Background
Virginia allows vehicle owners to pay an annual fee for personalized license plates containing a unique combination of up to seven characters. The Department of Motor Vehicles may reject or recall combinations that reasonably could be viewed as profane, obscene, vulgar, sexually explicit, violence-promoting, or related to illegal conduct or substances.
Curtis Whateley obtained plates reading “FTP&ATF,” which he intended to mean “Fuck the Police & Alcohol, Tobacco, and Firearms” and to express his views about policing and the Bureau of Alcohol, Tobacco, Firearms and Explosives. After receiving a complaint, the DMV recalled the plates as vulgar and potentially encouraging violence. Whateley sued DMV Commissioner Gerald Lackey, but the district court dismissed his First Amendment claim after concluding that the plates conveyed government speech. Whateley appealed only the dismissal of that claim.
The Court’s Holding
The Fourth Circuit held that the personalized character combinations on Virginia vanity plates are private speech protected by the First Amendment, not government speech exempt from ordinary First Amendment limits. Applying the Supreme Court’s history, public-perception, and government-control factors, the court concluded that all three favored private speech.
The court emphasized that Virginia historically had not used registration-number combinations to convey its own expressive messages; observers likely attribute each of the more than 930,000 unique personalized combinations to the individual driver; and the DMV’s negative restrictions on objectionable content do not amount to actively shaping or controlling an affirmative government message. The court therefore vacated the dismissal and remanded.
The Fourth Circuit did not decide whether recalling Whateley’s particular plate ultimately violated the First Amendment. It left the district court to determine the nature of the relevant forum and whether Virginia’s restriction satisfies the corresponding First Amendment standard.
Key Takeaways
- Personalized character combinations on Virginia license plates constitute drivers’ private speech rather than the Commonwealth’s own speech.
- State ownership of license plates and final approval authority over requested combinations do not, by themselves, transform private expression into government speech.
- The ruling revives Whateley’s claim but does not establish that he is entitled to keep the “FTP&ATF” plates; the district court must conduct the public-forum analysis on remand.
Why It Matters
The decision establishes within the Fourth Circuit that Virginia cannot avoid First Amendment scrutiny merely by characterizing vanity-plate messages as government speech. It also distinguishes personalized plate combinations from the state-approved specialty-plate designs treated as government speech by the Supreme Court.
The ultimate validity of Virginia’s content restrictions remains unresolved. On remand, the applicable scrutiny will depend on how the district court classifies the personalized-plate forum and whether the recall was permissible under that forum’s standards.