INF1DL and WAR SUX: the latest license plate case

May 27, 2014

Friday’s Matwyuk v. Johnson (W.D. Mich. May 23, 2014), invalidates Michigan’s ban on personalized license plates “that might carry a connotation offensive to good taste and decency”:

The “offensive to good taste and decency” language impermissibly permits the Department of State to deny a license plate application based on viewpoint because the statute lacks objective criteria, and thus confers unbounded discretion on the decisionmaker…. Furthermore … the Department of State’s inconsistent application of the “offensive to good taste and decency” standard — thrice denying Matwyuk’s proposed INF1DL plate as offensive to good taste and decency and finally acknowledging that Matwyuk’s requested plate should have been issued in the first instance because, at some prior time, a decisionmaker had previously determined that INFIDL is not offensive to good taste and decency — illustrates the potential for viewpoint discrimination inherent in the statute.

In considering a facial challenge, a court must also consider the government entity’s “authoritative constructions of the ordinance, including its own implementation and interpretation of it.” Although the Department of State has adopted internal guidelines that augment the statute by providing some definite standards, the guidelines do not alleviate the potential for viewpoint discrimination.

In fact, the guidelines, which preclude combinations that are irreverent toward “sacred things,” including God, and that negatively portray a given racial, religious, ethnic, or socioeconomic group, including persons of a particular gender or sexual orientation, explicitly sanction viewpoint discrimination. Positive sentiments regarding these topics are allowed, while the opposite are prohibited. Moreover, the guidelines compound the infirmity of the statute by authorizing configurations based on the amorphous ground of being “unacceptable with respect to society’s collective values.” …

[Moreover, “a] statute is unconstitutionally vague if it denies fair notice of the standard of conduct for which the citizen is to be held accountable, or if it is an unrestricted delegation of power which leaves the definition of its terms to law enforcement officers.” … Recently, the New Hampshire Supreme Court held that language in New Hampshire’s vanity license plate regulation prohibiting combinations that “a reasonable person would find offensive to good taste,” was unconstitutionally vague because the regulation lacked clear standards to prevent arbitrary and discriminatory application by government officials…. “[B]ecause the ‘offensive to good taste’ standard is not susceptible of objective definition, the restriction grants DMV officials the power to deny a proposed vanity registration plate because it offends particular officials’ subjective idea of what is ‘good taste.’” For the same reasons, the “offensive to good taste and decency” language grants the decisionmaker undue discretion, thereby allowing for arbitrary application.

As to the particular plates involved, INF1DL had already been issued; WAR SUX hadn’t been, but if this decision is either not appealed or upheld on appeal, it would have to be issued, given that the statutory limitation has been invalidated. (It is possible that a more narrowly and clearly drafted statute might be applied to WAR SUX, though the last few pages of the court’s opinion note that this depends on further factfinding as to “whether usage of the word ‘sucks’ or ‘SUX’ in ‘WAR SUX’ is generally understood to convey a sexual meaning.”)

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
Comments
Show Comments

Get the newsletter

Sign up for daily updates from the Volokh Conspiracy.

Most Read National
Next Story
Eugene Volokh · May 27, 2014