⚠ Warning: Explicit language ahead.
Vehicle license plate cases occupy their own bizarre niche of First Amendment law. Many a law student has frolicked in the casenote garden of free speech doctrine to ponder these curious shout-outs of individuality in the midst of their seeming imprimatur of state authority.
Are license plates government or private speech? Can obscenity occur in a word? Has indecency even been regulable since Mark Harmon said "deep shit" on Chicago Hope? Is the license plate a limited public forum? Is public forum doctrine still a thing? Oh, the vanity!
In the latest installment of this immortal combat, the U.S. District Court for the District of Rhode Island issued a preliminary injunction against the Rhode Island (my home state) Department of Motor Vehicles (DMV) over its license plate approval standard: "connotations offensive to good taste and decency."
The plaintiff challenged the Rhode Island standard both facially and as applied under the First Amendment after his plate, "FKGAS," was recalled upon a citizen complaint to the DMV. To the self-described "outdoorsy" plaintiff, according to his
complaint in the litigation, the plate means "fake gas," appropriately
adorning his electric Tesla. (
But see also court's footnote 10, below.) Opining on plaintiff's motion to restrain and defendant's motion to dismiss, the court wholly rejected the DMV's effort to employ government speech doctrine, ruling instead that the plaintiff's First Amendment challenge held water under (non)public forum, overbreadth, and vagueness doctrines.
"The very essence of vanity plates is personal expression," the court wrote, citing classic precedents from "Fuck the Draft" on Cohen's courthouse jacket, to "Bong Hits 4 Jesus" at the Olympic torch relay, to the recent "Slants" rock'n'roll trademark. At the same time, the DMV might in the future muster the requisite "reasonable" and viewpoint-neutral support for its list of banned plates.
"Although [state law] authorized the DMV to promulgate rules and regulations giving further guidance on what is not allowed, there is no indication at this stage of the litigation that the DMV has exercised that opportunity," the court wrote. "Instead, its history of granting and rejecting vanity plate requests leaves the observant to try to glean some governing principles."
But wait; there's more.
U.S. District Judge Mary S. McElroy wrote a delightfully playful introductory paragraph to the memorandum opinion, worth sharing here in full, with footnotes.
The American love affair with the automobile is well-known.[FN1] With some densely urban exceptions, we are a nation of drivers, not bus takers.[FN2] We drive when we could walk. For some, the automobile is a symbol of prestige,[FN3] for others a utilitarian way to get around.[FN4] For some, it is an instrument of grand adventure,[FN5] for others a tried-and-true way of putting a baby to sleep.[FN6] Sometimes it is a repository for personal goods;[FN7] for unfortunate others, sometimes it is a home.[FN8] For Sean Carroll it is, no doubt among other things, a vehicle for personal expression: this Rhode Island resident has a strong commitment to the environment and it is because of that attitude that he has become embroiled in this controversy with the Rhode Island Division of Motor Vehicles (“DMV”), the state arbiter of license plate alphanumeric assignments. Mr. Carroll, as a manifestation of his views, bought himself an electrically powered TESLA automobile and, in August of 2019, requested from the DMV[FN9] the license plate "FKGAS."[FN10] It was issued in the ordinary course of such requests, but several months later, after the DMV received a complaint, it recalled the plate on threat of a revocation of his vehicle registration were Mr. Carroll not to return it. Mr. Carroll chose to put his energy where his mouth is, and commenced this litigation, seeking to enjoin the DMV from recalling the plate and from revoking his registration.
1 Jeremy Hsu, Why America’s Love Affair with Cars is no Accident, Scientific American (May 24, 2012)....
2 According to ongoing studies by the United States Department of Transportation, “87% of daily trips take place in personal vehicles and 91% of people commuting to work use personal vehicles.” U.S. Dept. of Transportation, National Household Travel Survey Daily Travel Quick Facts, Bureau of Transportation Statistics ... (Aug. 19, 2020).
3 “A rise in tangible luxury offerings in vehicles, shifting consumer preferences from sedan to SUVs, and increasing disposable incomes of consumers have been propelling the demand for luxury cars around the world.” [Mordor Intelligence] (Aug. 19, 2020).
4 Whether an owned vehicle, a rental one, or a Zip-car, the automobile is the preferred method for getting around. DeBord, Matthew, “The car is about to transform society – for the second time” [Business Insider] (March 28, 2016)....
5 Hunter S. Thompson described the feeling behind his trip in the Red Shark in this way: “Every now and then when your life gets complicated and the weasels start closing in, the only cure is to load up on heinous chemicals and then drive like a bastard from Hollywood to Las Vegas ... with the music at top volume and at least a pint of ether.” Fear and Loathing in Las Vegas: A Savage Journey to the Heart of the American Dream [Rolling Stone] (1971).
6 “New parents drive an average of 1,322 miles per year to put their kids to sleep, according to a 2012 UK study. Dads averaged up to 1,827 miles in the study, and half of all the parents surveyed admitted to driving their kids around to get them to sleep at least once a week.” Ben Radding, Why Driving In A Car Puts Your Baby to Sleep, Fatherly (Aug. 26, 2019)....
7 See People v. Taylor, 614 N.E.2d 1272, 1277 (Ill.App. 1993) (for defendant, who was a passenger in her boyfriend’s car during a cross-country trip, “[t]he interior of the Volvo was in a sense their ‘home’ for the duration of the trip.”).
8 In one American city as recently as a year ago, 1,794 people were living out of their vehicles – an increase of 45% from two years before. Vivian Ho, The Californians forced to live in cars and RVs, The Guardian (Aug. 18 12:29 PM)....
9 Mr. Craddock has been sued in his official capacity as Administrator of the Division of Motor Vehicles. The defendant is referred to at various places in this memorandum as “Mr. Craddock,” “the DMV,” and “the Registry.”
10 Mr. Carroll alleges, and at this early stage of litigation the Registry does not dispute, that FKGAS was his daughter’s suggestion, intending a meaning of “fake gas” to refer to the electric car. He does not contest, however, that the plate could also be perceived as sending the message, “fuck gas” and he embraces that second meaning.
A compelling question arises as to what plate combinations have failed to qualify for R.I. DMV approval. The FOIA advocates of the Government Attic endeavored to collect banned license plate lists from the states a few years back. The fruits of their labors are collected online for your downloading gratification. In response to Government Attic's request, the R.I. DMV responded: "The RI DMV does not have a list of prohibited plates, nor does it have instructions regarding screening of personalized plates," attorney Marcy Coleman wrote in 2012.
In the complaint in the instant case, in 2020, the plaintiff alleged:
14. On information and belief, the DMV maintains and makes use of a list of
prohibited vanity plates, which includes courtesy plates that may convey
political or social connotation but which it designates not for
approval if requested, including: AIDS, CHRIST, CHUBBY, DIABLO, DOOBIE,
DRUNK, GAY, GUN, HAJJI, HELL, HOOSIER, JESUS, JOCKY, LESBIAN, REDNECK,
SLOB, TROLL, and YANKEE, among others.
15. On information and belief,
the same list also purports to ban various common words such as APPLE,
BANANA, HOOT, METER, and YELLOW, among others.
16. On information and
belief, Defendant has on occasion, without any additional standards,
approved courtesy plates with words that appear on its list of
prohibited plates, including APPLE, CHRIST, TROLL, YANKEE, and YELLOW.
17.
On information and belief, the DMV has specifically denied requests for
other special courtesy plates which arguably convey political or social
connotation, including: BONG, HOOKAH, NYSKS, and REDNCK, among others.
Conversely, on information and belief, the DMV has approved these
special courtesy plates: DOGDOO, FACIAL, FATTY, FCCING, FKNFST, FKS,
FLSHR8, FRELOV, FRIAR, FUBAR, HEAVEN, GUNS, JEWISH, NEAT, OLDFRT, PISTL, REDNEC, REDNEK, REDNK, SABER, SKCK, SNAFU, and TIPSY, among others.
18. In other words, Defendant bans as “offensive to good taste and decency” the license plate CHUBBY but not FATTY; DRUNK but not TIPSY; HAJJI and HELL, but not HEAVEN or JEWISH; GUN but not GUNS or PISTL or SABER; HOOSIER but not FRIAR; REDNECK, but not REDNEK, REDNK OR REDNEC; and SLOB but not NEAT.
19. Defendant’s attempt to ban Plaintiff’s FKGAS plate as offensive stands in contrast to his allowance of such plates as FCCING, FKNFST, FKS, FUBAR, SKCK, and SNAFU, as well as such plates as DOGDOO, FACIAL, and OLDFRT.
20. On information and belief, Defendant has issued standard license plates to car owners that contained the letters FK or FU followed by three numbers.
The case is Carroll v. Craddock, No. 1:20-cv-00126-MSM-LDA (D.R.I. Oct. 2, 2020). The R.I. ACLU is representing plaintiff Sean M. Carroll. Commissioned in the judiciary just one year ago, Judge McElroy has the distinction of being nominated to the bench by both President Obama, in 2015, when her nomination was left formally incomplete in the Senate, and President Trump, in 2018 and 2019. With a B.A. from Providence College and J.D. from Suffolk Law, she worked previously as a public defender and in private practice in Providence, Rhode Island.
