The Fourth Circuit weighs a question that has long divided courts: whether the character strings on vanity license plates are government speech or private speech.
From today’s ruling in Whateley v. Lackey, drafted by Fourth Circuit Judge Pamela Harris and joined by Judges Agee and Keenan:
In Virginia, motorists may customize their license plates with their own chosen character sequences. The Commonwealth permits this for a fee, subject to certain limits on vulgarity and the like. Curtis Whateley took advantage of this option and sought a personalized plate bearing the characters “FTP&ATF”—which he meant to convey, “Fuck the Police & Alcohol, Tobacco, and Firearms.” Virginia initially issued the plate but later revoked it on the grounds that it was vulgar and could be understood to advocate violence….
This appeal requires us to decide a question that has divided district courts and state supreme courts in recent years: whether the character sequences on personalized license plates (often called vanity plates) are government speech or private speech. Does Virginia speak for itself through the characters it issues on personalized plates—thereby expressing the Commonwealth’s chosen views? Or do Virginia’s vanity plates reflect the private speech of drivers like Whateley—in which case government restrictions on that speech must satisfy the First Amendment? We conclude that the messages on Virginia’s personalized license plates constitute private speech protected by the First Amendment….
Whateley’s private speech enjoys First Amendment protection under the public forum doctrine, but whether he will prevail under that framework is a separate inquiry. That analysis will hinge on the nature of the forum Virginia has provided for private speech on its vanity plates and on Virginia’s reasons for recalling Whateley’s “FTP&ATF” message. {Oversimplifying somewhat, in traditional and designated public forums, open to all speakers on all topics, “governments have limited leeway to restrict speech,” and such restrictions are typically subject to strict scrutiny. In a nonpublic forum, by contrast, speech restrictions “only need to be reasonable and viewpoint-neutral.”}
The forum analysis can be intricate and fact-intensive. Compare Mitchell v. Md. Motor Vehicle Admin. (Md. 2016) (holding that Maryland vanity plates embody private speech subject to First Amendment scrutiny, yet upholding the denial of the plaintiff’s requested “MIERDA” message as a reasonable and viewpoint-neutral restriction in a nonpublic forum), with Hart v. Thomas (E.D. Ky. 2019) (holding that Kentucky vanity plate messages are private speech, and that denial of the plaintiff’s “IM GOD” vanity plate violated First Amendment limits applicable to nonpublic fora because the restriction was unreasonable and viewpoint-based). Because “we are a court of review, not first view,” we follow our normal practice and remand to the district court to address the issue.
For further context on the court’s analysis, and in particular why this case isn’t governed by Walker v. Texas Divisions, Sons of Confederate Veterans, Inc. (2015), which dealt with license plate designs rather than the vanity tags themselves, refer to the opinion.
Whateley is represented by Matthew William Callahan and Eden B. Heilman (ACLU Foundation of Virginia).
