FIRE files amicus brief asking Tennessee to stay in its lane on vanity plates

When you spot a clever vanity license plate, who do you credit for its wit: the car’s owner, or the state that stamped out the letters and numbers?

According to a state court in Tennessee, the message on the vanity plate represents the speech of the government, not the car owner. As a result, the court said, the First Amendment doesn’t apply at all, and the state can reject any plate that authorities decide is contrary to “good taste and decency” — whatever that means. 

Both of these conclusions are wrong, and FIRE has filed a “friend of the court” brief on appeal to explain that these plates share messages of car owners (not their governments) and that what amounts to “good taste” or “decency” is hopelessly subjective, allowing authorities to censor any message they don’t like.

The case arises from a license plate featuring online slang. Leah Gilliam has had the same license plate for 11 years. In December 2010, she applied for a license plate that reflects both her interest in astronomy and gaming: “69PWNDU.” According to Gilliam’s lawyers, “69” references the 1969 moon landing and is not a sexual reference, whereas “PWNDU” is slang — rumored to have originated from a chess game in 1935 — commonly used among gamers to mean “owned” or, in this case, “owned you,” in the context of playing a video game.

Gilliam drove with this vanity license plate without incident until May 2021, when someone tattled to the Tennessee Department of Revenue’s chief of staff about it. (Pause for a moment and consider whether the government is speaking if someone else has to tell the government what it said.) Within a month, the Department of Revenue sent Gilliam a letter stating that it had deemed the license plate offensive. Her options: turn in the license plate, or face “the threat of immediate criminal liability, a fine, and up to 30 days in jail.” 

Rather than calling for the state to intervene when they see a vanity plate they dislike, people should just change lanes.

Gilliam selected a third option:  she sued to prevent the state from taking action against her, asking a court to declare unconstitutional the Tennessee law that allows state officials to deny vanity license plates that are “offensive to good taste and decency.” 

But a three-judge panel rejected Gilliam’s lawsuit, concluding that vanity plates are actually government speech, on government property — the license plate. Were that correct, it’s a crucial distinction, as the First Amendment doesn’t place a limit on what the government says, but instead limits what restrictions it can place on what others say. So if the government tells its spokesperson to say one thing and the spokesperson instead says another, the spokesperson won’t have a First Amendment case if they lose their job.

But, as FIRE’s amicus brief argues, vanity license plates are intended, and widely understood, to facilitate other peoples’ messages, not those of their government. That’s why, for example, Tennessee encourages drivers to use vanity plates to share “your own unique message.” (Other states, like Arizona and North Carolina, encourage drivers to “express yourself” or “show the world what you think, who you are or almost anything else.”) This is important because, as the recent Supreme Court decision in Shurtleff v. City of Boston clarified, the proper analysis is not whether the government owns the property, but whether the message conveyed “would be understood to be the government’s own” message. 

In light of this test, the lower court’s opinion — which issued before the decision in Shurtleff came down — is flatly wrong.

But a three-judge panel rejected Gilliam’s lawsuit, concluding that vanity plates are actually government speech, on government property — the license plate.

Because the vanity plates are not the government speaking, the First Amendment imposes limits on what restrictions states can impose on vehicle owners’ messages. Wherever that line may be drawn, a standard of “good taste and decency” won’t cut it. As FIRE’s amicus brief explains, vague definitions like these give officials free reign to censor any speech they — or some member of the public — might dislike. 

As FIRE’s research into restrictions on license plates reveals, unfettered discretion for officials to police the license plates of others often leads to arbitrary decisions and vague enforcement. 

Take, for example, Nathan Kirk, an Alabama gun store owner who received a letter demanding that he return his “LGBFJB” plate because of its “objectionable language . . . offensive to the peace and dignity of the State of Alabama.” (That “language” was apparently the letter F, not the acronym referencing “Let’s Go Brandon” — itself a coded reference to the words “Fuck Joe Biden”). After enough people complained, he got his plate back, with an apology for the trouble. And states frequently ban references to the letter F — whether it’s about Biden, Trump, or cancer.

A Michigan driver was not so fortunate. Michigan, like many states, has a prohibition on plates “used to disparage or promote or condone hate” against “any type of business, group or persons.” In other words, an attempt to limit so-called “hate speech.” And which group did this driver offend? Police.

After someone complained about the plate — an acronym for “All Cops Are Bastards” — to Michigan’s Secretary of State, officials launched an investigation to determine the real meaning of the plate. The driver argued that it really meant “All Cats Are Beautiful,” but Michigan disagreed and revoked the plate. 

Unsurprisingly: many states restrict plates that criticize law enforcement, like when New Hampshire blocked “COPSLIE” but gave the green light to “GR8GOVT.” 

These are just a few of the examples FIRE’s amicus brief recounts in explaining that the First Amendment requires that states avoid the potential abuse of discretion from the officials and allow individuals to decide what may appear on their license plates, especially when the state invites them to do so — as Tennessee has. 

Rather than calling for the state to intervene when they see a vanity plate they dislike, people should just change lanes.

Leah Gilliam is represented by attorney Daniel Horwitz, and FIRE by attorney Edd Peyton of Spicer Rudstrom, PLLC.

FIRE defends the rights of students and faculty members — no matter their views — at public and private universities and colleges in the United States. If you are a student or a faculty member facing investigation or punishment for your speech, submit your case to FIRE today. If you’re faculty member at a public college or university, call the Faculty Legal Defense Fund 24-hour hotline at 254-500-FLDF (3533). If you’re a college journalist facing censorship or a media law question, call the Student Press Freedom Initiative 24-hour hotline at 717-734-SPFI (7734).