Janice A. Oser, Esq.

How seriously should we take messages on license plates? Perhaps the right note was struck by Andy Rooney in “What’s On Your Plate?” a CBS “60 Minutes” commentary broadcast on September 30, 2007. Mr. Rooney states his preference for an anonymous license plate, as opposed to one with “Andy” on it, and he makes caustic comments about some state slogans. His take on New Hampshire’s “Live Free Or Die,” for example, is “How about ‘Live Free Or Get A Job?’”

As it happens, none of us has been obliged to display a state slogan that we find objectionable on our license plate since 1975, when the U.S. Supreme Court ruled that a couple who considered the New Hampshire slogan repugnant to their moral, religious and political beliefs could not constitutionally be required to display it. Court cases continue, however, on whether or not we have a constitutional right to display messages of our own on vanity and specialty license plates.

Many states allow individuals to select their own vanity plate to express their individual message. In many instances, however, state officials reject certain vanity plates (and even bumper stickers) on the ground that they are offensive, and courts have reached inconsistent results with respect to whether or not such restrictions violate the individual’s constitutional right of free speech.

Nevada’s highest court, for example, upheld “HOE” on a vanity license plate, finding that, although an online dictionary site defined the word as slang for “whore,” the site’s entries did not always reflect generally accepted definitions for words.

In Colorado, however, the department of motor vehicles rejected an “ILVTOFU” license plate. In doing so, they blocked a vegan’s plan to celebrate bean curd.

Many states also allow different organizations to petition for specialty plates to raise money and publicize their message. Controversies about specialty plates arise either when the government refuses to issue a plate for a certain organization or when outside individuals challenge the government’s funding of a particular license plate. The two most common specialty license plate disputes have involved anti-abortion messages and the Confederate flag.

In license plate cases, government officials repeatedly try to advance what is termed the government-speech defense or doctrine, claiming that because specialty and vanity plates are a form of government speech, traditional First Amendment principles do not apply. Arguably, this defense is weaker with respect to vanity license plates, which clearly reflect the individual preference of the car owner. Federal appeals courts have divided on the question with respect to specialty plates.

It is likely that the Supreme Court will have to resolve the legal issues involving license plates, particularly the application of the government-speech doctrine. In the meantime, however, a new front involving specialty licenses has opened up in the battle to win our hearts and minds in the 2012 election campaign (and after).

These specialty licenses will show a flag adopted as a symbol by tea partiers. It is the Gadsden flag, designed by and named for an American general and statesman, Christopher Gadsden. The flag shows a rattlesnake, against a yellow field, coiled and ready to strike, and underneath the snake, the words “Don’t Tread on Me.”

Gadsden, who represented his home state of South Carolina at the Second Continental Congress, presented the flag to the newly elected commander-in-chief of the U.S. Navy, established in 1775, for use as his distinctive personal standard. Gadsden also presented a copy of the flag to the South Carolina legislature.

Texas has authorized a specialty license plate with a version of the Gadsden flag. In Virginia, a bill authorizing a specialty license plate showing the Gadsden flag has been introduced in the legislature, and proponents expect the plates with the Gadsden flag to be available in that state by July. A Nevada state assemblyman hopes to get a specialty license plate with the Gadsden flag on that state’s waiting list.

What next? For Oklahoma, “A Republican State” (with an elephant)? Countered by whatever Democrats remain in Oklahoma with, “A Democratic Party State” (with a donkey)? New York would remain outside this particular battle so long as a 2004 moratorium on custom plates for organizations remains in place. Will a proliferation of politically divisive license plates contribute to a rise in road rage? Better would be the Andy Rooney approach, if can find some humor in all this. Or some funny license plates.