Case 1:22-cv-00407-DKW-WRP Document 31 Filed 11/04/22 Page 1 of 45 PageID.319
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`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE DISTRICT OF HAWAI‘I
`
`
`Case No. 22-cv-407-DKW-RT
`
`ORDER DENYING PLAINTIFF’S
`MOTIONS FOR PRELIMINARY
`INJUNCTION AND TEMPORARY
`RESTRAINING ORDER
`
`EDWARD ODQUINA,
`
`Plaintiff,
`
`
` vs.
`
`CITY AND COUNTY OF
`HONOLULU, a municipal corporation;
`AND HOLLY T. SHIKADA in her
`official capacity as the Attorney General
`of the State of Hawai‘i,
`
`
`Defendants.
`
`
`In January 2021, Plaintiff Edward Odquina applied to the City and County
`
`
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`of Honolulu (the “City”) for a personalized license plate with the letter
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`combination “FCKBLM.” The first three letters are an implied expletive, and the
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`second three letters refer to the movement and organization known as Black Lives
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`Matter. Dkt. No. 1 ¶ 44. The City mistakenly issued the plate to Odquina in
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`violation of State and City rules. After realizing the error, the City recalled the
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`plate, directed Odquina to surrender it by August 19, 2021, and notified Odquina
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`that his non-compliance could result in citation, penalty and possible seizure or
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`impoundment of his vehicle. Notwithstanding these warnings, Odquina has
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`1
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`refused to surrender the plate and has been unable to renew his vehicle registration
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`as a result.
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`On September 9, 2022, Odquina filed a Complaint, a Motion for Temporary
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`Restraining Order (“TRO Motion”) and a Motion for Preliminary Injunction
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`(“MPI”) against the City and State (collectively, “Defendants”). Odquina claims
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`violations of his right to free speech under the First Amendment and seeks
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`declaratory relief, damages, and an order enjoining Defendants from enforcing
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`those rules that inhibit his ability to keep his desired vanity plate. Complaint, Dkt.
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`No. 1; TRO Motion, Dkt. No. 2; MPI, Dkt. No. 3.
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`The Court DENIES the MPI because Odquina is not likely to succeed on the
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`merits of his free speech claims for two reasons. First, license plate
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`alphanumerics, even personalized ones, are government speech not subject to First
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`Amendment review. Second, even if that were not the case, as Odquina contends,
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`the government’s rules concerning nonpublic forum speech on vanity plates are
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`reasonable and viewpoint-neutral. Odquina, in short, does not have a
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`constitutional right to a license plate containing profanity.
`
`LEGAL STANDARD
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`“A plaintiff seeking a preliminary injunction must establish that he is likely
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`to succeed on the merits, that he is likely to suffer irreparable harm in the absence
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`of preliminary relief, that the balance of equities tips in his favor, and that an
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`2
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`injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555
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`U.S. 7, 20 (2008).1
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`RELEVANT FACTUAL BACKGROUND
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`I.
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`State and City Rules for Vanity Plates
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`All license plates issued in the State of Hawai‘i must follow a certain
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`standardized style. Pursuant to Hawai‘i Revised Statutes (“HRS”) § 249-9, et seq.,
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`the plates must:
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`(1) Bear the word “Hawaii” along the upper portion of the plate and
`the words “Aloha State” along the lower portion of the plate;
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`(2) Have a distinct contrast between the color of the plate and the
`numerals and letters thereon; and
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`(3) Be of such shape, size, and color, and with such arrangements of
`letters and numbers as may, subject to sections 249-1 to 249-13, be
`determined by the directors of finance of each county through
`majority consent.
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`[Further, t]he numerals on all such plates shall be not less than three
`inches in height and the strokes thereof not less than three-eighths
`inch in width . . . .
`
`HRS § 249-9.
`
`1The standards for a preliminary injunction and TRO are substantially the same. Stuhlbarg Int’l
`Sales Co., Inc. v. John D. Brush & Co., Inc., 240 F.3d 832, 839 n.7 (9th Cir. 2001), overruled on
`other grounds by Winter, 555 U.S. at 20. The purpose of a TRO, as opposed to a preliminary
`injunction, is to preserve the status quo and prevent irreparable harm before a preliminary
`injunction hearing can be held. Granny Goose Foods, 415 U.S. 423, 439 (1974); see also Reno
`Air Racing Ass’n v. McCord, 452 F.3d 1126, 1130–31 (9th Cir. 2006). Here, since a hearing on
`this matter is unnecessary and has been vacated, and the MPI is DENIED herein, Odquina’s
`TRO Motion, Dkt. No. 2, is also DENIED AS MOOT.
`3
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`That said, the State provides several opportunities for owners of motor
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`vehicles to personalize their license plates. For example, organizations may submit
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`special license plate decal designs to the City for approval. The decal may not
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`“obstruct the visibility of the number or letters or any other information that is
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`required by law to be on the license plate,” such that the license plate continues to
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`be “readily identifiable and distinguishable under actual traffic conditions,” and the
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`designs may not “[r]epresent any obscene or degrading image, idea, word, or
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`phrase,” among other restrictions. HRS § 249-9.3(e). As another example, the
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`State authorizes special plates reflecting certain verifiable distinctions, such as
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`“COMBAT WOUNDED,” “VETERAN,” “PEARL HARBOR SURVIVOR,”
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`“FORMER PRISONER OF WAR,” “COMBAT VETERAN,” “VIETNAM
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`VETERAN,” “KOREA VETERAN,” “WORLD WAR II VETERAN,”
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`“PERSIAN GULF VETERAN,” and “GOLD STAR FAMILY.” HRS § 249-9.2.
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`Most relevant here, individuals may apply for personalized license plate
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`alphanumerics of their own choosing, known in the common vernacular as vanity
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`plates, provided they comply with the State’s regulations and the City’s more
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`detailed rules. The State’s guidelines provide, in relevant part:
`
`[T]he director of finance may provide, upon request, special number
`plates. The special number plates shall conform to the requirements
`provided for the uniform number plates except that the owner may
`request the choice and arrangement of letters and numbers. The
`maximum number of letters and numbers shall be six, and only one
`hyphen will be allowed in addition to and in lieu of the six letters and
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`Case 1:22-cv-00407-DKW-WRP Document 31 Filed 11/04/22 Page 5 of 45 PageID.323
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`numerals. No other punctuation marks shall be allowed. The director
`of finance shall not issue special number plates which have the letter
`and numeral combination of regular plates, are misleading or publicly
`objectionable. . . . The director of finance shall adopt rules pursuant
`to chapter 91 to carry out this section.
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`HRS § 249-9.1 (emphasis added). The City’s more detailed standards are
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`memorialized in the 1990 and 1994 amended Rules and Regulations of the
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`Department of Finance for the City and County of Honolulu (hereinafter “Rules”).
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`See Declaration of Thomas Farr (“Farr Decl.”), Exhs. A–B, Dkt. Nos. 16-2–3. The
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`Rules provide, in relevant part:
`
`Pursuant to and by virtue of the authority set forth in Section 249-9.1,
`Hawaii Revised Statutes, the Director of Finance of the City and
`County of Honolulu, . . . hereby amends his rules and regulations . . .
`relating to applications for special number plates, to read as follows:
`
`Rule 6.1 Purpose and Scope:
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`These rules govern the procedures to be followed for the application
`and issuance of special number plates. . . .
`
`Rule 6.4 Severability:
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`If any portion of these rules or the applicability thereof should be held
`invalid for any reason, such invalidity shall not affect other provisions
`or applications which can be given effect without the invalid
`provisions or applications and to this end these rules are declared to be
`severable. . . .
`
`Rule 6.6 Design of Special Number Plates:
`
`1. Special number plates shall conform to all requirements as provided
`in Section 249-9.1, HRS. . . .
`
`
`
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`5
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`Rule 6.8 Standards for Denial of Special Number Plates:
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`1. The following applications shall be denied:
`
`
`a. Applications with the letter/numeral combination of regular
`plates.
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`b. Applications with the letter/numeral combinations which
`have been already assigned . . . .
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`c. Applications bearing the following types of words or
`connotations:
`
`
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`(1) Words or connotations of a sexual or vulgar nature, or
`relating to excretory functions or intimate body parts;
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`(2) Drug-related words or connotations;
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`(3) Words or connotations which are ethnic in origin or
`character and which are judged by the Director to be
`offensive and disparaging.
`
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`2. For purposes of this rule, the following standards shall apply:
`
`
`a. In determining the connotation, inference, or tendency of a
`given request, the Director shall apply an objective test of what
`inference may reasonably be detected by one conversant with
`whatever linguistic, numerical, or phonetic mode of
`communication that may apply to the request. The Director
`may not consider the subjective intent or the declared meaning
`of the applicant. The request shall be considered to be the most
`objectionable connotation that reasonably may be ascribed to it.
`
`b. “Words of a vulgar nature” shall be those words, the
`connotation of which is “vulgar,” “usually considered vulgar,”
`“not used in polite conversation,” or equivalently designated in
`Webster’s Collegiate Dictionary, current edition.
`
`c. “Intimate body parts” shall include breasts, genitalia, pubic
`area, buttocks, thighs, and organs related to sexual and
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`Case 1:22-cv-00407-DKW-WRP Document 31 Filed 11/04/22 Page 7 of 45 PageID.325
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`eliminatory functions, regardless of whether the request is
`couched in common, foreign, vulgar, scientific, or other
`message form.
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`d. “Drug-related words or connotations” shall mean messages
`that may objectively be construed as referring to any drug,
`narcotic, or intoxicant, including alcohol, that may be abused so
`as to produce a physical or mental condition that is inconsistent
`with the lawful, safe operation of a motor vehicle by the person
`affected. . . .
`
`e. “Words or connotations which are ethnic in origin or
`character” shall mean messages which may reasonably be the
`basis of age, sex, race, nationality, or creed.
`
`f. “Offensive or disparaging” shall mean any message which
`may reasonably be construed as singling out any definable class
`of persons, classified on the basis of age, sex, race, nationality,
`or creed in a manner that subjects that class to contempt or
`ridicule, or espouses superiority of that class.
`
`a. Prevent governmental involvement in any discrimination on
`the basis of age, sex, race, nationality, creed, or religious
`preference;
`
`
`3. The policies underlying this rule are to:
`
`
`
`
`b. Protect the public and children, who by necessity must use
`the public highways and therefore be exposed to license plate
`messages, from offensive, obscene, or unduly distractive
`messages that may tend to impair their safety or privacy;
`
`c. Protect license plates, which are necessary to the lawful
`regulation and identification of vehicles, from vandalism and
`defacement that impair their function.
`
`d. Avoid the appearance of governmental approval of conduct
`inimical to the safe, responsible operation of vehicles.2
`
`2The Rules also outline a procedure for appealing any denial. Dkt. No. 16-2, Rule 6.12.
`7
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`Along with these Rules, the City’s website also includes a hyperlink entitled,
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`“personalized license plates,” which directs web users to the following additional
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`guidance:
`
`License plates are primarily meant for law enforcement officers to
`identify vehicles in cases of crime and to safeguard drivers on the
`road.
`
` A
`
` Motor Vehicle Registration Branch review staff will reject requests
`for personalized license plates with letter and number combinations
`that are deemed to be potentially offensive to good taste and decency.
`
`All personalized license plate requests get a first-round review. The
`ones deemed questionable get flagged for additional scrutiny.
`
` A
`
` personalized license plate is limited to a combination of six letters
`and numbers.
`
` A
`
` space is counted as one character. One hyphen is allowed in
`addition to the six letter and number combination. No other
`punctuation marks are allowed.
`
`All license plates issued in the City and County of Honolulu are
`government property and speak for the Hawai‘i state government.
`The City and County of Honolulu has the right to regulate what can be
`written on a license plate as long as the regulations are reasonable and
`uniformly applied.
`
`Forbidden phrases include terms of lust, depravity, prejudice,
`hostility, contempt and profanity in English or any other language.
`
`Motorists who are applying for personalized license plates must
`follow state government guidelines prohibiting lewd, obscene or
`hateful language.
`
`Motorists requesting personalized plates have to explain on the
`application the meaning of the phrase they want.
`
`
`
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`8
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`Dkt. No. 1-3; Complaint ¶ 27.
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`Pursuant to HRS § 249-9.1 and the City’s Rules, all requested vanity plates
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`in Honolulu are approved and issued by the Motor Vehicle Registration Branch of
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`the City’s Department of Customer Services (“DCS”). If a DCS employee
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`believes any particular vanity plate application violates the City’s Rules, the
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`employee will flag the application, and a DCS supervisor will decide whether the
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`plate should be issued.
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`II.
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`Issue and Recall of Odquina’s Vanity Plate
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`On January 5, 2021, Odquina applied for a vanity plate with the letter
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`combination “FCKBLM.” Complaint ¶ 12. The application was flagged and sent
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`to DCS supervisor Thomas Farr for review. Id. ¶ 17; Declaration of Thomas Farr
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`(“Farr Decl.”) ¶¶ 8–9. Farr contacted Odquina via telephone and asked him what
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`the letter combination meant. Complaint ¶ 17; Farr Decl. ¶ 9. Odquina told Farr
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`the letters were “an acronym for his business,” and Farr approved the plate, even
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`though he knew that “FCK [wa]s an abbreviated swear word” and that the
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`applicant’s subjective intent was irrelevant. Complaint ¶ 17; Farr Decl. ¶ 9.
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`Farr subsequently acknowledged that he made “a mistake” and “should have
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`rejected” the plate because of the implied expletive. Farr Decl. ¶¶ 7, 9 (“Swear
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`words have always been prohibited on personalized license plates. That’s clear in
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`the administrative rules, and it’s always been our policy for as long as I can
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`9
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`remember.”); ibid. ¶ 15 (explaining that the problem was the first three letters
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`requested by Odquina, not the last three); Dkt. No. 2 at 5 n.2 (“Requests with the
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`initial letters ‘FCK’ and ‘FKN’ are automatically rejected.”).3
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`After receiving word that his vanity plate was approved, Odquina visited the
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`Hawai‘i Kai Satellite City Hall to pick it up. Before issuing the plate, DCS
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`representative Kelsey Niau again flagged it as violating DCS’s policy against
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`expletives. Declaration of Kelsey Niau (“Niau Decl.”) ¶¶ 1, 3-4, 6 (“As soon as I
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`saw the plate, I knew that it violated our policy against allowing profanity on
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`license plates.”); Farr Decl. ¶ 13. Niau told Odquina that the plate was not
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`allowed, after which Odquina became agitated and “insisted, repeatedly, that
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`FCKBLM was an acronym for his business.” Niau Decl. ¶ 5. But Niau knew that
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`“it didn’t matter what he said it stood for, since ‘FCK’ is an abbreviation for a
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`swear word and that’s not allowed.” Id. She thus informed her supervisor that the
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`plate violated the DCS policy on profanity, prompting her supervisor to consult
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`with Farr via telephone. Id. ¶ 6. Farr directed the supervisor to issue the plate
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`anyway because he was “concerned that Mr. Odquina may become aggressive or
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`out of hand,” and he “would rather have the plate issued and then recall it” so that
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`he “could thereafter deal with Mr. Odquina directly rather than have him be
`
`
`3Farr claims he believed Odquina that “FCKBLM” referred to Odquina’s business and that, “[a]t
`the time, [he] did not know that ‘BLM’ stood for ‘Black Lives Matter.’” Farr Decl. ¶ 11.
`10
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`

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`aggressive to Satellite City Hall staff.” Id. ¶¶ 6–7; Farr Decl. ¶ 14.4 Complying,
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`the supervisor instructed Niau to issue the plate, and she did so. Niau Decl. ¶ 6.
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`In July 2021, the City recalled the plate and directed Odquina to surrender it.
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`The City did so first via a July 6, 2021 letter and then by telephone on August 7,
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`2021. Complaint ¶¶ 17, 18. When neither communication had the desired result,
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`DCS Licensing Administrator Francis Kau sent an August 11, 2021 letter to
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`Odquina:
`
`This is a follow-up letter to confirm that the personalized special
`license plate (FCKBLM) has been recalled by the City and County of
`Honolulu. Thomas Farr, Supervising MVR Clerk I, left you a phone
`message on August 7, 2021 regarding the special plates, requesting
`that you return his call. He subsequently sent you a letter on Tuesday,
`August 10, 2021. Your personalized special license plate has been
`determined to be publicly objectionable due to an implied expletive in
`the first three combination of letters on the license plate.
`
`Please surrender this plate within six (6) business days from the date
`of this letter, no later than August 19, 2021. You can turn it in to any
`satellite city hall in the City and County of Honolulu. We will replace
`your recalled special license plate without additional charge. If you
`do not want another personalized special license plate, we will refund
`you the $25.00 fee that you paid for the original special plate.
`
`If you fail to return the recalled personalized special license plate by
`August 19, 2021, you will be driving your vehicle with a recalled,
`unauthorized license plate which is considered illegal and equivalent
`to a civil violation under Hawaii Revised Statutes (HRS) Chapter 249.
`Your vehicle may be subject to citation, penalty and possible seizure
`
`4Niau states that she “had interacted with Mr. Odquina twice before.” Niau Decl. ¶ 7. She
`claims, “The first time, he didn’t have his paperwork in order for what he was trying to do, and
`we had to turn him away. He was argumentative and aggressive when he didn’t get what he
`wanted. The second time, and the time he came in for his license plate, he got what he wanted
`and he was okay.” Id.
`
`
`
`11
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`by the Honolulu Police Department, to which you may redeem within
`a ten-day period by payment of any delinquent penalties, the cost of
`storage, and other charges incident to the seizure of the vehicle.
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`Furthermore, you will not be able to register your vehicle again in the
`City and County of Honolulu until the recalled license plate is
`properly surrendered to the Motor Vehicle Registration Branch. Your
`cooperation and compliance in this matter would be appreciated.
`
`Dkt. No. 1-2 (emphasis added). A copy of this letter was also sent to then-interim
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`Honolulu Police Chief Rade Vanic. Id.
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`Despite receiving these notices, Odquina refused to surrender the plate. As a
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`result, he was unable to renew his vehicle registration in mid-2021, rendering him
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`unable to lawfully drive his vehicle on a public road. Complaint ¶ 21.
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`On June 30, 2022, Odquina received a letter from the County Corporation
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`Counsel, informing him that the County had been “authorized to take legal action
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`against [him] for [his] failure to surrender the special number plates.” Id. ¶ 20.
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`RELEVANT PROCEDURAL HISTORY
`
`On September 9, 2022, Odquina filed a Complaint against the City and the
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`Attorney General of the State of Hawai‘i (collectively, “Defendants”), along with
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`the instant MPI, claiming that HRS § 249-9.1’s bar against “publicly
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`objectionable” vanity plates was unconstitutional, both (1) as-applied, and (2)
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`facially. On September 30, 2022, Defendants opposed the MPI. City Opp., Dkt.
`
`No. 16; State Opp., Dkt. No. 17. On October 3, 2022, Defendants answered, and
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`the City filed a counterclaim for replevin, claiming entitlement to immediate
`12
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`possession of two FCKBLM license plates and requesting a writ of replevin and
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`mandatory injunction for the plates’ return. Dkt. Nos. 18–19, 18-1 at ¶¶ 14, A–B.
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`On October 11, 2022, Odquina replied to Defendants’ opposition briefs. City
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`Reply, Dkt. No. 21; State Reply, Dkt. No. 22. The Court elected to decide this
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`matter without a hearing pursuant to Local Rule 7.1(c) and took the matter under
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`advisement. See Dkt. No. 23. This Order follows.
`
`ADDITIONAL FACTUAL HISTORY REGARDING ODQUINA’S
`BUSINESSES
`
`On August 13, 2021, two days after receiving the August 11, 2021 recall
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`letter and at least a year after telling Farr that his vanity plate was “an acronym for
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`his business,” Odquina opened a business called Film Consulting KravMAGA
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`Bloomberg, LLC using the letters “FCKBLM.” Complaint ¶ 16. On
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`September 22, 2021, he created a separate non-profit corporation called Fight
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`Communism and Knucklehead Bitch Liberal Marxists.5 Odquina also operates the
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`website, www.fckblm.org. Id.6 In his Complaint, Odquina alleges that he
`
`
`5HAWAII.GOV, BUS. REGISTRATION DIV., DEP’T OF COM. & CONSUMER AFFS., Fight Communism
`and Knucklehead Bitch Liberal Marxists,
`https://hbe.ehawaii.gov/documents/business.html?fileNumber=320498D2 (last visited October
`20, 2022) (business not in good standing).
`6The website, www.fckblm.org (last visited Oct. 20, 2022), contains pictures of a person
`presumed to be Odquina wearing a “Trump” jersey and Civil War-era military-style clothing, a
`photo of a person holding a large, serrated Bowie knife, and the following textual content:
`
`
`100% Flag & Anthem Saluting AMERICAN PATRIOTS, ....with DUTY to
`FIGHT this spread of Socialism and Communism currently promoted by these
`imbeciles of those our forefathers BEAT 157 years ago.....
`
`
`
`
`13
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`“intended to use” the initialism “FCKBLM” on his license plate to “advertise
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`[these] business[es],” with such intent to advertise being “tied to grabbing a
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`viewer’s attention and a person being inquisitive about its meaning when seeing
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`the plate.” Id. ¶¶ 16, 30.
`
`
`Our mission is FOCUSED on RESUSCITATING PATRIOTISM BACK into our
`Schools, Film Production, Minor to Professional Sports, the Judicial system, both
`our National and LOCAL Security.
`
`WE THE PEOPLE are not the type content in merely sitting on our asses,
`spouting off amongst friends in periodic whispers, about the FACT people are
`STUPID for continuously voting corrupt LEFTIST POLITICIANS into office...,
`(e.g. IGE), while simultaneously complaining about the surge of Homelessness
`and Crime across the land. NO! Criminals being publicized as social justice
`Heroes.....
`
`Police being targeted by batshit crazy “Prosecutors” for doing their jobs!? We’re
`fucking DONE being content to complain amongst ourselves about how
`completely BACKWARDS our quote unquote “WOKE” society has become.
`[smh] Apparently our people have been allowed to FORGET..., (influenced by
`Marxist “Teachers” & “Professors” who belong to communist unions), what
`happened just 160 years ago, when Democrats pushed our REAL AMERICANS
`this far.
`
`..It is TIME TO FIGHT.
`
`WE THE PEOPLE....are furiously focused on ELIMINATING the anti-Military
`anti-Law Enforcement anti-Christian anti-Jewish anti-Flag anti-Anthem...Anti-
`Constitution... and ANTI-AMERICAN delusional Leftist LIBTARD SCOURGE
`across nation.
`
`IT'S TIME WE PATRIOTS DO OUR INDIVIDUAL BESTS...TO SAVE OUR
`COUNTRY.
`
`EVERY AMERICAN FLAG-SALUTING WOMAN & MAN, FROM THE
`PACIFIC TO THE TIP OF NEW ENGLAND...MUST PREPARE FOR THE
`INEVITABLE BATTLE AHEAD.
`
`Too many have for the outcome of............... APRIL 9th,1865.
`14
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`Current Honolulu Police Chief Arthur J. Logan asserts that Odquina
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`informed him, on or around August 14, 2021, that he (Odquina) had lied to Farr
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`about the letters “FCKBLM” being connected with a business. Declaration of
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`Arthur J. Logan (“Logan Decl.”) ¶¶ 3–6, Dkt. No. 16-5. Logan, then-Investigator
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`with the Department of the Attorney General, was patrolling the Hawai‘i State
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`Capitol during protests regarding COVID-19-related mask mandates when he
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`noticed Odquina’s car with the inappropriate vanity plate. Id. ¶ 3. “[C]urious as to
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`how someone was able to get the letters ‘FCK’ on a license plate, since [he]
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`thought profanities were prohibited,” Logan approached the vehicle and asked
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`Odquina about the plate. Id. ¶ 5. Logan claims, “Mr. Odquina told me that he lied
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`about the meaning of the plate when he talked to the license plate office. He said
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`he made up some story about FCKBLM standing for the name of his business, but
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`that he knew what it really meant.” Id. ¶ 6.
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`DISCUSSION
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`I.
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`
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`Odquina is not likely to succeed on the merits of his “as-applied” free
`speech claim.
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`The Free Speech Clause of the First Amendment to the United States
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`Constitution provides: “Congress shall make no law . . . abridging the freedom of
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`speech.”7 This Clause does not apply to government speech. Pleasant Grove City,
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`7The First Amendment is applicable to the States via the Fourteenth Amendment. See Gitlow v.
`New York, 268 U.S. 652, 664 (1925).
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`Case 1:22-cv-00407-DKW-WRP Document 31 Filed 11/04/22 Page 16 of 45 PageID.334
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`Utah v. Summum, 555 U.S. 460, 467 (2009) (“The Free Speech Clause restricts
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`government regulation of private speech; it does not regulate government
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`speech.”); Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 576 U.S. 200,
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`207 (2015) (“When government speaks, it is not barred by the Free Speech Clause
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`from determining the content of what it says.”). By contrast, the Clause applies to
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`private speech that occurs on government property—nonpublic forum speech.
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`Governmental restrictions on nonpublic forum speech must be both reasonable and
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`viewpoint-neutral. Walker, 576 U.S. at 215.
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`Defendants maintain that vanity plates reflect government speech, see City
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`Opp. at 5–6; State Opp. at 11 n.8, while Odquina contends that they contain
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`nonpublic forum speech. See City Reply at 7–8. The Court agrees with
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`Defendants, such that no First Amendment review is necessary or appropriate.
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`Nonetheless, even if vanity plates contained nonpublic forum speech, the
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`governmental restrictions here would still pass constitutional muster because they
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`are reasonable and viewpoint-neutral.
`
`A.
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`License plate alphanumerics represent government speech that is not
`subject to First Amendment review.
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`Walker is instructive. Walker concerned a Texas statute that allowed non-
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`profit entities to submit license plate designs for approval and adoption by the
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`Texas Department of Motor Vehicles Board. 576 U.S. at 204–05. Once approved
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`and adopted, the designs would become available to the public for purchase. Id.
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`Case 1:22-cv-00407-DKW-WRP Document 31 Filed 11/04/22 Page 17 of 45 PageID.335
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`At the time the Walker litigation arose, the Board had approved and adopted
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`approximately 350 license plate designs, including graphics and/or slogans,
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`containing messages such as “Jesuit Dallas,” “Alpha Phi Alpha,” “Knights of
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`Columbus,” “Get it Sold with Re/Max,” “Dr. Pepper: Always One of a Kind,”
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`“Read to Succeed,” “I’d Rather Be Golfing,” “NASCAR,” “Girl Scouts: Where
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`Girls Grow Strong,” “Don’t Tread on Me,” and “Choose Life.” Id. at 236 (Alito,
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`J., dissenting) (Appendix). The action arose when a non-profit entity known as the
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`Sons of Confederate Veterans (“SCV”) proposed a plate design that incorporated a
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`Confederate flag. After a public hearing, the Board unanimously rejected the
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`design because “public comments had shown that many members of the general
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`public f[oun]d the design offensive,” and “such comments [we]re reasonable.” Id.
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`at 207.
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`SCV sued the Board, asserting a violation of its freedom of speech and
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`seeking an affirmative injunction that would require the Board to approve the
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`design. The District Court for the Western District of Texas entered judgment for
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`the Board, and a divided panel of the Court of Appeals for the Fifth Circuit
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`reversed, holding that the designs were private speech and that the Board’s refusal
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`to approve the design constituted unconstitutional viewpoint discrimination.
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`The Supreme Court reversed, holding that specialty license plate designs
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`were government speech, based on three factors: (i) the history of expressive
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`
`
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`Case 1:22-cv-00407-DKW-WRP Document 31 Filed 11/04/22 Page 18 of 45 PageID.336
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`messages on license plates, (ii) the state’s perceived endorsement of any such
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`messages, and (iii) the extent to which the state exerted control over such
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`messaging. Id. at 208–09.
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`With regard to the first factor, the Court assessed whether license plate
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`graphics and slogans had historically conveyed messages from the government or
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`from private individuals. Id. at 210–11. Noting that such messaging was a
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`relatively new phenomenon, first arising in the United States in the 1910s and
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`1920s, the Court reviewed early license plate designs8 and found that states,
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`including Texas, had long used license plate slogans to communicate government
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`messages, including “to urge action, to promote tourism, and to tout local
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`industries.” Id. at 211. Ultimately, the Court concluded, “[T]he history of license
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`plates shows that, insofar as license plates have conveyed more than state names
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`and vehicle identification numbers, they long have communicated messages from
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`the States.” Id. at 210–11.
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`With regard to the second factor, Walker concluded that reasonable
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`observers would “closely identif[y]” the State of Texas with specialty license plate
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`designs and would believe that Texas had endorsed or approved of the messaging.
`
`
`8Examples included a steer’s head (Arizona), a codfish (Massachusetts), a rider atop a bucking
`bronco (Wyoming), a brown potato accompanied by the slogan “Idaho potatoes” (Idaho), and the
`phrases “North to the Future” (Alaska), “Keep Florida Green” (Florida), “Hoosier Hospitality”
`(Indiana), “The Iodine Products State” (South Carolina), “Green Mountains” (Vermont), and
`“America’s Dairyland” (Wisconsin). Walker, 576 U.S. at 211.
`18
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`Case 1:22-cv-00407-DKW-WRP Document 31 Filed 11/04/22 Page 19 of 45 PageID.337
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`Id. at 212. The Court reasoned that “[t]he governmental nature of the plates [wa]s
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`clear from their faces”: each plate bore the name “TEXAS” at the top, and Texas
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`issued the plates, regulated their disposal, and owned the designs. Id. As the Court
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`put it, license plates “[we]re, essentially, government IDs”—“government article[s]
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`serving the governmental purposes of vehicle registration and identification.” Id.
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`Moreover, not only was it reasonable for observers to assume the state had
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`endorsed the designs’ messages, but the Court further reasoned that those
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`submitting and purchasing these designs likely intended to convey that the State
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`endorsed the message:
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`If not, the individual could simply display the message in question in
`larger letters on a bumper sticker right next to the plate. But the
`individual prefers a license plate design to the purely private speech
`expressed through bumper stickers. That may well be because
`Texas’s license plate designs convey government agreement with the
`message displayed.
`
`
`Id. at 212–13.
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`Third and finally, Walker considered the large extent to which Texas
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`“maintain[ed] direct control over the messages conveyed on its specialty plates.”
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`Id. at 213. The statutory scheme p