fr33dom hero

November 2014

Examining lawsuits regarding the issuance or revocation of vanity and specialty license plates.

 

That “DEBNAIR” plate attached to the two-seater convertible at the stoplight. That “BESTM0M”-plated minivan at the grocery store.

Vanity plates are meant for individuals who want to express themselves. These plates come at a price, commonly costing more than a regularly issued license plate. In an attempt to remove offensive or objectionable messages from the combination of letters and numbers chosen by the applicant, they also must be vetted by the issuing motor vehicle agency before being authorized. Similarly, organizations or special interest groups can petition for a specialty license plate design to be issued for various causes.

The popularity of both types of plates has risen over the years. Administrative and statutory mechanisms are in place to assess these plates, with many of these judgments coming under legal scrutiny. Arguably, the language on vanity plates is protected speech and so are the designs and styles of specialty plates.

More than 9.7 million American and Canadian motor vehicles possess a vanity license plate, according to a joint 2007 survey conducted by AAMVA and Stefan Lonce, author of LCNS2ROM – License to Roam: Vanity License Plates and The Stories They Tell. The state with the highest vanity plate penetration rate (the number of vanity plates divided by the number of registered vehicles) was Virginia, with 16.19 percent. New Hampshire came in second at 13.99 percent, followed by Illinois at 13.41 percent. The Federal Highway Administration counted 253.6 million registered motor vehicles in 2012, and 247.3 million registered motor vehicles in 2007. As the number of registered motor vehicles has increased steadily since 2007, the number of vanity plates undoubtedly has followed this trend.

Jurisdictional Power

Motor vehicle agencies monitor vanity plate applications and consider whether they are acceptable. Generally, anything deemed vulgar, racist, violent or confusing to law enforcement is struck down. According to an April 2013 jurisdictional survey conducted by AAMVA, jurisdictions can either manually or programmatically vet prospective submissions, with some jurisdictions doing both. A majority of jurisdictions also possess an electronic objectionable personalized plate list that can be updated as needed.

While jurisdictions have different administrative and legislative mechanisms to determine what is deemed acceptable or unacceptable for language on vanity or specialty license plates, the court systems have been used as the battlegrounds to determine whether or not these mechanisms are constitutional. A patchwork of license plate laws has resulted in jurisdictions having complex and sometimes contradictory networks of policies. In the article “Validity, Construction, and Operation of State Statutes Regulating Issuance of Special or Vanity License Plates,” originally published in the 2005 American Law Reports, 6th Ed., Carolyn MacWilliam, J.D., addresses the court cases that have been brought against the issuance or revocation of vanity or specialty license plates. As presented, the author categorizes a number of cases based on the reason for the legal challenge:

  • proper standing—whether or not injury is committed to warrant a constitutional challenge;
  • the effect of a legislative amendment expanding a licensing scheme after the original statute has been challenged;
  • applicability of the Tax Injunction Act—whether or not the specialty or vanity plate fee is a tax to determine the speech rights of the plaintiff;
  • the effect of the Eleventh Amendment upon a First Amendment challenge;
  • type of speech—government or private;
  • viewpoint—whether or not the action was viewpoint neutral or not;
  • administrative review process deemed proper;
  • recall of issued plates; and
  • whether or not administrative fees were justified.

In the courtroom

The last year has brought about more court cases against motor vehicle agencies concerning specialty and vanity plates, which touch on many of the legal bases that MacWilliam notes. Cases in Indiana, New Hampshire and Ohio have garnered notable press with much of the same logic for their challenge to their state’s respective motor vehicle agencies.

In Indiana, Rodney Vawter, plaintiff, teamed up with the American Civil Liberties Union to challenge the Indiana Bureau of Motor Vehicles as to why he was not allowed to renew his vanity plate that read “0INK.” The IndyStar reports that in May, a Marion County Superior Court judge ruled that the administrative review process used by the BMV was vague enough that it violated the First Amendment rights of Vawter. Simultaneously, the process also was not implemented according to state law. He ordered that the vanity plate program the BMV suspended two months after the lawsuit was brought against the agency to be reinstated. As of Sept. 8, 2014, the Indiana Supreme Court issued a unanimous stay to block the Marion County judge’s order to reinstate the program until a final verdict was reached.

In a comparable case, CBS Boston reports that the New Hampshire Supreme Court ruled that the New Hampshire Division of Motor Vehicles’ decision to deny the plaintiff’s “COPSLIE” vanity license was unconstitutional. The opinion expressed that the law was too vague (as in the Indiana decision), restricted free speech and that the denial represented viewpoint discrimination.

To complete the triad, a federal judge in Michigan ruled that the state could not ban speech on license plates because the law is too vague and broad, reports the Detroit Free Press. The suit came from two war veterans who also teamed with the ACLU after they were denied the right to use “INF1DL” (infidel) and “WAR SUX.” Judge Gordon Quist said in his ruling: “The First Amendment applies to messages on personalized license plates.”

These illustrations reveal that although each state disparately came to the same conclusion as to why the actions of the motor vehicle agencies were unconstitutional, a hodge-podge of state litigation exists that renders administrators and policymakers susceptible to a litany of confusing policies. In the Indiana example, if the state Supreme Court overturns the Marion County judge’s decision, Indiana must decide whether or not to continue its vanity plate program.

Motor vehicle agencies must preserve the court’s interpretation of the law, uphold First Amendment rights and maintain oversight of these specialty license plate programs. As specialty and vanity plates proliferate, legal battles will ensue to determine what constitutes free speech, clarifying and muddying policy at the same time.