A conservative law firm is challenging Wisconsin’s rules for approving personalized license plates, saying the rules are arbitrary and violate the First Amendment after transportation officials first approved and later rejected a Chippewa County man’s request for plates intended to suggest the phrase “road rage.”
The lawsuit filed Monday in federal court by the Milwaukee-based Wisconsin Institute for Law & Liberty asks a judge to declare unconstitutional a state law that allows the Department of Transportation to nix plates “which may carry connotations offensive to good taste or decency.”
Filed with the suit are the DOT’s criteria, created in 2015, for determining what constitutes “objectionable or misleading personalized plates.” They include “critical or derogatory message to the general public in any language, read forward, backwards or upside down,” messages “denoting violence directed toward someone or something,” sex-related messages, racial or ethnic slurs or racist messages, gang-related terms and drug-related messages.
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WILL Deputy Counsel Lucas Vebber said it’s not his firm’s role to take a position on whether the state should regulate the content of personalized plates so as to keep obscene or otherwise offensive messages off the road.
But the way Wisconsin’s law is written now is “overly broad” and the government, “if they want to regulate the content of speech, they have to narrowly tailor those regulations to further a compelling government interest.”
He said it should be possible for the Legislature to create a law that restricts offensive speech on plates but that also doesn’t run afoul of the First Amendment’s free speech provision.
The National Conference of State Legislatures says “many states have established guidelines to ensure that certain types of offensive messages are not approved for personalized plates with some states compiling a list of words that will not be approved.”
There have been other challenges to such laws in recent years, however. Among the challenges are two cases in Indiana involving the American Civil Liberties Union that led to a judge ruling that state’s standards for plates was “so vague that they violated the First Amendment,” according to NCSL.
A different ruling in Vermont barred the state from limiting religious messages on plates, NCSL said, and Vebber pointed to cases in California and Rhode Island challenging those states’ restrictions on personalized plate content.
Also included with WILL’s suit is a list provided by the DOT in response to a public records request that includes more than 10,000 personalized plates DOT considers objectionable.
Some are clearly intended to indicate profane words or acts. Others — including “UVBNPSD” (“you’ve been passed”) and “MENTAL” — are mild by comparison.
“Every citizen has the First Amendment right to express themselves, and that includes the message they convey with their personalized license plates,” Vebber said in a news release announcing the lawsuit. “Unfortunately, state law empowers bureaucrats at the Department of Transportation to decide what speech is good, and what speech is bad directly violating the First Amendment rights of Wisconsinites.”
DOT’s Office of Public Affairs said the agency could not comment on ongoing litigation.
WILL says in its lawsuit that car collector and enthusiast Michael Nichols in 2001 was able to get the personalized plate “RDRRAGE” for his Pontiac Firebird Trans Am WS6. Nichols got rid of the Pontiac in 2003, but he then purchased another one several years later. He twice applied for the “RDRRAGE” plate but twice was rejected. (Instead, he requested and was granted plates that said “AGRESIV.”)
“RDRRAGE” appears on the DOT’s list of rejected plates.
