The Volokh Conspiracy
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First Amendment Might Protect FTP&ATF License Plate
The Fourth Circuit considers "a question that has divided ... courts ...: whether the character combinations on personalized license plates ... are government speech or private speech."
From today's opinion in Whateley v. Lackey, written by Fourth Circuit Judge Pamela Harris and joined by Judges Agee and Keenan:
In Virginia, drivers may personalize their license plates with their own chosen character combinations. Virginia allows them to do so for a fee, and subject to certain restrictions for vulgarity and the like. Curtis Whateley took advantage of this opportunity and applied for a personalized license plate with the characters "FTP&ATF"—by which he meant, "Fuck the Police & Alcohol, Tobacco, and Firearms." Virginia first issued the plate but then revoked it on the grounds that it was vulgar and could be understood to promote violence….
This appeal requires us to address a question that has divided district courts and state supreme courts in recent years: whether the character combinations on personalized license plates (or "vanity plates") are government speech or private speech. Does Virginia speak for itself through the character combinations on the personalized plates it issues—in which case, it is entitled to express the views of its choice? Or do Virginia's personalized plates convey the private speech of drivers like Whateley—in which case, government restrictions on that speech must pass muster under the First Amendment? We conclude that Virginia's personalized license plate messages are private speech subject to First Amendment protection….
Whateley's private speech is entitled to First Amendment protection under the public forum doctrine, but whether he will prevail under that doctrine is a different question. That analysis will turn on the nature of the forum Virginia has provided for private speech on its personalized license plates and on Virginia's reasons for recalling Whateley's "FTP&ATF" message. {Oversimplifying somewhat, in traditional and designated public forums, open to all speakers on all topics, "governments have limited leeway to restrict speech," and restrictions generally are subject to strict scrutiny. In a nonpublic forum, by contrast, speech restrictions "only need to be reasonable and viewpoint-neutral."}
The forum analysis can be complicated and fact-intensive. Compare Mitchell v. Md. Motor Vehicle Admin. (Md. 2016) (holding that Maryland vanity plates are private speech subject to First Amendment scrutiny, but that denial of the plaintiff's requested "MIERDA" message was permissible as a reasonable and viewpoint-neutral restriction in a nonpublic forum), with Hart v. Thomas (E.D. Ky. 2019) (holding that Kentucky vanity plate messages are private speech, and that denial of the plaintiff's "IM GOD" vanity plate violated First Amendment limits applicable to nonpublic fora because it was unreasonable and viewpoint-based). Because "we are a court of review, not first view," we follow our usual practice and leave this issue to the district court on remand.
For more on the court's analysis, and in particular why the case isn't controlled by Walker v. Texas Divisions, Sons of Confederate Veterans, Inc. (2015), which dealt with license plate designs as opposed to the personalized vanity tags themselves, see the opinion.
Matthew William Callahan and Eden B. Heilman (ACLU Foundation of Virginia) represent Whateley.
Facts Only
* The Fourth Circuit considers whether character combinations on personalized license plates are government speech or private speech.
* Virginia allowed drivers to personalize license plates for a fee, subject to restrictions on vulgarity.
* Curtis Whateley applied for a personalized plate with the characters "FTP&ATF."
* Virginia revoked Whateley's plate because it was vulgar and could be understood to promote violence.
* The court addresses whether these character combinations are government speech or private speech.
* Whateley's private speech is entitled to First Amendment protection under the public forum doctrine, contingent on the nature of the forum and state reasons for restriction.
* Prior cases indicated that restrictions in nonpublic forums only need to be reasonable and viewpoint-neutral.
* The court leaves the final analysis regarding precedent to the district court on remand.
Executive Summary
The Fourth Circuit addresses whether character combinations on personalized license plates constitute government speech or private speech, a question that has divided courts. The case involves Curtis Whateley who sought a plate with the characters "FTP&ATF," which he intended to convey "Fuck the Police & Alcohol, Tobacco, and Firearms." Virginia initially issued the plate but later revoked it because it was deemed vulgar and potentially promotional of violence. The central legal inquiry concerns whether these personalized license plates are government speech or private speech, which dictates the level of First Amendment protection and the scope of government restrictions.
The analysis introduces the public forum doctrine, suggesting that if the plates are considered private speech, government restrictions must be reasonable and viewpoint-neutral. However, the court notes that the outcome depends on the nature of the forum provided by Virginia and the justification for recalling the specific message. Previous cases show divergence in applying this standard, as one held restrictions were permissible in a nonpublic forum (Maryland) while another found restrictions unreasonable based on viewpoint (Kentucky). The court ultimately leaves the full analysis to the district court on remand.
Full Take
The tension in this legal question highlights a fundamental conflict between governmental interest in regulating public expression and the individual's right to expressive freedom, particularly when that expression is manifested through state-issued property like license plates. The pattern observed across the referenced cases suggests that the weight given to viewpoint-based restrictions hinges entirely on the characterization of the physical forum—public versus nonpublic. This setup forces a decision about where the public boundary lies between state regulation and private communication, echoing historical debates over public versus private discourse.
The implication for cognitive sovereignty is that the perception of what constitutes "government speech" versus "private speech" directly determines the scope of personal autonomy protected by constitutional rights. If personalized plates are deemed private speech, the focus shifts to whether Virginia’s regulatory actions meet the high standard of viewpoint neutrality, a test that demands scrutiny of the actual context provided by the state rather than merely accepting generalized public forum principles. The pattern suggests that attempts to constrain expressive content inevitably lead back to examining the structure and justification of the governing forum itself.
What metrics must be established to objectively determine if a state-issued mechanism inherently transforms private communication into public speech, or vice versa? If courts remain tethered to precedent based on specific forum designations rather than an overarching theory of expressive property rights, the stability of First Amendment application across evolving forms of state communication remains contingent and context-dependent.
Sentinel — Human
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