Criminal Law

Vanity Plates and the First Amendment

Vanity plates—a seemingly innocuous topic—has divided courts on the issue of freedom of speech.

Most states allow drivers who are willing to pay a little extra to customize their license plates—called “vanity” plates. You’ve likely seen various types of vanity plates. You might even have one yourself.

The two types of vanity plates you see on the road are “specialty” plates and “personalized” plates. Plates with alumni or sports team themes are examples of specialty plates; basically, the driver chooses the background but not the actual characters of the plate. With personalized plates, the motorist chooses the alphanumeric identifier to make a statement, such as “VNTYPL8” or “HIOFCER.”

So, what’s the controversy? Well, certain specialty plate logos and personalized plates have proven more divisive than others. For instance, can a state issue a specialty plate with the logo “Choose Life,” but reject the logo “Respect Choice”? And what’s the state’s role in censoring a motorist’s personalization request that is obscene or expresses a racist ideology?

These issues have sharply divided courts (including the U.S. Supreme Court) on whether vanity plates are entitled to First Amendment protections that ensure freedom of speech.

Are Specialty Plates Private or Government Speech?

In the case of specialty plates, the First Amendment debate has primarily focused on whether the plates represent private or government speech. Individual motorists and organizations have argued that specialty plates are expressions of the individual’s speech—in other words, private speech. Some states, on the hand, have taken the position that themes appearing on government-issued license plates should be considered the words of the government, not of the motorist who ordered the plate.

Why is the private-versus-government-speech distinction important? The First Amendment protections apply to private but not government speech. So if specialty plates are considered private speech, the First Amendment limits the state’s ability to censor the content. The government can regulate private speech only if the regulations are viewpoint neutral—meaning the government cannot favor one viewpoint over another. But if specialty plates are government speech, an individual doesn’t have a viable argument that censorship violates free speech right—the state is free to do as it wishes.

Recently, one specialty plate case made it to the U.S. Supreme Court—Walker (Texas DMV) v. Sons of Confederate Veterans, 135 S.Ct. 2239 (2015). In Walker, the Texas Motor Vehicles Board denied an application for a plate design that included the Confederate battle flag.

A divided U.S. Supreme Court (five justices against four) held that Texas’s specialty plates were a form of government speech. Based on this classification, the Court upheld the Board’s decision to deny the group’s proposed design. The Court reasoned that Texas was free to control its message on state-issued license plates.

The four dissenting justices argued that specialty plates are essentially mobile billboards for groups to express themselves—a form of private speech. The dissent would have ruled that specialty plate designs proposed by private parties are private speech, and the state cannot reject the design based on its viewpoint.

The case has done little to quell the debate. State system for creating specialty plates vary, so questions remain as to Walker’s applicability in each state.

(ACLU of North Carolina v. Tennyson, 815 F.3d 183 (4th Cir. 2016).)

Are Personalized Plates a Public or Nonpublic Forum?

Regarding personalized plates, the courts tend to focus on a different First Amendment question—whether a license plate is a “public” or “nonpublic” forum. The forum classification determines how much authority the government has to restrict private speech (your personalized identifier) on government property (a state license plate). (Read about the differences between a public and nonpublic forum.)

In a public forum, the government’s authority to limit speech is highly restricted. The government has more authority to restrict speech in a nonpublic forum. But in either case, government officials cannot discriminate based on viewpoint.

Each state has different regulations or guidelines for whether to reject or accept personalized identifiers. Regulations that are vague or allow too much discretion by the local official are typically found unconstitutional. If you choose to apply for a personalized message, be sure to find out what your state does and does not allow.

(Lewis v. Wilson, 253 F.3d 1077 (8th Cir. 2001); Perry v. McDonald, 280 F.3d 159 (2d Cir. 2001).)

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