Tesla owner may keep 'FKGAS' license plate for now

⚠ Warning: Explicit language ahead.

Vehicle license plate cases occupy their own bizarre niche of First Amendment law.  Many a law student has frolicked in the casenote garden of free speech doctrine to ponder these curious shout-outs of individuality in the midst of their seeming imprimatur of state authority.

Are license plates government or private speech?  Can obscenity occur in a word?  Has indecency even been regulable since Mark Harmon said "deep shit" on Chicago Hope?  Is the license plate a limited public forum?  Is public forum doctrine still a thing?  Oh, the vanity!

In the latest installment of this immortal combat, the U.S. District Court for the District of Rhode Island issued a preliminary injunction against the Rhode Island (my home state) Department of Motor Vehicles (DMV) over its license plate approval standard: "connotations offensive to good taste and decency."

The plaintiff challenged the Rhode Island standard both facially and as applied under the First Amendment after his plate, "FKGAS," was recalled upon a citizen complaint to the DMV.  To the self-described "outdoorsy" plaintiff, according to his complaint in the litigation, the plate means "fake gas," appropriately adorning his electric Tesla.  (But see also court's footnote 10, below.)  Opining on plaintiff's motion to restrain and defendant's motion to dismiss, the court wholly rejected the DMV's effort to employ government speech doctrine, ruling instead that the plaintiff's First Amendment challenge held water under (non)public forum, overbreadth, and vagueness doctrines.

"The very essence of vanity plates is personal expression," the court wrote, citing classic precedents from "Fuck the Draft" on Cohen's courthouse jacket, to "Bong Hits 4 Jesus" at the Olympic torch relay, to the recent "Slants" rock'n'roll trademark.  At the same time, the DMV might in the future muster the requisite "reasonable" and viewpoint-neutral support for its list of banned plates.

"Although [state law] authorized the DMV to promulgate rules and regulations giving further guidance on what is not allowed, there is no indication at this stage of the litigation that the DMV has exercised that opportunity," the court wrote. "Instead, its history of granting and rejecting vanity plate requests leaves the observant to try to glean some governing principles."

But wait; there's more.

U.S. District Judge Mary S. McElroy wrote a delightfully playful introductory paragraph to the memorandum opinion, worth sharing here in full, with footnotes.

The American love affair with the automobile is well-known.[FN1] With some densely urban exceptions, we are a nation of drivers, not bus takers.[FN2] We drive when we could walk. For some, the automobile is a symbol of prestige,[FN3] for others a utilitarian way to get around.[FN4] For some, it is an instrument of grand adventure,[FN5] for others a tried-and-true way of putting a baby to sleep.[FN6] Sometimes it is a repository for personal goods;[FN7] for unfortunate others, sometimes it is a home.[FN8] For Sean Carroll it is, no doubt among other things, a vehicle for personal expression: this Rhode Island resident has a strong commitment to the environment and it is because of that attitude that he has become embroiled in this controversy with the Rhode Island Division of Motor Vehicles (“DMV”), the state arbiter of license plate alphanumeric assignments. Mr. Carroll, as a manifestation of his views, bought himself an electrically powered TESLA automobile and, in August of 2019, requested from the DMV[FN9] the license plate "FKGAS."[FN10] It was issued in the ordinary course of such requests, but several months later, after the DMV received a complaint, it recalled the plate on threat of a revocation of his vehicle registration were Mr. Carroll not to return it. Mr. Carroll chose to put his energy where his mouth is, and commenced this litigation, seeking to enjoin the DMV from recalling the plate and from revoking his registration.

1 Jeremy Hsu, Why America’s Love Affair with Cars is no Accident, Scientific American (May 24, 2012)....

2 According to ongoing studies by the United States Department of Transportation, “87% of daily trips take place in personal vehicles and 91% of people commuting to work use personal vehicles.” U.S. Dept. of Transportation, National Household Travel Survey Daily Travel Quick Facts, Bureau of Transportation Statistics ... (Aug. 19, 2020).

3 “A rise in tangible luxury offerings in vehicles, shifting consumer preferences from sedan to SUVs, and increasing disposable incomes of consumers have been propelling the demand for luxury cars around the world.” [Mordor Intelligence] (Aug. 19, 2020).

4 Whether an owned vehicle, a rental one, or a Zip-car, the automobile is the preferred method for getting around. DeBord, Matthew, “The car is about to transform society – for the second time” [Business Insider] (March 28, 2016)....

5 Hunter S. Thompson described the feeling behind his trip in the Red Shark in this way: “Every now and then when your life gets complicated and the weasels start closing in, the only cure is to load up on heinous chemicals and then drive like a bastard from Hollywood to Las Vegas ... with the music at top volume and at least a pint of ether.” Fear and Loathing in Las Vegas: A Savage Journey to the Heart of the American Dream [Rolling Stone] (1971).

6 “New parents drive an average of 1,322 miles per year to put their kids to sleep, according to a 2012 UK study. Dads averaged up to 1,827 miles in the study, and half of all the parents surveyed admitted to driving their kids around to get them to sleep at least once a week.” Ben Radding, Why Driving In A Car Puts Your Baby to Sleep, Fatherly (Aug. 26, 2019)....

7 See People v. Taylor, 614 N.E.2d 1272, 1277 (Ill.App. 1993) (for defendant, who was a passenger in her boyfriend’s car during a cross-country trip, “[t]he interior of the Volvo was in a sense their ‘home’ for the duration of the trip.”).

8 In one American city as recently as a year ago, 1,794 people were living out of their vehicles – an increase of 45% from two years before. Vivian Ho, The Californians forced to live in cars and RVs, The Guardian (Aug. 18 12:29 PM)....

9 Mr. Craddock has been sued in his official capacity as Administrator of the Division of Motor Vehicles. The defendant is referred to at various places in this memorandum as “Mr. Craddock,” “the DMV,” and “the Registry.”

10 Mr. Carroll alleges, and at this early stage of litigation the Registry does not dispute, that FKGAS was his daughter’s suggestion, intending a meaning of “fake gas” to refer to the electric car. He does not contest, however, that the plate could also be perceived as sending the message, “fuck gas” and he embraces that second meaning.

A compelling question arises as to what plate combinations have failed to qualify for R.I. DMV approval.  The FOIA advocates of the Government Attic endeavored to collect banned license plate lists from the states a few years back.  The fruits of their labors are collected online for your downloading gratification.  In response to Government Attic's request, the R.I. DMV responded: "The RI DMV does not have a list of prohibited plates, nor does it have instructions regarding screening of personalized plates," attorney Marcy Coleman wrote in 2012.

In the complaint in the instant case, in 2020, the plaintiff alleged:

14. On information and belief, the DMV maintains and makes use of a list of prohibited vanity plates, which includes courtesy plates that may convey political or social connotation but which it designates not for approval if requested, including: AIDS, CHRIST, CHUBBY, DIABLO, DOOBIE, DRUNK, GAY, GUN, HAJJI, HELL, HOOSIER, JESUS, JOCKY, LESBIAN, REDNECK, SLOB, TROLL, and YANKEE, among others.

15. On information and belief, the same list also purports to ban various common words such as APPLE, BANANA, HOOT, METER, and YELLOW, among others.

16. On information and belief, Defendant has on occasion, without any additional standards, approved courtesy plates with words that appear on its list of prohibited plates, including APPLE, CHRIST, TROLL, YANKEE, and YELLOW. 

17. On information and belief, the DMV has specifically denied requests for other special courtesy plates which arguably convey political or social connotation, including: BONG, HOOKAH, NYSKS, and REDNCK, among others. Conversely, on information and belief, the DMV has approved these special courtesy plates: DOGDOO, FACIAL, FATTY, FCCING, FKNFST, FKS, FLSHR8, FRELOV, FRIAR, FUBAR, HEAVEN, GUNS, JEWISH, NEAT, OLDFRT, PISTL, REDNEC, REDNEK, REDNK, SABER, SKCK, SNAFU, and TIPSY, among others.

18. In other words, Defendant bans as “offensive to good taste and decency” the license plate CHUBBY but not FATTY; DRUNK but not TIPSY; HAJJI and HELL, but not HEAVEN or JEWISH; GUN but not GUNS or PISTL or SABER; HOOSIER but not FRIAR; REDNECK, but not REDNEK, REDNK OR REDNEC; and SLOB but not NEAT.

19. Defendant’s attempt to ban Plaintiff’s FKGAS plate as offensive stands in contrast to his allowance of such plates as FCCING, FKNFST, FKS, FUBAR, SKCK, and SNAFU, as well as such plates as DOGDOO, FACIAL, and OLDFRT.

20. On information and belief, Defendant has issued standard license plates to car owners that contained the letters FK or FU followed by three numbers.

The case is Carroll v. Craddock, No. 1:20-cv-00126-MSM-LDA (D.R.I. Oct. 2, 2020).  The R.I. ACLU is representing plaintiff Sean M. Carroll.  Commissioned in the judiciary just one year ago, Judge McElroy has the distinction of being nominated to the bench by both President Obama, in 2015, when her nomination was left formally incomplete in the Senate, and President Trump, in 2018 and 2019.  With a B.A. from Providence College and J.D. from Suffolk Law, she worked previously as a public defender and in private practice in Providence, Rhode Island.

U.S. White Paper on 'Schrems II': Emperor still clothed

A new U.S. white paper on data protection means favorably to supplement the record on U.S. surveillance practices that, in part, fueled the European Court of Justice (ECJ) decision in "Schrems II," in July, rejecting the adequacy of the Privacy Shield Framework to secure EU-to-US data transfers.

From the U.S. Department of Commerce, Department of Justice, and Office of the Director of National Intelligence, the white paper suggests that the ECJ ruling was interim in nature, pending investigation of U.S. national security practices to better understand whether they comport with EU General Data Protection Regulation norms, such as data minimization, which means collecting only data necessary to the legitimate purpose at hand.  The paper states:

A wide range of information about privacy protections in current U.S. law and practice relating to government access to data for national security purposes is publicly available.  The United States government has prepared this White Paper to provide a detailed discussion of that information, focusing in particular on the issues that appear to have concerned the ECJ in Schrems II, for consideration by companies transferring personal data from the EU to the United States. The White Paper provides an up-to-date and contextualized discussion of this complex area of U.S. law and practice, as well as citations to source documents providing additional relevant information. It also provides some initial observations concerning the relevance of this area of U.S. law and practice that may bear on many companies’ analyses. The White Paper is not intended to provide companies guidance about EU law or what positions to take before European courts or regulators. 

Armed with this additional information, then, the message to the private sector seems to be, Keep Calm and Carry On, using the very same "standard contractual clauses" (SCCs) that the ECJ invalidated.  Yet if the information featured in the white paper has been publicly available, why assume that the ECJ was ill informed?  (Read more about SCC revisions under way, and their likely shortcomings, at IAPP.)

Unfortunately for the U.S. position, the ECJ opinion was not, to my reading, in any way temporary, or malleable, pending further development of the record.  The white paper comes off as another installment in the now quarter-century-old U.S. policy that the emperor is fully clothed.

I hope this white paper is only a stop-gap.  As I said in a Boston Bar CLE recently, no privacy bill now pending in Congress will bridge the divide between the continents on the subject of U.S. security surveillance.  A political negotiation, which might involve some give from the American side at least in transparency, seems now to be our only way forward.

The white paper is Information on U.S. Privacy Safeguards Relevant to SCCs and Other EU Legal Bases for EU-U.S. Data Transfers after Schrems II (Sept. 2020).

'Hidden Brain' tackles Ford Pinto product liability, hindsight bias, inevitable accident

Classic yellow Ford Pinto
(Michael Dorausch CC BY-SA 2.0)

In a two-for-one bonus for torts teachers, Shankar Vedantam at National Public Radio analyzed the Ford Pinto product liability case to the end of understanding hindsight bias and inevitable accident in his podcast, Hidden Brain.  The item includes an interview with Denny Giola, a Ford decision-maker who raised concerns about the Pinto, but at a crucial decision point, voted against recall.

The story is Shankar Vedantam, Cat Schuknecht, Tara Boyle, Rhaina Cohen, & Parth Shah, The Halo Effect: Why It's So Difficult To Understand The Past, Hidden Brain, Sept. 21, 2020.  A real-life Pinto anchors a featured case exhibit at the American Museum of Tort Law.

Media law journal covers social media and fair trial, mugshot privacy, 'true threat,' China's FOIA, more

The latest edition of the Journal of Media Law & Ethics (8:2, Fall/Winter 2020) spans a range of fascinating issues.  Here is the table of contents from editor Eric Easton and publisher University of Baltimore Law School.

Social Media Access, Jury Restraint and the Right to a Fair Trial
Zia Akhtar

To Post or Not To Post: The Ethics of Mugshot Websites
Mark Grabowski

The Trouble with “True Threats”
Eric P. Robinson & Morgan B. Hill

Merely Window Dressing or Substantial Authoritarian Transparency? Twelve Years of Enforcing China’s Version of Freedom of Information Law
Yong Tang

Free Expression or Protected Speech? Looking for the Concept of State Action in News
Christopher Terry, Jonathan Anderson, Sarah Kay Wiley, & Scott Memmel

A description from Dr. Easton:

In the current issue, British lawyer Zia Akhtar takes a hard look at the use of social media by jurors in criminal trials and the accompanying concern that the rights of a defendant may be prejudiced by the practice. The article advocates a legal code that would prohibit juror access to information about a defendant’s previous record.  

Mark Grabowski follows with an examination of so-called “mugshot” websites through the lens of the Society of Professional Journalists’ Code of Ethics. The article concludes that, while mugshot sites are not an inherently unethical journalism practice, many news outlets present mugshots utilizing ethically dubious methods that urgently need to be reformed.

The need for clear standards governing the kinds of communication that can be considered unprotected “true threats” is demonstrated by the analysis of Eric Robinson and Morgan Hill in our third article. The authors point out that, when the Supreme Court had the opportunity to clarify the elusive concept, in Elonis v. United States and three subsequent cases, they failed to resolve the ambiguities of the doctrine, notwithstanding the prevalence of abusive language online.

It may surprise many of readers that freedom of information is alive, if not entirely well, in China. Based on a massive quantitative study, Yong Tang suggests that enforcement of freedom of information law in the PRC seems more forceful than many Western observers would expect, although there is scant evidence that the law has led to more accountability and better governance.

Finally, Christopher Terry and associates point out that the national press has been woefully remiss in explaining why the so-called censorship of right-wing and other voices by social media platforms is not an abridgment of First Amendment rights. While all likely readers of this journal understand the concept of “state action” in the First Amendment context, the media has generally left the public clueless.

I serve on the journal's editorial board.

Scharf urges rational statutory construction to ease immigration plight of child victims of abuse, neglect

My colleague Irene Scharf published further research into easing immigration hardships for undocumented youth who have been victimized by abuse, abandonment, or neglect.  She explains (footnotes omitted):

In 1990, aiming to ease the difficult situation for undocumented child immigrants who were dependent on juvenile courts for their protection, Congress enacted the Special Immigrant Juvenile provision of the Immigration and Nationality Act, located at 8 U.S.C. § 1101(a)(27)(J) (the provision). In 2008, in an effort to further ease the plight of these young people, it amended the provision to relieve the proof requirement from proving abuse, abandonment, or neglect by both parents to that of one or both parents. Unfortunately, the provision maintains its “two-tier” citizenship system because one of its subsections denies Special Immigrant Juveniles (SIJ) who naturalize the same rights as other citizens possess to petition for their parents to immigrate [8 U.S.C. § 1101(a)(27)(J)(iii)(II)]. In Second Class Citizenship? The Plight of Special Immigrant Juveniles [40 Cardozo L. Rev. 579 (2019)], I concluded that this limitation violates Due Process by creating this two-tier citizenship system. To address this inequity, courts should employ the doctrine of “rational legislating” to interpret this provision in a way that would place SIJs on an equal footing with other citizens. This would more accurately reflect the intent Congress had when it amended the provision in 2008, and permit naturalized SIJs to reunify with their parents.

Professor Scharf in the article further frames the problem in describing its impact on the lives of young people from Guatemala, Honduras, and El Salvador, relating experiences amalgamated from real clients of the immigration law clinic she has supervised for nearly two decades.

The article is Robbing Special Immigrant Juveniles of Their Rights as U.S. Citizens: The Legislative Error in the 2008 TVPRA Amendments, 30 Berkeley La Raza L.J. 41 (2020).

Court: 'Hyperbole,' not slander, in Fox News monolog about Cohen 'catch and kill' payment to protect Trump

McDougal in 2007
(Sam Posten III CC BY-SA 2.0)

A defamation lawsuit by Karen McDougal, former Playboy model and alleged extra-marital consort of President Donald Trump, against Fox News was dismissed last week in federal court in the Southern District of New York.

The case arose in connection with allegations that Trump and lawyer Michael Cohen cooperated with the National Enquirer to "catch and kill," that is pay for and suppress, potentially damaging stories about Trump's personal life.  Relying on allegations in the complaint (citations and notes here omitted), the court summarized the background as favorable to the plaintiff:

Ms. McDougal ... became the subject of front-page stories following the 2016 United States Presidential Election based on allegations that she had engaged in a year-long affair (from 2006-2007) with now-President Trump.

The allegations of an affair arose during the 2018 investigation and guilty plea of Mr. Trump’s lawyer and aide Michael Cohen on charges that he violated federal campaign finance laws. Specifically, law enforcement investigators and the media revealed that in the months leading up to the 2016 election, American Media, Inc. (“AMI”)—the company behind National Enquirer and whose CEO, David Pecker, allegedly is close with the President—had paid Ms. McDougal $150,000 in exchange for the rights to her story about the affair with Mr. Trump. AMI then assigned the rights to the story to a corporate shell entity formed by Mr. Cohen allegedly at Mr. Trump’s direction, and in exchange for the assignment Mr. Cohen paid AMI $125,000.

During the Government’s investigation of these payments, Mr. Cohen and Mr. Pecker both revealed that Mr. Trump had directed the AMI payment to Ms. McDougal in the first place, and then personally reimbursed the payments himself, all as part of an effort to avoid having the allegations affect the 2016 election. Mr. Trump initially had denied knowledge of any payments to McDougal, but by December 2018, had admitted to the payments, arguing that they were made on the advice of Mr. Cohen and that any illegality was Cohen’s fault. Mr. Cohen ultimately was charged with and pleaded guilty to violations of campaign finance laws.

Carlson in 2018 (Gage Skidmore CC BY-SA 2.0)

On Tucker Carlson Tonight, on Fox News, December 10, 2018, Carlson said, as quoted in the court opinion:

"Remember the facts of the story. These are undisputed. Two women approached Donald Trump and threatened to ruin his career and humiliate his family if he doesn’t give them money. Now, that sounds like a classic case of extortion.

"Yet, for whatever reason, Trump caves to it, and he directs Michael Cohen to pay the ransom. Now, more than two years later, Trump is a felon for doing this. It doesn’t seem to make any sense.

"Oh, but you're not a federal prosecutor on a political mission. If you were a federal prosecutor on a political mission, you would construe those extortion payments as campaign contributions."

McDougal sued for slander per se over the accusation of extortion.  The court dismissed the case on Thursday on two grounds.  First, the court ruled that Carlson's statements were protected by the First Amendment as hyperbolic comment on politics.  Second, the court ruled that McDougal had failed to plead a case that could meet the high bar of actual malice, i.e., that Carlson knew the assertions to be false or spoke in reckless disregard of truth or falsity.

The case seems soundly decided, though has curious implications for what passes as journalism today.  As Slate observed, the former holding accepts the argument of Fox News that reasonable viewers of Carlson's show are "in on the gag[:] ... [that] Carlson is not 'stating actual facts' but simply engaging in 'non-literal commentary'[;] ... that given Mr. Carlson’s reputation, any reasonable viewer 'arrive[s] with an appropriate amount of skepticism' about the statements he makes."  The court concluded, "Whether the Court frames Mr. Carlson’s statements as 'exaggeration,' 'non-literal commentary,' or simply bloviating for his audience, the conclusion remains the same—the statements are not actionable."

The case is McDougal v. Fox News Network, LLC, No. 1:19-cv-11161 (S.D.N.Y. Sept. 24, 2020).  The case was decided by U.S. District Judge Mary Kay Vyskocil, a New York City corporate litigator whom President Trump appointed to the bench.  For the related subject of "catch and kill," I added links to McDougal under the Clifford cases at the Trump Litigation Seminar.  Read more about Tucker Carlson in the Columbia Journalism Review (Sept. 5, 2018).

Court greats both cautioned us on NYT v. Sullivan

I'm indebted to Trump Litigation Seminar student Kevin Burchill, who timely unearthed this interview with the late Justices Ruth Bader Ginsburg and Antonin Scalia by journalist and journalism professor Marvin Kalb.  From the cue linked below (at 21:42, for six or so minutes), they discuss New York Times v. Sullivan (U.S. 1964).

 

Nonetheless a First Amendment advocate, I have long shared Justice Scalia's unpopular position that Sullivan was incorrectly decided.  I don't contend that the newspaper should have lost.  In the civil rights context in which the case arose, Sullivan played a critical role in relieving segregationists of state tort law as a weapon.  However, there were many paths to that outcome that did not require the wholesale federalization and constitutionalization of state defamation torts.

The consequences, as suggested even by chapter 19 ("Back to the Drawing Board?") of Anthony Lewis's classic 1991 panegyric and case biography, Make No Law, have been disastrous, because Sullivan undermined the laboratory of common law experimentation in the states.  Today, for example, the "public interest" approach to public-figure defamation in the UK Defamation Act shows great promise as a model to balance the rights of reputation and free speech.  And other countries, such as Australia, seem to be getting along well with much more limited Sullivan-like protection for free speech on public affairs, without the big sky of democracy collapsing across the outback.  Yet we in the United States remain tethered to a near-immunity doctrine born of a bygone era.

RBG (Kalb Report)

In this interview with Kalb, Justices Ginsburg and Scalia characteristically state their opposing positions on the correctness of Sullivan, for and against, respectively.  What I find compelling, though, is that Justice Ginsburg acknowledged Sullivan's unintended problematic consequences.  Sullivan was a product of civil rights exigency, she reiterated.  But, she recognized, its doctrine was tailor-made for a press on the same page of mighty ideals in the mission and ethics of journalism.

What if, say, new technology caused mass media entry barriers to fall?  And then we had a proliferation of partisan pundits, or even disinformation, pouring through our information flows?  If Sullivan were then not up to the job, we might find our hands tied by unyielding constitutional cable.  We might flail, helpless, in trying to restore integrity to the democratic space.

Perish the thought.