DENVER — Colorado’s Department of Motor Vehicles inconsistently applies "personalisation standards" on vanity number plates, disallowing frank, innocuous or politically themed plates while approving thinly disguised variations.
A State Bill Colorado review of 66,213 approved and 2,744 rejected vanity number plates reveals an approval system that is at best haphazard and arbitrary, and at worse drowning out political speech. DMV employees approve and deny number plates under a state statute that lets them reject proposed plates "that carry connotations offensive to good taste and decency ... (or) are misleading."
The American Civil Liberties Union of Colorado first asked Colorado officials for the vanity-plate data after a case this year in which Kelly Coffman-Lee, an enthusiast of tofu, was denied the Colorado plate "ILVTOFU" because the last two characters were interpreted by motor vehicle department officials as slang for fornication.
The task of approving or rejecting vanity number plates falls to three DMV employees, who are guided by their knowledge of slang and by "common sense," Couch said. They’re also aided by a line of the state vanity-plate application form that asks applicants to "explain the meaning of the characters you have chosen."
Asked whether the approval process seemed arbitrary, Couch said no.
In addition to identifying vulgar number plates on their own, the committee is guided by complaints registered by the general public. "When we get three (complaints), we send the owner a letter recalling the plate and giving them options on other number plates," Couch said. The committee, however, has some discretion there, too.
Mark Silverstein, the legal director of the ACLU of Colorado and a critic of the current plate-review system, believes the process is unconstitutional under the U.S. Supreme Court’s decision in Cohen v. California (1971). In a 5-4 ruling, that court’s majority noted that it’s difficult for government officials to make "principled decisions" in purging vulgar words from public spaces because, as John Marshall Harlan II wrote, "one man’s vulgarity is another’s lyric."
"The court not only questions whether principled decisions can be made in which to purge and which to allow; it says there’s too much of a risk that attempting to purge vulgar words will wind up veering into censorship of unpopular ideas" Silverstein said.
In Colorado, such unpopular ideas may include the plates "BADUSA," "OJDIDIT," "OK2BGAY" and "NOTFREE" — all of which were rejected by the DMV committee, Silverstein said.
Silverstein said the ACLU would represent an aggrieved plaintiff "if the right one came up, where somebody was censored. We’d take a look at it."
"Here’s another one: DOIT is censored, and DIDIT is not censored," Silverstein said. "Present tense is not OK. Past tense is."
Mystified by any real distinction between the two number plates, Silverstein said, "It’s a task that, as the Supreme Court said, we haven’t seen government able to live up to the challenge of doing it on a principled basis".
The ACLU legal director said he doesn't’t know who’s on the DMV’s committee and doesn't’t know what their qualifications are. "I assume that people do this in addition to their normal duties," he said.
The question of free speech on vanity number plates has arisen from time to time nationally, typically in a trial court or an appellate court that hears cases about a specific plate. Their opinions have conflicted.
David L. Hudson Jr., a First Amendment scholar, noted that in 2001, the 8th U.S. Circuit Court of Appeals ruled in Lewis v. Wilson that Missouri officials violated the First Amendment rights of a motorist by denying her request for the number plate "ARYAN-1." The court wrote that the "DOV may not censor number plates because their message might make people angry".
"However, in the same year, the 2nd Circuit ruled in Perry v. McDonald that Vermont officials could deny a request for a vanity plate bearing the letters ‘SHTHPNS,’" Hudson wrote. "The state had a policy that prohibited the issuance of vanity number plates containing offensive, scatological terms. The appeals panel determined that number plates are a nonpublic forum in which government officials can regulate speech as long as their restrictions are reasonable and do not discriminate based on viewpoint".
The same year as the Lewis v. Wilson decision, Thomas Jefferson Law School Professor Marybeth Herald weighed in with an article, published in the Colorado Law Review, that maintained that "Vanity number plates qualify as protected speech under the First Amendment, and denying plate requests because of their content contradicts traditional principles of free speech".
Herald also wrote, "State agencies have relied upon the Dictionary of Contemporary Slang, sociologists, clerks, a word committee, secret committees, the Tax Commission, and linguists." She argued that judges must not allow government officials to regulate offensive vanity plates because, "offensiveness is in the eye of the beholder and is an almost limitless concept".
"The First Amendment is an insurance policy against government repression," she wrote. "We pay for it all the time — in large and small ways — by tolerating the racist, the pornographer, and the generally offensive speaker.... So if someone wants a plate that says ‘GOVTSUX,’ let her have it. Who knows, it might even have been a popular plate among a few of the signers of the Declaration of Independence".
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