John T. MITCHELL v. MARYLAND MOTOR VEHICLE ADMINISTRATION
No. 10, Sept. Term, 2016
Court of Appeals of Maryland.
October 28, 2016
Corrected on Grant of Reconsideration December 6, 2016
148 A.3d 319
Argued
Argued by Neil I. Jacobs, Assistant Attorney General (Brian E. Frosh, Attorney General of Maryland of Glen Burnie, MD) on brief, for Respondent
Argued before Barbera, C.J., Greene, Adkins, McDonald, Watts, Getty, Glenn T. Harrell, Jr. (Retired, Specially Assigned), JJ.
What does Petitioner, John T. Mitchell, have in common with “Seinfeld’s” Cosmo Kramer? Both received and displayed on their respective motor vehicles, for a period of time, vanity license plates bearing words that had arguably scatological meanings.1 Mitchell did not give up without a fight when the Maryland Motor Vehicle Administration (MVA) recalled his vanity plates; hence, this litigation.
The MVA granted in 2009 John T. Mitchell’s application for vanity license plates bearing the word “MIERDA.” Two years later, the MVA received a complaint2 about “MIERDA” on the plates displayed on Mitchell’s vehicle. The MVA
Mitchell pursued a series of challenges to the MVA’s decision. An Administrative Law Judge (ALJ) of the Maryland Office of Administrative Hearings (OAH), the Circuit Court for Prince George’s County, and the Court of Special Appeals of Maryland affirmed the MVA’s actions. We granted Mitchell’s petition for writ of certiorari. Mitchell v. Maryland Motor Vehicle Admin., 447 Md. 297, 135 A.3d 416 (2016).
This case raises questions necessitating our assessment of the Supreme Court’s First Amendment public forum doctrine, including, whether messages on vanity plates are government speech or private speech; whether vanity plates are a traditional public forum, designated public forum, limited public forum, or nonpublic forum; and, what standard of review applies to government restrictions of speech in the forum or fora applicable to the circumstances of this case. Although mindful that we risk being haunted by the spirit of the late comedian and social commentator George Carlin, we shall hold that: the characters or message on a vanity license plate represent private speech in a nonpublic forum, which requires government speech restrictions thereof to be reasonable and viewpoint neutral; Maryland’s regulation prohibiting profanities, epithets, or obscenities satisfies this standard; and, the MVA acted to recall Mitchell’s vanity plates reasonably and viewpoint-neutrally, in accordance with the regulation, and based on substantial evidence in the record. Thus, we affirm the judgment of the Court of Special Appeals.
BACKGROUND
Maryland requires the obtention and display of registration plates on in-state registered motor vehicles.
The MVA offers also two options for customizing a license plate’s general theme, which may, but need not, be combined with a vanity message. First, “background scene plates,” or “commemorative plates,” display images and text associated with issues the State wishes to promote through both its speech and fee revenue. Md. Motor Vehicle Admin., Background Scene Plates, Maryland.gov, http://www.mva.maryland.gov/vehicles/registration/background-plate.htm [https://perma.cc/8K7D-G5ZF]. Commemorative plates are available presently to support the Chesapeake Bay, § 13-618, COMAR 11.15.15.01(A), and agriculture, § 13-619.2, COMAR 11.15.30.01(A). Second, Maryland allows the customization of “specialty
In 2009, Mitchell applied for vanity plates bearing the characters “MIERDA” on the agricultural commemorative plate template.3 With no apparent thought or reservation, the MVA approved the application and sent him the desired plates. After displaying the plates for two years without challenge, Mitchell renewed them in June 2011. The MVA claims to have received thereafter a complaint, in December 2011, alleging the inappropriateness of the use of “MIERDA” on Mitchell’s plates. Sharon Crow, manager of the MVA’s Motor Carrier and Electronic Services Division, investigated (apparently for the first time) the nature of “mierda,” using Wikipedia as her primary resource. Crow’s “research” revealed that “mierda” is often regarded as a profanity in Spanish, and that in English it has as its primary meaning “shit,” context aside. “Shit” was (and remains, we are informed) a term on the MVA’s ad-hoc “objectionable plate list” maintained by Crow’s Division and used to screen prospective vanity license plate messages.
Relying on COMAR 11.15.29.02(D), the regulation authorizing the MVA to deny or rescind plates containing “profanities, epithets, or obscenities,” the MVA informed Mitchell on 27 December 2011 of its decision to rescind and recall his “MIERDA” vanity plates. Mitchell exercised his right to demand an administrative appeal under COMAR 11.15.29.05. A hearing was held before an ALJ of the OAH on 23 April 2012. Mitchell argued that “mierda” has a variety of non-profane and non-obscene meanings, and that some of which, such as “compost,” make sense in the context of the agricultural plate template and a rural lifestyle, although he conceded that it can also mean “shit.” On 17 July 2012, the ALJ found dispositive “mierda’s” offensive meaning, which, she ruled, justified the MVA’s rescission of the plates under Md. Code, Transportation Art., § 13-613 and COMAR 11.15.29.02(D).
Following Mitchell’s filing of a petition for judicial review, the Circuit Court for Prince George’s County affirmed the ALJ’s ruling, entering a spare order to that effect on 5 August 2013. The Court of Special Appeals affirmed, in a reported and thoughtful opinion, holding that vanity plates constitute a nonpublic forum for First Amendment purposes, and that the MVA’s actions were reasonable and viewpoint neutral, thereby satisfying the Supreme Court’s requirements on governmental restrictions of private speech. Mitchell v. Maryland Motor Vehicle Admin., 225 Md. App. 529, 126 A.3d 165 (2015).
This Court granted Mitchell’s Petition for a Writ of Certiorari, Mitchell v. Maryland Motor Vehicle Admin., 447 Md. 297, 135 A.3d 416 (2016), to consider the following questions, paraphrased for clarity and brevity:4
- Did the Court of Special Appeals err in concluding that personalized vanity plates are a nonpublic forum?
-
Did the Court of Special Appeals err in upholding the MVA’s restriction on Mitchell’s speech?
DISCUSSION
Mitchell’s main contentions are that: i) “MIERDA” on vanity license plates constitutes private speech in a designated and/or limited public forum, and that either forum triggers strict scrutiny review of government regulation thereof; ii) regardless of the proper forum, the Maryland regulation fails even the lower standard of reasonable basis plus viewpoint neutrality; and iii) neither “mierda” nor “shit” are profane or obscene. The State answers that: i) “MIERDA” on a vanity plate is government speech, or, alternatively, private speech in a nonpublic forum; ii) the First Amendment does not limit restrictions on government speech or, if “MIERDA” is private speech in a nonpublic forum, the regulatory scheme in ques-
tion is reasonable and viewpoint neutral; and iii) the MVA’s rescission of Mitchell’s plates was based on substantial evidence.
I. Under the Supreme Court’s articulation of the First Amendment Public Forum doctrine, the vanity plate message “MIERDA” constitutes private speech in a nonpublic forum, wherein government restrictions on speech must be reasonable and viewpoint neutral.
a. “MIERDA,” in the relevant context, is private speech, not government speech.
In its most recent case elucidating the distinction between private speech and government speech, the U.S. Supreme Court determined that a Texas-issued specialty license plate displaying a Confederate flag constituted speech by the government, not speech by the Texas Division of the Sons of Confederate Veterans, the organization that sought the plate design. Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. 200, 135 S.Ct. 2239, 192 L.Ed.2d 274 (2015). A court’s identification of speech as either that of the government or of a private person or entity determines whether the First Amendment applies at all: “government statements (and government actions and programs that take the form of speech) do not normally trigger the First Amendment rules designed to protect the marketplace of ideas.” Walker, 576 U.S. at 207, 135 S.Ct. at 2245-46. The First Amendment protects, however, private speech on government property, with some limitations.
The Court used three factors to disambiguate government speech from private speech. Walker, 576 U.S. at 210, 135 S.Ct. at 2247 (citing Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 470-73, 129 S.Ct. 1125, 172 L.Ed.2d 853 (2009)). The Court considered first whether the government used historically the mechanism of communication in question “to speak to the public.” Walker, 576 U.S. at 210, 135 S.Ct. at 2247 (quoting Summum, 555 U.S. at 470, 129 S.Ct. 1125). Many States, including Texas, used specialty plate slogans for nearly a century “to urge action, to promote
tourism, and to tout local industries.” Walker, 576 U.S. at 211, 135 S.Ct. at 2248. Second, the Court considered to whom the audience of the communications would tend reasonably to attribute the speech: a private speaker or the public owner of the
In the present case, the Court of Special Appeals reasoned correctly that a message on a vanity plate, such as
“MIERDA,” is private speech. Applying the Supreme Court’s first analytical factor, historical usage, although license plates in general function historically as government IDs for vehicles, vanity plates display additionally “a personalized message with intrinsic meaning (sometimes clear, sometimes abstruse) that is independent of mere identification and specific to the owner.” Mitchell v. Maryland Motor Vehicle Admin., 225 Md. App. 529, 561, 126 A.3d 165, 184 (2015). The unique, personalized messages communicated via vanity plates contrast with the generic, depersonalized speech conveyed by a specialty plate: “[m]any Maryland vehicles display identical specialty plates; only the registration numbers, which on a specialty plate have no intrinsic meaning and carry no message, will vary.” Mitchell, 225 Md. App. at 562, 126 A.3d at 184-85. Additionally, private citizens, not the State of Maryland, create and submit prospective vanity plate messages. “So, historically, vehicle owners have used vanity plates to communicate their own personal messages and the State has not used vanity plates to communicate any message at all. Unlike the license plate slogans that States use ‘to urge action, to promote tourism, and to tout local industries,’ vanity plates are personal to the vehicle owner, and are perceived as such.” Mitchell, 225 Md. App. at 562, 126 A.3d at 185 (quoting Walker, supra).
Turning to the factor of audience perception, “[t]he personal nature of a vanity plate message makes it unlikely that members of the public, upon seeing the vanity plate, will think the message comes from the State.” Mitchell, 225 Md. App. at 563, 126 A.3d at 185. Unlike the specialty plates at issue in Walker, vanity plates bear unique, personalized, user-created messages that cannot be attributed reasonably
the need to analyze government restrictions of private speech that takes place on government property. Nor does the juxtaposition of private speech on government property transform the public perception of the speaker’s identity.6 Although perhaps the perception of a governmental imprimatur is what makes “MIERDA” arguably clever or humorous in the first place, this stems from the public perception of State permission of private speech, not State endorsement or State expression. A fellow motorist who understood the primary Spanish meaning or English translation of “mierda” might think: “the MVA let you get away with that?,” or “you pulled a fast one on the MVA!” Even these sentiments are rooted in an understanding that the vehicle owner, not the government, is the speaker, and that the speaker implicated the State in a private message that, surprisingly, the government permitted, but certainly did not endorse.
Considering the third factor of the government speech analysis, the Court of Special Appeals concluded correctly that the MVA’s statutory and regulatory authority to deny or rescind a vanity plate based on the content of its message, § 13-613(c)(2); COMAR 11.15.29.02 and 11.15.07.01, does not rise to the level of “such tight control that the personalized messages become government speech.” Mitchell, 225 Md. App. at 564, 126 A.3d at 186.
Maryland does not exercise “direct control” over the “alphanumeric pattern” displayed on vanity plates in the same or similar way that Texas controlled specialty plates. Walker, 576 U.S. at 213, 135 S.Ct. at 2249. In Texas, the State had “sole control” over the content of a specialty plate. Id. With respect to vanity plates in Maryland, “vehicle owners, not the State, create the proposed messages and apply for them.” Mitchell, 225 Md. App. at 564, 126 A.3d at 186. Although the MVA retains discretion to deny a prospective vanity message, its authority to recall vanity plates issued erroneously suggests that the MVA’s control over vanity plates does not rise to the rigorous level required to transmogrify its regulatory approach into government speech. Id.
Contrarily, a recent ruling by the Indiana Supreme Court held that vanity plates constitute government speech because “[l]icense plates have long been used for government purposes” such as vehicle identification, their messages are perceived to be communicated on behalf of the State, and the State “ ‘maintains direct control’ ” over the messages they display.
b. Vanity plates, as a medium for private speech, are a nonpublic forum that trigger reasonable basis and viewpoint neutrality review of the relevant regulatory scheme.
i. “For we now see [private speech on government property] through [the public forum doctrine], darkly.”7
As noted earlier in this opinion, Walker represents the Supreme Court’s most recent expression of its public forum doctrine jurisprudence, which the Court uses “to evaluate government restrictions on purely private speech that occurs on government property.” Walker, 576 U.S. at 214, 135 S.Ct. at 2250 (citing Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788, 800, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985)). Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983) reduced the then-extant Supreme Court First Amendment forum jurisprudence into three distinct categories: the traditional public forum, the designated public forum, and the nonpublic forum. 460 U.S. at 45-46, 103 S.Ct. 948. In a footnote clarifying ostensibly the nature of the designated public forum, the Court hinted at an additional possible category, the limited public forum, which subsequent court opinions continue to define incongruously, assuming they acknowledge its existence at all. Perry Educ. Ass’n, 460 U.S. at 46 n.7, 103 S.Ct. 948.8
The traditional public forum encompasses “places which by long tradition or by government fiat have been devoted to assembly and debate.” Perry Educ. Ass’n, 460 U.S. at 45, 103 S.Ct. 948. Exemplified quintessentially by the public street or the public park, such fora “ ‘ha[ve] immemorially been held in trust for the use
The designated public forum “exists where ‘government property that has not traditionally been regarded as a public forum is intentionally opened up for that purpose.’ ” Walker, 576 U.S. at 215, 135 S.Ct. at 2250 (quoting Summum, 555 U.S. at 469, 129 S.Ct. 1125). Whereas a traditional public forum gains its forum status through “objective characteristics of the property,” such as a history of use as a public forum, “[d]esignated public fora, in contrast, are created by purposeful governmental action.” Arkansas Educ. Television Comm’n v. Forbes, 523 U.S. 666, 677, 118 S.Ct. 1633, 140 L.Ed.2d 875 (1998). The fundamental trait of a designated public forum is that it is “generally available to a class of speakers.” Forbes, 523 U.S. at 678, 118 S.Ct. 1633 (citation and quotation marks omitted). Perhaps counterintuitively, although the Court reiterated that the designated public forum is “generally available,” “generally open,” and allows “general access,” the forum is available,
open, and accessible only to the particular class of speakers for whom the forum was originally opened, not to the public at large. Forbes, 523 U.S. at 678-79, 118 S.Ct. 1633. This should not be confused with “selective access,” which the Court identified as a hallmark of the nonpublic forum. Forbes, 523 U.S. at 679, 118 S.Ct. 1633.9 With respect to judicial review, “[g]overnment restrictions on speech in a designated public forum are subject to the same strict scrutiny as restrictions in a traditional public forum.” Summum, 555 U.S. at 469-70, 129 S.Ct. 1125.
The limited public forum “exists where a government has ‘reserv[ed a forum] for certain groups or for the discussion of certain topics.’ ” Walker, 576 U.S. at 215, 135 S.Ct. at 2250 (quoting Rosenberger, 515 U.S. at 829, 115 S.Ct. 2510). As foreshadowed supra, the ephemeral limited public forum eludes consistent treatment by the Court. In Perry Educ. Ass’n, the Court added a footnote to the end of the sentence defining the designated public forum, which stated: “[a] public forum may be created for a limited purpose such as use by certain groups or for the discussion of certain subjects.” 460 U.S. at 46 n.7, 103 S.Ct. 948 (citations omitted). Given the similarity between the text of this footnote and the definition of the designated public
public forum, rather than its own category.10 The Rosenberger Court, however, cut the umbilical cord tethering the limited public forum to the designated public forum, discussing the former as a distinct classification: “[t]he necessities of confining a forum to the limited and legitimate purposes for which it was created may justify the State in reserving it for certain groups or for the discussion of certain topics. Once it has opened a limited forum, however, the State must respect the lawful boundaries it has itself set.” 515 U.S. at 829, 115 S.Ct. 2510 (citations omitted). Quoting the same language from Rosenberger, the Walker Court maintained the severance of the limited public forum from the designated public forum in its brief characterization of each as separate categories in the forum analysis. Walker, 576 U.S. at 215, 135 S.Ct. at 2250.
Despite the definitional similarities between the designated public forum and the limited public forum, and notwithstanding the Court of Special Appeals’s statement to the contrary,11 the Supreme Court has been clear that government restrictions on speech in a limited public forum “must be reasonable and viewpoint neutral.” Christian Legal Soc. Chapter of the Univ. of Cal., Hastings Coll. of the Law v. Martinez, 561 U.S. 661, 679, 130 S.Ct. 2971, 177 L.Ed.2d 838
(2010) (“Recognizing a State’s right to preserve the property under its control for the use to which it is lawfully dedicated, the Court has permitted restrictions on access to a limited public forum ... with this key caveat: Any access barrier must be reasonable and viewpoint neutral.”) (quotation marks and citations omitted); Summum, 555 U.S. at 470, 129 S.Ct. 1125 (“The Court has also held that a government entity may create a forum that is limited to use by certain groups or dedicated solely to the discussion of certain subjects. In such a forum, a government entity may impose restrictions on speech that are reasonable and viewpoint neutral.”) (citations omitted).12
consists of “[p]ublic property which is not by tradition or designation a forum for public communication.” Perry Educ. Ass’n, 460 U.S. at 46, 103 S.Ct. 948. “Implicit in the concept of the nonpublic forum is the right to make distinctions in access on the basis of subject matter and speaker identity. These distinctions may be impermissible in a public forum but are inherent and inescapable in the process of limiting a nonpublic forum to activities compatible with the intended purpose of the property.” Perry Educ. Ass’n, 460 U.S. at 49, 103 S.Ct. 948. Examples of nonpublic fora include airport terminals, ISK-CON; a publicly televised debate between political candidates, Forbes; an interschool mail system, Perry Educ. Ass’n; and a charity drive held in a government workplace, Cornelius. As for judicial review scrutiny, government restrictions of speech in a nonpublic forum must be reasonable and viewpoint neutral. Cornelius, 473 U.S. at 800, 105 S.Ct. 3439 (“Access to a nonpublic forum ... can be restricted as long as the restrictions are ‘reasonable and [are] not an effort to suppress expression merely because public officials oppose the speaker’s view.’ ” (quoting Perry Educ. Ass’n, 460 U.S. at 46, 103 S.Ct. 948)).
The Walker opinion glossed over the Supreme Court’s jurisprudential inconsistencies that plague the public forum doctrine, presenting instead a snapshot of four seemingly distinct analytical models without addressing the confusion that has permeated courts’ opinions across the land, percolating for decades.13 Regardless, under
categories, wherein the designated and limited public fora have nearly indistinguishable definitions, but different standards of review.
ii. The Public Forum Doctrine Applied to Mitchell
Braving the Stygian swamp that envelops the public forum doctrine, we turn to the record in Mitchell. We reject instantly one category, the traditional public forum. Neither party contends that vanity plates constitute a traditional public forum, and we agree. Mitchell argues that vanity plates constitute either a designated or a limited public forum, or possibly both, and the State counters that vanity plates are a nonpublic forum, in the event we conclude (as we have) that their messages are private speech. The ultimate question is whether to review the present case under strict scrutiny or rational basis plus viewpoint neutrality. If, as Mitchell argues, vanity plates are a designated public forum, strict scrutiny applies. Mitchell argues alternatively that vanity plates are a limited public forum, erroneously maintaining that strict scrutiny applies there as well. The State argues for a finding of a nonpublic forum (as the Court of Special Appeals concluded was the case), triggering rational basis and viewpoint neutrality review. Because speech restrictions in the limited public forum and the nonpublic forum receive the same standard of review, we need only consider whether vanity plates constitute a designated public forum or a nonpublic forum.
The Walker Court articulated the inquiry for differentiating public and nonpublic fora: a court asks whether the government “intentionally open[ed] a nontraditional forum for public discourse. And in order ‘to ascertain whether [a government] intended to designate a place not traditionally open to assembly and debate as a public forum,’ this Court ‘has looked to the policy and practice of the government’ and to ‘the nature of the property and its compatibility with expressive activity.’ ” Walker, 135 S.Ct. at 2250 (quoting Cornelius, 473 U.S. at 802, 105 S.Ct. 3439).14
Considering McDonald, the Court of Special Appeals concluded that, for the same reasons elucidated in McDonald, Maryland’s vanity plates constitute a nonpublic forum. With respect to the State’s policy and practice of issuing license plates, Maryland, since 1904, has required the display of a State-assigned registration number on every vehicle driven on public roads. Mitchell, 225 Md.App. at 574, 126 A.3d at 191-92 (citing Laws of Maryland, 1904, Ch. 518, codified in Md. Code (1904), Art. 56, § 132 (effective date Apr. 12, 1904)). Practices shifted early-on, but quickly stabilized: originally, drivers bore the responsibility of affixing their registration numbers to
their vehicles in a conspicuously visible display of compliance, but by 1910, Maryland began to issue standardized license plates. Mitchell, 225 Md.App. at 574, 126 A.3d at 192. This policy and practice continues today, and “[t]his history makes clear that the purpose of the statutory mandate for license plates on vehicles registered in Maryland is identification of vehicles on the road.” Id. With this reasoning, we agree.
Maryland began offering vanity plates in 1971. Id. From the vanity plate program’s inception, Maryland has required applicants to pay a revenue-generating fee to the State. The Court of Special Appeals reasoned that because this revenue “is the single benefit the State enjoys from having a vanity plate program,” the purpose of the program “was, and still is, to raise money.” Id. This purpose does not evidence a State intent to facilitate the “full and free expression of ideas,” but rather “to tap into the egocentricities of
Maryland constrains the expressive potential of vanity plates in accordance with the State’s purposes for license plates in general and vanity plates in particular. The combination of characters on a plate, whether a vanity plate or otherwise, must be unique to serve as a government ID. The
State limits vanity messages to seven characters, presumably because that is sufficient to register a unique combination of characters to each vehicle. Of course, as the Court of Special Appeals pointed out, pithy and clever individuals find invariably a way to express themselves in such a constrained space, Mitchell, 225 Md.App. at 576, 126 A.3d at 193, but that does not bear on whether the State intended to open a public forum. Maryland regulates also the content of vanity messages to prohibit, among other things, “profanities, epithets, or obscenities.”
The Court of Special Appeals reasoned further that Maryland’s restrictions on vanity plate access conflicts with finding that the State intended to open a public forum. Vanity plates are not open without limitation to the general public for private expression; only vehicle owners who pay a fee and receive State permission may receive vanity plates. “Public access is a hallmark of a public forum, so the fact that the Maryland general public does not have unimpeded access to vanity plates also militates against a conclusion that the State intended to create a public forum in vanity plates.” Mitchell, 225 Md.App. at 575, 126 A.3d at 192. Supreme Court precedent supports this conclusion. The Forbes Court differentiated the designated public forum, characterized by “general access,” from the nonpublic forum, exemplified by “selective access.” 523 U.S. at 679, 118 S.Ct. 1633. Maryland does not grant “general access” to vanity plates, even to members of the relevant class—fee-paying vehicle owners—for whom the forum of vanity plates was created. Rather, the State permits or denies vanity plates to individuals on a case-by-case basis, and “the government does not create a designated public forum when it does no more than reserve eligibility for access to the forum to a particular class of speakers, whose members
must then, as individuals, ‘obtain permission.’ ” Id., 473 U.S. at 804, 105 S.Ct. 3439.16
Finally, the Court of Special Appeals reasoned that the nature of vanity plates renders them incompatible with “ ‘meaningful
course[.]” Cornelius, 473 U.S. at 802, 105 S.Ct. 3439.17
Following the Walker formula for distinguishing public and nonpublic fora, we conclude that Maryland did not intend
State‘s relevant policies and practices as well as vanity plates’ nature and incompatibility with expressive activity as contemplated in the relevant Supreme Court jurisprudence.18 Vanity plates are, therefore, a nonpublic forum, which “exists ‘[w]here the government is acting as a proprietor, managing its internal operations.’” Walker, 135 S.Ct. at 2251 (quoting ISKCON, 505 U.S. at 678-79, 112 S.Ct. 2701). Maryland allows highly-constrained instances of private speech on vanity plates, but only as a part of revenue-generating operations. Moreover, “distinctions in access on the basis of subject matter and speaker identity ... may be impermissible in a public forum but are inherent and inescapable in the process of limiting a nonpublic forum to activities compatible with the intended purpose of the property.” Perry Educ. Ass’n, 460 U.S. at 49, 103 S.Ct. 948.
The MVA restricts speakers and their speech to fulfill the State’s purpose of issuing vehicle IDs and raising revenue. Just as the Court of Special Appeals determined, we find Maryland’s vanity plates to be a nonpublic forum.
II. The State’s Ultimate Rejection of “MIERDA” was Reasonable and Viewpoint Neutral.
The Supreme Court states that government restrictions on speech in a
The prohibition of “profanities, epithets, or obscenities” on vanity plates relates reasonably to Maryland’s purposes of vehicle identification and revenue generation, which involve the public display of license plates. Because the State requires motorists to display license plates on their vehicles, the public is exposed to the messages that appear on vanity plates. 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. “Shit” is one of these words, and that is an English translation, admitted by Mitchell, of “mierda.” 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. McDonald, 280 F.3d at 169. “The state has a legitimate interest in not communicating the message that it approves of the public display of offensive scatological terms on state license plates,” id. and it is reasonable, therefore, for Maryland to prohibit “profanities, epithets, or obscenities,” content with which it does not wish to associate.
Neither the MVA’s content-restricting regulation, nor its actions in accordance with that regulation, constitute viewpoint discrimination. Viewpoint discrimination occurs when the government “targets ... particular views taken by speakers on a subject,” Rosenberger, 515 U.S. at 829, 115 S.Ct. 2510, for example, “to discourage one viewpoint and advance another.” Perry Educ. Ass’n, 460 U.S. at 49, 103 S.Ct. 948. Here, the Maryland regulation targets only content—profanities, epithets, and obscenities—not a speaker’s viewpoint about such terms or any viewpoint expressed with such terms. Clearly, the regulation does not target viewpoints in support of organic agriculture. If Maryland wished to suppress pro-agriculture speech, it probably would not speak in favor of agriculture via commemorative plates, and it would restrict the use on vanity plates of terms such as “FARM,” “COMPOST,” and “CROPS.” This is not the case. Moreover, Maryland did not “impute an offensive intent” on the part of Mitchell, as he claims. Mitchell’s subjective intent is irrelevant because the regulation restricts outright and objectively profanities, not specific viewpoints for or against profanity. The MVA rescinded Mitchell’s plates not because of Mitchell’s real or presumed intent, but based on the content with which Maryland is not willing to be associated, and the content the State is not
Mitchell contends further that English translations of non-English words are too imprecise a basis for speech restrictions. First, he insists that upholding the ALJ’s decision to affirm the MVA based on one possible English translation of “mierda” “gives Maryland unlimited discretion” to inflict “collateral damage” on benign interpretations of a term such as “mierda.”20 This is false. Maryland does not have unlimited discretion because its decisions must be reasonable and viewpoint neutral. Mitchell is correct that collateral damage may occur: a term with various definitional senses, any one of which is a profanity or obscenity, may be banned even if the speaker intended one of the benign interpretations, but this is
well-within Maryland’s limited discretion to restrict the use of terms with which it wishes reasonably not to associate. As noted previously in this opinion, the speaker’s intent is immaterial.
Second, Mitchell warns of the risk of “mischievous violence to the First Amendment” when the State may “censor the speech of the speakers of one language based on whether a translation of the word or the letters forming the word were considered a ‘bad word’ in one of more than 100 other languages,” resulting in the possibility of “diminish[ed] freedom of speech in all affected languages.” The Supreme Court allows States to “diminish freedom of speech” in a nonpublic forum, so this argument is unpersuasive. Certainly, the State must act reasonably and viewpoint-neutrally in its placement of a term on its “objectionable plate list,” but that standard does not require the MVA to translate a non-English term into dozens of languages in order to balance benign translations against offensive ones, or to engage in
III. The MVA acted in accordance with COMAR 11.15.29.02(D) based on substantial evidence.
“ ‘When reviewing the decision of an administrative agency ... we review the agency’s decision directly, not the decision of the circuit court [or the intermediate appellate court].’ ” Wicomico Cty. Dep’t of Soc. Servs. v. B.A., 449 Md. 122, 132, 141 A.3d 208, 214 (2016) (quoting Comptroller of Treasury v. Science Applications Int’l Corp., 405 Md. 185, 192, 950 A.2d 766, 770 (2008)). We review agency decisions, which are “prima facie correct,” in “the light most favorable to the agency,” Motor Vehicle Admin. v. Lindsay, 309 Md. 557, 563, 525 A.2d 1051, 1054 (1987), to determine whether “substantial evidence supports factual findings and no error of law exists. ... We are under no constraint, however, to affirm an agency decision premised solely upon an erroneous conclusion of law.” Tabassi v. Carroll Cty. Dep’t of Social Servs., 182 Md.App. 80, 86, 957 A.2d 620, 623 (2008) (citations and quotation marks omitted). We conclude that the MVA rescinded
“MIERDA” under
The MVA rescinded the “MIERDA” vanity plates under
Mitchell argues further that “neither ‘mierda’ [n]or ‘shit’ are obscene or profane,” implying that the Court of Special Appeals erred in holding that the MVA based its decision on substantial evidence and was free of legal error. Obscenity, Mitchell maintains, must entail an erotic subtext, Diehl v. State, 294 Md. 466, 473-74, 451 A.2d 115, 119 (1982) (citing Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d
1498, reh. den., 355 U.S. 852, 78 S.Ct. 8, 2 L.Ed.2d 60 (1957)), and profanity must have religious connotations, Diehl, 294 Md. at 473, 451 A.2d at 119 (citing State v. Authelet, 120 R.I. 42, 385 A.2d 642, 644 (1978)). Because “mierda” connotes neither prurience nor blasphemy, Petitioner
Merriam-Webster’s “simple definition” of “profanity” includes “offensive language” and “an offensive word;” its “full definition” refers to “the quality or state of being profane.” Merriam-Webster, Profanity, http://www.merriamwebster.com/dictionary/profanity [https://perma.ee/T6PT-3DR8]. As an adverb, the “simple definition” of “profane” is “having or showing disrespect for religious things” and “relating to ordinary life: not religious or spiritual,” and its “full definition” is “not concerned with religion or religious purposes,” “not holy because unconsecrated, impure, or defiled,” “serving to debase or defile what is holy,” and “not being among the initiated.” Merriam-Webster, Profane, http://www.merriamwebster.com/dictionary/profane [https://perma.cc/ZYD3-LRXW]. The simple definition of “profanity” does not involve any element of blasphemy, despite the term’s etymological and historical roots in distinguishing the sacred from the ordinary, suggesting that a contemporary, “simple” understanding of the term need not entail religious connotations.
Similarly, Merriam-Webster provides simple and full definitions of “obscenity:” simply, “obscenity” is “the quality or state of being obscene,” “obscene words or actions,” and “an offensive word,” and in full, it means additionally “something (as an utterance or act) that is obscene.” Merriam-Webster, Obscenity, http://www.merriamwebster.com/dictionary/obscenity [https://perma.cc/3JAE-MLEW]. “Obscene,” in turn, means simply “relating to sex in an indecent or offensive way,”
“very offensive in usually a shocking way,” and “so large an amount or size as to be very shocking or unfair,” and in full, it means “disgusting to the senses,” “abhorrent to morality or virtue; specifically: designed to incite to lust or depravity,” “containing or being language regarded as taboo in polite usage,” “repulsive by reason of crass disregard of moral or ethical principles,” and “so excessive as to be offensive.” Merriam-Webster, Obscene, http://www.merriam-webster.com/dictionary/obscene [https://perma.cc/SB4D-JYSN]. “Obscenity,” therefore, may, but need not, involve erotic implications.
“Mierda” and “shit” could be profanity (“offensive language”) or obscenity (“an offensive word” or “the quality or state of being” “very offensive in usually a shocking way”) under ordinary definitions of the words. We find, therefore, that the MVA made no erroneous conclusion of law when it determined that
Moreover, substantial evidence supported the MVA’s determination. We do not substitute our judgment for that of the agency, but rather, determine whether the MVA’s decision was based on “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Caucus Distributors, Inc. v. Maryland Sec. Com’r, 320 Md. 313, 324, 577 A.2d 783, 788 (1990). Crow’s Wikipedia research (received in evidence by the ALJ without objection) revealed “mierda” to be an expletive in Spanish slang that translates in its primary sense into “shit,” an expletive in English. Mitchell’s testimony corroborated that “mierda” means “shit,” among other things, in English. Finally, the MVA maintained that it received a
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS TO BE PAID BY PETITIONER.