Issuing vanity license plates now may officially be more trouble than it’s worth.
Hours after The Atlanta Journal-Constitution published a story last week about the state’s arbitrary approval process of vanity license plates for motor vehicles, two free-speech lawyers filed a lawsuit against Robert G. Mickell, the commissioner of the Georgia Department of Driver Services.
The suit contends that the state violated the constitutional rights of James Cyrus Gilbert when it rejected his application for the tags 4GAYLIB, GAYPWR and GAYGUY. All three vanity plates are on the list of vanity plates banned by the state, although the state has approved plates expressing some political or religious expressions.
“It’s not like I was asking for something that was vulgar or over the top,” Gilbert, an Atlanta resident, said. “Denying someone the right to put gay on their tag, that’s political. If I want I could get a tag that said straight man, but because it had gay on it, it’s not available.”
The suit seeks to compel the state to approve the requested vanity plate and a court order declaring unconstitutional the state regulation that governs vanity plates. It also asks for nominal damages and attorney fees.
Most of the tags the state has banned are vulgar or hateful. But also on the list are some religious, philosophical and political expressions the state has deemed unsuitable to appear on motor vehicles.
In addition, an AJC analysis of banned and approved vanity plates found the difference between 10,214 banned tags and the 91,151 accepted tags is sometimes ridiculously ambiguous.
The state Attorney General’s office, Georgia Department of Driver Services and the Department of Revenue, the agency that administers vanity plates, declined to comment on the lawsuit.
But Department of Revenue officials have acknowledged in the past that the process of approving vanity plates is inconsistent. State officials approved HATERS, but denied HATERS1. They approved BLKBERI, BLKCHRY and BLCBUTI, but denied BLKACE.
The inconsistency is the result of many different people with differing views making decisions on what is offensive, a Department of Revenue spokesman told the AJC.
Department of Revenue officials also told the AJC that employees try to be fair, but maintaining viewpoint neutrality – one of the free-speech concepts federal judges would consider in a lawsuit – is not possible when the department has to make dozens of tricky judgment calls each week.
Proving the state denies tags in an arbitrary fashion or that the state denies plates based on the message will help Gilbert win his suit.
“I think it’s pretty clear the statute has been applied arbitrary without regard to any state interest,” said Cynthia Counts, a free speech lawyer representing Gilbert. “And the restrictions have reflected viewpoint discrimination and that alone should be fatal.”
By denying speech that supports gay rights, while allowing conservative, religious speech like JESUS4U, Counts argues the state is favoring one political belief or philosophy over another.
In 2010, a federal appeals court ruled Vermont’s practice of banning all religious speech on license plates unconstitutional. The court held that allowing secular expressions, like Carpe Diem, but not religious expressions favored secular speech.
The text on a vanity plate may seem like a silly issue, but Gerry Weber, the other lawyer working on the suit and former legal director of the American Civil Liberties Union of Georgia, argues this a serious problem.
“Really these license plates are one of the primary ways Georgians use free speech,” Weber said. “Not many Georgians go to rallies, but thousands of Georgians express themselves through these license plates. “Think about how many people over the course of a year see your license plate. That’s a huge audience.”
The constitutionality of the statute governing vanity plates is not the only question arising from the lawsuit.
Bruce Brown, an Atlanta lawyer who specializes in free speech issues but is not involved in the case, argues it’s not clear the state enforced its own statute properly when it denied GAYPWR.
That law says the department will not allow profanity, language the community considers obscene or language that ridicules a person, group, or religious belief or being, race or ethnicity.
Brown said state lawyers would have to argue that GAYPWR is somehow obscene for the denial to stand. He’s not even sure they would be willing to do that today.
“I don’t know what they will do,” he said.
“I would say the lawsuit appears strong and illustrates the difficulties that the state is having in determining which personalized license plates are proper and which are not proper,” he said