E-Alert Case Updates
MVA May Ban Profane Messages on Vanity License Plates
John T. Mitchell v. Maryland Motor Vehicle Administration
Available at: http://www.mdcourts.gov/opinions/coa/2016/10a16.pdf
In a recent opinion, the Court of Appeals held that the Maryland Motor Vehicle Administration (MVA) regulations banning profanity on vanity license plates satisfy the requisite constitutional scrutiny under the First Amendment.
Maryland requires all in-state registered vehicles to display license plates. The plates must contain a registration number which is typically assigned by the MVA, but for an annual fee an applicant may select a “special, personalized registration number” subject to the MVA’s approval. The MVA may deny an application for a vanity plate if the requested registration message is “objectionable” or contains “profanities, epithets, or obscenities.”
In 2009, Plaintiff applied for, and received, vanity plates stating a profane word in the Spanish language. Two (2) years later, Plaintiff renewed his plates. Six (6) months after that, in December 2011, the MVA rescinded Plaintiff’s plates after they received a complaint and subsequently learned the meaning of the Spanish word on Plaintiff’s plates. Plaintiff appealed the rescission, but an Administrative Law Judge (ALJ) found that the word’s offensive meaning justified the MVA’s action. Plaintiff unsuccessfully appealed the ALJ’s decision in both the Circuit Court and the Court of Special Appeals. Notably, Plaintiff asserted that the MVA violated his First Amendment right to free speech in restricting his ability to maintain vanity plates setting forth a profane word. The Court of Appeals granted certiorari to address the First Amendment arguments raised by Plaintiff.
Judge Glenn T. Harrell, writing for the Court, affirmed the MVA’s decision. The Court began its analysis by addressing the question of who was speaking by setting forth a message on a vanity plate. The Court noted that the Supreme Court had recently determined that the design of a license plate, including specialty license plates sought by private groups, constituted government speech. See Walker v. Texas Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239 (2015). As such, the denial of a private group’s request for a specialty license plate did not implicate the First Amendment. In so concluding, however, the Supreme Court set forth three (3) factors which must be considered in determining whether speech is derived from the government or from a private individual: (1) whether the government historically has used the mechanism of communication to speak to the public; (2) to whom the audience of the communications would tend reasonably to attribute the speech; and (3) whether the government exercises control over the communication. Applying these factors, the Court of Appeals concluded that the message selected by an applicant and set forth on a vanity plate is private speech. In so doing, the Court made clear the distinction between the design of the license plate itself and the messages set forth by individuals thereon.
The Court then turned to the issue of determining whether license plates represent a public or non-public forum. In this regard, the Walker Court had stated that the relevant inquiry was whether the government “intentionally open[ed] a nontraditional forum for public discourse.” In reviewing the history of vanity plates in Maryland, the Court determined that the original intention behind the MVA’s decision to permit vanity plates was to raise money, not to facilitate the expression of ideas. Furthermore, because individuals must pay a fee to obtain vanity plates, the general public does not have unimpeded access to forum. As such, the forum is not, in fact, “public.” Finally, the Court was persuaded that the nature of license plates—i.e., physically small platforms with a seven (7)-character limit—was fundamentally “incompatible with ‘meaningful assembly and debate or other expressive activity.’” Consequently, the Court concluded that license plates are non-public fora.
Finally, the Court addressed whether the MVA’s rejection of Plaintiff’s license plate was constitutionally permissible. Because license plates are non-public fora, the State may impose restrictions on speech on license plates that are reasonable and viewpoint neutral. Here, the MVA regulations banning all profanities were content-based, not viewpoint-based, restrictions. Furthermore, the ban was reasonably related to the State’s interest in not communicating that it approves of public displays of profanity. Accordingly, the MVA’s regulation was constitutionally permissible, and the Court upheld the MVA’s decision to rescind Plaintiff’s vanity plates.
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