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Court of Appeals: Free speech does not apply to profane vanity license plate

This license plate displays the Spanish word "mierda." The Maryland Motor Vehicle Administration did not violate a motorist’s constitutional right to free speech by recalling his vanity license plate, the state’s top court unanimously ruled Friday

This license plate displays the Spanish word “mierda.” The Maryland Motor Vehicle Administration did not violate a motorist’s constitutional right to free speech by recalling his vanity license plate, the state’s top court unanimously ruled Friday

The Maryland Motor Vehicle Administration did not violate a motorist’s constitutional right to free speech by recalling his vanity license plate “MIERDA,” the Spanish word for “s—,” the state’s top court unanimously ruled Friday.

In its 7-0 decision, the Court of Appeals held that the words conveyed on a state-issued license plate constitute not the protected free speech of the motorist but “private speech on government property” that is subject to reasonable regulation. MVA’s prohibition on “profanities, epithets, or obscenities” is such a reasonable regulation, the high court said.

“For better or worse, our society sets apart particular words as out-of-bounds; their utterance or display can be understood reasonably as indecent or offensive, especially in the presence of minors,” Judge Glenn T. Harrell Jr. wrote for the court.

“’S—’ is one of these words, and that is an English translation, admitted by (the motorist), of ‘mierda,’” added Harrell, a retired judge sitting by special assignment. “It is reasonable, therefore, for the state to protect knowledgeable observers of vanity plates from the perception of such a term. Even though a witness to a vanity plate message will discern easily the vehicle owner as the speaker, because the speech takes place on government property and only with state permission, the message will be associated with the state.”

The high court’s decision marks a defeat for motorist John T. Mitchell, who had argued MVA “has no power to restrict expression” that is not obscene. Placing a profanity on one’s license plate has as much constitutional protection as a message that connotes “love,” Mitchell had argued, adding that “all words are alike under the First Amendment.”

But the Court of Appeals, in affirming lower court decisions, said the words on a license plate can be regulated by the state.

Mitchell, a Washington, D.C., lawyer could not be reached for comment Friday on the Court of Appeals’ decision and whether he plans to seek review by the U.S. Supreme Court.

The Maryland attorney general’s office praised the decision, saying it “upholds the process the MVA has been using for filtering out inappropriate license plates.”

The controversial license plate adorned Mitchell’s car, a 1999 BMW Z3, for more than two years before a fellow motorist complained in a December 2011 letter to the MVA that the word was inappropriate, the Court of Appeals’ opinion stated.

The letter prompted the manager of MVA’s motor carrier and electronic services division to perform an online search of “mierda,” where she discovered on Wikipedia the word’s English translation.

The MVA stated that the division employee tasked with screening vanity plate applications when Mitchell applied for his in 2009, and renewed it in 2011, did not speak Spanish. The agency sent Mitchell a letter in December 2011 notifying him his plates had been issued in error, were being recalled and he could apply for a refund.

Mitchell sought a hearing before an administrative law judge, who ruled against him in July 2012, citing MVA’s regulation on profanity. A Prince George’s County Circuit Court judge upheld the decision in August 2013, as did the intermediate Court of Special Appeals in its reported decision last November.

Mitchell then sought review by the Court of Appeals. During oral arguments last month, Mitchell was asked what viewpoint he was expressing with his license plate.

Mitchell responded the word was apropos of the license plate’s background theme, which supported Maryland agriculture.

“I thought it was cute,” Mitchell said. “I thought it was clever.”

The high court issued its decision in John T. Mitchell v. Maryland Motor Vehicle Administration, No. 10, September Term 2016.


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