Mitchell v. Maryland Motor Vehicle Administration

DEBORAH S. EYLER, J. John T. Mitchell applied to the Maryland Motor Vehicle Administration (“MVA”) for vanity plates bearing the letters MIERDA. The application was granted. Two years later, the MVA received a complaint from a member of the public about Mitchell’s vanity plates. It investigated and determined that “mierda” is the Spanish word for “shit.” Pursuant to a State regulation giving the MVA discretion to deny or rescind vanity plates that contain profanities, epithets, or obscenities, the MVA rescinded Mitchell’s vanity plates.

Mitchell challenged the MVA’s action in a contested case hearing before an Administrative Law Judge (“ALJ”). The ALJ decided that the MVA properly exercised its discretion to rescind Mitchell’s vanity plates and that its action did not violate Mitchell’s First Amendment right to free speech. The Circuit Court for Prince George’s County upheld the decision, and this appeal followed. The novel issues before this Court are whether messages on vanity plates are government speech or private speech on ⁵³⁷ government property; and if they are the latter, what degree of government restriction may be imposed on that private speech under the Free Speech Clause of the First Amendment. 1 We hold that Mitchell’s vanity plate message is private speech on government property, not government speech.

Under prevailing United States Supreme Court jurisprudence, Maryland vanity plates are a “nonpublic forum,” in which government restrictions on private speech will pass muster under the First Amendment if they are reasonable and viewpoint neutral. As applied in this case, Maryland’s restriction against profanities, epithets, and obscenities on vanity plates satisfies that test. FACTS AND PROCEEDINGS All vehicles registered in Maryland must display license plates issued to the vehicle owner by the MVA. Md. Code (1977, 2012 Repl.

Vol.), § 13-411 of the Transportation Article. 2 For most vehicles, license plates must be displayed on the front and back, so the plates are issued in sets. § 13-410(a). Each set of license plates displays a unique “registration number” assigned by the MVA. The registration number is made up of letters, numerals, or a combination of both. § 13-410(b). Ordinarily, when a vehicle is registered, the MVA issues the owner a set of standard base license plates. 3 The MVA is authorized to issue various types of special license plates, instead of the standard base plates, for which the vehicle owner must pay a fee in addition to the usual registration fee. ⁵³⁸ “Personalized registration plates”—known in the vernacular as “vanity plates”—bear a registration number that the vehicle owner selects, and the MVA then assigns to the vehicle, instead of assigning a standard registration number. § 13-613(a) and (c).

See also Md. Motor Vehicle Administration, Personalized (Vanity) License Plates, Maryland.gov, http:// www.mva.maryland.gov/vehicles/licenseplates/personalized-license-plates.htm (last visited Nov. 9, 2015). A vehicle owner may apply for vanity plates that display a registration number of no more than seven selected alphanumeric characters. § 13—613(c)(1). The MVA has discretion to “refuse any combination of letters and numerals” requested. Id. at (c)(2).

Right now, vanity plates cost $50 per year. Id. at (b). The fees collected for vanity plates are distributed to the Maryland Transportation Trust Fund. Id. at (d).

For the most part, the only difference between vanity plates and standard base license plates is the personalized registration number. Unlike vanity plates, most of the other special license plates the MVA is authorized to issue alter the design of the license plate itself. What we shall call “commemorative plates” are specially designed base license plates that are alternatives to the standard base license plate. Presently, Maryland manufactures two commemorative plates: “Chesapeake Bay Plates,” depicting a blue heron and marsh grass and bearing the slogan “Treasure the Chesapeake,” see § 13-618 and Code of Maryland Regulations (COMAR) 11.15.15.01(A); and “Agricultural Plates,” depicting a farm scene and bearing the slogan, “Our Farms, Our Future,” see § 13-619.2; COMAR 11.15.30.01(A).

At this time, commemorative plates cost $20 initially, with a $10 per year renewal fee. See Md. Motor Vehicle Administration, MVA Fee Listing, Maryland.gov, http://www.mva.maryland.gov/about-mva/fees/ index.htm (“MVA Fee Listing”) (last visited Nov. 9, 2015). The largest class of special license plates the MVA is authorized to issue are those that may be obtained by vehicle owners associated with non-profit organizations. We shall refer to these as “specialty plates.” Specialty plates are custom designed for an organization to depict its name, initial, ⁵³⁹ emblem, or logo. § 13-619.

A vehicle owner who demonstrates that there are at least 25 other vehicle owners in the same class may make a request to the MVA to manufacture a proposed specialty plate. § 13-619(c)(2). If the MVA approves the design for the proposed specialty plate, the plate will be manufactured and issued to all qualified applicants, for the required fee. The registration numbers on those specialty plates match the number of owners who have applied for and obtained the plates. Over 800 specialty plates have been issued by the MVA. 4 Presently, the fee for specialty plates is $25 with a logo and $15 without a logo, with no yearly renewal fee.

See MVA Fee Listing, supra. The case at bar involves vanity plates and, to some extent, commemorative plates. It does not involve specialty plates. In 2009, Mitchell accessed the MVA’s website and submitted an on-line application for vanity plates to be assigned the 7 letters “MIERDA,” and to appear on the commemorative Agricultural Plate.

He paid the vanity plate fee and the commemorative plate fee. The MVA approved his application and issued his vehicle Agricultural Plates bearing the registration number “MIERDA.” Mitchell renewed his registration for those plates in June of 2011. In December of 2011, the MVA received a letter from a member of the public complaining that Mitchell’s vanity plates were inappropriate. This prompted Sharon Crow, Manager of the MVA’s Motor Carrier and Electronic Services Division, to look up the word “mierda” on a Wikipedia website.

She discovered that “mierda” is the Spanish word for “shit.” The definition redirected her to a Wikipedia site entitled “Spanish profanity.” That site gave as the first definition for “mierda” “a noun meaning ‘shit.’ ” 5 ⁵⁴⁰ In the ordinary course of operations, Crow’s Division maintains the “objectionable plate list,” ie., a list of words and various combinations of characters the MVA has deemed not acceptable to appear on Maryland license plates, under regulations it has promulgated. The list is not exhaustive. When the MVA receives information that a word or combination of characters is not acceptable, it updates the list to so reflect. Often that information will come from the prisoners who actually make the license plates.

At the relevant time in this case, the employee in Crow’s Division whose job it was to check vanity plate applications against the objectionable plate list did not speak Spanish. The English word “shit” is on the “objectionable plate list” and was on that list when Mitchell applied for his vanity plates. The Spanish word “mierda” was not on the list then, when Mitchell renewed the registration for his vanity plates, or when the MVA received the complaint about his vanity plates. Based on her newly acquired knowledge of the meaning of the Spanish word “mierda,” Crow decided that Mitchell’s vanity plates should be rescinded.

On December 27, 2011, the MVA notified Mitchell by letter that his vanity plates “ha[d] been issued in error and were being recalled.” The letter cited COMAR 11.15.29.02(D), which states that the MVA has discretion to rescind a vanity plate that contains profanities, epithets, or obscenities. 6 The MVA informed Mitchell that he could apply for new vanity plates, which, if available, would be “ordered and issued gratis”; and enclosed a refund application in case he did not wish to order new vanity plates. The MVA issued Mitchell “a gratis set of regular plates” for him to use in the meantime. ⁵⁴¹ By letter of January 31, 2012, Mitchell asked the MVA to “consider reversing its decision” and to allow him to keep his vanity plates. He argued “that because [his] plates are” Agricultural Plates, the word “mierda” is “particularly appropriate since our farms produce a lot of it and use a lot of it to grow our food.” He claimed to have a “First Amendment right to use the combination of letters of [his] choice to express a message or viewpoint.” In the event the MVA was unwilling to reverse its decision, he requested a contested case hearing before the Office of Administrative Hearings (“OAH”). 7 The MVA was not persuaded by Mitchell’s letter and the matter was referred to the OAH. A contested case hearing was held before an ALJ on April 23, 2012.

The MVA was represented by counsel. Mitchell represented himself. 8 Mitchell was the sole witness in his case. He testified that he was born in Chile and is fluent in Spanish. He opined that “mierda” does not “mean exclusively shit”; it also means “[c]ompost or trash, or good for nothing.” He claimed that he chose the word “mierda” for his vanity plates “to support agriculture.” He “was just getting down to earth of saying that we ought to go more with the earth and the compost.” Mitchell agreed that “mierda” is a Spanish word that can be understood to mean “shit.” Crow was the only MVA witness.

She testified about the MVA’s process for issuing vanity plates, the “objectionable plate list,” the complaint about Mitchell’s vanity plates, her Wikipedia search of the word “mierda,” and the MVA’s ultimate decision to rescind Mitchell’s vanity plates. A print-out of Crow’s Wikipedia search was introduced into evidence, without objection. An organization or individual whose preferred letters, numbers, emblems, terms, symbols, logos, or a combination of them are disapproved by the [MVA] under this chapter is entitled to a hearing before the [OAH] pursuant to the Administrative Procedures Act. ⁵⁴² On July 17, 2012, the ALJ issued her written decision. In her findings of fact, she explained that, pursuant to COMAR 11.15.29.02(D), the MVA “may refuse to issue or rescind issuance of a registration plate containing ... profanities, epithets, or obscenities.” She recognized “that the term ‘mi-erda’ has many alternative definitions, a number of which are not obscene or profane,” but nevertheless found: [T]he MVA reasonably exercised its discretion under section 13-613 ... to rescind issuance of [Mitchell]’s personalized license plates. [Mitchell] may feel comfortable driving around in a car labeled with what many Spanish-speaking individuals might consider obscene under at least one definition.

Nevertheless, a government agency such as the MVA is justified in choosing not to officially support such action. Furthermore, the First Amendment does not require [them] to do otherwise. In her “Conclusions of Law,” the ALJ ruled that the MVA had properly recalled Mitchell’s vanity plates under section 13-613 and COMAR 11.15.29.02(D). Mitchell filed a petition for judicial review in the Circuit Court for Prince George’s County.

Oral arguments were scheduled for July 19, 2013. On that date, counsel appeared on behalf of the MVA. Mitchell did not appear. The circuit court issued an order affirming the MVA’s final decision to recall Mitchell’s vanity plates.

The order was entered on the docket on August 5, 2013. In the meantime, on July 23, 2013, Mitchell filed a motion to vacate the judgment and reopen the case. 9 The court denied the motion by order entered on May 8, 2014. Mitchell filed a timely notice of appeal to this Court. He poses three questions, which we have reordered and reworded: I. Was there substantial evidence in the record to support the MVA’s finding that the Spanish word “mierda” is obscene? ⁵⁴³ II.

Did the MVA violate its own regulation when it rescinded his vanity plates?

III

Did the MVA violate his First Amendment right to freedom of speech by rescinding his vanity plates?. STANDARD OF REVIEW In an appeal from a judgment of the circuit court in a judicial review action “[w]e review only the decision of the administrative agency itself.” Howard Cty. Dep’t of Soc. Servs. v. Linda J., 161 Md.App. 402, 407 , 869 A.2d 404 (2005); accord Comptroller v. Science Applications Int’l Corp., 405 Md. 185, 192 , 950 A.2d 766 (2008).

We “do not evaluate the factual findings and conclusions of law made by the circuit court.” Tabassi v. Carroll Cty. Dept, of Soc. Servs., 182 Md.App. 80, 86 , 957 A.2d 620 (2008). “In reviewing the agency decision, which is deemed prima facie correct, [we] must view it in the light most favorable to the agency.” Motor Vehicle Admin. v. Lindsay, 309 Md. 557, 563 , 525 A.2d 1051 (1987). We apply a limited standard of review and will not disturb an administrative decision on appeal if substantial evidence supports factual findings and no error of law exists. [I]f the issue before the administrative body is fairly debatable, that is, that its determination involved testimony from which a reasonable man could come to different conclusions, the courts will not substitute their judgment for that of the administrative body.

We are under no constraint, however, to affirm an agency decision premised solely upon an erroneous conclusion of law. Tabassi, 182 Md.App. at 86 , 957 A.2d 620 (citations and internal quotation marks omitted). DISCUSSION I. Focusing on the ALJ’s use of the word “obscene” in her opinion, Mitchell contends there was not substantial evi ⁵⁴⁴ dence in the record to support the ALJ’s finding that the MVA’s recall of his vanity plates was permissible under COMAR 11.15.29.02(D). He maintains that our review is limited to whether there was substantial evidence to support the ALJ’s finding that his vanity plates properly were recalled because “mierda” is an obscenity.

He asserts that “mierda” does not meet the definition of an obscenity under Maryland constitutional law, and therefore the ALJ’s decision cannot be upheld. 10 The MVA counters that the ALJ did not restrict her decision to a finding that the word “mierda” is an obscenity. Rather, she concluded that the vanity plates violated COMAR 11.15.29.02(D) generally, and therefore her decision encompassed a finding that the word “mierda” is a profanity. 11 The MVA maintains that there was substantial evidence to support a finding that “mierda” is a profanity. It also maintains that there was substantial evidence to support a finding that “mierda” is an obscenity. The MVA’s letter to Mitchell stated that it was rescinding his vanity plates pursuant to COMAR 11.15.29.02(D), which, as mentioned, provides that license plates containing “profanities, epithets, or obscenities, [are] not ... acceptable.” In her ⁵⁴⁵ discussion, the ALJ stated “that the term ‘mierda’ has many alternative definitions, a number of which are not obscene or profane,” and concluded that the MVA properly recalled Mitchell’s vanity plates pursuant to COMAR 11.15.29.02(D).

The ALJ’s additional comment that “many Spanish-speaking individuals might consider [mierda] to be obscene,” does not change the fact that she ruled on the basis of COMAR 11.15.29.02(D) generally. Thus, the ALJ’s decision was not limited to a finding that “mierda” is an obscenity. It included a finding that “mierda” is a profanity. The Wikipedia definition of “mierda” as a Spanish profanity meaning “shit” and Mitchell’s own testimony that the word can be understood to mean “shit” were substantial evidence to support the ALJ’s finding that the MVA acted in accordance with COMAR 11.15.29.02(D) in rescinding Mitchell’s vanity plates. 12 II.

COMAR 11.15.29.04 states: A complaint that a plate violates the conditions of Regulation [11.15.29].02 of this chapter may cause the [MVA] to review the matter, but may not by itself serve as a basis for a determination that the conditions of Regulation [11.15.29].02 of the chapter have been violated. Mitchell contends the MVA violated this regulation by rescinding his vanity plates based on a single complaint. The State responds that “the MVA did not rely on [the] complaint alone. Instead, it was only after the MVA conducted an investigation and did independent internet research that it concluded the plate violated its regulations and issued a recall notice.” ⁵⁴⁶ This issue was not raised before the ALJ, or decided by her.

In any event, there is no merit to it. The MVA did not issue its notice rescinding Mitchell’s vanity plates immediately upon receiving the complaint about them. On the contrary, after receiving the complaint, the MVA conducted an investigation into the meaning of the word “mierda” and determined that it is a Spanish profanity that translates into the English word “shit.” On that basis, not on the basis of the single complaint, the MVA rescinded Mitchell’s vanity plates. The MVA did not violate its own regulation by doing so.

III

Mitchell’s main contention in this appeal is that the State of Maryland, through the MVA, violated his First Amendment right to freedom of speech by rescinding his vanity plates so he no longer can express his MIERDA message on them. He argues that a vanity plate message is private speech on government property and therefore is protected by the First Amendment; that vanity plates are a public forum created by statute for private speech; and that government restriction on private speech in a public forum only may be upheld if it is necessary to serve a compelling State interest, is narrowly drawn to achieve that interest, and is viewpoint neutral. He maintains that COMAR 11.15.29.02(D), as applied to his case, does not satisfy that strict scrutiny standard. 13 The MVA counters that a message communicated on a vanity plate is speech by the government, not by the vehicle owner; and because the Free Speech Clause of the First Amendment does not apply to government speech, the State did not violate, and could not have violated, Mitchell’s First Amendment rights by rescinding his MIERDA vanity plates. Alternatively, if a message on a vanity plate is private speech on government property, the vanity plate is a “nonpublic forum” in which the government may restrict speech so long as it acts reasonably and in a viewpoint neutral manner in ⁵⁴⁷ doing so.

The MVA takes the position that the State’s prohibition against vanity plates that display profanities, epithets, or obscenities meets that standard and it acted properly by rescinding Mitchell’s vanity plates bearing the Spanish word for “shit.” (a) “The Free Speech Clause [of the First Amendment] restricts government regulation of private speech; it does not regulate government speech.” Pleasant Grove City v. Sum-mum, 555 U.S. 460, 467 , 129 S.Ct. 1125 , 172 L.Ed.2d 853 (2009). Accordingly, 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. Instead, the Free Speech Clause helps produce informed opinions among members of the public, who are then able to influence the choices of a government that, through words and deeds, will reflect its electoral mandate. Walker v. Texas Div., Sons of Confederate Veterans, Inc., — U.S. -, -, 135 S.Ct. 2239, 2245-46 , 192 L.Ed.2d 274 (2015) (citations omitted).

In Walker , which we shall discuss in depth below, the Supreme Court held that specialty plates are government speech, and, consequently, government regulation of what is depicted on them does not implicate the First Amendment free speech rights of the vehicle owners who obtain them. By contrast, the First Amendment does apply to private speech on government property. It is well-established, however, that “the government need not permit all forms of speech on property it owns and controls.” Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678 , 112 S.Ct. 2701 , 120 L.Ed.2d 541 (1992). Whether and to what extent the government may restrict private speech on its property depends upon “the physical characteristics of the forum in question, the nature of its use (including its location and purpose), and the government’s intent in constructing the ⁵⁴⁸ space.” Perez v. Hoblock, 368 F.3d 166, 172 (2d Cir.2004).

The analytical framework for deciding whether government regulation of private speech on government property violates the Free Speech Clause of the First Amendment is known as the “forum doctrine.” Hotel Emp. & Rest. Emp. Union, Local 100 of New York, N.Y. & Vicinity, AFL CIO v. New York Dep’t of Parks and Recreation, 311 F.3d 534, 544 (2d Cir.2002). Under the forum doctrine, there are three types of public fora.

A “traditional public forum is property, such as a public street or a park, that ‘by long tradition or by government fiat ... ha[s] been devoted to assembly and debate.’ ” Perry v. McDonald, 280 F.3d 159, 166 (2d Cir.2001) (quoting Perry Educ. Ass’n v. Perry Local Educ. Ass’n, 460 U.S. 37, 45 , 103 S.Ct. 948 , 74 L.Ed.2d 794 (1983)). These properties “traditionally have been available for public expression” and “the free exchange of ideas,” Hotel Emp., 311 F.3d at 544 , and they “exist ‘regardless of the government’s intent’ to create or not to create a forum for speech.” Sons of Confederate Veterans, Inc. v. Comm’r of the Va.

Dept. of Motor Vehicles, 288 F.3d 610, n. 10 (4th Cir.2002) (citing Ark. Educ. Television Comn’n v. Forbes, 523 U.S. 666, 678 , 118 S.Ct. 1633 , 140 L.Ed.2d 875 (1998)). “Government restrictions on speech in a traditional public forum are subject to strict scrutiny” review, i.e., they must be “ ‘necessary to serve a compelling state interest [and] narrowly drawn to achieve that interest.’ ” Perry v. McDonald, 280 F.3d at 166 (quoting Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 800 , 105 S.Ct. 3439 , 87 L.Ed.2d 567 (1985)).

A “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, 135 S.Ct. at 2250 (quoting Summum, 555 U.S. at 469 , 129 S.Ct. 1125 ). In such a public forum, there is a full range of expressive activity, just as there is in a traditional public forum. Hotel Emp., 311 F.3d at 545 . Finally, a “limited public forum” exists when “a government has ‘reserved a ⁵⁴⁹ forum] for certain groups or for the discussion of certain topics.’ ” Walker, 135 S.Ct. at 2250 (quoting Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 829 , 115 S.Ct. 2510 , 132 L.Ed.2d 700 (1995)).

Because in the case of a designated public forum and a limited public forum, the government intentionally has created a forum for free expression by members of the public, regulation of speech in those fora, like regulation of speech in a traditional public forum, must satisfy the strict scrutiny standard. Perry v. McDonald, 280 F.3d at 166 . The forum doctrine also recognizes what is known as a “nonpublic forum.” “A ‘nonpublic forum’ is a ‘property that the government has not opened for expressive activity by members of the public.’ ” Perez, 368 F.3d at 172 -73 (quoting Hotel Emp., 311 F.3d at 546 ). “In a nonpublic forum, the government ‘reserve[s] eligibility for access to the forum to a particular class of speakers, whose members must then, as individuals, ‘obtain permission’ ... to use it.’ ” Sons of Confederate Veterans, Inc., 288 F.3d at 622 n. 10 (quoting Ark. Educ.

Television Comm’n, 523 U.S. at 679 , 118 S.Ct. 1633 ). A nonpublic forum “exists ‘[w]here the government is acting as a proprietor, managing its internal operations.’ ” Walker, 135 S.Ct. at 2251 (quoting Int’l Soc’y for Krishna, 505 U.S. at 678 , 112 S.Ct. 2701 ). Government regulation of speech in a nonpublic forum is not subject to strict scrutiny review. “The government may impose restrictions on speech in a nonpublic forum as long as these restrictions are reasonable and viewpoint-neutral.” Perry v. McDonald, 280 F.3d at 166 . (b) In deciding whether vanity plate messages are government speech, we first look for guidance to the Supreme Court’s decision in Walker v. Texas Division, Sons of Confederate Veterans, Inc., — U.S.-, 135 S.Ct. 2239 , 192 L.Ed.2d 274 (2015).

As noted, Walker involved specialty plates, not vanity plates. Nonetheless, it is a very recent decision and is the first time in almost 40 years the Supreme Court has ad ⁵⁵⁰ dressed a First Amendment Free Speech Clause challenge in the context of license plates. 14 In Walker , the Texas Division of the Sons of Confederate Veterans (“SCV”) submitted a proposal to the Texas Department of Motor Vehicles Board (“Board”) for a specialty plate design featuring a graphic of the Confederate flag. The Board rejected the proposal on the ground that many people would find the design offensive. The SCV challenged that decision in federal district court, which entered judgment in favor of the Board.

The Court of Appeals for the Fifth Circuit reversed, holding that “Texas’s specialty license plate designs are private speech and that the Board, in refusing to approve SCV’s design, engaged in constitutionally forbidden viewpoint discrimination.” Walker, 135 S.Ct. at 2245 . The Supreme Court granted Texas’s petition for writ of certiorari and, in a 5 to 4 decision, reversed. The Court held that “specialty license plates issued pursuant to Texas’s statutory scheme convey government speech[,]” and, because “[w]hen government speaks, it is not barred by the Free Speech Clause from determining the content of what it says[,]” there could be no First Amendment violation. Id. at 2245-46 . 15 The Court articulated three primary grounds for its holding.

First, since 1928, when Idaho introduced a standard base license plate “proclaim[ing] ‘Idaho Potatoes’ and featuring] an ⁵⁵¹ illustration of a brown potato,” “States have used license plate slogans to urge action, to promote tourism, and to tout local industries.” Id. at 2248 . Thus, by history and tradition, license plates have been used by State governments for government expression. Second, license plates are governmental in nature, as “is clear from their faces,” id., and, by serving the dual governmental purposes of vehicle registration and identification, they “are, essentially, government IDs.” Id. at 2249 . Because “issuers of ID[s] ‘typically do not permit’ the placement on their IDs of ‘message[s] with which they do not wish to be associated[,]’” id.

(quoting Summum, 555 U.S. at 471, 129 S.Ct. 1125 ), “ ‘persons who observe’ designs on IDs ‘routinely—and reasonably—interpret them as conveying some message on the [¶] issuer’s] behalf.’ ” Walker, 135 S.Ct. at 2249 (quoting Summum, 555 U.S. at 471, 129 S.Ct. 1125 ). Consequently, license plate designs “ ‘are often closely identified in the public mind with the [State].’ ” Walker, 135 S.Ct. at 2248 (alternation in original) (quoting Summum, 555 U.S. at 472, 129 S.Ct. 1125 ). A vehicle owner who seeks a specialty plate likely “intends to convey to the public that the State has endorsed that message”; and will obtain a specialty plate, instead of simply affixing a bumper sticker to his vehicle, because “Texas’s license plate designs convey government agreement with the message displayed.” Walker, 135 S.Ct. at 2249 . Finally, States exercise “direct control” “over the messages conveyed on [their] specialty plates.” Id.

In Texas, “[t]he Board must approve every specialty plate design proposal before the design can appear on a Texas plate.” Id. “Texas has effectively controlled the messages [conveyed on specialty plates] by exercising final approval authority over their selection.” Id. (citations and internal quotation marks omitted). In summary, Texas, through its Board, selects each design featured on the State’s specialty license plates. Texas presents these designs ... on government-issued IDs that have traditional ⁵⁵² ly been used as a medium for government speech.

And it places the designs directly below the large letters- identifying “TEXAS” as the issuer of the IDs. “The [designs] that are accepted, therefore, are meant to convey and have the effect of conveying a government message, and they thus constitute government speech.” [Summum, 555 U.S.] at 472 [ 129 S.Ct. 1125 ]. Id. at 2250 (first alteration in the original). The Walker Court went on to observe that specialty plates do not fit within any of the fora recognized for private speech on government property, under the forum doctrine, a point that in its view lent additional support to their being government speech. Obviously, license plates are not a traditional public forum.

The final authority the State of Texas wields over each specialty plate design “militates against a determination that Texas has created a public forum.” 135 S.Ct. at 2251 . Texas’s “ownership” of each specialty plate design makes it “particularly untenable that the State intended specialty plates to serve as a forum for public discourse.” Id. And the facts that license plates “traditionally have been used for government speech, are primarily used as a form of government ID, and bear the State’s name[,]” “indicate that Texas explicitly associates itself with the speech on its plates.” Id. Finally, specialty plates are not a nonpublic forum for private speech because “Texas is not simply managing government property, but instead is engaging in expressive conduct.” Id.

The Walker Court made clear that its analysis and holding “concerned only ... specialty license plates,” and that it was not addressing whether messages on vanity plates are government speech. Id. at 2244 . That is the question we face here. Only a handful of courts across the country have adjudicated First Amendment challenges to government restrictions on vanity plate messages, either facially or as-applied.

Of the cases decided before Walker , most make no mention of government speech. Instead, the courts analyze the First Amendment challenges under the forum doctrine, deciding ⁵⁵³ implicitly that the messages are not government speech. See Perry v. McDonald, 280 F.3d 159 (vanity plates are a nonpublic forum; State of Vermont did not act unreasonably or discriminate based on viewpoint by revoking vehicle owner’s “SHTHPNS” vanity plate); Lems v. Wilson, 253 F.3d 1077 (8th Cir.2001) (statute allowing State agency to deny vanity plate application on ground that requested message is “contrary to public policy” gives agency unfettered discretion over content of message, in violation of First Amendment, regardless of which forum applies); Montenegro v. N.H. Div. of Motor Vehicles, 166 N.H. 215 , 93 A.3d 290 (2014) (regulation permitting State agency to deny vanity plate application when the message sought is one that “a reasonable person would find offensive to good taste” is unconstitutionally vague on its face, in violation of First Amendment, regardless of whether vanity plates are a public or nonpublic forum); Higgins v. Driver and, Motor Vehicle Serv. Branch (DMV), 335 Or. 481 , 72 P.3d 628 (2003) (under federal First Amendment case law, vanity plates are a nonpublic forum; Oregon vehicle administration rule prohibiting vanity plates that refer to alcoholic beverages or controlled dangerous substances is reasonable in light of the purposes of the forum and is viewpoint neutral); 16 Kahn v. Dep’t of Motor Vehicles, 16 Cal.App.4th 159 , 20 Cal.Rptr.2d 6 (Ct. of App., 2d Dist., Div. 1, Cal.1993) (by allowing vanity plate messages, the State has not altered the nature of license plates as identifying mechanisms nor has it opened a forum for the free expression of ideas). 17 ⁵⁵⁴ Matwyuk v. Johnson, 22 F.Supp.3d 812 (W.D.Mich.2014), is the exception.

There, the federal district court expressly addressed whether vanity plate messages are government speech. The case consolidated two facial challenges to a Michigan statute prohibiting vanity plates “that might carry a connotation offensive to good taste.” Mich. Comp. Laws § 257.803 (b) (2011).

One vehicle owner’s request for the vanity plates “INFIDEL” was turned down on that basis. He argued that other vanity plates voicing religious sentiments had been approved, and that his proposed message was similar in that it communicated that he did not follow any religion. The other vehicle owner’s request for the vanity plates “WAR SUX” was turned down, on the same basis. He argued that he was an anti-war activist, and he wished to use his vanity plates to express his view about war.

The court concluded that messages on vanity plates “cannot reasonably be considered government speech.” Matwyuk, 22 F.Supp.3d at 823 . In contrast to [specialty plates], the individuals who apply for Michigan personalized [vanity] license plates—not the government—determine the message.... The fact that license plates remain the property of the state ... is not controlling because the Sixth Circuit has held that private speech is not transformed into government speech simply because it occurs on government property. Miller v. City of Cincinnati, 622 F.3d 524, 537 (6th Cir.2010).

Michigan’s only role in the process [of issuing vanity plates], other than collecting the license fee and issuing the physical plate, is to determine whether the proposed combination [of letters and numerals] “might carry a connotation offensive to good taste ⁵⁵⁵ and decency.” Moreover, each [vanity] plate ... is unique to the applicant, because duplicates are prohibited. Id. at 823-24 (some citations omitted). The court agreed with the challengers that the regulation in question was facially unconstitutional, because it was overly broad, permitting the State to deny a vanity plate application “based on viewpoint” and conferring unbridled discretion upon the State as decision-maker. Id. at 824.

Since Walker was decided, one state supreme court has adjudicated a First Amendment challenge to government restrictions of vanity plate messages. In Commissioner of the Indiana Bureau of Motor Vehicles v. Vawter, — N.E.3d -, -, No. 49S00-1407-PL-494, 2015 WL 6777765, ¹ (Ind. Nov. 6, 2015), the Supreme Court of Indiana held that vanity plate messages are government speech, not private speech, and therefore the First Amendment free speech rights of the vehicle owners who seek vanity plates are not implicated. We shall discuss Vawter and the other relevant vanity plate cases infra.

(0 In 1910, the General Assembly enacted legislation requiring all vehicles registered in Maryland to display license plates. See Laws of Maryland, 1910, Ch. 207, as codified in Md.Code (1911), Art. 56, § 142 (effective date Apr. 15, 1910). Until the early 1960s, the Maryland standard base license plate was the only license plate issued to vehicle owners. It was barebones, displaying a registration number, the year, and the word “Maryland.” See James K. Fox, License Plates of the United States: A Pictorial History 1903-To The Present (Interstate Directory Pub.

Company, Inc., 1997) (“Fox”). 18 Beginning in ⁵⁵⁶ the early 1960s, the General Assembly authorized the MVA to issue simple specialty plates for members of the Veterans of Foreign Wars, Laws of Maryland, 1963, Ch. 823, as codified in Md.Code (1957), Art. 66)6, § 32(f), 1964 Cum. Supp. (effective date June 1, 1963); Disabled American Veterans, Laws of Maryland, 1967, Ch. 402, as codified in Md.Code (1957), Art. 66)6, § 32(g), 1968 Cum. Supp. (effective date June 1, 1967); and the American Legion, Laws of Maryland, 1967, Ch. 455, as codified in Md.Code (1957), Art. 66)6, § 32(h), 1968 Cum. Supp. (effective date June 1, 1967).

The registration numbers for those plates bore the organizations’ initials followed by a number specific to the vehicle owner. In the early 1990s, the MVA began issuing specialty plates, i.e., those bearing graphic designs and logos for the organizations for which the plates were prepared. The first State to authorize vanity plates was Pennsylvania, in 1931. See Ronald Ahrens, The Lost History of License Plates, Automobilemag.com (July 4, 2014) http://www.auto mobilemag.com/features/magazine/1407-the-lost-history-of-license-plates/.

By the 1960s vanity plates had gained in popularity and were a well-known cultural phenomenon. See License Plates History, (2015) http://www.license-plates/. By the 1960s vanity plates had gained in popularity and were a well-known cultural phenomenon. See License Plates History, Licenseplates.tv (2015) http://www.licenseplates.tv/history. html. 19 More important from the standpoint of State governments, they were a lucrative revenue-producing mechanism.

In 1971, the General Assembly enacted vanity plate legislation. See Laws of Maryland, 1971, Ch. 638, as codified in Md. Code (1957, 1970 Rep. Vol.), Art. 66)6, § 3-606 (1971 Cum. ⁵⁵⁷ Supp.) (effective date July 1, 1971). Entitled “Special registration plates generally,” section 3-606 authorized the MVA’s predecessor agency, upon application of a passenger vehicle owner and payment by the owner of a designated fee, to issue license plates “upon which shall be inscribed a combination of not more than six (6) letters and numbers ... selected by the vehicle owner.” Id. at (a).

It further provided that the predecessor agency “shall reserve the right to refuse any combination of letters and numbers at his discretion and may adopt reasonable rules and regulations for the issuance of such plates and for carrying out the provisions of this section.” Id. 20 In 1977, Article ñ&k of the Maryland Code was repealed and recodified. Section 3-606 became section 13-613 of the new Transportation Article. Its title was changed to, “Personalized registration plates for Class A (passenger) vehicles.” It provided, as it does today, that a vehicle owner “may apply ... for the assignment to that vehicle of a special, personalized registration number.” § 13-613(a). 21 According to the Revisor’s note, the word “personalized” was added to the title and body of section 13-613 “to distinguish more clearly between the special plates issued under this section and those issued under other provisions of this part.” In other words, ⁵⁵⁸ the statute was reworded to clarify the distinction between vanity plates and specialty plates. 22 COMAR 11.15.07.01 details the “Application Requirements” for a vanity plate. Among them are that the vanity plate message requested consist of no more than seven characters, including letters, numbers, and spaces; letters shall be of the English language; numerals shall be cardinal numbers; and a “symbol, diagram, dash, slash, or other character” may not be requested.

Id. at (B)(8). The MVA has discretion to refuse to issue, or to rescind, a vanity plate that duplicates an existing registration numbering system; contains a combination of letters that designates or abbreviates an official organization (for example, the DOT or ICC); is identical to an already existing Maryland vanity plate; or seeks to secure use of the characters “for fraudulent purposes.” Id. at (C). By additional regulation, the MVA has specified the grounds on which it “may refuse to issue or rescind the issuance of’ any license plate, including a vanity plate: The [MVA] may refuse to issue or rescind the issuance of a registration plate containing letters, numbers, emblems, terms, symbols, logos, or a combination of them which: A. Is identical to one already issued by the [MVA]; B. Is being requested for a fraudulent or deceptive purpose; C. Has a scatological or sexual meaning or connotation; D. Contains profanities, epithets, or obscenities; E. Communicates a message of any kind about any of the following characteristics of a group of people: (1) Race, (2) Ethnic or national origin, (3) Color, (4) Religion, ⁵⁵⁹ (5) Disability, or (6) Sexual orientation; F. Makes reference to the commission of illegal acts; or G. Contains any other combination that the Administrator [of the MVA] finds unacceptable within the law. COMAR. 11.15.29.02.

Maryland’s standard base license plates never have displayed a State slogan. 23 Until 2010, these license plates were quite simple, displaying only the word “Maryland” and, until 1971, when removable stickers—or “validation tabs”—came to be used to show the expiration date, that date. See Laws of Maryland, 1970, Ch. 534 as codified in Md. Code (1957, 1970 Repl. Vol.), Art. 66 \ § 3-410(c) (effective date Jan. 1, 1971). See also R. Kretschmer, A Pictorial History of Maryland License Plates; Passenger Car Plates Dated 195k to Present, Ricksplates.com (Oct. 17, 2015) http://www.ricksplates.com/ maryland/mdpass2.htm (“Rick’s Plates”).

The standard base license plate adopted for use in 1986 displayed a small graphic depiction of the State shield in the middle. Id. Vanity plates issued on that standard base plate did not include the State shield, however. Id.

In early 2005, a legend for the State of Maryland’s website (www.maryland.gov) was added to the bottom of that standard base plate. For a few months, vanity ⁵⁶⁰ plates issued on that plate also bore that legend. The MVA then eliminated the website legend for vanity plates. Id.

Maryland’s current standard base license plate, adopted effective June 14 (Flag Day), 2010, has a “War of 1812” theme. 24 The plate depicts the American flag flying over Fort McHenry on one side, and bombs bursting in air on the other side. The word “Maryland” appears in blue at the top of the plate with the words “War of 1812” beneath it, in red. The legend for a Maryland website devoted to the War of 1812, www.starspangled200.org, appears on the bottom of the plate. Vanity plates obtained after June 14, 2010, are issued on the “War of 1812” standard issue license plate, unless they are requested to appear on a commemorative plate. 25 Maryland standard base license plates and commemorative plates are manufactured so the characters that form the registration number follow a predetermined series.

The registration number a vehicle owner happens to be assigned by the MVA is the next one in the series. It serves as the unique alphanumeric identifier for the vehicle, but has no intrinsic meaning. ⁵⁶¹ (d) The MVA argues that “there are no legitimate grounds on which to distinguish the [specialty] plates at issue in [Walker ] and the vanity plate[s] at issue in this case.” Invoking the three grounds central to the Supreme Court’s government speech analysis in Walker—that States historically have used license plates to communicate government messages, that license plates are government IDs for vehicles and therefore are closely identified with the State in the public mind, and that the State exercises direct control over the messages on license plates—it asserts that “Maryland’s vanity plates are ... government speech, and the State is free to recall plates ... that include messages with which the State does not wish to be associated.” We disagree. To be sure, in deciding whether specialty plates are government speech, the Walker Court considered it significant that, generally speaking, States long have used their standard base license plates for self-promotion. While certainly not disposi-tive, it is worth noting that for 100 years, until the General Assembly decided to celebrate Baltimore’s pivotal role in winning the War of 1812, Maryland’s standard license plates did not urge, promote, or tout anything about itself.

Picture-less, symbol-less, and slogan-less, they were basic two-colored plates that can best be described as boring. Multi-colored depictions of the State’s natural resources were reserved for commemorative plates. As “government IDs,” vanity plates differ significantly from specialty plates. The registration number on a vanity plate is an identifier, as all license plate registration numbers are, but it is more than that.

The combination of characters the vehicle owner selects creates a personalized message with intrinsic meaning (sometimes clear, sometimes abstruse) that is independent of mere identification and specific to the owner. Because it is the registration number that is being personalized, and registration numbers must be unique, the message on a vanity plate necessarily will be one-of-a-kind. Indeed, vanity plate messages are more “one-of-a-kind” than bumper ⁵⁶² stickers. At any given time, there may be multiple Maryland vehicles displaying a particular bumper sticker, but there only will be one Maryland vehicle displaying a particular vanity plate message.

Specialty plates do not bear unique personalized messages. They are base plates specially redesigned for particular organizations, reflecting their emblems, slogans, and names, and may be obtained, for a fee, by any member of an organization for which the specialty plate has been approved. Many 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. The State of Maryland does not create unique message-conveying vanity plates and then offer them for sale to vehicle owners.

The opposite happens. The State only will manufacture a vanity plate upon the request of a vehicle owner who himself selects the unique alphanumeric combination that becomes the message. The message on a vanity plate serves the owner’s purpose of drawing attention to himself. That is the genesis of the nickname “vanity plates.” 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[,]” Walker, 135 S.Ct. at 2248 , vanity plates are personal to the vehicle owner, and are perceived as such. From the vehicle owner’s perspective, his vanity plates tell the world something about himself. From other drivers’ perspectives, vanity plates tell them something about the vehicle’s owner, or at least challenge them to figure out what the owner is trying to communicate. From the State’s perspective, vanity plates are a good source of revenue.

Of course, vanity plates, like all license plates, are government-issued articles that serve to identify the vehicles on which they are placed. As the Supreme Court observed in Walker , license plates are government property and their governmental nature is obvious. That does not mean that any message on a license plate is government speech. If that ⁵⁶³ were the case, all speech on what clearly is government property would be government speech.

That proposition has been widely rejected and is inconsistent with the Supreme Court’s developed law on forum analysis. See Matwyuk, 22 F.Supp.3d at 823-824 (“[Pjrivate speech is not transformed into government speech simply because it occurs on government property[.]”); see also Walker, 135 S.Ct. at 2242 (“Forum analysis ... applies to government restrictions on purely private speech occurring on government property!).]”); Perry v. McDonald, 280 F.3d at 166 (“It is well established that ‘the government need not permit all forms of speech on property that it owns and controls!.]’ ”) (quoting Int’l Soc’y for Krishna, 505 U.S. at 678 , 112 S.Ct. 2701 ). The 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. 26 Unlike the messages on specialty plates, which, as explained, are not one-of-a-kind and usually are displayed on a retooled plate design that bears graphics of emblems and slogans for an organization, the messages on vanity plates are not official-looking. There is nothing governmental about the message “BOB” or “FROSTY” or “68VETT” or “LVMYDOG” or “B HAP E.” And the natural reaction of those who see the “BOB” vanity plate will be to think that the driver of the vehicle is speaking and is saying, “Hey world, I’m Bob.” Members of the public might assume, not unreasonably, that the “BOB” vanity plates would not be on the vehicle if the MVA had