Bar Exams in the Pandemic JURIST Digital Scholars
Federal judge rules California ban on offensive vanity license plates violates freedom of speech

A federal judge has concluded that California’s ban on vanity license plates considered “offensive to good taste and decency” violated the First Amendment’s freedom of speech.

California law requires that the state DMV approves vanity license plates before issuing them. The approval process allowed the DMV to deny vanity plates that might “carry connotations offensive to good taste and decency.” The Federal District Court for the Northern District of California held that this phrase was not “viewpoint neutral” because it permitted the DMV to discriminate against certain speech “based on the ideas or opinions it conveys:”

The Court does not hold that the DMV cannot prohibit certain words from appearing on environmental license plates. For example … “[o]bscenity, vulgarity, profanity, hate speech, and fighting words fall outside the scope of the First Amendment’s protections.” … However, this Court follows the Supreme Court and concludes that [o]nce [it has] found that [Section 206.00(c)(7)(D)] ‘aim[s] at the suppression of’ views,” it no longer “matter[s] that [the DMV] could have captured some of the same speech through a viewpoint-neutral [regulation].”

In his Tuesday opinion, Judge Jon Tigar addressed the situation of one plaintiff, a gay man named Kohli, who had applied for a vanity plate to read “QUEER.” Tigar argued that Kohli’s case was analogous to the Supreme Court case Matal v. Tam, a case brought by Simon Tam, the Asian founder and bassist of a band called “The Slants.” Tam chose the name to “reclaim the word” for those of Asian descent. Likewise, Kohli chose the word “QUEER” for his license plate in an effort to “reclaim the word” and “drain its denigrating force.” Tigar concluded that the DMV’s decision to deny Kohli’s license plate “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.”‘”

Even without the lack of viewpoint neutrality, the ban was not “reasonable” since it failed to “provide an ‘objective, workable standard.’ This resulted in an arbitrary review system that allowed different reviewers to reach different conclusions about “whether a certain configuration should be rejected based on their judgment of what might be ‘offensive’ or not in ‘good taste.'” For instance, one plaintiff wanted “OGWOOLF” on his license plate to reflect his military nickname and his love for wolves. The DMV denied his request because “OG” could mean “original gangster,” even though it had issued license plates with “OG” on them in the past.

The Pacific Legal Foundation, which filed the complaint against the California DMV in March, released a statement saying it was “a great day for our clients and the 250,000 Californians that seek to express their messages on personalized license plates each year.”