69PWNDU License Plate PWN’d by Tennessee Supreme Court
A short excerpt from today’s long decision by Justice Sarah Campbell in Gilliam v. Gerregano (note that Sarah Martin and I co-filed an amicus brief on the other side in this case, on behalf of Simon Tam of Matal v. Tam fame):
For over a decade, Leah Gilliam’s vehicle displayed a personalized license plate that read “69PWNDU.” The State eventually revoked the plate after deeming the message offensive. Gilliam sued state officials, alleging that Tennessee’s personalized license plate program discriminates based on viewpoint in violation of the First Amendment. The State argues that the First Amendment’s prohibition of viewpoint discrimination does not apply to the alphanumeric characters on Tennessee’s personalized license plates because they are government speech.
In Walker v. Texas Division, Sons of Confederate Veterans, Inc. (2015), the United States Supreme Court held that Texas’s specialty license plate designs were government speech. Although personalized alphanumeric combinations differ from specialty plate designs in some respects, a faithful application of Walker’s reasoning compels the conclusion that they are government speech too. We reverse the Court of Appeals’ contrary holding and reinstate the trial court’s judgment in favor of the State….
We acknowledge that most of the courts that have considered whether personalized license plates are government speech after Walker have reached a contrary conclusion [citing cases from the Maryland Supreme Court and several federal district courts].
We disagree with those courts for two primary reasons. First, they failed to appreciate that the alphanumeric combinations on license plates are the government’s way of communicating identifying information about the vehicle. Second, they departed from Walker with respect to the control factor based on immaterial distinctions.
In Mitchell, for example, Maryland’s high court concluded that the State did not actively control the message on personalized plates even though it exercised final approval authority. The court distinguished Walker on the ground that “Texas … had ‘sole control’ over the content of a specialty plate,” whereas vehicle owners create the message on personalized plates. But even in Texas’s specialty plate program, private entities could submit draft designs for plates. It was Texas’s “final approval authority” over the designs that persuaded the Court in Walker that Texas maintained control over the messages on specialty plates.
And in Kotler, a federal district court concluded that California lacked effective control over its personalized plates notwithstanding that California had final approval authority; it did so based largely on the sheer number of personalized plates approved in California. Walker, however, rejected the notion that the government speech analysis depends on “the precise number” of messages at issue. Texas “allow[ed] many more license plate designs than the city in Summum allowed monuments.” But “Texas’s desire to communicate numerous messages d[id] not mean that the messages conveyed [were] not Texas’s own.” Still other courts erroneously concluded that the State’s control over personalized plates was more akin to the level of control exerted in Tam than in Walker. In reality, the facts in these cases were much more similar to Walker.
Other courts have co
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