Denial of ‘offensive’ license plates unconstitutional, judge rules

The Department of Motor Vehicle policy banning license plates the agency finds offensive is unconstitutional since it imposes viewpoint-based discrimination, a federal judge has ruled.

U.S. District Judge Jon S. Tigar ruled Tuesday that the DMV's refusal to issue certain plate configurations because they violate criteria he found to be subjective and inconsistently applied constitutes illegal "discrimination against speech based on the ideas or opinions it conveys."

Enjoining the DMV's "offensive to good taste" provision, Tigar pointed to court precedent explaining that laws disfavoring "ideas that offend" violates the First Amendment.

The DMV said it's reviewing the order.

The ruling does not prevent the agency from barring plates with hate speech and profanity.

Personalized license plates must be approved by the DMV, which can refuse to issue requests that are "offensive to good taste and decency or which would be misleading." The criteria includes configurations that have a sexual connotation, include a vulgar term or misrepresent a law enforcement entity, among others.

The agency has a manual containing a list of specific requests that should be denied. There's a process for applicants to appeal decisions.

Plaintiff Paul Ogilvie sued the DMV over its refusal to issue the plate configuration "OGWOOLF," which reflects his military nickname, "OG," and his interest in wolves. The agency rejected his submission on the ground that it "may be considered threatening, aggressive or hostile."

Another plaintiff's request for the plate "QUEER" was rejected because it "may be considered insulting, degrading, or expressing contempt for a specific group or person."

The lawsuit argued that the DMV's procedures on personalized license plates are unconstitutional since they impose content-based and viewpoint-based restrictions on speech. Ogilvie v. Gordon, 20-cv-01707 (N.D. Cal., filed March 10, 2020).

In Matal v. Tam, a plaintiff successfully challenged a denial of a trademark for his band, the "Slants," which was chosen "in order to reclaim and take ownership of stereotypes about people of Asian ethnicity." Taking offense to the name is viewpoint-based, the U.S. Supreme Court ruled.

Tigar wrote that the DMV's refusal to issue a plate for "QUEER" 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.'"

There's also no objective, workable standard of what is "offensive to good taste and decency" since it's arbitrarily applied, the judge found.

The DMV's denial codes, for example, explain that the number 69 is restricted to use on 1969 model vehicles only, but the policy was inconsistently applied. There were several license plate configurations that were denied despite the applicants explaining that 1969 was the year their vehicles were made, while other requests likely to be interpreted as a sexual reference were granted.

Initial reviewers who deny applications are reversed on appeal roughly 65% to 75% of the time, according to plaintiffs.

"A license plate could be denied depending on a reviewer's subjective view that a configuration could be considered 'repulsive,' or 'degrading,' Tigar wrote.

Plaintiffs' attorneys at the Pacific Legal Foundation, who represented the plaintiff, did not respond to requests for comment.