If you’ve ever sprung for a vanity plate for your vehicle, you probably assume you can put whatever you want on it – as long as nobody else claimed your clever combo first. A man from Virginia thought the same when he registered “FTP&ATF,” only to have the DMV yank his plate after a complaint.
His challenge made its way to the Fourth Circuit, which has now made clear that those seven characters are his private speech, and the State can’t rebrand them as its own to sidestep the First Amendment.
From Clever Combo to Censored Plate
Virginia has long allowed drivers to swap out their standard, randomly assigned plate numbers for personalized plates made up of seven characters, including letters, numbers, and a few symbols. For an annual fee, drivers can turn that little strip of metal into a message.
Curtis Whateley did exactly that … but his plate request was politically contentious. He requested “FTP&ATF,” which he intended to mean “F*** the Police & Alcohol, Tobacco, and Firearms.” It’s no surprise that this was a blunt critique of modern policing and the federal Bureau of Alcohol, Tobacco, Firearms and Explosives. The DMV issued the plates, and Whateley drove with them for more than a year.
Then a complaint came in. The DMV’s written guidelines say it will not approve personalized combinations that are “profane, obscene, or vulgar; sexually explicit or graphic; excretory-related; used to describe intimate body parts; used to condone or encourage violence; or used to describe illegal activities or substances.” The agency also “reserves the right” to recall plates if it later decides they violate these rules.
After the complaint, the DMV applied those guidelines and recalled Whateley’s plates, telling him his message could reasonably be viewed as both vulgar and as encouraging violence. At one point, the DMV briefly reissued the plates, but ultimately revoked them again.
DMV Denial Becomes First Amendment Fight
Whateley wasn’t about to have it. He sued pro se, bringing a federal complaint against DMV Commissioner Gerald Lackey. His core argument was simple: the plate message is his private political speech. When the DMV pulled it because of its content and viewpoint, the state violated the First Amendment.
The district court never got to the forum and scrutiny questions. Instead, it dismissed the case on the theory that Virginia’s license plates (including personalized ones) are government speech. If the plate speaks on behalf of the state, the usual First Amendment constraints don’t apply. The government is generally free to decide what it says and what it refuses to say when it is speaking for itself.
To get there, the district court leaned heavily on the U.S. Supreme Court’s 2015 decision in Walker v. Texas Division, Sons of Confederate Veterans. In Walker, Texas offered a menu of specialty plate designs, including slogans and graphics approved by the state. The Court held that those specialty designs were government speech and that Texas could reject a Confederate flag design. The district court treated Virginia’s personalized plates as analogous to Texas’s specialty designs and concluded that “on balance,” the message on a vanity plate belonged to the state, not the driver. In other words, the court ruled against Whateley.
But the ACLU of Virginia soon joined forces with Whateley, and brought an appeal to the Fourth Circuit.
Whose Speech Is It, Anyway?
The main argument on appeal was that Walker shouldn’t control here because Virginia has opened up a specific portion of the plate for driver-created expressive content. The Fourth Circuit agreed. Judge Pamela Harris’s opinion starts by reframing the central question. Before you decide whether speech is government or private, you have to decide what speech you’re talking about.
The district court, echoing the Commissioner’s argument, had pointed out that the license plate itself is a “government decal, owned and issued by Virginia.” It argued that the plate communicates a single governmental message: “this vehicle is registered with the state.” In the court’s view, that “general meaning” remains the same regardless of the “unique series of characters” chosen by a driver, so a vanity plate does not change the basic message the government is conveying.
The Fourth Circuit rejected that framing. It treated the functional elements (state name, plate as proof of registration) as separate from the expressive content the DMV has deliberately opened to drivers: the personalized seven-character combination. The DMV itself invites registrants to “create [their] personalized message” and applies its guidelines by asking how a reasonable observer would interpret “the message conveyed by the character combination.” That’s a far cry from “this car is registered.”
In Whateley’s case, the court treats “FTP&ATF” as the relevant message — one that is clearly intended to convey political views and understood as such by observers, including the person who filed the complaint. On this framing, the question becomes: is that message private speech using government property, or the government itself talking through the plate?
Why Vanity Plates Are Different
To decide whether vanity plate messages are government or private speech, the Fourth Circuit applied the three factors the Supreme Court has used in government-speech cases: history, public perception, and government control.
Historically, license plates have carried randomly assigned registration numbers that function purely as identifiers. Virginia’s personalized plates are different: for decades the state has invited drivers to choose their own character combinations, and hundreds of thousands of vehicles now display unique, expressive messages. That history reflects drivers using a state-owned surface to speak, rather than the state using plate text to promote its own views.
On public perception, the court leaned on “common sense.” When observers see a quirky or provocative vanity plate, they attribute it to the driver, not the Commonwealth. The sheer number and variety of messages, many unrelated to public policy, make it implausible that the public understands each plate as an official state position. The plate may be government property, but that does not transform every message into government speech.
The control factor likewise favors treating vanity plate text as private expression. In Walker, Texas created and adopted specialty designs as part of a curated set of state-approved graphics. By contrast, Virginia does not design plate messages; it enforces content-based limits (for example, on profanity or references to illegal activity) and can recall plates that violate those rules. That is regulation of private speech in a limited forum, not authorship of government speech.
What Happens Next and Why It Matters
By holding that vanity plate text is private speech, the Fourth Circuit shifted the focus to what kind of First Amendment forum Virginia has created and how its rules will be reviewed on remand.
The district court now has to decide whether the personalized plate program is a nonpublic forum (in which the state can impose content-based restrictions that are reasonable and viewpoint-neutral) or more closely resembles a designated public forum (in which content-based exclusions face much stricter scrutiny). In a nonpublic forum, a broadly applied ban on profanity or references to illegal activity may be permissible; in a more open forum, those same rules would be harder to justify if they sweep in substantial amounts of political or other core speech.
Whateley’s case is about more than one provocative plate. The Fourth Circuit’s opinion confirms that when Virginia opens up space for drivers to write their own messages, those messages belong to the drivers, not the Commonwealth. For now, Virginia motorists know one thing for sure: if they pay for a vanity plate to speak their minds, the First Amendment goes along for the ride.
