Ninth Circuit upholds ban on offensive license plate
First Amendment rights don't apply to a vanity plate reading "FCKBLM."
by Candace Cheung, Court House News, June 28, 2023
HONOLULU (CN) — The banning of profanity on license plates is constitutional, a Ninth Circuit panel ruled Wednesday, following a Honolulu man's challenge to the city's recall of a vanity plate reading "FCKBLM."
A Ninth Circuit panel upheld a federal judge's denial of Edward Odquina's request for a preliminary injunction and temporary restraining order, concluding that Hawaii's restrictions on license plate messaging were reasonably applied to Odquina's personalized plate and that the recall was viewpoint-neutral.
"The district court properly concluded that Odquina’s challenge went to the content of his message, rather than its viewpoint, and that such content-based restrictions are constitutionally permissible," the panel wrote in an unpublished memorandum.
This month, Odquina and city representatives argued before U.S. Circuit Judge Gabriel Sanchez, a Joe Biden appointee, as well as Donald Trump appointees U.S. Circuit Judges Bridget Bade and Patrick Bumatay at a hearing where Odquina, represented by Honolulu attorney Kevin O'Grady, had argued the profanity is part of the viewpoint and was therefore being wrongly prohibited.
Odquina claimed he 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.
Although the city flagged the plate as a “publicly objectionable” message, Odquina explained to City Hall staff that the letters were an acronym for his business. The city eventually approved the plate and gave it to Odquina.
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 impoundment of the vehicle.
Odquina then sued the city and county of Honolulu and Hawaii Attorney General Holly Shikada in September 2022, calling for a review of Hawaii statutes regulating license plates for violations of the First Amendment. Odquina also requested a preliminary injunction and temporary restraining order to allow him to use the vehicle again but was denied by U.S. District Judge Derrick Watson this past November.
Before the Ninth Circuit, Odquina argued his plate could not be interpreted as government-endorsed speech and that the city had no standing to police private messaging. Attorneys for the city and state countered that the presence of the plate implied government endorsement as a piece of government ID. City officials have maintained that the plate was mistakenly approved by City Hall employees.
The panel concluded personalized license plates like Odquina's fall outside of government speech doctrine and were rightly considered as a nonpublic forum by Watson in his decision. The judges also rejected Odquina's argument that content-based restrictions violated his First Amendment rights, writing that 'his invocation of a line of cases involving criminal statutes does not support the proposition that vulgarities are constitutionally protected in all circumstances."
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