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Limits on Custom License Plates Don't Violate Free Speech

By Casey C. Sullivan, Esq. | Last updated on

A car's license plate, once just a means to identify the vehicle, has increasingly become a way for drivers to express themselves. Vanity plates allow their owners to add a splash of personality to their plates, and many states have license plates promoting specific organizations or causes.

License plates have become so customizable, you might even think they've become a forum for the free expression of ideas. You'd be wrong, at least according to the Second Circuit. After an anti-abortion non-profit sought to have a "Choose Life" license plate issued, the New York DMV refused, citing its policy against placing controversial or politically sensitive messages on plates.

That refusal did not violate the organization's free speech rights, the Second Circuit ruled last Friday.

The "Controversial" Plate

New York's Department of Motor Vehicles allows non-profits to sponsor custom license plates featuring their picture or logo. The Children First Foundation applied for a custom pro-choice plate that motorists would then be able to buy. Such customized plates have led to both controversial and humorous incidents in the past -- as when one man spent years driving a vanity plate reading "EAT THE" coupled Virginia's "Kids First" custom plate, so that his car's license plate read "eat the kids first." Eventually, the Virginia DMV caught on and removed his plate.

In doing so, the Virginia DMV exercised its ability to police the content and language of license plates. That's just what the Empire State's DMV did when it rejected the "Choose Life" application according to the Second Circuit. Children First had claimed that the state's actions were viewpoint discrimination in violation of the First Amendment.

A Neutral Regulation of Speech

The court joined the Fourth, Fifth, Seventh, Eighth and Ninth Circuits in finding that license plates were private speech to which the First Amendment applied. Applying a traditional forum analysis, the court found that the plates constituted a nonpublic form. Despite how customizable they were, their purpose was vehicle identification and revenue production, not to discuss ideas between individuals.

In a nonpublic forum, the government is allowed to regulate speech so long as there are viewpoint neutral standards to guide the regulation. The court found that the standards here -- the law's prohibition of "obscene, lewd, lascivious, derogatory ... or patently offensive" plates and the DMV's policies against controversial messages -- were sufficient and applied without regard to the viewpoints expressed. Those standards did not reach the level of "unbridled discretion" that would make them unconstitutional.

That decision earned a strong dissent from Judge Livingston, who agreed on all other points. The fact that the DMV Commissioner could declare a message "patently offensive" simply for expressing a political viewpoint allowed for arbitrary and discriminatory refusals, she argued. According to Livingston, any prohibition of speech that is "controversial" is constitutionally suspect, if not de facto unconstitutional.

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