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Judge says Delaware vanity plate rules allow viewpoint discrimination and are unconstitutional

DOVER, Del. – Delaware’s vanity license plate program is unconstitutional because it allows officials to discriminate against certain viewpoints when deciding whether to approve applications, a federal judge has ruled.

Tuesday’s ruling came in a lawsuit filed by Kari Lynn Overington, 43, of Milton, a breast cancer survivor whose “FCANCER” license plate was recalled in 2021 because it contained “alleged profanity.” Overington filed a lawsuit that year to challenge the decision, and the American Civil Liberties Union later took up her case.

“I am very grateful that I was able to make my voice heard. What they did was wrong,” Overington told The Associated Press on Wednesday.

A spokesperson for the Delaware Department of Transportation said the agency will review the decision before commenting on it and the future of the vanity board program. A DOT attorney said at a hearing in March that Transportation Secretary Nicole Majeski had discussed getting rid of all vanity plates.

In his ruling for Overington, Judge Gregory Williams rejected the DMV’s arguments that the alphanumeric combination of letters and numbers on vanity plates constitutes “government speech” and can be regulated as officials see fit.

“This court agrees with the majority of courts on this issue,” Williams wrote, stating that Delaware regulations permit viewpoint discrimination and are unconstitutionally overbroad and arbitrarily enforced.

Unlike Delaware, Hawaii’s rules are more defined and objective, simply banning “vulgar” words while including details about which dictionary to consult, the judge noted.

In Delaware, a name tag may not be issued if it is “deemed obscene” by DMV officials. The regulations also state that boards that “make unflattering statements about a particular group or raise politically sensitive issues” must be referred to top executives for review.

DMV data revealed in the lawsuit illustrates the haphazard approach officials have taken to denying vanity plates, using terms such as “negative,” “questionable,” “nasty,” “malicious,” “inappropriate,” ” disgusting’ and ‘may be offensive’. .”

In making their decisions, officials often relied on the “Urban Dictionary,” a crowdsourced website that invites people to submit and define slang words and phrases. In one case, officials combined two acronyms found on the site to conclude that “SNDNSNW” did not actually mean “sand and snow.”

“A lot of them really make you scratch your head,” ACLU attorney Dwayne Bensing said Wednesday. “You saw a kind of race to the bottom … about who could have the nastiest interpretation.”

DMV officials were particularly sensitive about vanity plates with possible sexual innuendos and signs aimed at Biden. For example, ‘Let’s Go Brandon’ and all variations of it are off-limits. The phrase dates back to a crowd chant after a 2021 NASCAR race in Alabama. The crowd chanted “F— Joe Biden” during a television interview with race winner Brandon Brown, but an NBC reporter incorrectly said that fans shouted “Let’s go, Brandon.”

Although Delaware DMV official Charles Gourley stated that “FJOEB” was a “smear on our current sitting president,” even the name “Brandon” is problematic. A driver who wanted “FJBLGB6” explained that it referred to “children’s names,” but DMV official Robyn Bose instead described it as “hate speech, fighting words and vulgar.”

Delaware isn’t the only state where officials are sensitive to vanity signs critical of the president. An Ohio man filed a federal lawsuit earlier this month after his application for a 2022 vanity plate reading “F46 LGB” was denied. That same year, Alabama officials changed course and allowed a gun shop owner to keep a vanity tag that read “LGBF JB.” ‘after initially telling him it would not be renewed.