LOUISVILLE, Ky. — When the Canadian province of Saskatchewan in February denied a man’s request for a vanity license plate bearing his last name, saying it was offensive, David Assman got the last laugh.
Assman (yes, his real name, but pronounced “OSS-man), painted a huge version of the plate on the back of his pickup truck.
Regulating language on personalized plates has long pitted the government’s interest in maintaining decency on the roadways with the free speech rights of motorists.
In November, a federal judge in Kentucky ruled the state had improperly denied a plate saying “IMGOD” to a Northern Kentucky atheist.
Then, 12 days later, a disabled former Marine sued the state for rescinding his plate that read “INFDL,” which he said was a term of camaraderie used by Marines who served in the Middle East.
First Amendment scholars, including David Hudson of the Freedom Forum Institute, said that states are “maddeningly inconsistent” in applying vanity plate rules, so much that it makes their decisions look “arbitrary and unreasonable.”
In Indiana, for example, the Department of Motor Vehicles once denied a plate saying “CNCR SUX” but said “WNTR SUX” was OK.
In Kentucky, the Transportation Cabinet’s Division of Motor Vehicles has allowed plates saying “GODLVS” and “TRYGOD” while rejecting 80-year-old retired postal worker Bennie Hart’s request for “IMGOD.”
Branch manager Ainsley Snyder testified in Hart’s case that if a motorist requests a plate that says “BLUE” because it’s his favorite color or because he’s a Kentucky Wildcat fan, he would get the plates.
But if he said he wanted it to signify he’s a Democrat, it would be rejected because state law bans plates that promote a political belief or party.
Motor Vehicle Commissioner Matt Henderson said that while he would reject a plate that says “JESUS” because the law also prohibits promoting “any specific faith, religion or antireligion,” he would allow one that says “IPRAY2” because “no specific religion is stated there.”
Hudson and other experts, including Leslie Gielow Jacobs, a professor at University of the Pacific’s McGeorge School of Law, predict vanity plate rules in Kentucky and other states eventually will be struck down because they improperly allow state officials to impose their viewpoints.
That would force states to allow virtually anything on personalized plates or to abandon them entirely, which would cost them much needed revenue.
In Kentucky, where it costs an extra $25 a year to get a vanity plate and there are about 40,000 on the road, the state would stand to lose about $1 million annually.
‘Rather be golfing’
The law on vanity plate speech is unsettled because the U.S. Supreme Court hasn’t ruled on the issue.
In 2015, on a narrow 5-4 vote, it held that Texas could block a “special plate” promoting the Sons of Confederate Veterans, which would have included a rebel flag.
But the court said its rulings applied only to special plates, not personalized ones. Special plates carry the name and logo of a university, hobby, sports team or industry, such as “Friends of Coal” in Kentucky.
The majority held that special plates are government speech, not personal speech protected by the First Amendment, in part because the public assumes the state is endorsing their message.
Writing for the dissenters, Justice Samuel A. Alito Jr. said that was ridiculous, given that there are more than 300 special plates on the road in Texas. Watching those plates speed by, he asked, “Do you really think that ones that say ‘Rather Be Golfing’ mean the official policy of the state is that it is ‘better to golf than to work?’“
Hart’s dispute began in 2016 when he moved from Ohio to Independence, Ky., with his wife of 60 years and requested the same plate he’d had for 12 years in Ohio.
Under a Kentucky requirement that applicants explain why they want certain letters and numbers on their plate, he said he wanted to promote his view that “faith is susceptible to individual interpretation.”
The Kenton County clerk approved “IMGOD” but emailed the Motor Vehicle Division that she hoped the state “would not feel it was appropriate.”
Snyder, the branch manager, rejected the plate, saying it violated rules because it was “vulgar or obscene.”
When Hart appealed, a lawyer for the state said the plate wasn’t denied for that reason but instead because it was “not in good taste” and would “create the potential of distraction to other drivers and possibly confrontations.”
But the state could cite no evidence that had happened in the dozen years Hart drove with it in Ohio.
He sued, saying the state had violated his free speech rights, and its lawyers sought to throw his suit out.
The Transportation Cabinet said vanity plates — like special plates — are government speech that isn’t protected by the First Amendment.
“The government nature of license plates is clear for the simple reason that plates are produced and issued by the state,” the lawyers said in their motion.
They also have the state’s name on them, the lawyers said, suggesting the state is conveying and endorsing their message
They said Hart and others have no more right to place an offensive message on a license plate than to put one on “a guard rail or stop sign.”
And the plaintiff, they noted, “has always had the freedom to display any message he wants on his motor vehicle by placing a bumper sticker on the rear.”
Hart fought back.
It is absurd to argue that the government endorses the messages on vanity plates, said his lawyers from the ACLU of Kentucky and the Madison, Wis.-based Freedom from Religion Foundation.
One approved plate, for example, says “VEGAN,” while another says “BBQ4U,” they argued.
Kentucky has approved plates saying “ZOMBEE” and “IMFAT,” they pointed out.
“It is doubtful that Kentucky has adopted these positions themselves,” they argued.
Not only that, Hart’s lawyers said the state was inconsistent. While one official said Hart’s plate was banned because “it is inappropriate to engage in a conversation about God on the highway,” the state allowed pro-religion messages like “THXGOD” and “SRVGOD.”
U.S. District Judge Gregory F. Van Tatenhove ruled for Hart.
On its face, vanity plates represent the motorist’s view, not the state’s, he wrote in a Nov. 13 opinion. The law itself allow them to pick out numbers and letters “significant to the applicant.”
If the court had found that personalized plates are government speech,” he continued, “then the court would be finding that Kentucky has officially endorsed the words ‘BOOGR,” “JUICY” and “FATASS.”
Once the government has permitted some comment on an issue, it may not then regulate speech in ways that favor some viewpoints or ideas at the expense of others, he said.
Jacobs and Hudson, the First Amendment professors, said that reasoning could eventually doom most restrictions on license plates in Kentucky and other states. Jacobs said states may only be able to ban scatological terms.
Regulating plates without running afoul of free speech rules have vexed officials in both Indiana and Kentucky.
In fact, after a Hoosier judge ruled in 2014 the state’s Division of Motor Vehicles had unconstitutionally denied a plate saying “O1NK” to a resident who said the message was a light-hearted reference to his work as a police officer, the agency threw up its hands and stopped issuing vanity plates for two years.
It resumed doing so when the Indiana Supreme Court, following the U.S. Supreme Court’s lead in the special plate case, said personalized plates have no First Amendment protections because they are government speech.
In Kentucky, after Hart sued, the state also briefly stopped issuing vanity plates so it could ensure “relevant statutes are consistently followed,” Henderson, the motor vehicle commissioner, testified last March.
Then it decided to entrust plate review to a five-member panel comprised of “a diverse group of individuals,” Henderson said.
But when the panel took away a plate saying “PRAY4” from Susi Burton, who described herself as a devout Christian — and Christians complained to then-Gov. Matt Bevin’s office — the state dropped the panel and Henderson took over the job himself, in collaboration with lawyers in the governor’s office, he testified.
He also said the state adopted a “more nuanced view” of whether plates with religious or political messages would be accepted.
The state let Burton keep her plate. Henderson not only apologized; he bought the plate for her.
Shaun DeWaters, the ex-Marine who sued last month when the state forced him to relinquish the “INFDLS” plate, is seeking to throw out Kentucky’s vanity plate regulations entirely.
State officials said it violated rules against politics as well as promoting a religion or anti-religion.
His Cincinnati attorney, Robert Newman, said neither restriction will survive.
“Imagine if there was a town square where people were allowed to make speeches,” he said. “I can’t imagine a town … prohibiting a religious speech or even an anti-religious speech.
“A license plate is just another forum. Although it’s a smaller one and more personal one, the same rules apply.”
Added DeWaters, who served in Iraq in 2005 and 2006 and has four children: “I am fighting this not because it just affects me but affects every Kentuckian across the state. I am teaching my children that if they believe in something you must fight for it.”