Yes, the First Amendment protects speech on personalized license plates
Jon Kotler is a professor at the University of Southern California, as well as a First Amendment expert. He’s also been a soccer fan since the 1950s, travelling from Los Angeles to London each year to watch his favorite team, Fulham FC, play in their beautiful stadium on the banks of the River Thames. To celebrate the team’s most successful season in recent years, Mr. Kotler applied for a personalized license plate with the configuration COYW—a commonly used acronym for the team’s slogan (“Come on You Whites”), which refers to the color of the team’s jerseys.
Most Californians do not know what “COYW” means, and everyone who does would know it’s not offensive. Everyone, that is, except the bureaucrats at the California DMV. According to them, “COYW” carries connotations “offensive to good taste and decency,” which was grounds enough to deny Mr. Kotler his personalized plate. In the denial letter, the DMV asked Mr. Kotler to appreciate the need to balance his free speech rights with the sensibilities of the public.
Yet when Mr. Kotler filed a civil rights lawsuit to vindicate his free speech rights, the DMV quickly changed its tune. It asked the trial court to dismiss the lawsuit on grounds that personalized license plates contained the government’s speech. On Friday, the trial court rejected that argument as “nonsensical,” scoring an important preliminary victory for both our case and for free speech itself.
In a decision adopting arguments that PLF made on behalf of Mr. Kotler, the trial court held that personalized license plate configurations like “IAMBOB,” “68VETTE,” and “COYW” were indeed personal speech rather than government speech. The decision has important ramifications. When government speech is involved, the Free Speech Clause doesn’t apply at all. If the DMV had prevailed, it would have gained unfettered discretion to ban speech it didn’t like.
The government could accept proposals that applauded the state regulations, and ban those that criticized government policies. It could approve plates celebrating favored constituents, and deny those that did not. In a world in which the First Amendment was no obstacle, the DMV could have even flipped a coin to determine which proposals to accept and which to deny. Fortunately, the court rejected the government’s tenuous arguments and held that Californians enjoy the First Amendment’s protections when they seek to express their views on their personalized plates.
The court’s decision also marks an important first step to vindicating important First Amendment principles. The government cannot censor speech just because it finds it “offensive.” Different people find offense in different viewpoints, and a broad ban on “offensive” speech would allow the government to act as the speech police, imposing arbitrary power to censor viewpoints it didn’t like.
In a truly free society, individuals have the right to express opinions even if others take offense. For one, many ideas that are laudatory today were offensive at one point. For another, the proper way to dissuade others from holding views we find offensive is by reason, not by force. There is still work to do as we move Mr. Kotler’s case forward, but this initial decision is a promising first step. We look forward to vindicating these important principles, as we continue fighting for the First Amendment rights of not just Mr. Kotler, but Americans across the country.
