Can States Censor Vanity Plates?

An interesting story coming out of Oklahoma raises some interesting issues. Can states that allow motorists to customize their license plates with whatever letter or number combinations they want (as long as they’re within the maximum number of characters, and not already taken)?

The case involves a teenager in Oklahoma who applied for a vanity plate which read “IM GAY.” The relevant state agency denied his request, on the grounds that such a message on his license plate would be offensive to the general public of Oklahoma. The state of Oklahoma has certain guidelines for approving or rejecting custom license plates, and will not approve plates which contain “sexual connotations,” “racial or ethnic comments,” or “cuss words.”

The state also reasoned that the message contained in the requested license plate is offensive to the general public.

Now, when a state censors any expressive conduct based solely on its content, which appears to be the case here, a very tough standard of constitutional scrutiny is ordinarily triggered. These types of restrictions on speech (actually restricting what people can say, as opposed to the time, place, or manner in which they say it) are very difficult for states to justify. On the other hand, the state could easily argue that they are simply restricting the time, place, and manner in which the person speaks, and not restricting their message. After all, the state could definitely not stop this person from putting a bumper sticker on his car containing the exact same message.

However, when a state creates a new forum for expression (such as allowing people to customize their license plates), they often open up a big can of worms for themselves. After all, they have an interest in not giving the impression that they are endorsing a viewpoint which some might find offensive (and let’s be honest, someone can take offense with any opinion, no matter how benign), and not placing undue restrictions on speech. There are no easy answers to this issue, to be sure. It’s possible that if providing vanity plates requires states to restrict any form of speech, they simply shouldn’t provide them. After all, the government is under no constitutional obligation to provide you with a platform for your speech, so there would be no constitutional problem with states ceasing to issue vanity plates. This would solve the problem of vanity plates serving as a platform for speech which state’s don’t approve of, and save them the effort of determining what “offensive” license plates they have to allow, and which ones they don’t.

Also interesting is the state’s apparent rationale that simply stating one’s sexual orientation has “sexual connotations.” This is technically true, but a person stating that they’re gay has no more sexual connotations than a person saying that they’re straight. Likewise, introducing someone as a husband, wife, girlfriend, boyfriend, life partner, etc. implies a sexual relationship, and therefore has “sexual connotations,” though it’s unlikely that many people would be offended by license plates addressing those subjects.

It’s also strange that the state concluded that a simple statement of one’s own homosexuality would necessarily be offensive to the general public. If that’s really the case, I think it’s a sad commentary on the government or population of Oklahoma. Maybe this kid should be allowed to use this plate just to award his bravery for actually wanting to use it in Oklahoma.

By: Rusty Shackleford