“Offensive To Decency”: Supreme Court Won’t Hear Free Speech Case Over Vanity Plate

Authored by Matthew Vadum via The Epoch Times,

The U.S. Supreme Court has turned away a Tennessee woman’s appeal of her state rejecting a personalized license plate for her car.

The court rejected the petition in Gilliam v. Gerregano on Dec. 8 in an unsigned order without comment. No justices dissented.

The petitioner, Leah Gilliam, is “an avid video gamer and an astronomy buff,” according to her petition filed with the Supreme Court.

In 2010, she applied to the state for a custom plate “69PWNDU,” a phrase that is “understandable to people who share her interests.”

Gilliam says the “69” refers to the 1969 moon landing and “PWND” is a video gamers’ expression that means to be dominated or defeated.

The Tennessee Department of Revenue approved the application and issued the plate, which she mounted on her car for 11 years, during which the department did not receive any complaints about it, the petition said.

After the department’s chief of staff received a complaint in 2021, the agency canceled the personalized plate, asserting it violated state law because it was “offensive to good taste and decency.”

Gilliam sued, arguing that the state law was inconsistent with the U.S. Constitution’s First Amendment because it empowered the government department to engage in viewpoint-based discrimination, the petition said.

The Tennessee Chancery Court ruled for the state, finding that the custom plate constituted government speech, not private speech, so the First Amendment does not prevent the state from discriminating on the basis of viewpoint. The Tennessee Court of Appeals reversed, holding that the plate was private speech. The court said that most courts have ruled that personalized plates are private speech, the petition said.

The appeals court said vehicle owners use custom plates to express their own messages, that the public sees vehicle owners as the ones speaking, and that even though state employees screen the plates, the process is not involved enough to make the messages on the plates government speech.

The Tennessee Supreme Court reversed, finding that the public sees custom plates as government speech. It also held that alphanumeric combinations on personalized plates are a means for the state to convey information about the vehicle to law enforcement and the public. Although vehicle owners use the plates to communicate personal messages, this is “incidental” and “does not refute this distinct government purpose.”

Because state law forbids the department from issuing plates that are offensive or endorse any practice that is against state policy, “the state exercises enough control over personalized plates for the plates to be government speech,” the state’s highest court said.

In the petition, Gilliam’s attorneys said “an important legal principle is at stake” in the case.

“If the messages on personalized license plates are government speech, then those messages are exempt from the First Amendment. That means a state can allow personalized plates that support one political party but prohibit others,” petition said.

The Tennessee Supreme Court’s decision is “demonstrably wrong” and should be reversed, the petition said.

Attorneys for David Gerregano, the commissioner of the Tennessee Department of Revenue, said the U.S. Supreme Court held in Walker v. Texas Division, Sons of Confederate Veterans Inc., that license plates are “government-mandated, government-controlled, and government-issued IDs.”

The state uses the plates to convey a message that constitutes government speech, the state brief said. The message is, “Identify this vehicle by these alphanumeric characters,” and that is true “whether the characters are requested or randomly generated,” the brief said.

“This Court does not need another license-plate case on government speech. One is plenty,” the brief said.

The Epoch Times reached out to attorneys for Gilliam and Gerregano for comment. No replies were received by publication time.