Like many other Californians who apply for vanity license plates, Jonathan Kotler’s application was rejected. Unlike most other Californians, Kotler is suing the DMV over it.

Jonathan Kotler is a lawyer and constitutional scholar at the USC Annenberg School for Communication and Journalism. He’s also an avid fan of soccer – specifically, the British soccer team Fulham F.C. Kotler’s transatlantic affair with the British soccer team has even gone as far as him traveling from LA to London every year to see the British team play, and over the 2017-2018 season, he watched with pride as Fulham – decked out in their iconic white jerseys – played better than they had in years, finishing third in their league.

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Inspired by his team’s triumph, Kotler applied for a vanity plate that would publicly acclaim his loyalty to Fulham. The plate would use an acronym for the team’s slogan, “Come on You Whites,” or “COYW.”

But alas, Kotler’s prideful vanity plate was not meant to be, as the California DMV denied his application, stating the plate “carries connotations offensive to good taste and decency” – the standard vanity plate applications must meet to be approved. When his impassioned appeal did nothing to thaw the bureaucrats’ hearts, Kotler decided to sue the DMV.

A complaint filed in federal court April 9th accuses the DMV of depriving Kotler “of his right to freedom of speech, in violation of the First and Fourteenth Amendments to the United States Constitution.”

His lawsuit requests the court to declare the DMV’s criteria for personalized license plates unconstitutional, forcing the department to stop “any and all implementing administrative rules and regulations, and practices and policies” for reviewing vanity plates. Should the court grant his request, it would put an end to the entire review process for vanity plates.

Photo – GovTech,com

“You can’t allow bureaucrats to make decisions that are fundamental to what it means to be an American, and our free speech is one of those things,” Kotler says in a press release. “As I tell my students, ours is the only constitution in the world that protects its citizens against their own government. When the government starts to infringe on our rights, that’s when the individual citizen must speak up. If we don’t, we’ll get what we deserve and will have only ourselves to blame.”  

Every year, the California DMV receives thousands of vanity plate applications, fielding nearly 250,000 in 2018 alone. However, the department only employs four full-time workers to sort through these applications and eliminate any that would offend “good taste and decency,” ranging from dirty euphemisms to outright hate speech.

The four-person team uses a 44-page document, “Common Personalized License Plate Configuration Denials,” as a guide. The document contains lists of words and examples that don’t fit California’s standards, but it only serves as a reference guide. When as unfamiliar phrase or words inevitably crosses a team members desk, they use more informal tools, such as Google Images and Translate, Urban Dictionary, or Wikipedia.

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In their rejection letter to Kotler, the DMV acknowledges the opposing interests it must take into account when making decisions, writing, “I am sure you can appreciate how difficult it is to balance an individual’s constitutional right to free speech and expression while protecting the sensibilities of all segments of our population.” But many First Amendment scholars claim that California may have gone too far in their efforts to shield the moral sensibilities of their drivers and pedestrians.

According to Eugene Volokh, a professor at UCLA School of Law and First Amendment specialist, the law might violate two constitutional principles:

  1. It discriminates against speech based on viewpoint
  2. It relies on standards that are too discretionary (and therefore open to discrimination based on viewpoint)

“The ban on vulgarities—that could be seen as viewpoint neutral,” Volokh says. “The ban on racially offensive material is clearly viewpoint based.”

A spokesperson for the DMV says the department doesn’t comment on pending lawsuits but pointed to a 1973 California Court of Appeals case, Katz v. Department of Motor Vehicles. In that decision, the court decided to uphold the “offensive to good taste and decency” standard as constitutional, even though the plaintiff argued that the DMV had violated his freedom of speech by rejecting his desired plate, “EZ LAY.”

What do you think? Did the DMV violate Kotler’s freedom of speech, or is he just grasping at straws? Let us know in the comments below!