RICHMOND, Va. (CN) – A Virginia driver argued in the Fourth Circuit on Wednesday that the First Amendment protects its anti-government license plates.
Curtis Whateley used his license plate that read “FTP&ATF,” an acronym for “For Police and the Bureau of Alcohol, Tobacco, Firearms and Explosives,” for more than a year before the Department of Motor Vehicles received an anonymous complaint. Whateley argued that the government’s removal of the license plate violated his right to free speech by imposing viewpoint discrimination.
A lower court discharged challenge, ruling that license plate symbols constitute government speech because they serve as a means of identification.
“A license plate is not a bumper sticker,” the government said attorney Richard Taylor. “Unlike a bumper sticker, the license plate belongs to the community.”
Whateley told the three-judge appeals panel that the license plates are personalized messages. Whateley is one of more than 930,000 Virginia drivers who use personalized license plates, which makes up 11% of all vehicles registered in the state.
“There is an expressive element to the required combination of characters,” said attorney Matt Callahan with the American Civil Liberties Union of Virginia, which represents Whateley. “The entire purpose of the complaint in this case was to eliminate Mr. Whateley’s ability to express that message to law enforcement and the nation.”
The government pointed to the decision of the Supreme Court in Walker v. Texas Division, Sons of Confederate Veterans, where the majority stated that the useless license plate designs are government speech. Whateley made several distinctions between the cases.
“There is a rich history of states putting their own messages on license plates, including legislative acts,” Callahan said.
Whateley said the average person would perceive a pre-approved license plate design as a government-sponsored message, but no one would read his license plates as a government message.
“There is no expressive dimension to any license plate required by the state of Virginia, either now or throughout its history of issuing license plates; the license plate simply functions as a type of fingerprint,” Callahan said.
Callahan also noted that in *Walker*, the court reviewed 350 license plate models. By contrast, in the instant case, the government contends that any of the millions of possible combinations of symbols a driver chooses is government speech.
Callahan said his client’s case is more analogous to the Supreme Court decision Matal v. Tam. materialconcerned a group’s application to trademark the name “The Slants”. Lower courts ruled that the trademark office correctly rejected the application, deeming it racially offensive to Asians under the Disparagement Clause of the Lanham Act of 1946. The Supreme Court ruled that the clause discriminates on the basis of viewpoint and that trademarks are not protected under the government speech doctrine because the trademark office is presented as a third party.
The Supreme Court ruled that the government must exercise control over speech for it to be government speech. The government claims it controls personalized plates through its guidelines, which prohibit the combination of symbols considered profane, sexually explicit, related to excretion, used to depict private parts of the body, used to condone violence or used to depict illegal activities. Callahan countered that, unlike other accepted versions of government speech, which control speech at the front end, these guidelines are issued in response to complaints.
“Mr. Whateley’s requested license plate was issued to him three separate times,” Callahan said. “If the government is really claiming that it has a compelling interest in expressing a message or a view through these license plates, this weird sort of ‘release it first and wait for public complaints to stand’ is simply inconsistent with that interest in the government making a statement.”
U.S. District Judge Pamela Harris, a Barack Obama appointee, asked the government why it would not consider license plates private speech.
“Is there really any chance that the state can’t prevail by just saying ‘well, it’s private speech, and we’ve opened a non-public forum on our license plates and we don’t allow people to use the f-word?'” Harris asked. “Isn’t that some kind of reasonable, perspective-neutral limitation that you can use?”
Lawyers representing the government did not respond to a request for comment. US Circuit Judge Steven Agee, a George W. Bush appointee, and Senior US District Judge Barbara Keenan, another Obama appointee, completed the panel.
“The Virginia DMV has no license to revoke the free speech rights of Virginians just because they disagree with what we have to say,” Callahan said in a statement to Courthouse News. “Today we asked the court to recognize that our client’s personalized license plate is private speech and to reaffirm that all Virginians’ personal expression on their license plates is protected by the First Amendment.”
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