Ninth Circuit hears challenge to recall of offensive license plate
The city and county of Honolulu tried to walk back a mistakenly-approved vanity plate reading "FCKBLM," but the license plate holder says that violates his free speech rights.
by Candace Cheung, Court House News, June 8, 2023
HONOLULU (CN) — A Hawaii resident claiming the state infringed on his right to free speech after recalling a personalized license plate bearing the letters “FCKBLM” asked the Ninth Circuit on Thursday to consider whether license plates are truly representative of government speech or if it becomes messaging merely associated with a private citizen.
According to the initial complaint filed in September of last year, Edward Odquina had applied for a vanity license plate reading “FCKBLM” in early 2021, in reference to the Black Lives Matter movement, notable for being associated with national protests against police brutality against Black Americans, particularly during the summer of 2020 following the murder of George Floyd by Minneapolis police officers.
The controversial plate made a splash across local social media and left many wondering how the plate was approved in the first place.
According to court documents, the city had flagged the plate for its “publicly objectionable” message, and Odquina explained to City Hall staff that the letters were an acronym for his business, and despite the noted profanity, it was eventually approved and given to Odquina.
Odquina registered a business called Film Consulting KravMAGA Bloomberg, LLC after the complaint was filed, and also owns the website www.fckblm.org, where the letters reportedly stand for “Fight Communism and Knucklehead Bitch Liberal Marxists.”
The city recalled the plate several months later, citing that the letters FCK could be interpreted as an expletive, preventing Odquina from registering the vehicle. Odquina refused to surrender the plate, prompting the city to threaten Odquina with citations and potentially impounding the vehicle.
Odquina then sued the city and county of Honolulu and Hawaii Attorney General Holly Shikada, calling for a review of Hawaii statutes regulating license plates for violations of the First Amendment.
U.S. District Judge Derrick Watson denied Odquina a preliminary injunction and a temporary restraining order in November, finding that the use of the letters FCK was considered profanity, which is limited by Hawaii statutes regulating license plates, writing that “a rule against profanity does not limit the right to express one’s views, but only limits the mode of that expression.” Watson also said that the license plates, as official identification, were considered government speech.
Odquina, represented by Honolulu attorney Kevin O’Grady, appealed the denial.
Before the Ninth Circuit panel Thursday morning, O’Grady pushed back on Watson’s determination that messages on license plates were considered government speech, saying that the message is implied to be the opinion of a private citizen and should therefore be protected.
Daniel Gluck, attorney for the city and county of Honolulu, and Department of the Attorney General attorney Isaac Ickes, contended that license plates are simply a form of government ID in a non-public forum and will be perceived as such by the general public.
Approval of profanity on a license plate, O’Grady countered, does not turn into government endorsement.
“It’s one of a kind, no one thinks the government is endorsing the message, everyone knows that the vanity plate is specific to that one person,” he said.
U.S. Circuit Judge Bridget Bade, a Donald Trump appointee, questioned how only the alphanumeric characters of a license plate could become private speech, when the rest of plate’s components, including the graphic design and the “Aloha State” phrase were still considered government speech.
The city, O’Grady said, is inviting each driver, and taking their money, to express themselves with a vanity plate which means they cannot discriminate against the viewpoint.
“Profanity is a viewpoint,” O’Grady argued, explaining that use of profanity in Odquina’s plate is as much part of his message as the phrase overall.
U.S. Circuit Judge Gabriel Sanchez, a Joe Biden appointee, questioned if the argument implied blanket permission of profanity on all license plates.
While most of the argument throughout the case has focused on the first three letters of the plate, the Ninth Circuit panel — rounded out by Donald Trump appointee, U.S. Circuit Judge Patrick Bumatay —touched, for the first time, on the BLM aspect.
“What if it had said NO BLM or BYE BYE BLM?” Bade questioned.
Gluck said that this would be a different question, but raised the point that there is an anti-racial epithet clause in the state’s license plate regulations.