Legal Commentary

?IM GAY? License Plate ?Offensive to the General Public,? Oklahoma Government Agency Concludes

By Eugene Volokh

Oklahoman Keith Kimmel asked for a personalized license plate with the text ?IM GAY.? No, said the Oklahoma Tax Commission?s Motor Vehicle Division, and a Tax Commission Administrative Law Judge agreed: The license plate is rejected because of a rule that says, ?No special license plate will be issued which may be offensive to the general public.?

Now it?s an interesting question whether such exclusion decisions violate the First Amendment. The burden on self-expression is slight, since the denial of the plate doesn?t prevent Mr. Kimmel from having a bumper sticker with exactly the same message. What?s more, the license plate might be seen a form of government speech, and that the government should be free not to associate itself with messages it disapproves of.

The lower court decisions I?ve seen generally conclude that viewpoint discrimination in issuing personalized license plates is unconstitutional (I speak here of the unique car identification tag on the plate; programs that provide for special background designs are a more complicated matter). Applying this test would require some inquiry into whether the policy here is viewpoint-neutral. (Mr. Kimmel argues that STR8FAN and STR8SXI were allowed, but it?s not clear whether they might just not have been recognized as sexual orientation references.)

But I want to set that aside here and focus instead on the rationale the Commission gave: That the very message ?IM GAY? is ?offensive to the general public? in Oklahoma. It?s not just that the general public might disagree with the message, or might think that the conduct it describes is immoral. That one publicly admits to doing or being something bad (assuming for purposes of this argument that being gay is bad, which is not my view) isn?t inherently ?offensive to the general public.?

Rather, the very self-identification as gay, with no sexually explicit references or anything along those lines, is seen as ?offensive? to the general public by the Oklahoma Tax Commission. If that?s true, then that reveals a pretty sad state of affairs.

Alternatively, parts of the decision suggest the rationale may be subtly different:

At hearing, the Division articulated three (3) ?unofficial? categories of PLPs which may be offensive to the general public: ?Sexual Connotations,? ?Racial or Ethic Comments,? and ?Cuss Words.? ...

The Applicant does admit ?IM GAY? could denote sexual orientation or preference, which could have a sexual connotation, just as ?Straight? does, but denies that his sexual orientation may be offensive to the general public.

But the ?sexual connotation? of ?gay? is roughly on par with the sexual connotation of ?wife? or ?husband? ? it refers to a status that is generally connected to sex (not always, since one can have marriage without sex just as one can be sexually attracted to the same sex without having sex, but generally), but without any sexual explicitness. It?s not reasonable to treat that vague sort of ?sexual connotation,? I think, as ?offensive to the general public.?

Finally, note that the Commission is not stressing ?may? as referring to a mere possibility that some people are offended. One can imagine such a rule, in which the Commission might concluded that even a generally inoffensive term might be forbidden on the grounds that it ?may be offensive to the general public? in the sense that every member of the public ?may be? offended by it, even if the chance that they will be offended is just 1%. But that?s not the rule the Commission actually seems to be applying: Its test appears to focus on ?the tag?s
offensiveness from an objective standard to people of ordinary intelligence.? And if the Oklahoma government thinks that ?IM GAY? is offensive from an objective standard to people of ordinary intelligence, that is a pretty poor reflection on either the Oklahoma government or on the Oklahoma general public.

(The decision was handed down in October, but I only recently learned about it from the February lawsuit challenging the decision, and it?s taken several weeks to get a copy of it.)

Full post as published by The Volokh Conspiracy on March 17, 2010 (boomark / email).