Secretary of State Shenna Bellows’ office released draft rules on May 5 detailing how the agency would review vanity license plates for profanity.
The rule, which uses existing statutory definitions for profanity and obscenity, was authorized by LD 130, which the legislature passed in June 2021. It was subsequently signed into law by Gov. Janet Mills.
The draft rule allows the secretary of state to refuse applications for vanity license plates if they falsely suggest an association with a government agency, duplicate another plate, encourage violence, are profane or obscene, or if they make a derogatory reference to characteristics like race or sexual orientation. The rule would also ban plates that use letters and numbers in a configuration that connote genitalia or sexual acts, or which form slang words, abbreviations, phonetic spellings, or mirror images of words otherwise prohibited, even in a language other than English.
The rule not only allows new vanity plate applications to be reviewed, but also authorizes the secretary of state’s office to review existing plates and recall them if they do not meet the standards.
To ensure “the consistent approval and denial” of applications, the rule also authorizes the Bureau of Motor Vehicles (BMV) to carry out a centralized approval process. Under the process, all vanity plate applications will be reviewed by professional BMV staff.
The rule authorizes the creation of a Vanity Plate Review Committee, to include two BMV staff members, the Director of Vehicle Services. The committee will review any applications flagged as potentially violating the new standards.
The rule also outlines the process by which the committee will review plates flagged as inappropriate. Plates are to be evaluated “from the perspective of an ordinary observer.” The committee can reference commonly used guides, such as dictionaries–including Urban Dictionary. It can also consider foreign language meanings.
The committee will also review complaints about plates it receives by the public in order to determine whether a plate should be recalled.
If an application for a vanity plate is denied, or recalled after being found noncompliant, the secretary of state is to inform the plate holder or applicant and provide reason for the decision. In the case of a recall, a registrant can appeal the decision within 14 days of receiving notice.
Vanity plate holders whose license plates are recalled will be issued a new registration at no cost and will have the registration fee for their vanity plates refunded on a prorated basis for any unused full months.
A public hearing on the proposed rule will be held on May 27. Maine residents can submit public comment to the secretary of state’s office related to the proposed rule through June 6.
The rule is likely to draw First Amendment challenges. Bellows attempted to address free speech concerns in a press release announcing the new rules.
“The First Amendment protects your right to have any bumper sticker you want, but it doesn’t force the state to issue official registration plates that subject children in our communities to obscenity or profanity,” said Bellows, who also said profanity on license plates is directly contrary to the public interest. Bellows formerly served as the head of the Maine ACLU, which testified in opposition to LD 130.
“Some people, no doubt, find public references to penises, vaginas, breasts, buttocks, drugs, deities, sex acts, and combinations of the above to be offensive and inconsistent with the kind of state where they wish to live. We do not doubt the sincerity of their feelings on this matter. But, one thing that unites us as a state and as a nation—one of the few things—is our commitment to freedom of expression as a fundamental freedom that is, or ought to be, the birthright of every human being,” said Zachary Heiden, chief counsel of the Maine ACLU, in legislative testimony.
A recent federal court ruling that struck down a similar law in Rhode Island suggests Bellows may be wrong.
In February 2021, a U.S. District Court judge struck down as unconstitutional a Rhode Island law that allowed the Department of Motor Vehicles (DMV) to deny vanity license plates that might “carry connotations offensive to good taste and decency.”
Sean Carroll’s vanity plate was initially approved by the DMV but recalled once the agency realized the configuration of letters could be interpreted as a profanity. With the help of the ACLU or Rhode Island, Carroll sued the state agency on the grounds his free speech was being violated and won.
