Mitchell v. Md. Motor Vehicle Admin.

• Decision Date: 28 October 2016
• Docket Number: No. 10, Sept. Term, 2016,10, Sept. Term, 2016
• Citation: 450 Md. 282,148 A.3d 319
• Parties: John T. Mitchell v. Maryland Motor Vehicle Administration
• Court: Court of Special Appeals of Maryland

450 Md. 282

148 A.3d 319

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

Argued by John T. Mitchell (of Accokeek, MD) on brief, for Petitioner

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.

Harrell, J.

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 The MVA determined then that “mierda” translates into English as “shit” and rescinded the plates according to a State regulation authorizing the denial or recall of vanity plates containing “profanities, epithets, or obscenities.”

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. Md. Code, Transportation Art., § 13–411 (1977, 2012 Repl. Vol.). The plates must contain an individualized “registration number,” consisting of “letters, numerals, or both,” which is assigned typically by the MVA. § 13–410(b). For an additional annual fee of $50, an applicant may select a “special, personalized registration number,” subject to the MVA's approval. § 13–613(a), (b), and (c). Known as “vanity plates,” these plates allow the display of “a message with at least 2 and up to 7 characters,” unless the chosen message “has already been issued or ... is objectionable.” Md. Motor Vehicle Admin., Personalized (Vanity) License Plates, Maryland.gov, http://www.mva.maryland.gov/vehicles/licenseplates/personalized-license-plates.htm [https://perma.cc/Y2CG-ZWF7]. Indeed, Maryland regulations empower the MVA to deny or rescind vanity plates whose messages bear “profanities, epithets, or obscenities.” Code of Maryland Regulations (COMAR) 11.15.29.02(D).

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 plates” for members of nonprofit organizations who pay a fee to express their organizations' messages via logos, emblems, the organization's name, or another combination of characters. § 13–619. The MVA sells specialty plates for a diverse range of issues from medical and military interests to educational institution alumni associations, and hobbies. Md. Motor Vehicle Admin., Organizational , Maryland.gov, http://www.mva.maryland.gov/vehicles/specialty-plates/organizational-sp.htm [https://perma.cc/Q5XV-7G89].

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

1. Did the Court of Special Appeals err in concluding that personalized vanity plates are a nonpublic forum?

2. 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 question 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. , ––– U.S. ––––, 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 ...