No, the First Amendment Does Not Cover Your License Plate
The US Supreme Court will not touch the debate over whether drivers have the free speech right to put whatever they want on their license plates. Back in December, a jury refused to hear the appeal of a Tennessee woman who had her controversial vanity license plate revoked. In doing so, they are abandoning the legal framework that has existed in many places for years: vanity plates are the speech of the government, not a way of speaking for others.
It all started when Tennessean Leah Gilliam had her “69PWNDU” license plate retired after carrying it for more than a decade. After initially approving it, Tennessee officials eventually received enough complaints to deem the message sexually explicit. For the record, Gilliam asserted that it was actually a reference to the year of the moon landing alongside gaming slang. He sued, failed, and tried to take it to the Supreme Court.
Alas, the Supreme Court’s decision not to take a decision still leaves the submissions in the hands of lower court decisions. That means it’s up to the states to control what comes off the plates. Unfortunately for Gilliam, it also means it’s time to start brainstorming something about his next regrettable vanity license plate.
The law has not always been clear on vanity plates
The Supreme Court’s decision makes everything seem cut and dry, but looking at past decisions, it is not. The Supreme Court refused to hear the case, allowing the lower court’s decision to stand. But those smaller courts didn’t always keep up. In recent years, they have come to different conclusions about who ultimately has authority over vanity plates.
One example: In a 2020 case in Rhode Island, a federal judge ruled that banning NSFW license plates would violate the First Amendment because it gave state officials overly broad discretion to reject the messages. The court allowed him to keep his obscene license plate throughout the trial, saying that withdrawing it would be stressful for him. That is contrary to what Tennessee decided in the Gilliam case. The plate in question reads “FKGAS,” which is a good match for other rejected vanity plates from states like Illinois.
Even the Supreme Court cannot keep up with this. In the 1977 Supreme Court case Wooley v. Maynard, the justices ruled that individuals cannot be forced to display state slogans in their newspapers. That would raise First Amendment protections (however limited). But in 2015’s Walker v. Sons of Confederate Veterans, the Supreme Court’s landmark decision was that license plates were government speech. At this point, the Supreme Court apparently has very little interest in deciding this issue one way or the other.
