So Judge Gregory Williams (D. Del.) today Overington v. Fisher: Even if FCANCER is understood to mean “Fuck Cancer” (rather than “Fight Cancer”), excluding “any license plate deemed offensive” from the state’s personalized license plate program is unconstitutional based on opinion and discretion .
To reach this result, the judge must determine whether the license plate in the personalized license plate program is private speech or government speech and draw a conclusion about government speech.The court’s analysis is close to the one I wrote two years ago in this article Ogilvie v.Gordon (ND calibration).
Seems generally correct to me.Perhaps a narrow and specific ban on certain vulgar content might be viewpoint-neutral (even if content-based) and therefore permissible in a “limited public forum” like this; but against “anything deemed offensive” license plate” ban does not meet the conditions, please refer to Yanku v.black hair (2019).
I noticed an error: court citation ogilvie for”[O]Obscenity, vulgarity, profanity, hate speech, and offensive speech are not protected by the First Amendment”; however ogilvie There is no support for this, and there are no exceptions to the First Amendment for vulgarity, profanity, or hate speech.Furthermore, because “hate speech” is an opinion-based category (cf. Mattar v.push (2017)), even if the government can exclude “vulgarity” or “profanity,” even if it can exclude “hate speech,” even in limited public forums (or non-public forums).
