The state’s inconsistent decisions raise questions about whether personal agendas are tainting the process. And restricting speech in such an arbitrary fashion may put Georgia at risk of the kind of constitutional challenge other states have already fought and lost.
To pass legal muster, government restrictions on free speech must be precise, said Cynthia Counts, an Atlanta lawyer who specializes in freedom of speech issues. Allowing S0SEXY1 while banning MSSEXI shows Georgia is not precise.
“That’s going to be what hurts them the most,” Counts said. “To limit speech the government has to show a compelling interest. How in the world are they achieving any purpose if they’re deciding it arbitrarily?”
The difference between 10,214 banned tags and the 91,151 accepted tags is sometimes laughably unclear, the Atlanta Journal-Constitution found in reviewing the lists.
The department doesn’t like HVYGUNS, but 1BIGGUN is fine.
G0TBEER? Not in Georgia. L0VWINE? Go for it. BELLY? Yay. UTERUS? Nay. 44JESUS? Sure. 5JESUS? Absolutely not. ENGLAND, GERMAN, SAUDIA and SYRIA? Not offensive. IRAQ and IRAN2? Offensive.
Georgia Department of Revenue officials know consistency is a problem. Employees try to be fair, but maintaining viewpoint neutrality – one of the free-speech concepts federal judges would consider in a lawsuit – is not possible when the department has to make dozens of tricky judgment calls each week, said Vicki Lambert, the department’s director of local government services and the motor vehicle division.
For guidance, employees rely on the statute regulating what the state calls prestige plates. That law says the department will not allow profanity, language the community considers obscene or language that ridicules a person, group, or religious belief or being, race or ethnicity.
But the law otherwise offers little guidance, and since the state first started selling prestige plates in 1968, community standards have changed.
Further complicating matters, during the last 45 years dozens of different department employees have reviewed prestige tag applications — all with a different opinion about obscenity, race, religion and what it means to ridicule.
This is why Georgian’s can REBEL4, but they can’t MUTINY.
“Whether it’s a good answer or not, at different times we’ve had different people in the reviewing process,” Lambert said.
Lambert understands Georgia residents have a right to free speech. Her job, she noted, is to balance that against not subjecting other people to a disgusting license plate while sitting in traffic on Interstate 75.
“And that’s where we struggle,” Lambert said.
One problem is that what’s offensive to one person may not be offensive to another.
A complaint Lambert recently received regarding a standard license plate, not a vanity plate, illustrates that difficulty.
The sequence of letters and numbers on standard license plate is determined by an automated process. This year, Georgians started receiving license plates beginning with PAA and then PAB and then PBB and so forth.
Lambert received a call from a woman who was angry when she got PMS.
Lambert sympathized. So the department sent the woman a new plate.
Even so, Lambert said she personally disagreed. She wouldn’t mind having PMS. “To me PMS is not offensive because maybe people would stay away from me on the road,” she said.
Another problem is that it’s difficult to catch the meaning behind many of the 200 to 250 prestige plate applications the Department of Revenue receives each week.
There’s an art to it, Lambert said.
Employees sound out the proposed plate. They think about how people use numbers and letters to create expressions. The number eight often means hate. It can also mean ate. In W8NGOD, eight helps spell out “wait on God.”
“You’ve really have to put your mind in a different place,” Lambert said.
The texting lexicon makes her job even more difficult. “The texting world brought up things you can sound out all day and it’s not going to tell you anything,” Lambert said. “It’s scary because I’m not sure what some of these people are saying.”
These tag applicants may LOL. But, FWIW, @TEOD, it leaves some department of revenue employees RMETTH. (By the way, that’s Laugh Out Loud, For What it’s Worth, At the End of the Day and Rolling My Eyes to the Heavens.)
To decode these applications, department employees run the text through Urban Dictionary or Wikipedia, Lambert said. Even with these tools though, they don’t catch everything.
Sometimes an offensive plate squeaks through and onto the road. The department pulls these tags when they learn of them, usually through a complaint from an offended motorist.
The sale of these vanity plates does provide a financial benefit to the state. The $35 special tag fee brought in nearly $2.3 million in fiscal year 2011-12.
But Bruce Brown, an Atlanta lawyer who specializes in free speech issues, says the plates may prove more trouble than they’re worth.
“The headache is making constitutional decisions about what can be displayed and what can’t be. It’s too hard to do. They don’t appear like they’re doing it right now,” he said.
The state’s haphazard system has not yet undergone court scrutiny.
But other states with similar issues have been sued and lost. Taxpayers are stuck with the legal tab, and those states have been forced to make changes.
In December, a U.S. District Court judge ruled a North Carolina plan to offer license plates with a pro-life background unconstitutional. Because the state did not plan to offer a pro-choice license plate, the court ruled the state’s plan would favor one political viewpoint over another.
In 2010, a federal appeals court ruled Vermont’s practice of banning all religious speech on license plates unconstitutional. The court held that allowing secular expressions, like Carpe Diem, but not religious expressions favored secular speech.
It would be difficult to argue Georgia provides preferential treatment to one political, religious or philosophical view point. The state approves and bans tags without the hint of a coherent preference policy. Georgia banned ATHEIST and BIBLE but then allowed both CDARWIN and JESUSNI.
But the arbitrary approval process presents its own problems.
A federal appellate court ruled unconstitutional Missouri’s statute banning license plates with language “contrary to public policy.” The court held the statute gave the Missouri Department of Revenue far too much leeway to ban speech.
Counts, the free speech lawyer, said Georgia’s law also leaves too much to employees.
“They’re clearly deciding who can say what with broad discretion,” she said.
So, ultimately, are the prestige tags more trouble than they’re worth?
“The politically correct answer is no,” Lambert said. “But the answer to us here is it does take time. It takes time to review them. It’s not a perfect system.”