Judge says Delaware vanity plate rules allow viewpoint discrimination and are unconstitutional

Delaware’s vanity license plate program is unconstitutional because it allows officials to discriminate against certain viewpoints when deciding whether to approve applications, a federal judge has ruled.

Tuesday’s ruling came in a lawsuit filed by Kari Lynn Overington, 43, of Milton, a breast cancer survivor whose “FCANCER” license plate was recalled in 2021 because it contained a “perceived profanity.” Overington filed a lawsuit that year challenging the decision, and the American Civil Liberties Union later took up her case.

“I’m very grateful that I was able to have my voice heard. What they were doing was wrong,” Overington told The Associated Press on Wednesday.

In a deposition last year, Overington testified that when she applied for the vanity plate, she explained that it meant “fight cancer.” DMV officials asked her about Facebook posts showing her wearing a T-shirt reading “f— cancer" and celebrating her “f— cancer” anniversaries, using an expletive and not the word “fight.”

A spokesperson for the Delaware Department of Transportation (DOT) said the agency will review the decision before commenting on it and the future of the vanity plate program. A DOT attorney said at a March court hearing that Transportation Secretary Nicole Majeski had talked about getting rid of all vanity plates.

Although the lawsuit stemmed from Overington’s feelings about cancer, it exposed how the Division of Motor Vehicles has handled attempts by drivers to express themselves, including those taking aim at President Joe Biden with “Let’s Go Brandon” criticisms.

In ruling for Overington, Judge Gregory Williams rejected the DMV's arguments that the alphanumeric combination of letters and numbers on vanity plates constitutes “government speech” and can be regulated as officials see fit.

The DMV based its argument on a 2015 Supreme Court ruling allowing Texas to prohibit the Sons of Confederate Veterans from creating a specialty license plate design featuring a Confederate battle flag. Williams noted that the Texas case involved the background art and designs on specialty plates, not the alphanumeric text. Since then, courts in California, Maryland, Rhode Island and Tennessee have ruled that alphanumeric text on vanity plates is private speech, while Hawaii and Indiana courts have said it is government speech.

“This court agrees with the majority of courts on this issue,” wrote Williams, declaring that Delaware’s regulations permit viewpoint discrimination and are unconstitutionally overbroad and arbitrarily enforced.

Unlike in Delaware, Hawaii’s rules are more defined and objective, simply banning “vulgar” words while including details about which dictionary should be consulted, the judge noted.

In Delaware, no vanity plate can be issued if it is “considered to be obscene” by DMV officials. The regulations also state that plates that make “unflattering statements about any particular group or raise politically sensitive issues” should be referred to top administrators for review.

DMV records disclosed in the lawsuit illustrate the arbitrary approach officials have taken in denying vanity plates, using terms such as “negative,” “questionable,” “mean,” “evil,” “inappropriate,” “disgusting” and “could be offensive.”

In making their decisions, officials frequently relied on Urban Dictionary, a crowd-sourced website that invites people to submit and define slang words and phrases. In one case, officials combined two acronyms found on the site to conclude that “SNDNSNW” did not really mean “sand and snow.”

“A lot of them, you really got to scratch your head,” ACLU attorney Dwayne Bensing said Wednesday. “You kind of saw a race to the bottom … as to who could have the most dirty-minded interpretation.”

DMV officials have been particularly sensitive about vanity plates with possible sexual innuendo and those aimed at Biden. “Let’s Go Brandon,” and any of its permutations, for example, are off limits. The phrase dates to a crowd chant after a NASCAR race in Alabama in 2021. The crowd chanted “F--- Joe Biden” during a televised interview with race winner Brandon Brown, but an NBC reporter incorrectly said fans were shouting “Let’s go, Brandon.”

Although Delaware DMV official Charles Gourley declared “FJOEB” to be “defamation to our current sitting president,” even the name “Brandon” is problematic. A driver wanting “FJBLGB6,” explained that it referred to “kids names,” but DMV official Robyn Bose instead described it as “hate speech and fighting words and vulgar.”

Delaware is not the only state where officials are sensitive to vanity plates critical of the president. An Ohio man filed a federal lawsuit earlier this month after his application for a vanity plate reading “F46 LGB” was rejected in 2022. That same year, Alabama officials reversed course and allowed a gun store owner to keep a vanity plate reading “LGBF JB” after initially telling him it would not be renewed.