A Delaware woman has won her long battle with the state’s Divison of Motor Vehicles over an anti-cancer license plate that government censors fought for years to keep off the roads.
Kari Lynn Overington, 43, survived cancer and wanted the world to know. In 2020, she was initially granted a blue and gold “FCANCER” license plate — but six months later, the DMV changed its mind. An employee reasoned that the plate “does not represent the division and the state in a positive manner” and rescinded the vanity badge.
A long federal court battle ensued. Overington first appeared as a pro se litigant — without any legal aid whatsoever — using the boilerplate form for a lawsuit used by the Delaware District Court. Later, the American Civil Liberties Union and a private attorney joined her team as the constitutional case slowly moved through the legal system.
In the end, the First State lost to the First Amendment.
On Tuesday, a district court judge ruled in Overington’s favor on a motion for summary judgment — a nearly across-the-board win for the plaintiff, except on the matter of money damages.
In a 19-page opinion by U.S. District Judge Gregory B. Williams, the court expresses a highly skeptical read of the various justifications cited by the government in defense of its censorious efforts.
The facts of the case were particularly bad for the state.
When searching for the actual standards at issue used by reviewers to determine what doesn’t pass muster in terms of the obscene, vulgar, or profane, the court found there really aren’t any hard and fast rules.
“Deposition testimony later revealed that there were no DMV-wide definitions of what is obscene, vulgar, profane, or otherwise prohibited,” the court’s opinion explains. “Rather, Defendants and other employees of DelDOT and the DMV who review vanity license plates analyze the proposed text on vanity plates based on ‘their own judgment.’ Defendants, in exercising their judgment, use tools like Urban Dictionary and Google to search for definitions and possible profane implications.”
The law was even worse for Delaware, the court found.
Delaware, as the issuer of license plates via two separate-but-related agencies, argued the message contained on vanity plates was government speech due to the government’s involvement in the process. Under long-standing case law, government speech is not entitled to First Amendment protection.
The court rubbished this line of thought.
While the Supreme Court has weighed in on license plate design in the past, there is no direct challenge on point regarding “the alphanumeric text of vanity plates.” But, the district court reasons, that 2015 high court case offers a useful contrast to the “FCANCER” dispute.
In that Supreme Court case, Texas was allowed to deny a group from submitting a design that contained the Confederate battle flag. Such designs could be submitted by the general public, and if approved, would be available for general public use. And, since states had long “communicated messages” and “endorsed” such messages using basic license plate design, the pro-Confederate group was barred from forcing the government into adopting the group’s preferred speech.
In his opinion, Williams says there is no history of Delaware ever using alphanumeric vanity plates to communicate or endorse a message. The court cites the Delaware-approved license plate “OMG GO” as an example of the state not endorsing the idea that a driver seeing the message would believe the government wanted them “to drive faster.”
“To suggest that the state of Delaware is speaking through the alphanumeric sequences on the numerous vanity license plates it issues, all with different messages, does not conform with common sense,” the opinion reads.
Finding the First Amendment does apply to the case, Williams goes on to assume, for the sake of argument, that the “FCANCER” license plate “would be perceived” by the public as “F––– Cancer” (as the government claims) instead of “Fight Cancer” (as Overington claims).
And, even then, the judge finds, the government falls short.
“The Supreme Court has addressed whether the government can ban ‘f–––’ on the grounds it may offend on at least three separate occasions,” the district court notes before a lengthy analysis.
On two such occasions — one of which was the landmark case permitting anti-Vietnam War protester Paul Robert Cohen to wear a jacket that said “F––– the Draft” inside a California courthouse — the high court sided with the petitioner. And in one instance — where a radio station was permissibly fined for airing George Carlin’s “Seven Words You Can Never Say on Television” monologue — the high court disapproved of the word being used due to the context.
Through comparison and contrast, the district court found that Overington’s free speech was not much like the infamous Carlin broadcast because license plates are not “frequently directed at children.” Moreover, the court observes that other courts have started to chip away at the case that upheld those fines due to modern technology and increased access to information.
Making something of an unfettered case for “f–––,” the judge cites prior language from several First Amendment-affirming cases like: “Giving offense is a viewpoint,” and “one man’s vulgarity is another man’s lyric” while noting that “fleeting expletives” have increasingly fallen out of the government’s regulatory grasp.
Instead, Williams reasons, the license plate is most like someone who attempted to register “FUCT” with the Patent and Trademark Office. In that case, a censor was overturned by the high court.
“[T]he Court finds that the DMV’s current regulatory scheme allows for viewpoint discrimination and is facially unconstitutional,” the opinion reads.
And while that would normally settle the matter on the merits of the case, Overington challenged the statutes used by the state both facially and as-applied. So the court went on and decided the laws themselves simply too broad to be allowed.
“The record establishes that Section 2121 and Reg. 2285 contain no clear rules defining the types of words that should be denied,” the opinion goes on. “Rather, they vest reviewers with nearly unfettered discretion to restrict private speech on vanity plates well beyond the confines of obscenity, profanity, hate speech, or speech otherwise not protected by the First Amendment. Thus, Section 2121 and Reg. 2285 are unconstitutional as currently drafted.”
But it’s not quite open season for vanity plates in Delaware. In an injunction, the court barred the state from enforcing the law by recalling any existing plates — but also from issuing any new ones.
“This injunction will allow time for Delaware to conform its vanity license plate scheme to the First Amendment,” Williams writes.
The post ‘Giving offense is a viewpoint’: First Amendment protects ‘FCANCER’ vanity license plate and permanently bars Delaware from enforcing unconstitutional law, court rules first appeared on Law & Crime.
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Author: Colin Kalmbacher
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