A License To Conceal? Colorado DMV Takes Squishy Stance On Vulgarities

Editor’s Note: Complete lists of approved and rejected license plates are accessible below.

By Don Knox
DENVER — Colorado’s Department of Motor Vehicles inconsistently applies “personalization standards” on vanity license plates, disallowing frank, innocuous or politically themed plates while approving thinly disguised variations.
A Law Week Colorado and State Bill Colorado review of 66,213 approved and 2,744 rejected vanity plate titles reveals an approval system that is at best haphazard and arbitrary, and at worse drowning out political speech. DMV employees approve and deny plates under a state statute that lets them reject proposed plates “that carry connotations offensive to good taste and decency … (or) are misleading.”
Law Week and State Bill obtained the Colorado plate names through a request made under the Colorado Open Records Act. The complete lists are posted online, at www.lawweekonline.com and www.statebill.com.
The American Civil Liberties Union of Colorado first asked Colorado officials for the vanity-plate data after a case this year in which Kelly Coffman-Lee, an enthusiast of tofu, was denied the Colorado plate “ILVTOFU” because the last two characters were interpreted by motor vehicle department officials as slang for fornication.
After reviewing 10 years worth of DMV data, Law Week and State Bill found these inconsistencies in which license plates were approved – and which were rejected in Colorado:
• GAY and LESBIAN are out, but GAYLEZ is OK.
• OBITEME is bad. But IBITE, ITBITES, 1BITE, BITEYA, ITLBITE AND NXTBITE have all been approved by DMV employees.
• HARD1 and HARD*1 were rejected. But HARD, HARDS, HARDTYM, ROCHARD, HARDROK and HARDMAN passed the censors.
• PIG, PIGS and LEPIG were deemed unacceptable. But MSPIG, FISHPIG, PIGGY, PIGPEN, 1BADPIG, PIGLOVR, PIGNUS AND PIGASUS were just fine.

Guided by statute and ‘common sense’
Colorado DMV employees receive and screen proposed plate language under a “statute that tells us what we’re supposed to do,” said Mark Couch, a spokesman for the Colorado Department of Revenue, which oversees the motor vehicle department.
The task of approving or rejecting vanity plate requests falls to three DMV employees, who are guided by their knowledge of slang and by “common sense,” Couch said. They’re also aided by a line of the state vanity-plate application form that asks applicants to “explain the meaning of the characters you have chosen.”
Asked whether the approval process seemed arbitrary, Couch said no.
In addition to identifying vulgar plates on their own, the committee is guided by complaints registered by the general public. “When we get three (complaints), we send the owner a letter recalling the plate and giving them options on other plates,” Couch said. The committee, however, has some discretion there, too.
“We’re not going to cancel a plate that says ‘JOE,’” Couch said. (A review of rejected plates, however, shows the department did reject the plate “LOWJOE.”)
Mark Silverstein, the legal director of the ACLU of Colorado and a critic of the current plate-review system, believes the process is unconstitutional under the U.S. Supreme Court’s decision in Cohen v. California (1971). In a 5-4 ruling, that court’s majority noted that it’s difficult for government officials to make “principled decisions” in purging vulgar words from public spaces because, as John Marshall Harlan II wrote, “one man’s vulgarity is another’s lyric.”
“The court not only questions whether principled decisions can be made in which to purge and which to allow; it says there’s too much of a risk that attempting to purge vulgar words will wind up veering into censorship of unpopular ideas” Silverstein said.
In Colorado, such unpopular ideas may include the plates “BADUSA,” “OJDIDIT,” “OK2BGAY” and “NOTFREE” — all of which were rejected by the DMV committee, Silverstein said.

Don’t DOIT, DIDIT already
Silverstein said the ACLU would represent an aggrieved plaintiff “if the right one came up, where somebody was censored. We’d take a look at it.”
For now, the organization is intent on using the case to point out the silliness of the DMV’s censorship or, as Silverstein says, of the government’s effort to decide whether CRAP or NOCRAP could be on a license plate. “CRAP cannot be on, but NOCRAP is all right,” he said.
“Here’s another one: DOIT is censored, and DIDIT is not censored,” Silverstein said. “Present tense is not OK. Past tense is.”
Mystified by any real distinction between the two plates, Silverstein said, “It’s a task that, as the Supreme Court said, we haven’t seen government able to live up to the challenge of doing it on a principled basis.”
The ACLU legal director said he doesn’t know who’s on the DMV’s committee and doesn’t know what their qualifications are. “I assume that people do this in addition to their normal duties,” he said.

The eye of the beholder
The question of free speech on vanity plates has arisen from time to time nationally, typically in a trial court or an appellate court that hears cases about a specific plate. Their opinions have conflicted.
David L. Hudson Jr., a First Amendment scholar, noted that in 2001, the 8th U.S. Circuit Court of Appeals ruled in Lewis v. Wilson that Missouri officials violated the First Amendment rights of a motorist by denying her request for the license plate “ARYAN-1.” The court wrote that the “DOV may not censor a license plate because its message might make people angry.”
“However, in the same year, the 2nd Circuit ruled in Perry v. McDonald that Vermont officials could deny a request for a vanity plate bearing the letters ‘SHTHPNS,’” Hudson wrote. “The state had a policy that prohibited the issuance of vanity plates containing offensive, scatological terms. The appeals panel determined that license plates are a nonpublic forum in which government officials can regulate speech as long as their restrictions are reasonable and do not discriminate based on viewpoint.”
The same year as the Lewis v. Wilson decision, Thomas Jefferson Law School Professor Marybeth Herald weighed in with an article, published in the Colorado Law Review, that maintained that “Vanity license plates qualify as protected speech under the First Amendment, and denying plate requests because of their content contradicts traditional principles of free speech.”
Herald also wrote, “State agencies have relied upon the Dictionary of Contemporary Slang, sociologists, clerks, a word committee, secret committees, the Tax Commission, and linguists.” She argued that judges must not allow government officials to regulate offensive vanity plates because, “offensiveness is in the eye of the beholder and is an almost limitless concept.”
“The First Amendment is an insurance policy against government repression,” she wrote. “We pay for it all the time — in large and small ways — by tolerating the racist, the pornographer, and the generally offensive speaker. … So if someone wants a plate that says ‘GOVTSUX,’ let her have it. Who knows, it might even have been a popular plate among a few of the signers of the Declaration of Independence.”

Distributed by Colorado Capitol Reporters

Colorado License Plate Approved

Colorado License Plate Rejected

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