NY1.com reports, as to a plate seen on a car that also “had a Palestinian flag spread across the windshield”:
“We are pulling this plate [HAMMAS] off the road as patently offensive,” Jackie McGinnis of the state Department of Motor Vehicles said in a statement. “The group represented by the name on the plate is also on the list of entities designated by the U.S. Government as a terrorist organization.”
But federal courts — including the Second Circuit, which covers (among other states) New York — have generally concluded that personalized license plates are a so-called “nonpublic forum,” which means the government may restrict speech on such plates but only in viewpoint-neutral ways. Viewpoint-based restrictions on such plates are unconstitutional.
Here, the removal of the HAMMAS plate is indeed viewpoint-based — what makes the plate offensive is precisely that it expresses support for a particular organization. It’s an evil organization that does evil things, but restrictions on expressions of support for evil organizations are nonetheless viewpoint-based restrictions, and thus unconstitutional. Just as a state may not reject the license plate ARYAN-1 (that’s what an Eighth Circuit decision, applying a similar standard to the Second Circuit standard, held), so it may not reject HAMMAS.
Now there are quite plausible arguments that the state should be free to decide what to allow on plates that it issues, especially since people would in any event be free to put on whatever bumper stickers they please. Some government agencies have argued that the plates are “government speech,” in which the government can select which viewpoints are allowed and which are forbidden. But that’s not the conclusion that courts have generally reached on this point.
All this having been said, if someone works out a plan to send Mr. HAMMAS and Ms. ARYAN-1 on a road trip together, I’d contribute to that.
Thanks to Prof. Josh Blackman for the pointer.