This article originally ran in the August issue of AVN magazine. Click here to see the digital edition.
In a rather curious case, the United States Supreme Court held that states have the right to decide which organizations can have vanity license plates and which cannot. The 5-4 decision had some unusual alliances, with Justice Breyer siding with the DMV and Justice Alito siding with the First Amendment; one would have expected the opposite.
As a matter of background, most states issue some variety of personalized license plates, as you know. The common thread to these is that the DMV rakes in a little extra cash that way, although some states donate the extra cash to the cause being advanced by the branded license plates.
California was an early player in this game, allowing citizens up to six characters of their choosing. The most requested plate was “PEACE,” prompted by the anti–Vietnam War movement. In the early 1980s, California ran out of six-digit license plate numbers, so it was upped to seven characters, by which time the tie-dyed hippie generation had evolved into the Brooks-Brothers-clad yuppie generation, and the most requested plate was “PORSCHE.”
Now you can’t have just anything written on your license plate. And the limits to that are subject to controversy. One example was a Californian who decided that “NO PLATE” would be cute. However, it backfired when every time someone in California whose car had no license plate and had a delinquent parking violation, Mr. “NO PLATE” was tagged with the fine. The administrative hassle caused by that put an end to “NO PLATE.”
License plates started as a mechanism for demonstrating annual payment of the car tax; and they had numbers so that the police could distinguish one vehicle from another. After a decade or two of the products of prison sheet-metal shops containing just numbers, states decided to do a little chamber-of-commerce-type activity, putting the state motto on the plate, such as “The Garden State” (New Jersey), “America’s Dairyland” (Wisconsin), “Live Free or Die” (New Hampshire) and “Land of Lincoln” (Illinois). There is no truth to the rumor that Wisconsin proposed “Eat Cheese or Die” for a license-plate motto.
As an aside, the author can attest that a long-haired 21-year-old driving a Volkswagen through rural Texas in 1970 with “Land of Lincoln” plates produced a record number of traffic stops. The only solution would be illegal: put some kind of opaque tape over the Illinois state motto.
However, that’s exactly what George Maynard did four years later: he put a piece of tape over “Live Free or Die,” New Hampshire’s license-plate state motto. Maynard, you see, belonged to Jehovah’s Kingdom, the beliefs of which were contrary to his state’s slogan.
Apparently there wasn’t much crime in Lebanon, New Hampshire in those days, or the traffic cops were zealous supporters of the state motto, or some combination of the two, because Mr. Maynard managed to accumulate three license-plate violations in a few months’ time; and the judge sent him to jail for 15 days as a result. Now, remember, all Mr. Maynard did was obscure the “Live Free or Die” slogan with tape; the license plate’s numbers were completely visible.
Obviously exasperated, Mr. Maynard brought a federal lawsuit, challenging New Hampshire’s law that could send him to the hoosegow for putting adhesive tape over the “Live Free or Die” motto on his license plate. The case went to the Supreme Court of the United States, and Mr. Maynard won. Wooley v. Maynard, 430 U.S. 705, 717, n. 15, 715, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977). Observing that a vehicle “is readily associated with its operator” and that drivers displaying license plates “use their private property as a ‘mobile billboard’ for the State’s ideological message,” the Court found that New Hampshire could not compel that speech. The First Amendment, you see, not only supports freedom to speak; it also supports freedom to shut up.
After numbers-only plates, soon followed by adding state mottos, the third iteration of license-plate art was vanity plates. And a good example of the controversy arising from those is a case in which the author was lead counsel. Mr. Jay (I will call him), a delightful fellow living in Northern Nevada, wanted to acquire the Nevada personalized license plate, “GO PALIN” for his car. After spending thousands upon thousands of dollars in attorney’s fees fighting the DMV, he finally won. However, with other elections coming and Sarah Palin falling out of favor, Mr. Jay figured that he might want a new license plate for his candidate of choice in the next election; and he was not about to spend many thousands of dollars going through an administrative fight that might frustrate his license-plate effort until after the election was over. So, he decided to challenge Nevada’s offending regulation to the extent that it prohibited license plates that favored any political party or candidate.
Mr. Jay, you see, is one of the most tenacious individuals one could ever meet.
The odd thing about this is, the author of this column is no fan of a great number of the doctrines advanced by Ms. Palin. Moreover, Mr. Jay never has had anything to do with the adult entertainment industry; and doesn’t necessarily think much of it. As it turned out, the only two interests that Mr. Jay and his attorney (the author) had in common were golf and an intense belief in the constitutional right of free speech. It was one of those “I’ll defend to the death your right to say it” type of things—well, maybe only to the Ninth Circuit. (Credit the quote to François-Marie Arouet, alias Voltaire, 1694-1778.)
Mr. Jay’s lawsuit challenged Nevada’s DMV regulation prohibiting personalized license plates that favored any political party or candidate. With no success at the trial court level, the team appealed to the United States Court of Appeals for the Ninth Circuit, the appellate court one level below the Supreme Court that is responsible for federal appeals from the Western states.
The DMV, however, could see the writing on the wall. Shortly after the lawsuit was filed, the DMV started in motion an effort to repeal the offending regulation, a process that takes a long time. So the race was on. If the DMV could repeal the regulation before the Ninth Circuit struck it down, the DMV could claim that the case was moot; if the Ninth Circuit would strike down the regulation before the DMV could finish the process of amending it, then Mr. Jay could argue for attorney’s fees. Either way, the regulation would be gone.
The Ninth Circuit is horribly overwhelmed; so the DMV won the race. But Mr. Jay now can get the license plates that he wants, probably supporting candidates that the author doesn’t like. For sure, though, some Nevadan will have “HILLARY” plates to balance things off.
The fourth iteration of license-plate art is organizational symbols. For example, you need not drive far in Southern California without seeing a “UCLA” or “USC” plate. Nevada has dozens of them, ranging from UNLV to Veterans of various of the armed services to the “Welcome to Las Vegas” sign, commemorating Sin City’s 100th anniversary (for some ten years now) to many other varieties. These are graphical; for example, the UNLV one has the little mustached Rebel mascot. Those are the types of license plates that gave rise to the Supreme Court’ most recent free-speech case.
Texas offers some 350 varieties of so-called specialty license plates like the above Nevada and California examples. If some Texas group wants a specialty license plate representing it, there is a mechanism for applying to the DMV; and, upon approval, the applied-for license design will commence issuing. Designs also can originate with the DMV or the legislature. Texans can get Notre Dame or USC plates, which probably would irritate most Longhorn fans.
The Texas branch of the Sons of Confederate Veterans, an organization consisting of members that are accurately described by the organization’s name, wanted specialized license plates of its own, complete with its logo that featured a flag of the Confederacy. Now, if it isn’t obvious, not everyone in Texas thinks that the Confederacy was such a great idea. Although there are a good number of residents of Texas who are transplants from states that wore blue uniforms in the Civil War, there also exists a substantial number of native Texans who are embarrassed about someone flying the Stars and Bars—or putting it on a license plate. So the Sons were denied:
“The Board explained that it had found ‘it necessary to deny th[e] plate design application, specifically the confederate flag portion of the design, because public comments ha[d] shown that many members of the general public find the design offensive, and because such comments are reasonable.’”
Surprise, surprise! But the Sons sued, claiming that the DMV was improperly regulating speech: all of those other organizations get to display their logos reflecting their positions of interests; if they can speak, we should get to speak, too.
In a 5-4 decision, the Supreme Court held that the logos on Texas license plates were not protected by the First Amendment because license plates are government speech. The First Amendment, you see, limits the extent to which the government can regulate private speech; but it has no impact on speech by the government.
The general principle that the First Amendment does not regulate governmental speech is not troubling. Some of the examples set forth by Justice Breyer (who most would have expected would have come out on the other side of this issue) only make sense. It is not possible for government to function if it were required to allow opposing views every time it took a position on something.
Dissenting, Justice Alito took the persuasive position that what Texas had done was to create a limited public forum, where viewpoint discrimination is constitutionally prohibited. One wonders what Justice Alito would have said if the subject license plate was “BUYPORN”?
Given that only two of the nine justices—one on each side—spoke to the issue, it is not entirely clear whether this would extend to vanity plates where the motorist selects the text. It is distressing to think that a Republican DMV director would permit “GO JEB” but reject “HILLARY.” It seems clear that, especially in the case of vanity plates, a limited public forum has been created; just sit by the side of the road and watch; it’s very entertaining to see what people think up. It is equally clear that DMVs will argue that all license plates are government speech so that they can be totally censored; and unfortunately, likely successfully.
The reason the case was “curious” is that there is much litigation over vanity plates. One would think that the court would have taken a case about vanity plates, where there is a nearly infinite number of possible expressive possibilities, although there is a nearly infinite number of organizations. Also, vanity-plate disputes are far more frequent.
The argument that the author made in the Ninth Circuit—that the DMV cannot reject any vanity plate unless the speech is an exception to the First Amendment (fighting words, etc.)—appears to have been shot down. Sigh!
Look for Alabama and Mississippi to put the Stars and Bars on their license plates. And Mr. Jay’s lot looks to be out of luck—unless, of course, the government agrees with them.
Clyde DeWitt is a Las Vegas and Los Angeles attorney, whose practice has been focused on adult entertainment since 1980. He can be reached at [email protected]. More information can be found at ClydeDeWitt.com. This column is not a substitute for personal legal advice. Rather, it is to alert readers to legal issues warranting advice from your personal attorney.
