May 072014
 

In a victory for free speech rights in New Hampshire, the New Hampshire Supreme Court held today (May 7, 2014) that a DMV regulation prohibiting vanity car license plates “which a reasonable person would find offensive to good taste” violated Part I, Article 22 of the New Hampshire Constitution.  The Court concluded that the regulation was unconstitutionally vague because it is “so loosely constrained” that it “authorizes or even encourages arbitrary and discriminatory enforcement.”  The NHCLU, with the assistance of the law firm Nixon Peabody, submitted a “friend-of-the-court” brief to the New Hampshire Supreme Court arguing that the regulation was unconstitutional on these very grounds.  The NHCLU also participated in oral argument before the Supreme Court.  The Court’s decision can be found here.

This case began in May of 2010 when the petitioner applied for a vanity license plate reading “COPSLIE.”  The petitioner’s application was rejected because several DMV employees believed the text to be “insulting.”   When this decision was appealed to the DMV director, the director concluded that “a reasonable person would find COPSLIE offensive to good taste.”  The petitioner then requested the license plate “GR8GOVT,” which the DMV approved.  The petitioner then brought suit, arguing that the DMV regulation used to reject the “COPSLIE” license plate violated his free speech rights guaranteed under both Part I, Article 22 of the New Hampshire Constitution and the First Amendment to the U.S. Constitution.

Today, the New Hampshire Supreme Court agreed with the petitioner’s constitutional challenge to the DMV regulation.  As the Court explained, “[b]ecause the ‘offensive to good taste’ standard is not susceptible of objective definition, the restriction grants DMV officials the power to deny a proposed vanity registration plate because it offends particular officials’ subjective idea of what is ‘good taste.’”  In short, the regulation, in practice, unconstitutionally allows DMV officials to engage in viewpoint discrimination by banning speech on license plates that expresses any point of view with which the DMV disagrees.

In fact, the petitioner’s case is a textbook example of how the DMV has used this regulation to engage in viewpoint discrimination.  While the DMV rejected petitioner’s license plate “COPSLIE” (speech critical of the government), it accepted the license plate “GR8GOVT” (speech praising the government).  But when the state has opened up a forum to speech – as it has done here in the context of vanity license plates – it simply may not engage in viewpoint discrimination in determining which messages to allow and which messages to prohibit.

In this case, the New Hampshire Supreme Court reaffirmed the fundamental principle that laws cannot delegate to officials basic policy matters for resolution on an ad hoc and subjective basis, as such laws create the danger of arbitrary and discriminatory application.  Allowing speech of all views in public forums is one of the hallmarks of our democracy.  Our Constitution does not allow the government to restrict speech based solely on the content of the message, and we commend the New Hampshire Supreme Court for upholding these fundamental free speech principles.

 May 7, 2014  Tagged with: