Vanity Plates: A Free Speech Frontier

By Corey Friedman

July 31, 2021 6 min read

The license plate prudes may win a few battles; but when the exhaust smoke clears, they will lose the war.

A Tennessee woman is suing state officials for recalling a vanity plate she has displayed for a full decade without incident. Maine motorists are gearing up for a fight after state legislators replaced the nation's most permissive personalized plate policy with subjective standards tailor-made for bureaucratic busybodies.

Leah Gilliam of Nashville sued the state's revenue commissioner and attorney general over a May 25 letter revoking her 69PWNDU plate because the Tennessee Department of Revenue deemed it offensive. The seven-character message "combines the year of the moon landing with a gaming term," according to Gilliam's verified complaint, which notes her interests in astronomy and video games.

Free speech lawyer Daniel Horwitz and his associate Lindsay B. Smith are representing Gilliam along with David L. Hudson Jr., a venerable First Amendment scholar. In a news release on his website, Horwitz wrote that Gilliam's "harmless vanity plate is transparently protected by the First Amendment" and alleges the state law is unconstitutionally vague.

Many states ban putting 69 on personalized license plates due to its sexual connotation, but some make exceptions for 1969 model-year cars. Five years ago, Utah passed a law exempting veterans from automatic rejection after a combat-wounded Vietnam vet was told CIB69 would be too risque for state roads. The CIB stood for his Combat Infantryman's Badge, and the 69 signified the year he received the Purple Heart.

Government censors aren't known for nuance. If Canadian crooner Bryan Adams moved stateside, a vehicular homage to his memorable hit "Summer of '69" probably wouldn't pass muster. Joyless paper-pushers might even rebuff Buzz Aldrin if he wanted a license plate commemorating the year he walked on the moon.

Facing free speech lawsuits over rejected vanity plates, Maine rescinded its nebulous ban on offensive character combinations in 2015. Drivers proceeded to register hundreds of personalized tags with four-letter words. The sky didn't fall when every heavy-handed regulator's nightmare came true, but turnpike puritans weren't content to live and let live.

Gov. Janet Mills signed a bill June 16 allowing Maine's secretary of state to nix vanity plates for profanity, obscenity, violence, discrimination and sexual content. News coverage ties the legislation to Brittney Glidden's "MILF Mobile," a minivan festooned with suggestive stickers and the license plate TITSOUT.

Glidden told The Intercept that the dual-purpose message is a reference to breastfeeding that also notes her habit of driving topless, which is legal in the Pine Tree State. That vanity plate wouldn't make it past the application stage today — not even for a birder trying to raise awareness of the tufted titmouse, a native species.

Drivers denied their choice of vanity plate are likely to be vindicated following the Supreme Court's unanimous 2017 ruling in Matal v. Tam, which established that government can't refuse to register trademarks merely because they're considered offensive. Asian American musician Simon Tam won the right to secure intellectual property protection for The Slants, a band whose name makes use of an anti-Asian slur as an act of empowerment.

Government agencies' role in registering a unique combination of letters and numbers for a personalized license plate isn't much different from reviewing a trademark application. If courts apply Matal, few — if any — vanity plate restrictions will survive.

Two years prior, a 5-4 Supreme Court ruled that Texas didn't violate the First Amendment when it declined to issue specialty plates for the Sons of Confederate Veterans that included a prominent Confederate flag.

Justices reasoned that license plate designs are a form of government speech rather than personal speech. They'd likely draw a clear distinction between the alphanumeric combinations motorists choose for their vanity plates and the speciality plate designs made available for drivers to select.

Precisely because license plate designs are government speech, the high court ruled in 1977 that drivers can cover state mottoes and slogans such as New Hampshire's "Live Free or Die" if they wish.

States that crack down on drivers' personal expression are on a collision course with the First Amendment that could make Maine's short-lived "anything goes" policy the new national standard. If nothing else, license plate bingo on long road trips could get a lot more interesting.

Corey Friedman is an opinion journalist who explores solutions to political conflicts from an independent perspective. Follow him on Twitter @coreywrites. To find out more about Corey Friedman and read features by other Creators writers and cartoonists, visit the Creators webpage at www.creators.com.

Photo credit: aitoff at Pixabay

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