Court Strikes Down California Limits on Personalized License Plates “Offensive to Good Taste and Decency”
California allows drivers to select their own personalized license plates (not the designs, but the actual seven-letter/digit code); but Cal. Admin. Code § 206.00(c)(7)(D) imposes some limits:
The department shall refuse any configuration that may carry connotations offensive to good taste and decency, or which would be misleading, based on criteria which includes, but is not limited to, the following:
- The configuration has a sexual connotation or is a term of lust or depravity.
- The configuration is a vulgar term; a term of contempt, prejudice, or hostility; an insulting or degrading term; a racially degrading term; or an ethnically degrading term.
- The configuration is a swear word or term considered profane, obscene, or repulsive.
- The configuration has a negative connotation to a specific group.
- The configuration misrepresents a law enforcement entity.
- The configuration has been deleted from regular series license plates.
- The configuration is a foreign or slang word or term, or is a phonetic spelling or mirror image of a word or term falling into the categories described in subdivisions 1. through 6. above.
Earlier this year, Judge Jon S. Tigar held that this program provided a space for the drivers’ own speech, rather than (as with the license plate designs in Walker v. Sons of Confederate Veterans (2015)) for the government’s speech. This means that any restrictions on such private speech had to be viewpoint-neutral and reasonable; and yesterday, in Ogilvie v. Gordon, he held that these restrictions were unconstitutional:
First, the Court holds that California’s prohibition on personalized license plate configurations “that may carry connotations offensive to good taste and decency” constitutes viewpoint discrimination under Matal v. Tam (2017) and Iancu v. Brunetti (2019). Kohli, who identifies as gay and established “Queer Folk Records” and the music label “Queer Folk”—which is trademarked by the United States Patent and Trademark Office—describes his “effort to reclaim the word ‘Queer'” in a manner that mirrors Tam’s efforts to “drain [‘slants’ of] its denigrating force.” The DMV’s determination that “QUEER” “may be considered insulting, degrading, or expressing contempt for a specific group or person,” and thus “may be considered offensive,” reflects both the assessment of a viewpoint—an assessment that may or may not be correct, depending on the context—and the regulation’s effect of “disfavoring ‘ideas that offend.'” This is “discriminat[ion] against speech based on the ideas or opinions it conveys.”
Section 206.00(c)(7)(D)’s focus on “good taste and decency” likewise sets up a facial distinction between societally favored and disfavored ideas. As an example of how the Lanham Act’s “immoral or scandalous” bar constituted viewpoint-based discrimination, Brunetti emphasized that “[l]ove rules” would be an acceptable mark, whereas “[h]ate rules” would not. The DMV’s Environmental License Plates Review Procedures similarly lists “Hate” and “H8” as configurations that should be
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