Vanity Plates: Gov't Speech, No Due Process Required

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By Melissa Stanzione

Nov. 10 — Indiana's Bureau of Motor Vehicles may deny an application for a personalized license plate or revoke a previously issued plate without violating the U.S. Constitution because the plates are government speech, the Indiana Supreme Court held Nov. 6.

Due process protections don't apply because vehicle owners don't have a property interest in personalized plates, Justice Brent E. Dickson wrote for the court.

The BMV is empowered by statute and an administrative rule to reject applications or revoke previously issued plates for a number of reasons, but it also has discretion to reject outside those categories and accept within them, the court said.

Rejections are sent to applicants via form letter, informing them their application was denied “ ‘based on the inappropriate content or invalid format.' ”

The trial court found that the relevant statute and policy were vague and not content neutral and that the form rejection letter violated procedural due process.

Three-Prong Walker Standard

The state high court applied the three-factor standard to identify government speech set forth by the U.S. Supreme Court in Walker v. Sons of Confederate Veterans, Inc., 83 U.S.L.W. 4453, 2015 BL 194034 (U.S. 2015) (83 U.S.L.W. 1949, 6/23/15).

The first prong asks “whether the government has historically used the medium to speak to the public,” the court said.

The principal function of a state-issued license plate is to provide unique vehicle identification. Over time, states communicated via the plates, including state symbols and slogans. As the high court said in Walker, “ ‘the governmental nature of the message' ” isn't destroyed even if a private party assists in its design, the state court said, reversing the trial court's findings.

The second prong asks whether the message ‘ “is closely identified in the public mind' ” with the state.

Personalized license plates are government issued and approved methods of vehicle registration and identification, the court said. They don't “cease to be government speech simply because some observers may fail to recognize that PLP alphanumeric combinations are government issued and approved speech in every instance,” the court said.

Finally, the Walker test looks to the degree of control the state maintains over the messages conveyed. The BMV has final approval authority over license plate messages and can and does reject thousands of them for various reasons, including “poor taste” and “violence,” the court said.

The three Walker factors “apply with equal or greater force to Indiana's PLPs” as they do to the plates in Walker, “demonstrating that Indiana's PLPs are government speech,” the court held.

The American Civil Liberties Union represented the plaintiffs.

The Indiana attorney general's office represented the defendant.

To contact the reporter on this story: Melissa Stanzione in Washington at mstanzione@bna.com

To contact the editor responsible for this story: Jeffrey D. Koelemay at jkoelemay@bna.com