By Kristine Guerra
Approving a personalized license plate that says "HATERS," while denying one that says "HATER" is constitutional, the state's highest court ruled. Same with rejecting a license plate that says "JEWJEW," while allowing one that says "BLKJEW."
The Indiana Supreme Court ruled Friday that the Bureau of Motor Vehicle's process of reviewing and approving personalized license plates does not violate the Constitution because license plates are a form of government speech -- one that is controlled by the state, not a private citizen's speech protected by the First Amendment.
The ruling mirrors an earlier U.S. Supreme Court decision on a highly contested issue on specialty license plates. In a 5-4 decision in June, the nation's highest court upheld a government's right to decide which groups can be honored in specialty license plates, rejecting a request by the Sons of Confederate Veterans in Texas for a plate that would've included an image of the Confederate flag.
Dan Conkle, a constitutional law professor at the Maurer School of Law at Indiana University-Bloomington, said that given the U.S. Supreme Court's decision, it isn't surprising the Indiana Supreme Court reached same conclusion.
The Indiana ruling comes more than two years after the American Civil Liberties Union of Indiana sued the BMV after the agency refused to renew a license plate that said "0INK." The lawsuit was filed on behalf of Greenfield resident Rodney Vawter, who said the message was a light-hearted reference to his work as a police officer. The agency deemed it inappropriate, even though it previously had approved Vawter's license plates.
In May 2014, Marion Superior Court Judge James Osborn ruled in favor of the ACLU of Indiana and Vawter, saying the BMV used vague standards in assessing the appropriateness of personalized license plates. Osborn also deemed a state law that outlined reasons the BMV may refuse to issue personalized license plates was a violation of the First Amendment.
The state appealed, and Indiana's highest court ruled in its favor.
All five justices agreed with the BMV that personalized license plates are a form of government speech and have long been used for government purposes, according to the 14-page opinion issued Friday.
"First and foremost, the alphanumeric combinations provide identifiers for public, law enforcement and administrative purposes," Justice Brent Dickson wrote, adding that Indiana license plates, like those in other states, have historically included state slogans, such as "Drive Safely," "Lincoln's Year," "Safety Pays" and "Bicentennial."
Private citizens who want to display a certain message on their cars could have used bumper stickers, window decals and other similar methods, Dickson wrote, but "instead, many preferred to have the state approve and authorize individualized alphanumeric combinations for display on government property."
The opinion further said the BMV still has direct control over whether a message on a personalized license plate is approved or denied.
"The BMV not only holds broad authority in reviewing (personalized license plates), but exercises it -- rejecting thousands of combinations for reasons including 'misleading,' 'poor taste,' 'profanity' and 'violence,' " Dickson wrote.
The ACLU of Indiana argued that BMV's regulations on which personalized license plates should be approved or denied are overly broad and vague. During a hearing in the Supreme Court in August, Ken Falk, the nonprofit's legal director, said the agency needs to have more precise standards for reviewing and approving personalized license plates. Falk said current standards, which are so "malleable" that they produce "diametrically inconsistent results," violate the Due Process clause of the Fourteenth Amendment.
The justices considered the argument moot because they already had determined license plates are government speech.
During the August hearing, Thomas Fisher, solicitor general for the Indiana attorney general's office, which is representing the BMV on the appeal, argued that the state can exercise some discretion over messages that it considers offensive, saying "the letters, the numbers themselves are exactly the core of government speech."
Indiana Attorney General Greg Zoeller said in a statement that the ruling strikes a "careful balance that allows Indiana to have a personalized plate program motorists can utilize while recognizing the BMV's authority to deny applications for offensive plate messages."
Falk said he is disappointed with the decision. But he added that because personalized license plates are now considered government speech, plates with religious messages that have been approved by the BMV are now deemed a violation of the First Amendment's Establishment Clause, which prevents the government from endorsing one religion over another.
Conkle, of IU's Maurer School of Law, said the Indiana Supreme Court could have distinguished personalized license plates from specialty license plates, which are at issue in the Texas case. Specialty license plates are used by special-interest groups, universities, military organizations and others. Individuals use personalized license plates to display their own messages, Conkle said, and the average person would not necessarily think such messages are government-sponsored.
Conkle also said that had the state Supreme Court reached the opposite decision, it would potentially open a "can of worms," and the BMV and the courts would have to answer difficult questions about when speech should be restricted and when it shouldn't be.
"In essence, those issues are off the table. In terms of personal speech, one possible justification for this result ... is that if you want to express yourself, you can use a bumper sticker or other alternatives," Conkle said. "Basically, the Indiana Supreme Court ... is resolving the issue in a rather definite way. As a result, it is reducing if not eliminating altogether the prospect of further litigation on this issue."
The BMV suspended its personal license plate program in July 2013, shortly after Vawter's lawsuit was filed. The Indiana Supreme Court put the program on hold pending its decision on the case.The BMV is evaluating the ruling and will soon have more information on how the program will move forward, a spokesman for the agency said.
The ACLU of Indiana has the option to ask the U.S. Supreme Court to review the ruling. The nonprofit has 90 days to decide on its next step.
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