NH DMV wrong to deny "COPSLIE" license plate, supreme court rules | New Hampshire
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NH DMV wrong to deny "COPSLIE" license plate, supreme court rules

New Hampshire Union Leader

May 07. 2014 11:02AM

CONCORD - "COPSLIE" may soon be gracing a vehicle owned by David Montenegro, now known as "human," after the state Supreme Court ruled Wednesday that the DMV regulation cited for rejecting his vanity license plate request was unconstitutional and violated his right to free speech.

The state Department of Motor Vehicles (DMV) disapproved Montenegro's request for the plate four years ago because, it said, the phrase was "insulting."

"human," 35, who lists his mailing address in Durham and who legally changed his name to "human," contended his vanity plate selection is an expression of political speech protected under the Constitution.

Gilles Bissonnette, staff attorney with the New Hampshire  Civil Liberties Union - which filed an amicus brief in the case, said the NHACLU believes human should receive a plate since the Supreme Court struck down the DMV regulation cited to deny it.

The court remanded the case back to Strafford County Superior Court, "presumably to address whether he will get the plate but we believe he should get it," Bissonnette said.

Attorney Anthony J. Galdieri with Nixon Peabody LLP argued the case on behalf of the NHCLU.

The Attorney General's Office, which filed a brief on behalf of the DMV, argued in its brief that a vanity license plate is government property and the state's rule "is reasonable in light of the government's intended purpose of identifying individual vehicles in a manner which does not imply that the government approves of combinations of letters that are offensive."

The court, however, sided with human, ruling the state regulation prohibiting vanity registration plates that are "offensive to good taste" on its face "authorizes or even encourages arbitrary and discriminatory enforcement," (see MacElman, 154 N.H. at 207) and is, therefore, unconstitutionally vague.

"Accordingly, we hold that, on its face, this restriction violates the right to free speech guaranteed by Part I, Article 22 of the State Constitution."

human, who argued the case before the high court, wanted the vanity plate to protest state government corruption. The DMV, however, bans plates that "a reasonable person would find offensive to good taste." The New Hampshire Civil Liberties Union, which joined in the appeal, argued that the regulation is unconstitutionally vague.

Senior Assistant Attorney General Richard Head, who argued the case before the Supreme Court, maintained state employees denied the plate because it disparages an entire class of people - police officers.

The case began on May 4, 2010, when human, as Montenegro, applied for the "COPSLIE" vanity plate. He stated on the application that the intended meaning was "cops lie." That same day, the DMV rejected the application because several DMV employees believed the text to be "insulting."

Montenegro appealed to the director of the DMV in writing on May 5, 2010. Two days later, the director denied the appeal concluding that "a reasonable person would find COPSLIE offensive to good taste." State administrative rule, Saf-C 514.61(c)(3) says a vanity plate shall not be "ethnically, racially or which a reasonable person would find offensive to good taste."

On Aug 30, Montenegro again applied for the COPSLIE vanity plate - his first choice - but also requested alternate plates, in order of preference: GR8GOVT; LUVGOVT; GOVTSUX; SEALPAC, and GOVTLAZ. The DMV again denied his first choice as "insulting" but issued him a vanity registration plate for the alternative choice of "GR8GOVT." That same day human obtained a regular issued plate.

Bissonnette said the DMV rejecting COPSLIE, but approving GR8GOVT is the definition of a "government official using a vague regulation to discriminate against the message of the speaker and engage in viewpoint discrimination."

"human" sought an injunction directing the DMV to issue him the COPSLIE vanity plate, as well as a permanent injunction enjoining the DMV from recalling it. He also argued the state regulation violated his right to free speech. On July 3, 2012, then Strafford County Superior Court Judge John Lewis ruled in favor of the DMV, finding no federal or state violation of human's freedom of speech rights.

The court agreed with human that the state regulation is unconstitutionally vague because it is "so loosely constrained" that it "authorizes or even encourages arbitrary and discriminatory enforcement."

The court also turned to the dictionary to define what the words "offensive" "good" and "taste" means. Taken together, the court said the definitions lead to various potential interpretations of what that phrase means.

"For example, one such interpretation could be that no vanity registration plates are allowed that are 'insulting to the standard of morality or virtue of individual preference,'" the court said. "This reading alone demonstrates the arbitrariness of determining whether a vanity registration plate is ' offensive to good taste.' "

Assistant Attorney General Karen Schlitzer, bureau chief for transportation and construction, said she had no comment "at this point."  The state has 10 days to file a motion for reconsideration with the Supreme Court.  She said she will be meeting with staff from the state Department of Safety to evaluation the opinion and determine what course to take.

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