Tennessee Appeals Court Says Vanity License Plates Are Likely Protected Speech

Free Speech

from the SUCKIT dept

There have been lots of legal battles fought over proprietary blends of numbers and letters. States collecting a premium for vanity plates claim this is government speech, since it’s a state-issued plate. Or, if it’s not quite government speech, it’s the government’s tacit approval of this speech, even if the vanity plate really only contains statements made by plate owners.

There’s no unified take on license plates, even if the Supreme Court has (sort of) weighed in on the matter. That decision dealt with “specialty plates,” which involve driver-generated designs, rather than driver-generated phrases placed on government-designed plates. That difference matters. But the ruling in Walker isn’t conclusive enough to prevent nearly every court dealing with this issue to come to different conclusions.

This decision [PDF], brought to us by the lawyer who won this part of the battle, First Amendment lawyer Daniel Horwitz (almost a Techdirt regular at this point), sides with the driver. Tennessee resident Leah Gilliam applied for a vanity plate more than a decade ago. She was granted a vanity plate reading “69PWNDU” on January 31, 2011. Nothing happened for more than 10 years.

Then this happened:

On May 7, 2021, the Department’s then-Chief of Staff, Justin Moorhead, received a text message on his personal cell phone containing a picture of Plaintiff’s license plate. The message stated: “If I could take a moment of personal privilege and acknowledge the tireless work that Justin does for his department[.] I commend you sir[.]” Mr. Moorhead responded: “Hahah thank you for your citizen[’]s report[.]” Thereafter, Mr. Moorhead brought Plaintiff’s license plate to the attention of the Inventory Unit. The Department reviewed the plate, determined it was erroneously issued to Plaintiff, and revoked it.

That decision to follow up on a text message by revoking a plate that had provided the state with a decade’s-worth of vanity plate fees resulted in this lawsuit. The trial court handed down a rejection of the Gilliam’s constitutional claims.

The panel held that the alphanumeric configurations on vanity license plates are government speech because they convey government agreement with the message displayed. Further, license plates are “government mandated, government controlled, and government issued IDs that have traditionally been used as a medium for government speech.” Inasmuch as the message on the plate amounts to government speech, the panel concluded that the “Free Speech Clause . . . does not regulate government speech[,]” and thus “[t]he constitutional rights the Plaintiff claims in her complaint to have been violated are not triggered or implicated[.]”

The state Appeals Court, however, is not so sure. There’s a lot on the record that says the state definitely knows the messages on vanity plates are not government speech. And it knows this because it said as much during its testimony. Further, it’s painfully clear that any other driver reading a vanity plate knows it’s not speech originating from the government.

[T]he State posits that the message is simply one of identification. That is, regardless of the alphanumeric configuration, the “government message” is that the vehicle is lawfully registered with the State. On the other hand, Plaintiff claims that there is no evidence the State has ever used vanity license plates to communicate with the public. To this, the State avers that our analysis should focus on “the medium of expression, not the history of a ‘program’ related to the medium.”

The State’s argument does not hold water. The State wants to focus on the medium, but what is at issue here, specifically, is the alphanumeric configuration as opposed to the background of a specialized plate, the sticker communicating the month registration expires, or the state the plate belongs to. Vanity plates (that is, the use of personalized alphanumeric configurations chosen by the public) did not come into existence until 1998, and since then they communicate what the individual driver, not the government, chooses.

The court hammers this point home after addressing more of the state’s futile, contradictory arguments:

[W]e are unpersuaded by the State’s position that it historically has communicated an “ID” message through the alphanumeric configurations on license plates. If this were true, the message on the vanity plates would be inapposite, and the State would have no incentive to regulate said messages. Stated differently, to the extent the unique alphanumeric configuration serves only to identify a vehicle as lawfully registered, then it is unclear why the State has an interest in the phonetic message.

Don’t be obtuse, says the court:

We are unpersuaded that citizens, upon viewing messages such as BIGRACK, TOPLS69, and WYTRASH, affixed to personal vehicles believe that the State is conveying a message to the public.

So, if it’s not the government’s speech, it’s citizens’ speech. And there are limits to how the government can regulate this, even if the speech is borne by an object issued by the state.

Even if the government can regulate this speech, it can’t do it the way the state is doing it. To avoid constitutional issues, the regulation should, at the very least, be consistent. And it’s anything but that when Tennessee engages in policing vanity plates.

Although the statutory framework allows the Department to approve or deny vanity license plate messages, the record establishes that in reality, the Department’s oversight has been inconsistent. Plaintiff displayed the vanity plate at issue for a decade before the Department revoked it. Had an acquaintance of Mr. Moorhead not photographed the plate and texted the photo to Mr. Moorhead, it is unknown whether the plate would have been revoked at all. Further, the Department has no written policies about how to screen vanity plate applications for “good taste and decency.” Rather, the record shows that the approval process depends largely upon the judgment of the particular Inventory Unit team member reviewing the application that particular day.

The case will head back to the lower court with specific instructions to actually engage with the First Amendment issues raised and the appeals court’s discussion of these issues.

[P]er this Court’s decision, the panel will have to re-evaluate Plaintiff’s claims in an entirely different framework, to-wit, the strictures of the First Amendment and forum analysis.

Does this mean the lower court will find the regulation of vanity plates unconstitutional? That’s not guaranteed. But there’s a far better chance it will find in favor of Horwitz and his client, considering the state’s arguments to the contrary have been punctured brutally and repeatedly by the higher court. And if Tennessee is really worried about possibly being viewed as the source of off-color phonetics, it could just end the vanity plate program and try to get by with a little less revenue.

Filed Under: 1st amendment, daniel horwitz, free speech, license plates, tennessee, vanity plates