Bollocks! Judge Advances Fight Over California DMV License Plate Rules

OAKLAND, Calif. (CN) — A fan of the heavy metal band Slayer, a British-themed pub owner, a man who wants to take back the term “queer” from bigots, and a motorcycle aficionada have one thing in common: They’ve all run afoul of the personalized license plate censor at the California DMV.

They’ve also all sued the state agency, claiming it uses a vague, discriminatory policy to arbitrarily reject personalized plate ideas it deems “offensive to good taste and decency. This week, a federal judge advanced their case.

In a 12-page opinion, U.S. District Judge Jon Tigar found a lawsuit brought by five Californians can advance to the next stage of litigation because it plausibly alleges the state uses a “facially unconstitutional” regulation for approving personalized license plates.

“It’s a great initial victory for our clients and for all Californians who seek to express their personalized messages on personalized license plates,” said plaintiffs’ attorney Wencong Fa of the Pacific Legal Foundation in Sacramento.

Lead plaintiff Paul Ogilvie, a disabled army veteran, sued the state’s Department of Motor Vehicles on March 10 after it rejected his request for a plate stating “OGWOOLF,” a military nickname. The DMV believed it contained a reference to a gang affiliation.

The DMV also rejected a request for a “SLAAYR” plate, paying homage to the California rock band, because it was deemed “threatening, aggressive, or hostile.” A gay man who started a Queer Folks Records label and sought to reclaim the word “queer” had his request for a “QUEER” plate rejected as well. DMV found it “insulting, degrading or expressing contempt for a specific person or group.”

Additionally, the state refused to permit a plate requested by plaintiff Andrea Campanile, who owns two Ducati motorcycles. The “DUK N A” plate was intended to represent “Ducati and Andrea,” but the DMV deemed it “profane or obscene.”

Plaintiff Paul Crawford owns the Shakespeare Pub in San Diego, boasting a wide selection of British ales and what locals have voted as the best fish and chips in the area. With tall beer mugs hanging from the ceiling and British-themed kitsch lining the walls, the pub has adopted a slogan to match its character: “Real beer, proper food, no bollocks.”

Hoping to honor that theme on his personalized license plate, Crawford applied for a plate that says “BO11LUX.” His request was denied by the DMV, which found the term had a “discernible sexual connotation or may be construed to be of a sexual nature.”

Reached by phone, Crawford declined to comment on why he felt compelled to fight for his right to a license plate bearing the colloquial British term that has evolved to mean “poor quality” and “nonsense” in addition to testicles, but he followed up by email with a statement on the legal victory.

“I am extremely pleased to hear of the court’s decision. I believe this is a positive step in the right direction for all our civil liberties,” Crawford said.

The DMV denies more than 30,000 personalized license plate requests each year, and the plaintiffs claim many of these rejections are completely arbitrary thanks to an overly broad and unconstitutional policy that empowers the state to reject any plate it deems “offensive.”

“Arbitrary results are inevitable when you have such a broad and vague regulation,” Fa said.

In its motion to dismiss, California argued that because license plates are approved by a state agency, the messages are “government speech” and therefore not subject to the First Amendment. To support its position, the state cited the 2015 U.S. Supreme Court decision in Walker v. Texas Div., Sons of Confederate Veterans, Inc., which upheld the state of Texas’ rejection of a proposed license plate design featuring two Confederate flags.

Judge Tigar found that decision did not address whether alphanumeric configurations on license plates, as opposed to plate designs, are considered government speech.

Citing the Supreme Court’s more recent 2017 decision in Matal v. Tam, Tigar agreed with the high court’s finding that the government’s approval of a registered trademark does not mean the government owns or endorses that mark.

“The fact that the government exerts regulatory control over speech cannot, on its own, transform that speech into government speech,” Tigar wrote.

The judge also found the question of whether license plate messages exist in a traditional, designated, or limited public forum irrelevant because the plaintiffs adequately allege the regulation constitutes viewpoint discrimination, which is unconstitutional in any type of public forum.

The case will now advance to the evidence gathering stage. Fa said the plaintiffs will seek evidence on the history of California’s personalized license plate program, regulations and examples of plate requests that were approved or rejected to show that “a lot of arbitrary results” stem from the state’s “vague and broad ban on offensive speech.”

“We don’t contend that the state needs to accept every single license plate application that comes to it, but we do contend that the state has no business discriminating against viewpoints that it finds offensive to good taste and decency,” Fa said.

Tigar’s decision follows the state’s decision in January to settle a lawsuit claiming it violated a college professor’s First Amendment rights by denying his request for a “COYW” plate, meant to represent “Come On You Whites,” a cheer for his favorite English soccer team, the Fulham Football Club. The DMV agreed to permit the license plate after a federal judge in Los Angeles refused to dismiss the complaint.

A California DMV spokesperson declined to comment on pending litigation.

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