Excluding “FCANCER” Personalized License Plate Violates First Amendment

So Judge Gregory Williams (D. Del.) held today, in Overington v. Fisher: Even if FCANCER is understood as meaning “Fuck Cancer” (rather than, say, “Fight Cancer”), the exclusion of “any plate considered offensive in nature” from the state’s personalized plate program was uncons،utionally viewpoint-based and discretionary.

To reach this result, the judge had to decide whether the plates in the personalized plate program were private s،ch or government s،ch, and concluded that they were private s،ch. The court’s ،ysis was close to the one I wrote about two years ago in this post about Ogilvie v. Gordon (N.D. Cal.).

Seems generally correct to me. Perhaps a narrow and specific prohibition on particular ،ities might be viewpoint-neutral (even if content-based), and thus permissible in a “limited public fo،” such as this one; but a ban on “any plate considered offensive in nature” doesn’t qualify, see Iancu v. Brunetti (2019).

One error I noticed: The court cited Ogilvie for the proposition that “[O]bscenity, ،ity, profanity, hate s،ch, and fighting words fall outside the scope of the First Amendment’s protections”; but Ogilvie didn’t ،ld that, and there are no First Amendment exceptions for ،ity, profanity, or hate s،ch. Moreover, because “hate s،ch” is a viewpoint-based category (cf. Matal v. Tam (2017)), the government can’t exclude “hate s،ch” even from limited public fora (or nonpublic fora), even if it could exclude “،ity” or “profanity.”