Indiana justices hear challenge to BMV’s license plate rules

The Indiana Supreme Court justices must decide whether the letters and numbers on a personalized license plate is a form of government speech that should be controlled, or a person’s speech that should be protected by the First Amendment.

The Indiana Bureau of Motor Vehicles is asking the justices to overturn a ruling by a Marion County judge who found the agency’s process of reviewing and approving personalized license plates was unconstitutional. Justices heard arguments Thursday from Thomas Fisher, solicitor general for the Indiana attorney general’s office, which is representing the BMV on the appeal, and Ken Falk, legal director for the American Civil Liberties Union of Indiana.

The hearing comes about two years after the ACLU of Indiana, on behalf of Greenfield resident Rodney Vawter, sued the BMV after the agency refused to renew his license plate that said “0INK,” which, according to Vawter, was a light-hearted phrase referencing his work as a police officer. The agency, however, deemed the message inappropriate, even though it had previously approved the plate for Vawter.

Marion Superior Court Judge James Osborn in May 2014 found that the BMV used vague standards in assessing the appropriateness of personalized license plates. For example, the agency approved “HATERS” but denied “HATER.” “JEWJEW” was rejected, while “BLKJEW” was allowed. Osborn also deemed a state law that outlines reasons the BMV may refuse to issue personalized license plates as a violation of the First Amendment.

At issue now before the Indiana justices is whether a recent U.S. Supreme Court ruling that confirmed a government’s right to decide which groups can be honored with specialty license plates applies in the BMV case. The country’s highest court in June ruled 5-4 that Texas had the right to reject a request by the Sons of Confederate Veterans for a plate that would’ve included the image of a Confederate flag.

Fisher’s arguments Thursday relied heavily on the Texas ruling, saying it’s squarely in line with the BMV case, even though Indiana’s focus is on personalized license plates, not specialty ones.

Fisher said the state can exercise some discretion over excluding messages on personalized plates that it considers offensive. A government review of the messages is necessary, he said. Fisher also conceded that the legislature can amend the existing statute that allows the state to approve and reject messages on personalized plates.

“The letters, the numbers themselves are exactly the core of government speech,” Fisher said, adding that the government has a final say on what message should or should not be on personalized plates.

Falk said considering personalized license plates a government speech would be “a real problem” for the state, which, for years, has been approving plates with overly religious messages. He said that shows that the government favors one religion over another, and therefore, violates the Constitution.

“It’s perfectly fine as a personal expression,” Falk said, “but those are clear Establishment Clause violations.”

Echoing Osborn, Falk said the state should have more precise standards of reviewing and approving personalized plates. Currently, he said, standards by the BMV are so “malleable” and produce “diametrically inconsistent results” based on who’s reviewing the plates that such rules might as well not exist at all.

“This would not be the Wild West,” he said. “This would be approving plates pursuant to clear standards.”

The BMV suspended its personalized license plate program in July 2013, about two months after Vawter sued the agency. The Indiana Supreme Court put a hold on Osborn’s order pending its action on the case.

The license plate case is among a series of recent legal actions against the BMV. The agency agreed to refund $30 million in drivers license fees as part of a settlement in a lawsuit. It later refunded another $30 million in other taxes and fees in an agreement independent of the lawsuit. A second lawsuit that is still pending seeks to recoup another $40 million in vehicle registration 

The appeal went directly to the state’s highest court because the case alleged a constitutional violation. The justices will issue a ruling at a later date.

Washington bureau reporter Maureen Groppe and Star reporters Tim Evans and Tony Cook contributed to this story.

Call Star reporter Kristine Guerra at (317) 444-6209. Follow her on Twitter:@kristine_guerra.