Racist Vanity Plates and the Law

Heil-Hitler-License-PlateFor whatever reason, my home state of Virginia leads the nation in vanity plates.    Heck, I’ve got one that says “OTB.”   But, apparently, the DMV frowns on tags that spout racist messages, even exceedingly cryptic ones.

Brigid Schulte for WaPo:

The owner of a Ford truck bearing the license plate 14CV88 will have to find a new message after the DMV on Wednesday canceled its earlier approval of that series of letters and numbers.

A photo of the truck hit the Web a few days ago, went viral on car and other blogs and finally came to the attention of the Council on American-Islamic Relations, an advocacy group for American Muslims. On Wednesday morning, the group complained to the DMV that the plate contained a white supremacist and neo-Nazi statement.

A few hours later, the DMV agreed that the plate contains a coded message: The number 88 stands for the eighth letter of the alphabet, H, doubled to signify “Heil Hitler,” said CAIR’s Ibrahim Hooper. “CV” stands for “Confederate veteran” — the plate was a special model embossed with a Confederate flag, which Virginia makes available for a $10 fee to card-carrying members of the Sons of Confederate Veterans. And 14 is code for imprisoned white supremacist David Lane’s 14-word motto: “We must secure the existence of our people and a future for white children.”

The giveaway that something was amiss, Hooper said, was the truck itself. An enormous photo of the burning World Trade Center towers covers the entire tailgate, with the words: “Everything I ever needed to know about Islam I learned on 9/11.”

The deciphering of the code seems plausible given the other graphics on the back of the truck although, who knows, maybe he’s paying homage to Drew Pearson and Craig Morton.   But let’s assume that the guy is secretly saying “Heil Hitler” and “We must secure the existence of our people and a future for white children.”   Should we care?  After all, he’s got an anti-Islam message painted on his tailgate and nobody who isn’t a member of the Klan or the Anti-Defamation League would have any clue how to decipher the message.

There is, after all this little thing called the First Amendment.   And lawprof Eugene Volokh thinks Virginia would lose if Hitler Lover took them to court.

I’m not wild about government officials looking for hidden messages of this sort, and guessing about supposed hidden offensive meaning (even if the guess here proves correct). But in any event, rejecting a vanity plate on the grounds that it’s “racially … offensive” (which I assume is the basis for the restriction) likely violates the First Amendment.

The courts that have dealt with vanity plates — as opposed to special license plate designs, which may be a different matter — have concluded that the choice of a vanity plate is private speech (though within a government-created program) and not government speech. Therefore, while the government may impose viewpoint-neutral content-based restrictions, such as on vulgarity (e.g., TP U BG, which supposedly means “FUCK” in stenographic shorthand, or SHTHPNS), it may not discriminate based on viewpoint (for instance, because ARYAN-1 conveys a “message of racial superiority”), nor may it use standards that are so vague that they can be a cloak for viewpoint discrimination (e.g., a “contrary to public policy” standard). And the judgment that this license plate is “racially … offensive” is pretty clearly a judgment that certain viewpoints — such as the supposedly white supremacist viewpoint on this plate — must be excluded from license plates.

I should mention that there’s a plausible argument that the government should have broad authority to control speech on license plates that are issued and printed by the government, and to disassociate itself from viewpoints it dislikes by refusing to print them on those plates. And if it did so, people would still be free to put whatever speech they want on their privately produced bumper stickers, or even more elaborate displays — as this very driver had done.

But under the Supreme Court’s current precedents — reflected in the three appellate cases I linked to above (TP U BG, SHTHPNS, ARYAN-1) — a government program which lets people use government-provided resources to express themselves, with no real quality judgment on the government’s part, may not discriminate based on the speakers’ viewpoints. Whether the program is treated as a “designated public forum” or a “nonpublic forum,” governmental viewpoint discrimination in such a program is unconstitutional.

What’s doubly interesting here, given the Confederate History Month = Racism meme of the last few days, is that Virginia is simultaneously banning indecipherable messages that might be racist and yet selling Sons of Confederate Veterans plates.

FILED UNDER: Law and the Courts, Race and Politics, US Politics, , , , , , , , , , , ,
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Triumph says:

    Heck, I’ve got one that says “OTB.”

    I bet you get the elite treatment when you go to Colonial Downs!

  2. Clovis says:

    The First Amendment is usually well respected in the Commonwealth. I like having an SR71 on my plates and saw a “Peccavi” a while back, which makes military historians giggle, but my favorite has to be this.

  3. JKB says:

    So did the DMV come to some independent translation of the plate or simply go with the CAIR speculation? I certainly wouldn’t have gotten it. Is their a secret white power decoder ring?

    In TN, the AG just gave an opinion that a vanity plate with “Jesus is Lord” whose proceeds go to a non-religious charity is unconstitutional. Although this deals with the actual plate not the personal message.

  4. Franklin says:

    So did the DMV come to some independent translation of the plate or simply go with the CAIR speculation?

    I’ve heard of the 88 thing more than once, but don’t recall the others.

  5. Patrick T. McGuire says:

    Regular (non-vanity) license plates in Arkansas use 3 numbers followed by 3 alpha characters. Last year, a woman was issued a plate that had “NGR” as the 3 characters. She complained that she couldn’t use it because it was shorthand for the dreaded “N-word”. The end result was that all plates in the “NGR” series were recalled and destroyed at considerable cost to the taxpayers.

    I think some people, and CAIR in particular, intentionally look for ways to be offended, which is in itself ironic as their very existence offends me.

  6. reid says:

    I guess I would be for letting this guy have the plate, even knowing the meaning, but man, he must be a real prize. Maybe it’s better that such people are outspoken; easier to avoid them or express your disgust.

  7. legion says:

    Indeed, Reid. As vile as this guy’s personality seems to be, there may be some benefit to having people like that self-identify…

  8. Richard Bottoms says:

    How is it indecipherable if you have in fact deciphered it? All you have to do is Google “14 words” to find out what it means.

    It’s about as hard to figure out as WTF, which is also not allowed. Just because CAIR supposedly is a bad actor, does it mean they are wrong? Even a stopped analog clock is right twice a day.

    But let’s assume that the guy is secretly saying “Heil Hitler” and “We must secure the existence of our people and a future for white children.” Should we care?

    If “we” are a black or a Jew, damn skippy.

  9. Wayne says:

    Homosexuality reference and just about everything offends someone. Even the concept of vanity plates offends some people. Should we do away with all of them?

  10. 11B40 says:

    Greetings:

    And the fact that CAIR has been identified as an “unindicted co-conspirator” by the US Department of Justice deserves no consideration or decoding?

  11. James Joyner says:

    How is it indecipherable if you have in fact deciphered it? All you have to do is Google “14 words” to find out what it means.

    But it wouldn’t mean that to most people. To me, “88” makes me think of Michael Irvin or Drew Pearson. To most people nowadays, it probably means “Dale Earnhardt Jr.” “14” has no special meaning to me. (“13” is that hot chick on House.)

    If “we” are a black or a Jew, damn skippy.

    But people are free to offend blacks and Jews. He could paint 88 — or even “Heil Hitler” — on the side of his truck if he wants. I don’t know that I’d be offended, so much as alerted to the fact that the guy’s a douche.

  12. Dantheman says:

    “Regular (non-vanity) license plates in Arkansas use 3 numbers followed by 3 alpha characters. Last year, a woman was issued a plate that had “NGR” as the 3 characters. She complained that she couldn’t use it because it was shorthand for the dreaded “N-word”. The end result was that all plates in the “NGR” series were recalled and destroyed at considerable cost to the taxpayers.”

    I recall a somewhat similar incident in another state years ago. They used 3 letters, then 3 numbers. Women who got combinations like BRA038 complained about the treatment they received from some childish men, and a similar end result happened.

  13. tom p says:

    I say let him have the plate. It means one of two things: He is a gutless weasel or a dead man.

    His choice.

  14. Nikki says:

    When it becomes all right for the DMV to allow coded swear words on license plates, then it should become all right to allow coded racism. That would be more inline with first amendment rights at the DMV.

  15. DC Loser says:

    I think I’ve seen this truck before, having had to follow him in traffic once. I recognize the layout of those bumper stickers on his rear window, but back then he didn’t have the big picture on the back. He also had a bunch of anti-Obama Birther type of stickers on it at the time.

  16. DC Loser says:

    BTW this guy is very confused about “88”‘s view of Muslims.

    http://en.wikipedia.org/wiki/13th_Waffen_Mountain_Division_of_the_SS_Handschar_(1st_Croatian)