OAKLAND — A federal judge found California’s ban on “offensive” personalized license plates unconstitutional Tuesday, ruling it constitutes viewpoint discrimination under the First Amendment.
State regulations require the bureaucracy to refuse configurations that are “offensive to good taste and decency,” based on criteria that include obscene, vulgar, or sexual language, or has “a negative connotation to a specific group.”
Lead plaintiff Paul Ogilvie, a disabled army veteran, sued the DMV in March after it rejected his request for a plate stating “OGWOOLF,” a military nickname that the DMV construed as a reference to gang affiliation. The DMV also rejected a request for a “SLAAYR” plate, paying homage to the California rock band, because it was deemed “threatening, aggressive, or hostile.” A gay man had his request for a “QUEER” plate rejected as well.
U.S. District Judge Jon Tigar enjoined the “offensive to good taste” provision in his 16-page opinion Tuesday, noting the U.S. Supreme Court has previously shot down laws disfavoring “ideas that offend.”
He pointed to the high court’s 2017 decision in Matal v. Tam, where musician Sam Tam successfully challenged a trademark denial for his band “The Slants,” a name he chose “in order to reclaim and take ownership of stereotypes about people of Asian ethnicity.”
Two years later, the high court invalidated the Lanham Act’s prohibition on “immoral or scandalous” trademark registrations in Iancu v. Brunetti. Citing Tam, Justice Elena Kagan wrote, “We hold that this provision infringes the First Amendment for the same reason: It too disfavors certain ideas.”
Tigar referenced both of those cases in his ruling denying the DMV’s motion to dismiss earlier this year when he found personalized license plates are private speech and held that the regulation discriminates on the basis of viewpoint.
He adopted the same reasoning in his latest decision, adding that even if he had found the regulation viewpoint-neutral, it would still be an unreasonable restriction on free speech because it does not provide an “objective, workable standard” for enforcement and is not “capable of reasoned application” under the Supreme Court’s ruling in Minn. Voters All. v. Mansky.
In that case, the court found a Minnesota statute barring political insignia from being worn inside a polling place on election day unreasonable “as its enforcement may turn in significant part on the background knowledge of the particular election judge applying it.”
Tigar likewise found the DMV regulation too subjective to enforce. For example, a ban on the number 69 — with the exception of plates for 1969 vehicle models — was arbitrarily applied. The DMV rejected it as a sexual reference even when applicants explained that 69 was the year when the vehicle was made.
“Because there is no objective, workable standard of what is ‘offensive to good taste and decency,’ different reviewers can reach opposing conclusions on whether a certain configuration should be rejected based on their judgment of what might be ‘offensive’ or not in ‘good taste,’” he wrote.
In an email, the plaintiffs’ attorney Wen Fa of the Pacific Legal Foundation said Tigar’s ruling is a win for free speech.
“The court’s decision vindicates the free speech rights of the 250,000 Californians who seek to express their messages on personalized license plates each year,” Fa wrote. “Vague bans on speech that’s ‘offensive to good taste and decency’ allow bureaucrats to inject their subjective preferences and undermine the rule of law.”
Tigar said his ruling does not prevent the DMV from prohibiting certain words from appearing on personalized license plates, as hate speech and profanity fall outside the scope of the First Amendment. The DMV can still ban those words through a viewpoint-neutral regulation.
The California DMV said it is reviewing Tigar’s ruling.
— By Maria Dinzeo, CNS