The airwaves present a curious issue. The government owns them and leases them with terms. Nobody forces anyone to accept the license terms, and they are free to use whatever other means they like to disseminate information, but not the ones they get from the government.

  10. SHG

    But the government has no particular reason to control the license plate medium. Why not let a private subcontractor make them, contingent on each being a unique identifier. Or better still, let individuals make their own with the same qualification?

    It’s a money maker for the government, and a means of vehicle control, both of which are fine, but have nothing to do with controlling content, and content control has nothing to do with the government’s purpose in having license plates other than to be a unique identifier.

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