DMV sued for re­ject­ing van­ity li­cense plate

The Fresno Bee (Sunday) - - News - BY AN­DREW SHEELER [email protected]­bune­

A fed­eral judge has given the go-ahead to a law­suit against the Cal­i­for­nia De­part­ment of Mo­tor Ve­hi­cles by a con­sti­tu­tional law pro­fes­sor whose van­ity li­cense plate re­quest was spurned by the DMV.

Jonathan Kotler, who teaches at the Univer­sity of South­ern Cal­i­for­nia An­nen­berg School for Com­mu­ni­ca­tion and Jour­nal­ism, is a self-pro­fessed “avid soc­cer fan” whose fa­vorite team is FC Ful­ham, known for their white jer­seys and the fan chant of “Come on you whites,” ac­cord­ing to a com­plaint filed by Kotler in the United States District Court for the Cen­tral District of Cal­i­for­nia.

After Ful­ham “en­joyed its most suc­cess­ful season in re­cent years” in 2018, Kotler sought to have the let­ters “COYW” em­bla­zoned on a Cal­i­for­nia van­ity en­vi­ron­men­tal li­cense plate.

In re­sponse, Kotler re­ceived a let­ter from the DMV, call­ing the let­ters “of­fen­sive to good taste and de­cency.” In fur­ther cor­re­spon­dence, the DMV said that “‘Come on you whites’ can have racial con­no­ta­tions,” ac­cord­ing to the com­plaint.

Kotler — who has served as le­gal coun­sel for the Cal­i­for­nia First Amend­ment Coali­tion, the Los An­ge­les chap­ter of the So­ci­ety of Pro­fes­sional Jour­nal­ists and the Cal­i­for­nia Freedom of In­for­ma­tion Com­mit­tee — filed a law­suit, al­leg­ing that the state, in re­strict­ing his plate choice, was re­strict­ing his First Amend­ment rights.

Kotler’s law­suit seeks to block the state “from con­tin­u­ing to en­force the ban on per­son­al­ized li­cense plate con­fig­u­ra­tions that ‘may carry con­no­ta­tions of­fen­sive to good taste and de­cency,’” ac­cord­ing to the com­plaint.

The state, in re­sponse, filed a mo­tion to dis­miss the case, ar­gu­ing that “li­cense plates are gov­ern­ment speech not sub­ject to First Amend­ment scru­tiny.”

“Nec­es­sar­ily, the reg­is­tra­tion num­bers dis­played on Cal­i­for­nia li­cense plates are also gov­ern­ment speech. There­fore, (Kotler’s) claims fails as a mat­ter of law and should be dis­missed with­out leave to amend,” the state ar­gued in a mo­tion to dis­miss.

U.S. District Court Judge Ge­orge Wu ex­pressed skep­ti­cism to­ward the State of Cal­i­for­nia’s ar­gu­ment.

In his or­der deny­ing the state’s mo­tion to dis­miss, Wu wrote that “turn­ing to au­di­ence per­cep­tion, the Court thinks it strains be­liev­abil­ity to ar­gue that view­ers per­ceive the gov­ern­ment as speak­ing through per­son­al­ized van­ity plates,” ac­cord­ing to court doc­u­ments.

“Al­though ran­dom­ly­gen­er­ated reg­is­tra­tion num­bers, and li­cense plates in gen­eral, may be closely iden­ti­fied with the state in the mind of the pub­lic, the same is not true of the per­son­al­ized mes­sages on van­ity plates,” he added.

Wu wrote that par­ties should dis­cuss how the court should pro­ceed, but that he dis­agreed with the state that a mo­tion to dis­miss “is the proper pro­ce­dural ves­sel by which to an­a­lyze the is­sue,” ac­cord­ing to court doc­u­ments.

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