Virginia Revocation of Plaintiff’s “ICUHAJI” License Plate Is Unconstitutionally Viewpoint-Discriminatory

So holds Bujno v. Commonwealth (Va. Cir. Nov. 2, 2012), which was just posted on Westlaw. The court concluded that the license plate program was a “nonpublic forum” in which the government could restrict speech based on subject matter but not based on viewpoint (a view adopted by other courts as well), and held that the Virginia prohibition on plates that “may be reasonably seen by a person viewing a license plate as socially, racially, or ethnically offensive or disparaging” was unconstitutionally viewpoint-based:

[Under the Virginia DMV rule], plate holders expressing a viewpoint honorific of a particular ethnicity or race may make that expression, but others wishing to express a racially or ethnically disparaging viewpoint may not.

To illustrate, assume that “spud” is a derogatory term for the Irish. According to the Guidelines, a Virginia driver could display an “IRSHPRD” or “LUVIRSH,” tag, but not a “DUMSPUD” or “H8IRSH” tag. One can venerate the Irish, but one cannot disparage the Irish. Thus, the Guidelines impose an impermissible viewpoint restriction.

In this case, Petitioner asserts that “Haji” is an honorific term. Conversely, the DMV asserts that the term “Haji” disparages people of Middle-Eastern descent. Regardless of what Petitioner actually intended, the fact is that the DMV revoked his plates because it believed they could be viewed as offensive. Because the Guidelines would allow Petitioner to praise Middle Easterners, but prohibits him from denigrating them, the Guidelines are unconstitutionally viewpoint discriminatory.

The court also ruled that the Department of Motor Vehicles’ own guidelines barred it from considering the bumper stickers on the car — “God Bless Our Troops / Especially Our Snipers” — in deciding whether the license plate would be seen as offensive or disparaging. But given the court’s constitutional decision, the license plate couldn’t be restricted on the grounds of its social, racial, or ethnic offensiveness in any event.