That one state, you might be surprised to learn, is Maine. More than one observer has called it the “wild, wild west of vanity license plates.” At the moment, I am looking at a photograph of a plate in Maine that reads “KISMYAS.” But the wild west is being tamed. A law enacted by the Legislature in 2021 allows the Bureau of Motor Vehicles to reject any application for a plate that is profane, encourages violence, refers to genitalia or is sexually explicit in any way.
Bill Diamond, the state senator who sponsored the new law, called the number of complaints about vulgar plates “astronomical.” He said it was “past time to reinstate some commonsense restrictions.”
Perhaps ironically, the public official charged with enforcing the law, Secretary of State Shenna Bellows, is a former executive director of the Maine chapter of the American Civil Liberties Union. “You can’t escape the proliferation of the F word,” Bellows said recently. “If you can’t say it on the 6 o’clock news, it shouldn’t be on a license plate. If you really want an offensive slogan on your car, then you can use a bumper sticker.” A bumper sticker, as she pointed out, is private property. A license plate is issued by the government and can therefore be subject to regulation.
Bellows told the Legislature that there were about 120,000 vanity plates attached to the 1.4 million automobiles in the state, and her office had found that 421 of them were subject to recall under the new legislation. Nearly 120 of those contained four-letter words. But according to newspaper reports, the plate that triggered the new law was one that read “TITSOUT.” The owner of the car protested that it was mainly a reference to breastfeeding, but it was enough to get the process of re-regulation moving.
All of this may sound like much ado about a small issue, but in fact it relates to much larger questions about the reach of the First Amendment in American law. State Sen. Diamond assured legislators that the license plate law was written to avoid legal challenges on free speech grounds, but that remains to be seen. The “wild west” policy was invoked in Maine in 2015 precisely because the previous secretary of state felt that existing regulations of offensive license plate language wouldn’t hold up in court.
Most states do have regulations that permit them to reject license plate applications if the language is profane, sexually suggestive, racist or objectionable on political or religious grounds. But judges haven’t always upheld them. Indeed, there are license plates roaming the highways in quite a few states that might run afoul of the strictest prohibitions. Connoisseurs of this subject have noted “ALC HOL” in Virginia and “UR NEXT” on a hearse in Ohio.
THERE IS NOTHING NEW about governments trying to restrict offensive language on or in public conveyances. As far back as the 1920s, Benito Mussolini tried to stamp out profanity on the Rome subways. “Do not swear,” he urged riders, “for the honor of Italy.” One historian reports that the riders responded mainly by cursing Il Duce.
But for most of the past century, no one associated profanity or obscenity with American automobiles. Vanity license plates didn’t exist in any significant numbers until the 1970s, and were instituted by states mainly for the purpose of raising money. Some jurisdictions charged as much as $100 for car owners who wanted to personalize the letters or numerals on their plates. Every state had some form of prohibition on the use of offensive language.
Over the past half-century, however, vanity license plates have become enmeshed in the larger controversies over just what constitutes free speech under the First Amendment. Until the 1960s, the overwhelming consensus was that freedom of speech applied exclusively to obvious political utterances, not to flags or clothing or license plates. Federal Judge Robert Bork argued that this was what the framers of the Constitution intended, and he was undoubtedly right. But his views on this subject were among those that cost him a seat on the U.S. Supreme Court in 1987.
Meanwhile, courts had been gradually extending free speech rights to areas where they had never been applied before. The landmark case, Cohen v. California, involved a man who wore a jacket with the words “F*** the draft” in a courtroom in Los Angeles in 1968. A state court ruled that his act promoted violence and sentenced him to 30 days in jail. But the U.S. Supreme Court voted 5-4 to reverse the conviction. “One man’s vulgarity is another man’s lyric,” Justice John Marshall Harlan II wrote in his majority opinion, and “it is because government officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style largely to the individual.”
THE COHEN CASE was part of an extended cycle of free speech revisionism. Another 5-4 Supreme Court ruling held that flag burning was “sufficiently imbued with elements of communication to implicate the First Amendment.” Draft card burning was similarly identified as speech.
It may seem a long stretch from draft card burning to lewd license plates, but in the past decade, judges have made a connection. A New Hampshire court ruled in 2014 that the state couldn’t ban a plate that read “COPSLIE.” A Rhode Island judge ruled that a motorist had the right to display a license plate that read “FKGAS.”
Most significantly, a California court ruled in 2020 that the state regulation prohibiting license plates that were “offensive to good taste and decency” was overly broad and thus unconstitutional. To be impermissible, the court said, the words had to be plainly profane or obscene. After that ruling came down, a legislator in Utah introduced a bill that would ban all vanity plates on the grounds that regulating them for content would create unacceptable legal problems.
There have been some actions pointing in a different direction. Texas was able to bar “FU COVID,” “NOPENIS” and “CNN LIES” from its vanity license plates. New Hampshire, even after its offensiveness policy was struck down in court, sought to prevent a driver from displaying the seemingly less objectionable“PB4WEGO,” then backed down. State Sen. Bill Diamond, the author of the new law in Maine, believes it is court-proof. But that isn’t certain at this point.
PERHAPS LICENSE PLATES really are a protected form of speech. Personally, I don’t think so, but what seems most important to me is that when any form of linguistic offensiveness is permitted in a public setting, the currency of profanity has been seriously debased.
The fact that most of the forbidden words of the 1950s are no longer forbidden will come as a surprise to no one. The policing of the common language is just one of many social strictures that have loosened over the past couple of generations. But profanity served a variety of purposes in Western culture for centuries. In order for it to serve those purposes, it has to be limited. If you can say “F*** You” anywhere, even on a license plate, then the words hardly mean anything.
There’s no easy way to convey to anybody under 30 the sheer emotive force that the word “f***” conveyed in the childhood culture of the mid-20th century. It was the verbal link to a secret act that none of us understood but that was known to carry enormous consequences in the adult world. It was not a word or an idea to mess with. Forbidden language was one of the ways children were reminded that there are rules to everyday life and penalties for breaking them.
This is not an argument against free speech or the First Amendment. The expanded interpretation of that amendment has released us from some unnecessary taboos. But the casual acceptance of foul language crosses a border that we ought to think about carefully when crossing it. We can’t keep “F*** You” out of books or movies or most other forms of entertainment. We can’t keep it out of public conveyances, as even Italy’s dictator failed at in the 1920s. But we should be able to keep it off license plates, as Maine is now seeking to do. That’s one small step for reasonable societal boundaries and common decency.
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