California may have to end most restrictions on personalized license plate language that some might find offensive, if a lawsuit filed Tuesday prevails.
The libertarian Pacific Legal Foundation lawsuit challenges the state Department of Motor Vehicles' current policy on free speech grounds.
The department denied more than 30,000 of the nearly 250,000 applications submitted in 2018, the last year for which statistics are available, after deciding that the proposed language “may carry connotations offensive to good taste and decency," says the lawsuit filed in federal court in San Francisco.
“This broad and vague regulation requires four full-time DMV administrators police license plate applications," the lawsuit argues. Those denials “deprive plaintiffs their right to freedom of speech, in violation of the First Amendment to the United States Constitution."
Department officials declined comment on the pending litigation, which challenges a program that brought the state nearly $60 million last year.
The environmental plates challenged in the lawsuit cost $53 initially and $43 annually to renew and are among 14 special interest license plates that help pay for environmental and special programs.
The lawsuit comes months after another federal judge rejected the department's argument that vehicle license plates constitute government statements, ruling that it is unlikely that “viewers perceive the government as speaking through personalized vanity plates.”
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In that challenge filed by the same nonprofit legal organization, the department subsequently allowed California soccer fan Jonathan Kotler to honor his favorite team with the vanity plate “COYW.” Kotler supports London-based Fulham, whose fans often chant “Come On You Whites” for their players in white jerseys.
But the department didn't change its underlying policy, which the new lawsuit seeks to end on the grounds that the First Amendment doesn’t allow the government to ban speech just because it finds it offensive.
“We probably wouldn’t challenge a regulation limited to seven obscene words, but it strains credulity to say that there are over 30,000 messages per year, ranging from sports cheers (COYW) to someone’s nickname (OGWOOLF) that need to be banned," foundation attorney Wen Fa said in an email exchange. “As the DMV’s regulation underscores, vague bans on ‘offensive’ speech inevitably lead to arbitrary results.”
The OGWOOLF plate was sought by the firm's lead plaintiff in the new lawsuit, Army veteran Paul “Chris” Ogilvie of Concord, California. He says it combines the first two letters of his last name with an old nickname. The department rejected the plate for fear people would interpret OG as short for “original gangster,” the lawsuit says. It says he acquired the nickname OG during his military service.
The firm probably has a good point, said Eugene Volokh, who teaches First Amendment law at the the UCLA School of Law.
"When the government sets up a program in which people can engage in their own speech, like a license plate program, it generally has to administer it in a reasonable and viewpoint-neutral way, so it doesn’t discriminate based on viewpoint,” he said.
The current policy seems to fall short, he said, “first of all because that’s very vague and separately because some of the offensiveness that the DMV seems to be pointing to seems to come from the viewpoint.”
The suit includes plaintiffs with four other examples:
— “DUK N A,” which the lawsuit says is short for Ducati motorcycles and Andrea, the first name of plaintiff Andrea Campanile. The department said it sounds like an obscene phrase.
— “BO11UX,” though the lawsuit says “bullocks” has been used to mean “nonsense” in a national advertising campaign.
— “SLAAYRR,” which it says is a reference to the metal band
— “QUEER,” which it says is a reference to the plaintiff's sexual orientation and his record label, Queer Folks Records, which he adopted in an effort to reclaim what has become a pejorative label.
Even if the state ultimately allows more arguably offensive words on license plates, Volokh said, "it’s not such a huge deal. It’s not that people will start distrusting the DMV. Anything people can say on a license plate they could say on a bumper sticker.”
