"Illinois Revokes 'October 7' License Plates"

So reports The National News Desk:

Illinois Secretary of State Alexi Giannoulias revoked five “October 7″ license plates from state drivers this week after receiving complaints about them.

One such license plate went viral on X after it was shared by Jewish advocacy organization StopAntisemitism. The image shows the plate surrounded by a “free Palestine” frame.

Here’s the Tweet:

Over 1200 people brutally murdered.
Women and children raped and tortured.
200+ kidnapped, including Americans.

And this driver decided to honor the day it happened on his license plate. pic.twitter.com/8m264iPFzN

— StopAntisemitism (@StopAntisemites) September 12, 2024

Is this constitutional? Well, there’s a hot debate about that, though the rule adopted by most lower courts would suggest the answer is “no.”

The question is whether the license plate is seen as “government speech” or as the driver’s own “private speech.” (The license plate frame is clearly the driver’s private speech.) If it’s government speech, then the government can choose which viewpoints to speak and which not to, much as the government can choose which monuments to put up in a park, or even which monuments to accept when people offer to donate them. If it’s private speech, even within a government-run program—such as, for instance, trademarks within a trademark registration system—then the government must administer the program in a viewpoint-neutral way.

In Walker v. Sons of Confederate Veterans (2012), the Court held that the license plate background design is government speech, even when the government let various groups propose their own designs (which the government almost always accepted). But most, though not all, lower courts that have considered the question as to the actual license plate letter/number combination on these “vanity plates” have held that these are the driver’s own speech. To quote one recent decision, Overington v. Fisher (D. Del. 2020),

[N]umerous courts since Walker have addressed the alphanumeric text of vanity plates, with varied results. Compare Carroll v. Craddock, 494 F. Supp. 3d 158, 166 (D.R.I.2020), Kotler v. Webb, No. CV 19-2682-GW-SKX, 2019 WL 4635168, at *7 (C.D. Cal. Aug. 29, 2019), Ogilvie v. Gordon, No. 20-CV-01707-JST, 2020 WL 10963944, at *2-5 (N.D. Cal. July 8, 2020), Gilliam v. Gerregano, No. M202200083COAR3CV, 2023 WL 3749982, at *10 (Tenn. Ct. App. June 1, 2023), and Mitchell v. Maryland Motor Vehicle Admin., 450 Md. 282, 294, 148 A.3d 319, 326-27 (2016) (finding that the alphanumeric text of vanity license plates is private speech) with Odquina v. City & Cnty. of Honolulu, No. 22-CV-407-DKW-RT, 2022 WL 16715714, at *7-9 (D. Haw. Nov. 4, 2022) and Comm’r of Ind. Bureau of Motor Vehicles v. Vawter, 45 N.E.3d 1200, 1207 (Ind. 2015) (finding that the alphanumeric text of vanity license plates is government speech). The majority of these cases have concluded that personalized license plate sequences are private speech, not government speech. This Court agrees with the majority of courts on this issue. The Court finds that the alphanumeric sequences on vanity license plates in Delaware are private speech and not government speech for the following reasons.

First, the alphanumeric sequences on vanity license plates in Delaware have not long been used to convey governmental messages. Walker itself noted that “insofar as license plates have conveyed more than state names and vehicle identification numbers, they have long communicated messages from the states.” By contrast, in Delaware, there is a fifty (50) year history of vanity plate sequences being selected by motorists, and no history of the government communicating messages through the alphanumeric sequences on license plates. Unlike in Walker, where state governments have historically used the design of license plates to communicate messages, Delaware has not historically used the text of vanity license plate numbers to communicate messages. “To the extent the individual registration number configurations broadcast any message at all, it is only because the state has allowed individual drivers to pick some combination of letters and numbers that carries significance to the driver.” ...

Second, there is no credible evidence that reasonable viewers expect the government to be sending or endorsing messages via the alphanumeric sequences on vanity license plates. While vanity license plates do contain the word “Delaware,” the record does not support, for example, the proposition that viewers of the vanity license plate “OMG GO” believe the state is telling others to drive faster. As the Supreme Court noted in holding that trademarks are not government speech, despite being registered, “[i]f the federal registration of a trademark makes the mark government speech, the Federal Government is babbling prodigiously and incoherently. It is saying many unseemly things. It is expressing contradictory views. It is unashamedly endorsing a vast array of commercial products and services.” …

Third, although Delaware does exercise some control over the vanity license plates it issues, that regulatory control alone is insufficient to transform private messages into government speech…. “[W]e must exercise great caution before extending our government-speech precedents,” because “[i]f private speech could be passed off as government speech by simply affixing a government seal of approval, government could silence or muffle the expression of disfavored viewpoints.” … Delaware’s regulatory “control” of the alphanumeric sequences on vanity plates does not reflect the control that a speaker exercises over their own speech, but only the control that governments exercise or attempt to exercise in a variety of other contexts….

If the alphanumeric combination on the plate is treated as private speech, then the government might still be able to restrict it based on non-viewpoint-based content factors (e.g., perhaps excluding common vulgarities), but it can’t restrict it based on viewpoint. And here the government is indeed acting based on what either it or other observers infer as the viewpoint of the “Oct 7″ plates (that they endorse the Oct. 7 attacks, or for that matter that they take some other position on the attacks).

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