The Tennessee Supreme Court on Wednesday issued an opinion in
Leah Gilliam v.
David Gerregano, Commissioner of the Tennessee Department of Revenue et al., rejecting a First Amendment challenge to Tennessee’s personalized license plate program.
Ordinarily, Tennessee license plates contain a randomly generated alphanumeric combination, consisting of letters and numbers, to identify the vehicle. For an additional fee, however, Tennessee drivers may request a specific alphanumeric combination. These plates are known as personalized or vanity plates.
For over a decade, Leah Gilliam’s vehicle displayed a personalized plate that read “69PWNDU.” But the state eventually revoked the plate after deeming Gilliam’s personalized message offensive. Gilliam sued state officials, alleging that Tennessee’s personalized license plate program is facially unconstitutional because it discriminates based on viewpoint in violation of the First Amendment.
The State argued in response that the First Amendment’s prohibition of viewpoint discrimination does not apply to the alphanumeric combinations on personalized license plates because they are government speech, not private speech. Although the First Amendment prohibits the government from discriminating against private speech based on its viewpoint, the First Amendment does not constrain the government when it is engaging in its own speech.
The trial court agreed with the State and rejected Gilliam’s First Amendment challenge. But the Court of Appeals reversed. The Tennessee Supreme Court granted review to determine whether alphanumeric combinations on Tennessee’s personalized license plates are government speech or private speech. The Court held that they are government speech and therefore the First Amendment does not prohibit the State from revoking Gilliam’s plate based on the content of its message.
In reaching this decision, the Court relied heavily on the United States Supreme Court’s 2015 decision in Walker v. Texas Division, Sons of Confederate Veterans, Inc. in which the Court determined that Texas’s specialty license plate designs constitute government speech. Although personalized alphanumeric combinations differ from specialty plate designs in some respects, the Tennessee Supreme Court concluded that a faithful application of Walker’s reasoning compels the conclusion that alphanumeric codes are government speech too.
To read the Court’s unanimous opinion, authored by Justice Sarah K. Campbell, click
here.