Does the First Amendment Cover Vanity License Plates and Bumper Stickers Like ‘Assman’?
There are two kinds of people in this world: Those who haven’t submitted multiple unsuccessful applications for “ASSMAN” Saskatchewan license plates, and Dave Assman. After the surnominally blessed Canadian’s latest attempt was rejected on appeal earlier this month, Assman—whose smirking pride in his family name is unattenuated by its actual pronunciation (“Oss-men”)—designed and printed a massive fake “ASSMAN” license plate onto his pick-up truck’s tailgate, the Saskatoon StarPhoenix reports. “Even if it wasn’t my last name who is it going to hurt?” Assman asked the National Post.
Saskatchewan Government Insurance, the agency that issues license plates for the province, apparently sees it differently. According to Michigan State University constitutional law professor Kevin Saunders, Canada’s free speech laws are relatively weak compared to those in the United States.
In a particularly ribald episode of Seinfeld, the character Kramer is mistakenly issued a proctologist’s vanity plates that say ASSMAN, but in the non-fiction world, could an American pull a Kramer? Does banning vulgarities from vanity plates violate the First Amendment? Could you be an ASSMAN?
The answer depends on who you think is speaking when you see a vanity plate, says Caroline Corbin, a free speech expert at the University of Miami School of Law. “If it’s the government, then it can regulate its own speech as it sees fit,” she says. “The free speech clause does not apply to government speech.” But, if the plates are the speech of private citizens, then there’s a much higher bar for censorship.
The Supreme Court has not yet directly addressed whether vanity plates are speech, according to Corbin, and lower courts have come to different conclusions on the matter. For example, in 2001, the 2nd Circuit Court of Appeals ruled that a Vermont man’s First Amendment rights were not violated when his attempt to obtain plates that said “SHTHPNS” was denied. Different courts have ruled otherwise.
“There’s been some controversy about it and there are plausible arguments both ways,” says Eugene Volokh, a First Amendment scholar at the University of California—Los Angeles School of Law.
The Supreme Court did recently settle a closely related, and similarly controversial question concerning specialty license plates—ones without personalized plate numbers but that have graphics on them, like, say, a “Protect Wild Dolphins” print, or a Nebraska Cornhuskers logo. Many states have offered a selection of specialty license plates to choose from for several decades as a way to raise extra money. These are government speech, the Court ruled in 2015.
In 2009, the Sons of Confederate Veterans applied for Texas to offer a specialty plate devoted to its organization that would have featured two Confederate flags. After Texas denied the application, the group sued, arguing that its free speech rights were being violated. However, the Supreme Court ruled that specialty plates imply endorsement by the government, and as such are government speech—meaning free speech rights don’t apply to them.
“The individual could simply display the message in question in larger letters on a bumper sticker right next to the plate,” Justice Stephen Breyer wrote in the opinion, prefiguring the logic of Dave Assman’s recent rejoinder to SGI.
Though the case only settled the question for specialty plates, vanity plates were also definitely on the court’s mind. “During the oral arguments, a lot of the examples that were presented to counsel had words that the individual would choose as a vanity plate,” Saunders says.
Corbin views the court’s ruling as misguided. Specialty plates are “neither purely private nor purely government speech, but really a mix of both,” she says. “We really should have another category of speech to capture this kind of mixed speech where both the government and private individuals can be considered to be responsible for the message.”
Corbin adds that state governments are often more willing to give out pro-life plates than they are pro-choice plates. For her, this “gives you a very distorted sense of the marketplace of ideas.”
This intermediate position—quasi-governmental, quasi-citizen speech—is how lower courts have tended to view vanity plates. “While printed by the government, the author of each one is each particular person,” Volokh says. “It’s a so-called ‘non-government forum,’ where the government can’t discriminate based on viewpoint. But it can discriminate based on content that is viewpoint neutral.”
Under this paradigm, a list of banned words for vanity plates is probably legal. (Maine, Vermont, Arizona, D.C., Georgia, and Wisconsin’s lists of banned words all include “ASSMAN,” according to documents obtained by governmentattic.com.)
Volokh draws an analogy to the doctrine established by the 1978 Supreme Court ruling over a radio broadcast of George Carlin’s infamous “Seven Words You Can Never Say on Television” monologue. In a contentious 5–4 ruling, the court decided that broadcast airwaves are government property, and although it would be illegal to restrict when certain ideas could be aired, vulgar words could be quarantined to late at night, when most children would be asleep. Volokh (who disagrees with the ruling) says that the court’s reasoning that “these are the public airwaves, and the public retains some right [to control the speech]” is similar to the lower courts’ version of “it’s your car, but the license plate on the back is a form of government property.”
Tough news for all the ASSMEN out there—the most famous of whom might be the late Dick Assman, a Saskatchewanian gas station attendant with a name known by 49 percent of Canadians in 1995, who became a running Letterman gag. But at least all ASSMEN and their acolytes can take inspiration from Breyer and Dave Assman, and plaster the vulgarity of their choice all over their bumper or tailgate, right?
With few exceptions, yes. “A bumper sticker is all private speech. You can put whatever you want on it, unless it’s a death threat or something,” Corbin says. This doctrine was firmly established by a 1971 Supreme Court ruling that declared illegal the arrest of Paul Robert Cohen, who had worn a jacket that said “Fuck the Draft” to a Los Angeles courthouse in protest of the Vietnam War.
State and municipal governments are free to pass some restrictions on speech, however, that are content-neutral; they can’t consider the substance of the speech, only the manner in which it’s said. For example, many municipalities limit the size of signs that can be posted in front yards, for aesthetic zoning purposes. Bumper stickers might be similarly limited.
“While there are no content-neutral restrictions that I know of about writing on your bumper, you can imagine a state saying ‘writing on your bumper is distracting’ because the whole point is for people to focus not on bumper stickers but the road,” Volokh says. “That could be constitutional, maybe.”
But until then, ASSMEN may freely bellow their surnames and self-designations from the back bumpers of their pick-up trucks all across our land of abundant speech, if not abundant chagrin.