COPSLIE license plate case decided: prohibition on ‘offensive to good taste’ plates is unconstitutionally vague

From Wednesday’s New Hampshire Supreme Court opinion in Montenegro v. N.H. Div. of Motor Vehicles (N.H. May 7, 2014):

The challenged portion of the regulation prohibits vanity registration plates that “a reasonable person would find offensive to good taste.” The phrase “offensive to good taste” is not defined in the regulation. Further, to the extent the phrase could be construed to prohibit obscene material, we note that a separate provision in the regulation prohibits vanity registration plates that are “capable of an obscene interpretation.” …

Taken together, [the dictionary definitions of the words in the regulation] lead to various potential interpretations of the phrase “offensive to good taste.” For example, one such interpretation could be that no vanity registration plates are allowed that are “insulting to the standard of morality or virtue of individual preference.” This reading alone demonstrates the arbitrariness of determining whether a vanity registration plate is “offensive to good taste.”

We acknowledge that the phrase “offensive to good taste” is modified by the “reasonable person” standard. However, this modifier fails to provide sufficient guidance to DMV officials in determining which vanity registration plates shall be authorized. “Reasonable people frequently come to different conclusions.” Indeed, speech that one reasonable person finds “offensive to good taste” may not be offensive to the good taste of another reasonable person.

To the extent the DMV argues that its reasoning for denying the petitioner’s requested vanity registration plate [COPSLIE] in this case aids in interpreting the phrase “offensive to good taste,” we disagree. The DMV initially denied the petitioner’s request because several DMV employees believed the text to be “insulting.” The DMV then argued that the phrase was applied “to exclude … accusation[s] of moral turpitude.” We are not persuaded that these interpretations clarify or explain the meaning of “offensive to good taste” so as to render it constitutionally sufficient. Moreover, we question whether prohibition of accusations of moral turpitude would constitute “viewpoint-neutral” regulation. Regardless, in order to construe the phrase to avoid unfettered discretion in enforcement, we would have to add or delete text to the regulation. This we decline to do….

The DMV further maintains that “the concept of vagueness is inapplicable” in this case because the disputed language “is not a prohibition on the [petitioner’s] conduct but rather a standard by which State employees are to discharge their duties.” As explained above, a regulation may be invalidated as unconstitutionally vague when “it authorizes or even encourages arbitrary and discriminatory enforcement.” The challenged restriction … does just that. As a result, it is precisely the type of restriction that the vagueness doctrine serves to protect against.

Thanks to  Josh Blackman, an assistant professor at the South Texas College of Law, for the pointer.

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.

opinions

volokh-conspiracy

Success! Check your inbox for details. You might also like:

Please enter a valid email address

See all newsletters

Comments
Show Comments

Sign up for email updates from the "Confronting the Caliphate" series.

You have signed up for the "Confronting the Caliphate" series.

Thank you for signing up
You'll receive e-mail when new stories are published in this series.
Most Read National

opinions

volokh-conspiracy

Success! Check your inbox for details.

See all newsletters

Next Story
Orin Kerr · May 7, 2014

To keep reading, please enter your email address.

You’ll also receive from The Washington Post:
  • A free 6-week digital subscription
  • Our daily newsletter in your inbox

Please enter a valid email address

I have read and agree to the Terms of Service and Privacy Policy.

Please indicate agreement.

Thank you.

Check your inbox. We’ve sent an email explaining how to set up an account and activate your free digital subscription.