Like thousands of other Californians who apply for vanity license plates, Jonathan Kotler’s application was rejected. Unlike other Californians, Kotler is suing the DMV over it.
A lawyer and constitutional scholar at the USC Annenberg School for Communication and Journalism, Kotler has carried on a transatlantic affair with the British soccer team Fulham F.C. He would travel from Los Angeles to London every year to see the British team play, and over the 2017-2018 season, he watched with pride as Fulham—decked out in iconic white jerseys—performed better than they had in years, finishing third in their league. Inspired by the triumph, Kotler applied for a vanity plate that would publicly proclaim his loyalty to Fulham by using an acronym for the team’s slogan, “Come on You Whites,” or “COYW.”
The California DMV denied Kotler’s application, stating that the plate “carries connotations offensive to good taste and decency”—the standard the entity applies to vanity plates. When an impassioned appeal did nothing to thaw the bureaucrats’ hearts, Kotler decided to sue.
A complaint filed in federal court today accuses the DMV of depriving Kotler “of his right to freedom of speech, in violation of the First and Fourteenth Amendments to the United States Constitution.” His suit asks the court to declare the DMV’s criteria for personalized license plates unconstitutional, forcing the department to cease “any and all implementing administrative rules and regulations, and practices and policies” for reviewing vanity plates. In effect, this would put an end to the entire vanity plate review process.
“You can’t allow bureaucrats to make decisions that are fundamental to what it means to be an American, and our free speech is one of those things,” Kotler says in a press release. “As I tell my students, ours is the only constitution in the world that protects its citizens against their own government. When the government starts to infringe on our rights, that’s when the individual citizen must speak up. If we don’t, we’ll get what we deserve and will have only ourselves to blame.”
Each year, the California DMV receives scores of applications for vanity plates, fielding nearly 250,000 in 2018. The department employs four full-time workers to sort through these applications and eliminate any that may offend “good taste and decency,” ranging from tawdry euphemisms to outright hate speech. The small team uses a 44-page document, “Common Personalized License Plate Configuration Denials,” containing lists of words and examples that don’t fit California’s standards, but the booklet only serves as a reference guide. When an unfamiliar word or phrase inevitably crosses a reviewer’s desk—perhaps some foreign profanity or a new internet slang term—they use more informal tools like Wikipedia, Google Images and Translate, and Urban Dictionary.
In its rejection letter to Kotler, the DMV acknowledges the opposing interests it must weigh in rendering decisions, writing, “I am sure you can appreciate how difficult it is to balance an individual’s constitutional right to free speech and expression while protecting the sensibilities of all segments of our population.” But according to First Amendment scholars, California may have gone too far in its efforts to shield the moral senses of its drivers and pedestrians.
According to Eugene Volokh, a professor at the UCLA School of Law who specializes in the First Amendment, the law potentially violates two constitutional principles: It discriminates against speech based on viewpoint, and it relies on standards that are too discretionary (and therefore open to viewpoint-based discrimination).
“The ban on vulgarities—that could be seen as viewpoint neutral,” Volokh says. “The ban on racially offensive material is clearly viewpoint based.”
If the DMV had rejected Kotler’s plate for vulgarity—perhaps interpreting “Come on you whites” as a euphemism for ejaculation—Kotler’s suit might not hold water. But, by rejecting it on the grounds that it’s racially offensive, the DMV rendered a viewpoint-based verdict, Volokh says.
A DMV spokesperson says the department doesn’t comment on pending lawsuits, but pointed to a 1973 California Court of Appeals case, Katz v. Department of Motor Vehicles. In that decision, the court upheld the “offensive to good taste and decency” standard as constitutional, even while the plaintiff argued that the DMV had violated his free speech by rejecting his desired plate, “EZ LAY.”
Even if the meaning of COYW had been intentionally derogatory against white people, Kotler may still have a constitutionally protected right to the plate. Volokh points to another recent Supreme Court case Matal v. Tam, in which an all Asian-American rock band called the Slants sued the Patent and Trademark Office (PTO) for denying them federal registration of their band name. While the PTO rejected the trademark on the grounds that it was derogatory toward people of Asian descent, the Court held that the rejection fell into unconstitutional territory by regulating private speech (racist or not).
But more than just that, Volokh says that the DMV’s standards may rely too much on subjective decision making. “Unless it’s very clear that they have been interpreted in a very precise and narrow way, the terms [‘offensive to good taste and decency’] are potentially so vague and discretionary that they’re likely to be unconstitutional,” he says.
The United States Supreme Court has, in fact, examined constitutional questions about license plates already. In the 2015 case Walker v. Texas Division, Sons of Confederate Veterans, Inc., the court decided in a 5-4 split that the Texas DMV could deny a specialty license plate proposed by the Sons of Confederate Veterans. The requested plate design featured two Confederate flags, which ran afoul of the DMV’s prohibition against plates that “might be offensive to any member of the public.”
Crucially, though, the Walker decision applied to the design (which the court held as Government speech) not the plate’s configuration (the speech of private citizens). Justice Stephen Breyer wrote in the majority opinion, “Our determination that Texas’s specialty license plate designs are government speech does not mean that the designs do not also implicate the free speech rights of private persons.”
In Kotler’s case, “even if it were a racist message, it wouldn’t be seen as the government’s racist message,” Volokh says.
Kotler is being represented pro bono by the Pacific Legal Foundation (PLF), a conservative and libertarian public interest law firm. While most of the foundation’s litigation has revolved around property rights, it’s recently taken an interest in First Amendment issues. In a case before the Supreme Court last year, PLF successfully argued that Minnesota had violated voters’ free speech rights by banning political clothing in polling places. In that case, PLF found success with a similar strategy employed here, arguing that the state’s law was overly broad and vague.
The license plate question has appeared in front of the top courts in at least three other states: New Hampshire, Maryland, and Indiana. In New Hampshire, the State Supreme Court struck down the DMV’s prohibition on plates “offensive to good taste,” citing the arbitrariness of the standard.
“Because the ‘offensive to good taste’ standard is not susceptible of objective definition, the restriction grants DMV officials the power to deny a proposed vanity registration plate because it offends particular officials’ subjective idea of what is ‘good taste,'” the New Hampshire Supreme Court wrote in a 5-0 decision.
The Maryland Court of Appeals used the same logic as New Hampshire, although it ruled in favor of the Motor Vehicle Administration. By denying the configuration “MIERDA,” Spanish for “shit,” the MVA had used a viewpoint-neutral standard in evaluating the plate.
Indiana, however, went another direction, ruling that license plates are examples of Government speech, not private speech, and are therefore held to looser standards. This split among lower courts raises the possibility that the issue will head to the United States Supreme Court.
The broader public relations push around the case paints Kotler as another victim of liberal censorship, drawing a parallel between California’s efforts to filter out disagreeable material to other conservative grievances with censorship. Leading with the heading, “California’s next frontier as speech police: your license plate,” the case’s website portrays Kotler as a champion of free speech.
“You can call Jon a sports fan or a First Amendment expert, but the DMV’s misguided efforts to regulate license plates have misbranded Jon as a racist.”
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