Are vanity license plates protected speech? One woman is appealing hers to Supreme Court.

WASHINGTON – Texas wouldn’t let a critic of President Donald Trump have a custom license plate reading “JAIL 45.”

College football fans in Michigan can’t request a vanity plate that says “OSUSUCKS.”

Arizona allowed the religious message “JESUSNM.” But Vermont blocked “JN36TN”, a reference to the Bible verse John 3:16.

States’ rules for what is and isn’t allowed on personalized plates are often unclear and can amount to a “dizzying array of censorship,” lawyers for a Tennessee woman have told the Supreme Court in a bid for the justices to get involved.

Leah Gilliam wants the court to find that she is expressing her own views through a vanity plate, not the government’s, a decision that would limit states’ ability to control that message.

The justices came to the opposite conclusion in 2015 when upholding restrictions on the design of specialty license plates, which support a cause or organization. States that sell specialty plates can prohibit images such as the Confederate flag, the Supreme Court ruled in a 5-4 decision.

“States have long used license plates in this country to convey government messages,” Justice Stephen Breyer wrote for the majority.

But Gilliam’s attorneys argue judges have disagreed about whether the same is true for the combination of letters and numbers on personalized license plates.

“And intervention is needed promptly, given that a car owner’s First Amendment speech rights change when she moves states,” they told the Supreme Court. “The same personalized plate that appears on cars in Maryland, Oregon, Delaware, Rhode Island, Kentucky, California and Michigan can be prohibited in Tennessee, Indiana and Hawaii.”

Vanity plate revoked for reference to ‘sexual domination’

In Gilliam’s case, Tennessee initially approved her request for a personalized license plate that read “69PWNDU.” She said the letters referenced “pwnd u,” an online gamer phrase meaning to beat an opponent. The numbers, she initially said, reflected part of her phone number and were not a sexual reference. Gilliam later said she’s an astronomy buff and “69” refers to the year of the moon landing.

But the state received a complaint 11 years after allowing the plate, and later told her it should be revoked because it referred to sexual domination.

Gilliam sued, arguing that Tennessee violated her freedom of speech.

Tennessee’s top court said vanity plates are government speech

Tennessee’s top court said the state’s restrictions are consistent with the U.S. Supreme Court’s 2015 decision in Walker v. Texas Division, Sons of Confederate Veterans.

“Although personalized alphanumeric combinations differ from specialty plate designs in some respects, a faithful application of Walker’s reasoning compels the conclusion that they are government speech too,” the Tennessee Supreme Court ruled.

Most of Gilliam’s arguments, the court said, are really attacks on how the Supreme Court decided the 2015 case.

“Those arguments would be more properly directed to the United States Supreme Court, which is the only court with authority to overrule or abrogate that precedent,” the court said.

Gilliam filed her appeal in July.

Tennessee Attorney General Jonathan Skrmetti declined to comment.

Tennessee has rejected nearly 1,000 plates

In Tennessee, personalized license plate requests are evaluated by a five-person team that reviews between 80 and 100 applications a day, according to court filings. The team consults the Urban Dictionary for meanings of less common terms and reviews an internal document of objectionable configurations.

Tennessee currently has around 60,000 active personalized plates and has rejected nearly 1,000 since the program began in 1998.

Gilliam is not contesting states’ rights to ban profane, sexualized or vulgar plates.

“With parameters that adequately” restrict “officials’ discretion, a state undoubtedly can,” her lawyers wrote.

Does ‘IMHIGH’ represent the views of the driver or the state?

States have limits, they say, because personalized plates don’t have the same government imprimatur as specialty plates, which carry “a government-curated slogan in addition to the name of the state” – such as “Keep Texas Beautiful.”

By contrast, Gilliam’s lawyers said, no one thinks license plates reading “IMHIGH,” “IMINLUV” or “IMABRAT” are describing the state.

“These are messages from car owners,” they wrote, “not Tennessee.”

And unless they’re protected as personal speech, a state could – for example − allow plates that support one political party but prohibit others, or promote one religion and not others, Gilliams’ lawyers argue.

Rhode Island rethinking plate rules after legal challenge

Rhode Island paused its vanity plate program in 2021 after it unsuccessfully tried to recall a plate from a Tesla owner that said “FKGAS.” (The owner, Sean Carroll, said the tag meant “fake gas,” but acknowledged that it could be read another way.)

The ACLU sued on Carroll’s behalf, arguing that the Division of Motor Vehicles had too much leeway to reject requests. A judge issued a preliminary ruling in Carroll’s favor and the state is still working on updating its rules.

Gilliam’s lawyers make a plausible argument that there’s a drastic difference of opinions among judges about vanity plates and that those plates are different from specialty plates, said G.S. Hans, a First Amendment expert at Cornell Law School.

But that may not be enough for the justices to get involved, he said.

If they do, he said, it might be because they want to weigh in more broadly on the question of when something qualifies as government speech, such as when libraries stock their shelves or officials decide which groups can fly flags on government property.

“The court has continued to engage on the government speech question,” Hans said, “which is a really complicated and actually quite important and influential question, even if it’s being smuggled through license plates and trademarks and flags.”

Free-speech groups back appeal

The case has attracted the support of several free-speech groups, including the Foundation for Individual Rights and Expression and the First Amendment Lawyers Association.

In a brief backing Gilliam’s appeal, those groups said the protections government speech enjoy are “catnip for government officials, who have a strong incentive to push its boundaries because it frees them from any burden under the First Amendment.”

“If allowed to stand,” the groups said of the Tennessee Supreme Court’s rejection of Gilliam’s suit, “the decision will cause constitutional injuries reaching beyond the bumpers of vehicles registered in Tennessee.”

This article originally appeared on USA TODAY: Are vanity plates protected as free speech? Supreme Court may decide.