NASHVILLE, Tenn. (WKRN) — Your personalized license plate is a form of “government speech” and therefore can be censored, according to a 3-judge panel of the Tennessee Supreme Court.
In late February, the panel ruled the state can enforce restrictions on personalized license plates it deems inappropriate, overturning a previous appellate court ruling on the matter.
At issue is Leah Gilliam’s personalized license plate, which she initially received in December 2010, court documents state. When she applied, she asked to used the plate “69PWNDU.” The term “pwnd,” she said in her application, is a gaming term meaning to be owned or dominated. While “69” can be a sexual reference, Gilliam said she was an “astronomy buff” and meant the number to represent the year the United States saw man walk on the moon.
Personalized license plates are issued and must be approved by the Tennessee Department of Revenue (TDR), per state law, with the department’s Inventory Unit responsible for screening and approving or rejecting personalized plate ideas.
As part of the Inventory Unit’s review process, it has criteria identified as “objectionable,” including profanity, violence, sex, illegal substances, derogatory slang terms, and racial and ethnic slurs. Plates with content fitting these descriptions may be rejected or revoked if the Inventory Unit deems it necessary, though the review process “is not perfect,” per court documents. Per the panel, the Inventory Unit has erroneously approved personalized plates that read “SHTUNOT,” “BUTNKD,” 694FUN,” “BIGSEXI,” “69BEAST,” and “69PONY.”
According to court documents, Gilliam was able to drive her vehicle with no issue for over a decade, until the TDR Personnel Director, Justin Moorhead, received a text message about the plate on his personal cellphone in May 2021. Moorhead brought the plate to the attention of the Inventory Unit, which then determined Gilliam’s plate was issued in error and elected to revoke it. The department sent Gilliam a letter informing her of the decision, stating it should be revoked “because it referred to sexual domination.”
The department offered Gilliam the options to either apply for a different personalized plate or receive a standard plate instead, according to court documents.
Gilliam instead filed for an administrative hearing on the matter, and then sued the TDR Commissioner and the Tennessee Attorney General over the issue in Davidson County Chancery Court two weeks later. In her suit, she argued the state law used as justification to reject her personalized plate was unconstitutional and violated her First Amendment rights. She also challenged the department’s revocation process under Due Process claims.
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The Chancery Court rejected Gilliam’s claims, stating the alphanumeric combinations on personalized license plates constituted “government speech” and therefore did not qualify for the viewpoint discrimination standard in the First Amendment raised by Gilliam’s suit.
On appeal, however, the Court of Appeals reversed, concluding the state did not use personalized license plates to convey state messages. Additionally, the appellate court rejected the state’s argument that personalized plates were used to convey “messages of identification.”
And while the Appeals Court conceded the department has the authority to approve personalized plate applications and revoke erroneously approved plates, it was “troubled by the Department’s inconsistent regulation.”
In a ruling issued Feb. 26, a three-judge state supreme court panel reversed, saying previous United States Supreme Court (SCOTUS) precedent held alphanumeric combinations on Tennessee license plates were, in fact, government speech, and the appeals court was wrong in ruling in Gilliam’s favor.
The state supreme court used previous SCOTUS cases like Walker v. Texas and Pleasant Grove City v. Summum in its determination.
“Under a faithful application of Walker and other applicable United States Supreme Court precedents, the alphanumeric combinations on Tennessee’s personalized license plates are government speech,” the panel said in its ruling. “Even if the public understands Tennessee’s personalized license plates to represent the speech of the vehicle owner, that does not preclude a conclusion that the plates also convey ‘government agreement with the message displayed.”
Gilliam’s attorney, Daniel Horwitz, expressed disappointment in the ruling, calling it an “outlying” opinion on the matter.
He also said he would be seeking SCOTUS review on the issue.
A group dedicated to fighting for free speech rights, the Foundation for Individual Rights and Expression (FIRE), also said it was “disappointed” by the ruling and suggested the Supreme Court should address the issue.
“When you see a creative vanity license plate, would you think the government is the one being clever? Or the driver? It’s the driver’s message, not the government’s, and that should count for something,” FIRE Attorney Adam Steinbaugh said in a statement to News 2.
