Delaware's vanity plate application process ruled unconstitutional in 'FCANCER' plate suit
A federal court on Tuesday ruled that Delaware’s regulations governing the approval of vanity license plate applications is unconstitutional.
The ruling stems from the state’s revocation of a vanity plate issued to a cancer survivor that read “FCANCER” and puts the state’s program for issuing new vanity plates on hold. The ruling found that state regulators unconstitutionally censored certain vanity plates based on a subjective viewpoint in a regulatory scheme that is overly broad and arbitrarily enforced.
State transportation officials confirmed the hold in a letter to state legislators Wednesday and in a written statement.
The lawsuit against Delaware
Kari Lynn Overington is a cancer survivor and active participant in efforts to end cancer. In December 2020, Overington applied for a Delaware vanity plate reading “FCANCER” and was approved, receiving the plate in the mail two months later.
But in June 2021, she received a letter from the Division of Motor Vehicles stating that her license plate was being recalled because it was “considered offensive in nature” and “issued in error.”
In subsequent correspondence, DelDOT Secretary Nicole Majeski told Overington the term was a “perceived profanity” and that the state does not allow plates that "contain vulgarity, profanity, hate speech or fighting words."
Overington contended the plate meant “fight cancer.” Representing herself, she sued, claiming the government had infringed upon her free speech. Later, the Delaware chapter of the American Civil Liberties Union took up her cause.
Dwayne Bensing, legal director for the local ACLU chapter, said it is dangerous when the government becomes the “thought police or polite police” and allows only certain types of expressions.
Original story: Delaware took back her vanity plate, now she is suing to express herself
“We can’t have the government telling us what we can and cannot say even on something as small as a vanity plate,” Bensing said.
The litigation centered on regulations governing transportation officials' vanity plate application review. Those regulations state that "specialists must be extremely careful" when issuing vanity license plates to ensure “obscene plates are not issued.”
Photos: Have you seen these Delaware vanity license plates?
Additionally, the regulations state that plates that make “unflattering statements about a group or raise politically sensitive issues should be referred to administrators in Dover” and that “no vanity plate shall be issued that is considered obscene.”
Evidence in the case showed that there were no hard rules for defining how the people evaluating applications should define those rules, rather it was left to individual judgment. Evaluators used tools like the Urban Dictionary to make determinations, according to depositions.
Judge: Delaware used 'viewpoint discrimination'
Wednesday’s ruling by District Judge Gregory B. Williams granted summary judgment to Overington.
Editor's note: The ruling can be read at the end of this story.
Williams’ ruling leaned upon previous U.S. Supreme Court and District Court rulings and his legal determinations also assumed “FCANCER” would be perceived as having the more spicy meaning than what Overington said she intended.
First, the ruling found that Delaware’s issuance of vanity plates is not government speech and instead is more protected private speech.
“To suggest that the state of Delaware is speaking through the alphanumeric sequences on the numerous vanity license plates it issues, all with different messages, does not conform with common sense,” Williams wrote.
Under the First Amendment, the government may not discriminate based on viewpoint, which Williams said occurs in the state’s issuance of vanity plates. He said evidence showed that transportation officials recalled the plate because it “does not represent the state and division in a positive manner” and because it was “offensive in nature.”
“Permitting vanity plate messages that represent the state well and are not offensive, while denying those messages that make the state look bad or are offensive, permits viewpoint discrimination,” Williams wrote.
He also cited depositions with state transportation officials that said a hypothetical plate reading “OVADOSE” could be issued to the chief executive of a company that makes NARCAN, but not others.
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“Permitting a license plate that refers to overdoses only when the defendant is the CEO of a pharmaceutical company that tries to prevent overdoses is textbook viewpoint discrimination,” Williams wrote.
He also compared the plate situation to other rulings in which the government sought to censor the f-word, finding Overington's situation was not comparable to situations where censorship of the word was upheld by the Supreme Court.
He also declared that the regulations are unconstitutionally vague and arbitrary, noting there are no clear rules for defining the types of words that should be denied.
From the archive You won't believe why this vanity license plate was denied in Delaware
What happens now with vanity plates
Overington waived the potential for monetary damages so the ruling simply prohibits the state from issuing vanity plates for now.
In a written statement, Delaware Department of Transportation spokesperson C.R. McLeod confirmed the issuance of vanity plates is suspended as of Wednesday and all pending applications are no longer being processed. Existing vanity plates issued before Wednesday’s ruling are still valid and can be renewed, according to the court ruling.
"The department is continuing to review the court’s decision prior to commenting further on the decision and the impact on the future of the vanity plate program," McLeod said in a written statement.
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Bensing, Overington’s attorney, said that his office and the state will draft a formal injunction order to be approved by the court that will put the vanity plate program on hold while the state implements new regulations that conform with the First Amendment.
Also, Overington will get her “FCANCER” plate back, he said.
Contact Xerxes Wilson at (302) 324-2787 or xwilson@delawareonline.com.
This article originally appeared on Delaware News Journal: Vanity plate program paused, ruled unconstitutional in 'FCANCER' suit
