Vanity license plates in California may now call their owners “OGs,” reclaim the term “queer,” and proudly exclaim the British expletive,”Bollocks!” —  all thanks to a new ruling from a federal judge nixing the state DMV’s regulations forbidding rude and derogatory messages from polluting the space between a vehicle’s taillights.

Specifically, on November 24, U.S. District Court Judge Jon S. Tigar of the Northern District of California enjoined that state’s DMV from enforcing part of its rule book, Section 206.00(c)(7)(D), which declares that “[t]he department shall refuse any configuration that may carry connotations offensive to good taste and decency. . .”

1st amendment. https://t.co/w5mfTymELR

— Chris Ogilvie (@ChrisOgilvie13) March 10, 2020

Tigar, an Obama appointee, agreed with five plaintiffs whose requests for personalized license plates had been rejected by Cali bureaucrats on these vague grounds. The jurist found that the DMV’s rule ran afoul of the First Amendment’s guarantee of free speech and “constitutes viewpoint discrimination” by setting up an arbitrary “distinction between societally favored and disfavored ideas.”

Represented by the libertarian legal beagles at the Pacific Legal Foundation (PLF), the plaintiffs collectively sued DMV director Steve Gordon in March challenging the department’s regulations regarding “environmental” license plates, so-called because the plates raise tens of millions of dollars of revenue each year for the California Environmental Protection Program, which, according to statute, is concerned with protecting the state’s environment.

The claimants are a cross-section of the California Republic’s independent-minded denizens, and the reasons their license plates were rejected by the DMV seem as peevish and absurd as those promulgated by the Mrs. Grundys of yore.

Free speech comes to California license plates. @ENBrown https://t.co/IHMWLbWlOW

— Jack Shafer (@jackshafer) November 26, 2020

Paul “Chris” Ogilvie, a disabled Army vet with tours of Iraq and Afghanistan under his belt, sought approval from the DMV for the personalized plate, “OGWOOLF,” combining his love of wolves with his Army nickname, “OG,” short for his hard-to-pronounce last name. The DMV, however, had Snoop Dogg on the brain, and figured OG stood for “Original Gangsta.” Department censors cited this “reference to gang affiliation” as “offensive to good taste and decency.”

Oakland’s James Blair’s sin was loving the thrash metal band Slayer so much that he wanted to affix a plate that read “SLAAYRR” to his vehicle. No can do, said the DMV, which asserted that Blair’s verbiage was “threatening, aggressive or hostile.”

Down in San Diego, British expat Paul Crawford, owner of the Shakespeare Pub, sought to incorporate his establishment’s motto of “Real beer, proper food and no bollocks,” with the inspired alphanumeric configuration of “BO11UX.”

Bollocks
Available here >>> https://t.co/IaD29EhRcY pic.twitter.com/Vl2Bj1mjg9

— Viz Comic (@vizcomic) February 1, 2018

Not being fans of the UK humor mag Viz, DMV flunkies discerned something of a “sexual nature” in the Brit slang, and pulled the “offensive to good taste and decency” lever.

Andrea Campanile and her fiancé  Scott Gohman are motorcycle enthusiasts with a passion for Ducati racing bikes. Inexplicably, Gohman’s application for “DUKN GO,” short for Ducati and Gohman, was approved, while the DMV said ixnay on Campanile’s “DUK N A,” apparently because it was seen as a version of “Fuckin’ A,” and therefore “profane or obscene” as well as negating all that “good taste and decency” claptrap.

Finally, Amrit Kohli, a member of the LGTBQ community, a record producer and the owner of “Queer Folks Records,” was denied the vanity plate “QUEER” because the DMV saw it as “insulting, degrading” and expressing contempt for gays. Never mind that Kohli’s intent was to take back the slur and repurpose it in a positive light.

In his decision, Tigar ruled that the speech on the license plates was “private speech” and that any regulations on it must be “both viewpoint neutral and reasonable.”

But the DMV’s dictates were not viewpoint neutral, and were in fact making very subjective and often inconsistent value judgements.

For example, the number “69” supposedly was verboten, save when used to indicate the make of a car, but Tigar pointed out that the DMV strayed from this rule. Similarly, the letters “AF,” were sometimes interpreted to mean “As Fuck” and rejected, while others supposedly representing “Air Force” were accepted.

9 years ago, a friend suggests I register my trademark for @theslants. This week, it finally arrived after #INTA2018 Only took about 3,000 days, countless dollars, and multiple courts for delivery pic.twitter.com/DyMfMjsEtS

— Simon Tam (@SimonTheTam) May 23, 2018

Tigar drew upon two relatively recent SCOTUS decisions involving federal trademark law, its 2017 ruling in Matal v. Tam and the high court’s 2019 opinion in Iancu v. Brunetti. The latter, writes Tigar, “invalidated the Lanham Act’s bar on the registration of ‘immoral or scandalous trademarks'” because the act disfavored certain ideas.

The former case also was on point, as it involved a claim brought by Simon Tam, the lead singer of the Asian-American rock band, The Slants, after the U.S. Patent and Trademark Office turned down Tam’s bid to register his band’s name, citing the Lanham Act’s “disparagement”clause.

The clause prohibited the registration of a trademark that “prohibiting the registration of trademarks that may “disparage . . . or bring . . . into contempt or disrepute” any “persons, living or dead.”

But in an unanimous decision, the court found that the trademark provision violated “a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.”

The obvious parallel to Tam, Tigar observes, is Kohli’s effort to reclaim the word QUEER, and the California DMV’s biased interpretation of that effort.

Plaintiffs included a gay man in Oakland who owns Queer Folks Records and wanted to use the word “QUEER” but was refused because the DMV said that might be considered insulting.​ https://t.co/WOiMMnIWp1

— FOX 29 (@FOX29philly) November 25, 2020

Writes Tigar:

“The DMV’s determination that ‘QUEER’ ‘may be considered insulting, degrading, or expressing contempt for a specific group or person,’ and thus ‘may be considered offensive’ . . . reflects both the assessment of a viewpoint – an assessment that may or may not be correct, depending on the context – and the regulation’s effect of disfavoring ‘ideas that offend.'”

Does that mean anything goes on Cali license plates now? Not necessarily, according to PLF attorney Jim Manley. In an interview about the ruling with Front Page Confidential, Manley acknowledged that Judge Tigar’s decision left the door open for the regulation of certain speech not protected by the First Amendment, such as obscenity.

But coming up with the right formula to exclude non-protected speech may prove a hard nut for the DMV to crack.

“It’s not terribly clear where that line ends up being drawn though, because the courts haven’t really spoken with one voice about where that line is,” Manley says. “But we know that the California DMV was far on the wrong side of the line.”

The government will have to “go back to the drawing board,” Manley explains, and come up with “a narrower regulation that responds to the problems that the judge identified in his order.”

Meanwhile, PLF’s clients are ecstatic.

“This is, in some respects, core political expression that they want to engage in,” Manley says. “They’re thrilled that their rights have been vindicated.”

So when do they get their vanity plates?

“We’ll need to talk to the government’s attorneys,” says Manley. “The ball’s in their court, because they’re going to have to figure out how they’re going to deal with the loss . . . and respond to the applications that our clients have already submitted.”

For more First Amendment news, please read:
Lacey and Larkin Ask Ninth Circuit to Order Judge Brnovich’s Recusal
and
BMO Harris’ Failed, Orwellian Effort to Censor Dictionaries