A brief excerpt from at this time’s lengthy resolution by Justice Sarah Campbell in Gilliam v. Gerregano (observe that Sarah Martin and I co-filed an amicus transient on the opposite facet on this case, on behalf of Simon Tam of Matal v. Tam fame):
For over a decade, Leah Gilliam’s automobile displayed a personalised license plate that learn “69PWNDU.” The State finally revoked the plate after deeming the message offensive. Gilliam sued state officers, alleging that Tennessee’s personalised license plate program discriminates primarily based on viewpoint in violation of the First Modification. The State argues that the First Modification’s prohibition of viewpoint discrimination doesn’t apply to the alphanumeric characters on Tennessee’s personalised license plates as a result of they’re authorities speech.
In Walker v. Texas Division, Sons of Accomplice Veterans, Inc. (2015), the USA Supreme Court docket held that Texas’s specialty license plate designs had been authorities speech. Though personalised alphanumeric mixtures differ from specialty plate designs in some respects, a devoted utility of Walker’s reasoning compels the conclusion that they’re authorities speech too. We reverse the Court docket of Appeals’ opposite holding and reinstate the trial court docket’s judgment in favor of the State….
We acknowledge that a lot of the courts which have thought of whether or not personalised license plates are authorities speech after Walker have reached a opposite conclusion [citing cases from the Maryland Supreme Court and several federal district courts].
We disagree with these courts for 2 main causes. First, they failed to understand that the alphanumeric mixtures on license plates are the federal government’s manner of speaking figuring out details about the automobile. Second, they departed from Walker with respect to the management issue primarily based on immaterial distinctions.
In Mitchell, for instance, Maryland’s excessive court docket concluded that the State didn’t actively management the message on personalised plates though it exercised last approval authority. The court docket distinguished Walker on the bottom that “Texas … had ‘sole management’ over the content material of a specialty plate,” whereas automobile house owners create the message on personalised plates. However even in Texas’s specialty plate program, non-public entities might submit draft designs for plates. It was Texas’s “last approval authority” over the designs that persuaded the Court docket in Walker that Texas maintained management over the messages on specialty plates.
And in Kotler, a federal district court docket concluded that California lacked efficient management over its personalised plates however that California had last approval authority; it did so primarily based largely on the sheer variety of personalised plates accredited in California. Walker, nevertheless, rejected the notion that the federal government speech evaluation is dependent upon “the exact quantity” of messages at challenge. Texas “permit[ed] many extra license plate designs than the town in Summum allowed monuments.” However “Texas’s need to speak quite a few messages d[id] not imply that the messages conveyed [were] not Texas’s personal.” Nonetheless different courts erroneously concluded that the State’s management over personalised plates was extra akin to the extent of management exerted in Tam than in Walker. In actuality, the info in these instances had been rather more just like Walker.
Different courts have concluded, after Walker, that personalised plates are authorities speech [citing the Indiana Supreme Court and a district court decision]. Like us, these courts discovered that “alphanumeric mixtures present identifiers for public, regulation enforcement, and administrative functions” and subsequently have traditionally been used to convey authorities speech. Additionally like us, these courts discovered that the federal government exerted efficient management over personalised license plates as a result of it had last approval authority and actively exercised that authority by reviewing and, at instances, rejecting requested mixtures. We discover the reasoning of [the latter cases] persuasive and agree with these courts that the alphanumeric mixtures on personalised license plates represent authorities speech underneath Walker.
This is a submit of mine from final Fall that discusses the talk among the many courts, and the way it may play out with regard to rather more ideologically charged plates than 69PWNDU:
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“Illinois Revokes ‘October 7’ License Plates”
So stories The Nationwide Information Desk:
Illinois Secretary of State Alexi Giannoulias revoked 5 “October 7” license plates from state drivers this week after receiving complaints about them.
One such license plate went viral on X after it was shared by Jewish advocacy group StopAntisemitism. The picture reveals the plate surrounded by a “free Palestine” body.
This is the Tweet:
Over 1200 individuals brutally murdered.
Girls and kids raped and tortured.
200+ kidnapped, together with People.And this driver determined to honor the day it occurred on his license plate. pic.twitter.com/8m264iPFzN
— StopAntisemitism (@StopAntisemites) September 12, 2024
Is that this constitutional? Effectively, there is a scorching debate about that, although the rule adopted by most decrease courts would recommend the reply is “no.”
The query is whether or not the license plate is seen as “authorities speech” or as the driving force’s personal “non-public speech.” (The license plate body is clearly the driving force’s non-public speech.) If it is authorities speech, then the federal government can select which viewpoints to talk and which to not, a lot as the federal government can select which monuments to place up in a park, and even which monuments to simply accept when individuals provide to donate them. If it is non-public speech, even inside a government-run program—resembling, as an example, logos inside a trademark registration system—then the federal government should administer this system in a viewpoint-neutral manner.
In Walker v. Sons of Accomplice Veterans (2012), the Court docket held that the license plate background design is authorities speech, even when the federal government let numerous teams suggest their very own designs (which the federal government nearly at all times accepted). However most, although not all, decrease courts which have thought of the query as to the precise license plate letter/quantity mixture on these “vainness plates” have held that these are the driving force’s personal speech. To cite one latest resolution, Overington v. Fisher (D. Del. 2020),
[N]umerous courts since Walker have addressed the alphanumeric textual content of vainness plates, with diversified outcomes. Evaluate Carroll v. Craddock, 494 F. Supp. 3d 158, 166 (D.R.I.2020), Kotler v. Webb, No. CV 19-2682-GW-SKX, 2019 WL 4635168, at *7 (C.D. Cal. Aug. 29, 2019), Ogilvie v. Gordon, No. 20-CV-01707-JST, 2020 WL 10963944, at *2-5 (N.D. Cal. July 8, 2020), Gilliam v. Gerregano, No. M202200083COAR3CV, 2023 WL 3749982, at *10 (Tenn. Ct. App. June 1, 2023), and Mitchell v. Maryland Motor Car Admin., 450 Md. 282, 294, 148 A.3d 319, 326-27 (2016) (discovering that the alphanumeric textual content of vainness license plates is non-public speech) with Odquina v. Metropolis & Cnty. of Honolulu, No. 22-CV-407-DKW-RT, 2022 WL 16715714, at *7-9 (D. Haw. Nov. 4, 2022) and Comm’r of Ind. Bureau of Motor Automobiles v. Vawter, 45 N.E.3d 1200, 1207 (Ind. 2015) (discovering that the alphanumeric textual content of vainness license plates is authorities speech). Nearly all of these instances have concluded that personalised license plate sequences are non-public speech, not authorities speech. This Court docket agrees with the vast majority of courts on this challenge. The Court docket finds that the alphanumeric sequences on vainness license plates in Delaware are non-public speech and never authorities speech for the next causes.
First, the alphanumeric sequences on vainness license plates in Delaware haven’t lengthy been used to convey governmental messages. Walker itself famous that “insofar as license plates have conveyed greater than state names and automobile identification numbers, they’ve lengthy communicated messages from the states.” In contrast, in Delaware, there’s a fifty (50) 12 months historical past of vainness plate sequences being chosen by motorists, and no historical past of the federal government speaking messages via the alphanumeric sequences on license plates. In contrast to in Walker, the place state governments have traditionally used the design of license plates to speak messages, Delaware has not traditionally used the textual content of vainness license plate numbers to speak messages. “To the extent the person registration quantity configurations broadcast any message in any respect, it is just as a result of the state has allowed particular person drivers to select some mixture of letters and numbers that carries significance to the driving force.” ...
Second, there isn’t any credible proof that affordable viewers anticipate the federal government to be sending or endorsing messages by way of the alphanumeric sequences on vainness license plates. Whereas vainness license plates do include the phrase “Delaware,” the document doesn’t assist, for instance, the proposition that viewers of the vainness license plate “OMG GO” consider the state is telling others to drive sooner. Because the Supreme Court docket famous in holding that logos will not be authorities speech, regardless of being registered, “[i]f the federal registration of a trademark makes the mark authorities speech, the Federal Authorities is babbling prodigiously and incoherently. It’s saying many unseemly issues. It’s expressing contradictory views. It’s unashamedly endorsing an unlimited array of business services.” …
Third, though Delaware does train some management over the vainness license plates it points, that regulatory management alone is inadequate to remodel non-public messages into authorities speech…. “[W]e should train nice warning earlier than extending our government-speech precedents,” as a result of “[i]f non-public speech could possibly be handed off as authorities speech by merely affixing a authorities seal of approval, authorities might silence or muffle the expression of disfavored viewpoints.” … Delaware’s regulatory “management” of the alphanumeric sequences on vainness plates doesn’t replicate the management {that a} speaker workout routines over their very own speech, however solely the management that governments train or try to train in a wide range of different contexts….
If the alphanumeric mixture on the plate is handled as non-public speech, then the federal government may nonetheless have the ability to prohibit it primarily based on non-viewpoint-based content material elements (e.g., maybe excluding widespread vulgarities), however it could actually’t prohibit it primarily based on viewpoint. And right here the federal government is certainly performing primarily based on what both it or different observers infer as the perspective of the “Oct 7” plates (that they endorse the Oct. 7 assaults, or for that matter that they take another place on the assaults).
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Joshua D. Minchin, Tennessee Workplace of the Solicitor Common Honors Fellow, represents Tennessee.
