Gettler v. Director of Revenue
411 S.W.3d 339
Mo. Ct. App.2013Background
- Toby G. Gettler obtained a Missouri personalized license plate reading "MZU SUX," which he said signified "Mizzou sucks" to express support for the University of Kansas in its rivalry with the University of Missouri.
- A citizen complained; the Director of Revenue recalled the plate as "obscene or profane" under Mo. Rev. Stat. § 301.144.3 and regulation 12 CSR 10-23.185, requiring surrender and destruction.
- Gettler appealed to the Administrative Hearing Commission (AHC); at hearing he conceded "sucks" can reference a sexual act but presented nonsexual usages and a slang dictionary definition meaning "to be objectionable or inadequate."
- The AHC found the slang meaning is common, the plate did not describe sexual acts or appeal to prurient interests, and one complaint alone did not establish community standards of obscenity; it reversed the recall.
- The Director appealed to the Missouri Court of Appeals, arguing the plate was obscene/offensive and subject to recall.
- The Court reviewed under the substantial-evidence standard and affirmed the AHC, holding the obscenity determination is a factual question for the factfinder applying contemporary community standards.
Issues
| Issue | Plaintiff's Argument (Gettler) | Defendant's Argument (Director) | Held |
|---|---|---|---|
| Whether "MZU SUX" is obscene under § 301.144.3 and 12 CSR 10-23.185 | Plate expresses nonsexual insult ("sucks" = inadequate); not describing sexual acts or appealing to prurient interest | "SUX" symbolically references "suck/sucks" with a sexual meaning and is obscene/offensive, so recall is authorized | AHC determination that plate is not obscene is supported by competent, substantial evidence and is affirmed |
| Whether AHC or appellate court decides obscenity de novo | Gettler: deference to AHC factual findings and community-standards application | Director: contends obscenity is legal question for independent review | Court: obscenity determination is factual (community standards) for factfinder (AHC); appellate court will not substitute its judgment on facts |
| Whether one citizen complaint or prior recalls suffice to demonstrate community standards of obscenity | Gettler: one complaint insufficient; prior recalls without complaint not probative | Director: complaints and prior recalls demonstrate offensiveness | Held: one complaint insufficient; AHC permissibly discounted prior recalls absent evidence of public complaints |
| Proper interpretive factors under 12 CSR 10-23.185 | Gettler invoked registrant explanation, dictionary slang meaning, examples of nonsexual uses | Director relied on sexual connotation and other states' recalls/cases | Held: AHC reasonably relied on registrant explanation, dictionary slang usage, and lack of prurient or lewd content; decision sustained |
Key Cases Cited
- Smith v. United States, 431 U.S. 291 (factfinder applies contemporary community standards)
- Miller v. California, 413 U.S. 15 (definition/standard for obscenity)
- Hunt v. PennDOT, 47 Pa. D. & C.3d 132 (PA trial ruling upholding recall of offensive plate)
- Kahn v. Department of Motor Vehicles, 16 Cal.App.4th 159 (CA appellate upholding recall of plate with implied sexual epithet)
- Katz v. Department of Motor Vehicles, 32 Cal.App.3d 679 (CA appellate upholding refusal of sexually suggestive plate)
- McMahon v. Iowa Dep't of Transp., 522 N.W.2d 51 (Iowa appellate upholding revocation of plate with sexual connotation)