Legal Commentary

(Maybe) Racist Vanity Plates and the First Amendment

By Eugene Volokh

The Washington Post reports:

The owner of a Ford truck bearing the license plate 14CV88 will have to find a new message after the DMV on Wednesday canceled its earlier approval of that series of letters and numbers.

A photo of the truck hit the Web a few days ago, went viral on car and other blogs and finally came to the attention of the Council on American-Islamic Relations, an advocacy group for American Muslims. On Wednesday morning, the group complained to the DMV that the plate contained a white supremacist and neo-Nazi statement.

A few hours later, the DMV agreed that the plate contains a coded message: The number 88 stands for the eighth letter of the alphabet, H, doubled to signify ?Heil Hitler,? said CAIR?s Ibrahim Hooper. ?CV? stands for ?Confederate veteran? ? the plate was a special model embossed with a Confederate flag, which Virginia makes available for a $10 fee to card-carrying members of the Sons of Confederate Veterans. And 14 is code for imprisoned white supremacist David Lane?s 14-word motto: ?We must secure the existence of our people and a future for white children.?

The giveaway that something was amiss, Hooper said, was the truck itself. An enormous photo of the burning World Trade Center towers covers the entire tailgate, with the words: ?Everything I ever needed to know about Islam I learned on 9/11.? ...

I?m not wild about government officials looking for hidden messages of this sort, and guessing about supposed hidden offensive meaning (even if the guess here proves correct). But in any event, rejecting a vanity plate on the grounds that it?s ?racially ... offensive? (which I assume is the basis for the restriction) likely violates the First Amendment.

The courts that have dealt with vanity plates ? as opposed to special license plate designs, which may be a different matter ? have concluded that the choice of a vanity plate is private speech (though within a government-created program) and not government speech. Therefore, while the government may impose viewpoint-neutral content-based restrictions, such as on vulgarity (e.g., TP U BG, which supposedly means ?FUCK? in stenographic shorthand, or SHTHPNS), it may not discriminate based on viewpoint (for instance, because ARYAN-1 conveys a ?message of racial superiority?), nor may it use standards that are so vague that they can be a cloak for viewpoint discrimination (e.g., a ?contrary to public policy? standard). And the judgment that this license plate is ?racially ... offensive? is pretty clearly a judgment that certain viewpoints ? such as the supposedly white supremacist viewpoint on this plate ? must be excluded from license plates.

I should mention that there?s a plausible argument that the government should have broad authority to control speech on license plates that are issued and printed by the government, and to disassociate itself from viewpoints it dislikes by refusing to print them on those plates. And if it did so, people would still be free to put whatever speech they want on their privately produced bumper stickers, or even more elaborate displays ? as this very driver had done.

But under the Supreme Court?s current precedents ? reflected in the three appellate cases I linked to above (TP U BG, SHTHPNS, ARYAN-1) ? a government program which lets people use government-provided resources to express themselves, with no real quality judgment on the government?s part, may not discriminate based on the speakers? viewpoints. Whether the program is treated as a ?designated public forum? or a ?nonpublic forum,? governmental viewpoint discrimination in such a program is unconstitutional.

Thanks to Louis Offen for the pointer.

UPDATE: See also the posts here on PRO NRA, IM GAY, HOE, and ILVTOFU.

Full post as published by The Volokh Conspiracy on April 22, 2010 (boomark / email).