The Fourth Circuit Just Used My Case to Protect an Anti-Cop License Plate
Today the Fourth Circuit ruled in favor of a Virginia driver who had been displaying a license plate reading "FTP&ATF,” an acronym for "Fuck the Police and the Bureau of Alcohol, Tobacco, Firearms and Explosives." The court held that personalized license plates are private speech protected by the First Amendment, not government speech the state can restrict based on viewpoint. To get there, Judge Pamela Harris cited Matal v. Tam (my case) as the controlling analogy.
I should be clear: the specific message on that plate isn't one I'd choose for myself. But that's exactly the point of the First Amendment, and exactly why this ruling matters.
The legal question in Whateley v. Lackey was whether personalized license plates are private speech or government speech. It matters enormously which one they are. If they're government speech, the state can restrict them however it wants because it's just the government controlling its own message. If they're private speech, the First Amendment applies and the state has to justify any restrictions, particularly viewpoint-based ones.
Virginia argued that because license plates are state property, manufactured and owned by the state, everything on them is the state's message. The Fourth Circuit rejected that argument, becoming the first federal appeals court to do so. Judge Harris's opinion drew directly on Matal v. Tam's warning that the government-speech doctrine "is susceptible to dangerous misuse;” that if private speech could be passed off as government speech simply by affixing a government seal of approval, officials could silence disfavored viewpoints through administrative process rather than direct prohibition.
That's the same mechanism my case addressed. The USPTO never claimed it could ban my band's name outright. It argued instead that because trademark registration is a government program, it could decide which names deserved recognition, which effectively let it suppress disfavored expression through a government benefit rather than a direct ban. The Supreme Court rejected that argument unanimously in 2017. Today, the Fourth Circuit applied the same logic to license plates.
I have a specific connection to this question: last year, I filed an amicus brief in Gilliam v. Tennessee, a case raising the same license plate question currently pending before the Supreme Court. The brief, filed with the Institute for Free Speech and written with the help of Eugene Volokh of Stanford's First Amendment Clinic, argued that the government-speech doctrine must be read narrowly to prevent exactly this kind of overreach.
The brief used a specific hypothetical to make the point: if someone in Tennessee applied for a "SLANTS" personalized plate, the state could reject it under the same logic the lower court used in Gilliam, treating the plate as government speech the state can control. That's the argument this Court rejected in Matal, involving the same private message communicated by the same person. Today's Fourth Circuit ruling in Whateley is the first federal appeals court to reach the same conclusion on license plates specifically, which strengthens the case for the Supreme Court to take up Gilliam and settle the question nationally.
A few things worth understanding clearly about what today's ruling does and doesn't mean:
It's a win on one question, but not the whole fight. The Fourth Circuit held that Curtis Whateley's plate is private speech and that iss significant. But the court explicitly did not decide whether Virginia's recall of the plate survives First Amendment scrutiny. The case goes back to the lower court, which has to determine whether the DMV's prohibition on profane or vulgar plates is a reasonable, viewpoint-neutral restriction in a nonpublic forum, or viewpoint discrimination that can't stand. Virginia might still win on remand. The ruling today is an important step, not the final word.
The anti-government angle matters. Expression targeting the government itself ("Fuck the Police," "EPA SUKS," "GVT SUX") occupies a special place in First Amendment history. The First Amendment was built precisely to protect criticism of government by citizens. When the government uses administrative control over its own programs to filter out criticism of itself, it's doing something the doctrine was designed to prevent. That's why the Fourth Circuit's ruling is correct even when the specific message is one that makes people uncomfortable.
The government-speech doctrine is genuinely dangerous when overextended. My case said so directly. The Gilliam amicus brief said so again. The Fourth Circuit said it today. A government that can label private expression as its own speech just because it occurs within a government-administered program can silence an enormous range of political, religious, and social expression without ever triggering the First Amendment scrutiny that would otherwise apply. Every court that narrows that doctrine is protecting space for expression that the government might prefer to disappear quietly.
The Fourth Circuit is now the first federal appeals court to weigh in on whether vanity plates are private or government speech. Its answer matches the argument Matal v. Tam established and that the Gilliam amicus brief extended to this specific context. Whether the Supreme Court takes up Gilliam (and whether this ruling influences that decision) is something worth watching.
Simon Tam is the founder of The Slants and the central figure in Matal v. Tam (2017), the unanimous Supreme Court decision that struck down the government's power to deny trademarks on disparagement grounds. He filed an amicus brief in Gilliam v. Tennessee, a related license plate case currently pending before the Supreme Court. He speaks on First Amendment issues nationally. For information on bringing him to speak, visit simontam.org/speaking.
