1APL8S—ACLU Says South Dakota Censors Free Speech on License Plates

The American Civil Liberties Union is demanding justice for personalized license plate applicants who have been arbitrarily denied their seven characters of creativity. In a letter yesterday to Attorney General Marty Jackley and Revenue Secretary Mike Houdyshell, ACLU South Dakota legal director Stephanie R. Amiotte  says the standard for personalized license plates found in SDCL 32-5-89.2, allowing the Secretary of Revenue to “refuse to issue any letter combination which carries connotations offensive to good taste and decency” violates the First and Fourteenth Amendments “and infringe[s]  on the free speech rights of all South Dakotans.” The ACLU gives the Motor Vehicle Division two weeks to o.k. all plates rejected or recalled under that arbitrary standard since August 1, 2022, and to stop using that portion of statute in reviewing personalized license plate applications.

The ACLU spotlights the travail of Flandreau entrepreneur Lynn “Smokey” Hart, who wanted to plate his Chevy truck with “REZWEED” to advertise his marijuana advocacy firm Rez Weed Indeed. In June 2022, the Motor Vehicle Division rejected Hart’s application, saying “REZWEED” “was found to be in poor taste.” Hart called the ACLU, the ACLU called the state, and by November, the state relented and issued the REZWEED plates.

But for months the state trampled Hart’s rights, and it continues to trample the rights of other South Dakotans whose creative plates have been rejected for the vague reason of “good taste and decency.” The ACLU says that over the past five years, the state has invoked the taste standard to reject 673 personalized plate applications, 31.52% if all rejections.

The ACLU cites numerous examples of accepted and rejected or recalled plate messages that demonstrate the inconsistent, highly subjective, and thus censorious and unconstitutional application of SDCL 32-5-89.2:

The ACLU also notes that the DMV has deemed distasteful the following rejected plate letterings:

• PBS
• FRITOS
• MIMSI
• HLZ
• HVNHL
• OJO
• SNAFU
• SIXFIVE
• HFO
• SFX
• DRACO
• WURST
• SHROOM
• HELMET
• NARDDOG
• IDIOT
• BELUSHI
• RED22
• MIYAGI1
• CAUSTIC
• DORF

The ACLU isn’t suing yet, but they remind the state that if they do sue, they’ll win:

In Lewis v. Wilson the Eighth Circuit [that’s South Dakota’s circuit] relied on both the overbreadth and vagueness doctrines to find Missouri’s personalized plate law to be facially unconstitutional after it was used to deny a driver the personalized plate “ARYAN-1.” 253 F.3d at 1080-81. The plate was initially issued but, following an anonymous complaint, the state refused to reissue it because they found it to be in violation of a Missouri statute which prohibited the issuance of personalized license plates that are “obscene, profane, inflammatory or contrary to public policy.” Id. at 1078- 79. The driver sued, seeking an injunction because the law was unconstitutional for being vague, overly broad, and viewpoint discriminatory. The Eighth Circuit found the statute to be facially unconstitutional. Id. at 1079. Specifically, the Court “struck down the part of the statute that allowed license plates to be rejected as contrary to public policy because it was vague and overbroad, thereby creating an impermissible risk that the government’s suppression of unpopular ideas would violate the First Amendment.” Roach v. Stouffer, 560 F.3d 860, 864 (8th Cir. 2009) (summarizing the holding in Lewis).

Additionally, the ACLU has successfully sued in several states where personalized plate statutes violated free speech rights. Courts throughout the country have struck down laws similar to South Dakota’s law prohibiting personalized license plates that are allegedly “offensive to good taste and decency.” See Carroll v. Craddock, 494 F.Supp.3d 158 (D. R.I. Oct. 2, 2020); Matwyuk v. Johnson, 22 F. Supp. 3d 812 (W.D. Mich. 2014); Morgan v. Martinez, 2015 WL 2233214 (D.N.J. May 12, 2015). Therefore, South Dakota’s law prohibiting personalized plates that allegedly carry “connotations offensive to good taste and decency” is also overly broad and void for vagueness on its face [Stephanie R. Amiotte, ACLU South Dakota, letter to Attorney General Marty Jackley and Revenue Secretary Mike Houdyshell, 2023.08.29, p. 5].

No one has a right to a personalized license plate. South Dakota could avoid a lawsuit that may cost more than the revenue vanity plates raise at $25 a pop and the hassle of reviewing several dozen personalized plates a day for Big-Johnson weisenheimery by simply saying, “No more vanity plates! Every plate says what we say it says (and every plate gets the number of the county the owner is from, the way God and General Beadle intended!).” The state’s requirement that a 6″x12″ rectangle of your bumper indicate the street-legality of your car doesn’t significantly prevent you from using the other several square feet of your bumper, tailgate, rear windows, and the giant flag getting all sooty next to your pretentious smokestack to express yourself. But if the state is going to rent out its license plates for personal messages, then it has to give every citizen equal access to that public forum, with clear, consistent standards that do not allow the state to discriminate against certain viewpoints.