Washington, DC, May 28, 2010

UPDATE: “ISNOGOD” License Plate Approved After Appeal
Brian Magee’s application for the personalized license plate “ISNOGOD” was approved by the North Dakota Department of Transportation (NDDOT) yesterday. Magee had appealed the initial rejection of the license plate to the state’s transportation director, Francis Ziegler. In a letter sent to Magee, Ziegler explained that the attorney general’s office said that Magee had a legal right to have his personalized plate accepted, and approved the appeal. The American Humanist Association learned of the development this morning.

“We’re glad the North Dakota Department of Transportation did the right thing and approved Mr. Magee’s vanity plate,” said Bob Ritter, staff attorney and legal coordinator of the Appignani Humanist Legal Center, legal arm of the American Humanist Association, who wrote a letter to NDDOT demanding the reversal of the plate’s denial earlier this week. “Because other plates that carried a religious message were approved by NDDOT, Mr. Magee had a right to express his viewpoint as well.”
 
—

The Appignani Humanist Legal Center, legal arm of the American Humanist Association, sent a letter to the North Dakota Department of Transportation on Tuesday asking them to reverse their decision to reject an application for a license plate reading “ISNOGOD.” NDDOT rejected the application even though in the past it has approved non-secular license plate messages, a move which the legal center argues may be viewpoint discrimination in violation of the First Amendment.
 
“The North Dakota Department of Transportation can’t decide to allow only the messages they agree with and reject the messages they don’t like,” said Bob Ritter, staff attorney and legal coordinator of the Appignani Humanist Legal Center. “If they approve some religious speech on personalized license plates they must approve it all—they can’t pick and choose.”
 
The letter, which was sent to NDDT Director Francis Ziegler, appears below.
 
May 25, 2009
 
Dear Mr. Ziegler:
 
It has come to our attention that the Department of Transportation (NDDOT) recently denied an application by Brian Magee for a license plate reading “ISNOGOD,” while it has approved applications for religious themed license plates that display messages such as “ILOVGOD.”
 
The American Humanist Association, a national non-profit organization with members in North Dakota, supports Mr. Maggee’s appeal requesting that NDDOT either approve his application for a personalized license plate or recall already issued plates that have references to the divine.
 
Within the context of license plate messages, the Supreme Court has held that “The First Amendment protects the right of individuals to hold a point of view different from the majority.” Wooley v. Maynard, 430 U.S. 705, 715 (1977). Thus, NDDOT cannot deny an individual the right to promote an atheist message on his license plate simply because the department finds the message objectionable or unpopular.
 
The Court has also held that messages on license plates are private speech rather than governmental speech, thus, the department cannot allow some individuals to promote their messages about “god” while denying the same right to those who profess nonbelief. Id. “In the realm of private speech or expression, government regulation may not favor one speaker over another.” Rosenberger v. Rector, 515 U.S. 819, 828 (1995).
 
It is my understanding, based on a press report, that NDDOT’s policy forbids references to illegal activity, obscenity and hate-speech but it doesn’t make any reference to religious messages. (Source: http://www.grandforksherald.com/event/article/id/162769/). Accordingly, the department impermissibly engaged in viewpoint discrimination by denying Magee’s license plate request.
 
The North Dakota Century Code 39-04-10.3 is of doubtful validity because it grants NDDOT unfettered discretion to approve personalized plates and apparently NDDOT has chosen to use its authority to engage in viewpoint discrimination. I would particularly note that NDDOT’s Motor Vehicle Registration Manual Section “D” provides that “All personalized plate requires must include the meaning of the plate characters. Requests must be approved by the Motor Vehicle Division.” (Section D, 1-31.) The statute and NDDOT’s policy simply gives the NDDOT personnel too much discretion to approve or reject applications for personalized license plates. The 8th Circuit has held that a license plate statute violated the First Amendment because it allowed the state to engage in viewpoint discrimination by giving the Committee on Transportation unbridled authority to deny an application based solely on the organization’s viewpoint. Roach v. Stouffer, 560 F.3d 860 (2009).
 
Finally, the NDDOT’s policy may be unconstitutional on vagueness grounds. The department’s “FAQ” page provides that “No obscene, etc. names will be accepted … if unallowable characters or names are included the plate request will be rejected.” (Source: www.dot.nd.gov/mvonlinequestions.html#ordering.) In Lewis v. Wilson, the court struck down part of a statute that allowed license plates to be rejected as contrary to public policy because it was vague and overbroad, thereby creating a risk that the government’s suppression of unpopular ideas would violate the First Amendment. Lewis v. Wilson, 253 F.3d 1077, 1079 (8th Cir.2001). Because a stringent vagueness test applies to regulations that interfere with the right of free speech, Magee is likely to prevail against the department for enforcing an overly vague policy. Smith v. Goguen, 415 U.S. 566, 573 (1974). Because the policy does not specify what constitutes “unallowable names” or obscenity, the policy creates the risk that the government will suppress unpopular ideas in violation of the First Amendment (Lewis, 253 F.3d).
 
The American Humanist Association requests NDDOT expeditiously approve Mr. Magee’s and confirm such approval to me.
 
Sincerely,
 
Robert V. Ritter
Attorney / Legal Coordinator
 
###
 
The American Humanist Association (www.americanhumanist.org) advocates for the rights and viewpoints of humanists. Founded in 1941 and headquartered in Washington, D.C., its work is extended through more than 100 local chapters and affiliates across America.
 
Humanism is the idea that you can be good without a belief in God.
 
###