SHTHPNS: The Never-Ending Free Speech Fight Over Vanity License Plates
One of the most contested spaces in American discourse is on the back of cars
Whenever Paula Perry looked at the license plate on her car, SHTHPNS, she felt soothed.
By July 1997, the 46-year-old state administrator for Vermont lost her father, endured four painful back surgeries, and divorced her first husband. “‘Shit happens’ means that bad things happen to good people,” she told me. “You just have to pick up your feet and can’t let anybody get you down.”
The phrase came to her when she was renewing the registration for her Ford pickup truck. It was Perry’s first vanity plate. One month later, though, the Vermont Department of Motor Vehicles revoked her plate, saying it had been issued in error because it might be offensive or confusing to the public. “It was a symbol of encouragement,” she says. “And they took that away for no reason.”
This time, Perry wasn’t going to accept that shit just happens. She hired a lawyer and sued the DMV, alleging it violated the First Amendment. “People should be able to have freedom of speech. There’s nothing wrong with this plate. It was something I really believed in.”
For almost as long as they’ve been around, vanity license plates have been a battlefield for free speech, with every state drawing the line in different places. It can seem absurd that plates with the phrases SHTHPNS, MPEACHW, and 0INK can make it all the way to the district and circuit courts, but behind these meme-like terms is a bigger question about what counts as free speech — and what control the government has over people’s opinions.
In Maine, you’ll find BUKKAKI, ILOVEBJ, and THX BTCH on the road.
The right to say what you want without fear of reprisal is a founding tenet of American civilization. But even with the legal right established to be as salacious, saccharine, or spiteful as you want, does the government have to provide a platform for this? The distinction between private and public speech is blurred when it comes to vanity plates; the combinations are chosen by individuals but displayed on a plate issued by the state.
It may be the United States’ longest unresolved free speech fight.
For a hunk of metal on the back of a car or truck, vanity plates are highly personal to the 10 million or so Americans estimated to have them. In 1977, psychiatrists posited the plates “gave people a sense of notoriety,” a way to be an individual in an era of mass production, itself ushered in by cars. There’s even a group devoted to collecting them: The American License Plate Collector Association (ALPCA) counts 3,000 members.
Not only are plates individualized, but what is permitted also varies wildly across the country. In Maine, you’ll find BUKKAKI, ILOVEBJ, and THX BTCH on the road. In Washington, D.C., “political affiliation” on plates has been banned since 2016, probably due in no small part to Donald Trump’s election. In 2018, D.C.’s rejects included DUMP45, VGNRUNR, GNATFAN, PHNDAH8R, and 4OBAMA
In between, states are all over the place. Obscenity, racism, and police references are all standard no-nos. But this is applied haphazardly; Florida rejected G8R H8R but approved A55RGY. In 2017, Georgia approved MMM VAG and banned COVFEFE, proving the state is simultaneously with it and totally doesn’t get it. Earlier this year, the governor of New Hampshire (license plate motto: “Live Free or Die”) pressured the state’s DMV to reverse its decision to deny Wendy Auger her PB4WEGO (“pee before we go”) plate.
In California, four full-time DMV staffers record the reasons they reject each plate — the agency had 250,000 vanity applications in 2018 — on an internal form. They use Urban Dictionary, Reddit, and Google Translate to help them figure out the meanings. “People get creative,” spokesperson Artemio Armenta explains, adding that a number of phrases are “open to interpretation.”
I made a Freedom of Information Act request to learn more. A request for PSYCDVA (read: “psychologist diva”) was denied because it could be a double entendre. “PSY looks like pussy or psychic,” a representative from the DMV noted. Another hopeful, a female transport director, petitioned for HWYWOMN (highway woman). “Could be mistaken for a working woman,” the DMV rep said. Denied. They took extra time with an inquiry for FFRSRNTY. “It references Firefly Serenity,” the petitioner explained. “Could it really mean Fuck Serenity?” the DMV rep pondered but green-lit the request.
“The government can’t stop people from being hateful,” says Leslie Gielow Jacobs, director of the McGeorge Capital Center for Law and Policy in Sacramento. Free speech wins over people’s dislike of the message. But that’s a simplification — the reality is far more technical and gets into the weeds of state and private speech.
In 2001, Paula Perry’s case for SHTHPNS made it to a federal appeals court after the district court dismissed her claim; the DMV told the judge her plates had been issued in error, and that Vermont rules allowed them to “refuse any request that might be offensive to the public.” (That rule was created after Perry initiated legal action.)
They never asked her what SHTHPNS stood for. “It’s subjective. I could have said ‘shout happiness,’” Perry says — not that she would, because she doesn’t think her wording is anything to be ashamed of. “It’s nothing more than a reflection of life’s challenges!” she told the federal court, arguing they were limiting her free speech and that similar vanity plates had been issued. They disagreed, ruling against her. “The relevant difference between ‘shit’ and ‘pooper,’ for instance, is not the so-called ‘cuteness’ of the word ‘pooper,’ but the fact that ‘shit’ is a profanity,” the court said in its opinion.
This is important — and not just because the mental image of the justices saying “pooper” is amusing. Here, the judges clearly delineated vanity plates as private speech, Jacobs says. You would think that meant Perry got to keep SHTHPNS, but — and here’s where it gets confusing — the court declared her vanity plate was private speech but in a “nonpublic forum”: the license plate. In such cases, the state can set reasonable, viewpoint-neutral boundaries. “The state has a legitimate interest in not communicating [approval] of offensive scatological terms on state license plates,” the judges ruled. After all, the DMV issued the plates, giving them implicit government approval.
But courts are inconsistent. That same year, Missouri resident Mary Carr, a proud “Grand Genie” of the KKK, appealed the refusal to renew her vanity plate, ARYAN-1, in the 8th U.S. Circuit Court of Appeals.
In 1983, Carr applied for the ARYAN-1 vanity plate and was denied by the state. She sued and won; at the time, state law allowed vanity refusals only for profanity or obscenity. The state appealed, but the court ruled in Carr’s favor in 2001, holding that the law at that time was constitutionally overbroad and gave officials too much power to regulate speech. The First Amendment requires speech restrictions to be specific, but Missouri’s phrasing “is so nebulous and malleable [that it could mean] anything presently politically expedient,” the opinion said. “The department of revenue may not censor a plate because its message might make people angry.” The court ruled that vanity license plates were private speech and subject to the full protection of the First Amendment.
Carr’s right to free speech won over the judge’s dislike of the message, but Perry didn’t get the same pass for SHTHPNS. This confusion has led to vanity combos capriciously granted across the United States and is why there are ARYAN plates in many states today. With differing opinions on what’s allowable, each state decides for itself.
The confusion and lack of consensus about what counts as private or government speech on a vanity plate is mirrored in public transport, parks, and schools. More and more, racial and ethnic slurs are being displayed on government property. In 2018, San Francisco’s subway displayed Holocaust-denial advertisements. Public libraries are forced to allow hate groups to arrange meetings on their premises, and in many states, you’ll find anti-abortion and anti-Semitic advertisements on transit.
In cases like these, Caroline Corbin, a constitutional law professor at Miami School of Law, has proposed a new category of speech, “mixed speech,” for when something combines private and government speech. “It allows for a more nuanced and transparent balancing of interests than the present either-or approach,” she says. It seems like an obvious solution; the merge of new mediums is ripe for a new language. But so far, the Supreme Court has not acknowledged this category.
For many authorities, following the law places them in an awkward position: By allowing racist and homophobic messaging, it looks like they support those messages. But some progress has been made in the “specialty plate” space. Specialty plates are the sister to vanity plates — and are often confused as the same. They’re the decorative banner that sits around the letters and/or the background color and font style. In California, you’ll find collegiate specialty plates and others supporting breast cancer, firefighters, Yosemite, and more. In 2015, the U.S. Supreme Court ruled that they are government speech, meaning states can control what appears on them — foiling the Texas Sons of Confederate Veterans’ attempt to have a Confederate flag on its specialty plate.
But vanities will be up for a big legal battle again soon. There’s a case weaving its way through the courts right now that will put this in the spotlight
In Los Angeles, Jonathan Kotler, a professor at the University of Southern California and a fan of England’s Fulham soccer club, is appealing the California DMV’s rejection of his COY-W plate request in 2018. COY-W stands for “come on you whites,” Fulham’s chant. The DMV ruled that it “carries connotations offensive to good taste and decency,” with racial overtones. Kotler sued the DMV, arguing it engaged in unconstitutional viewpoint discrimination. The case is moving to trial after a federal judge denied the DMV’s motion to dismiss in August. Kevin Saunders, a law professor and the Charles Clarke chair in constitutional law at Michigan State University, says it’s possible that the case could wind up in the Supreme Court.
A win here wouldn’t be totally out of the box for Kotler, given two recent decisions involving a similar issue. In 2017, an Asian American band calling itself the Slants won a fight to trademark its name, as did fashion brand FUCT two years later. The state rejected both trademarks as “disparaging” — Slants could be seen as an Asian slur, and FUCT, well, “It’s supposed to be pronounced ‘fucked,’” Saunders says. They both appealed and won. The parallels with vanity plates are clear.
“The courts said the trademark office couldn’t deny an [offensive] trademark,” says Saunders, adding that the court determined trademarks are private speech and protected by the First Amendment. “If it’s true for trademarks but not for vanity plates… well, you’re not on firm ground anymore,” he says.
Jacobs says those decisions could open a “floodgate to any sort of awful speech in smaller venues,” as those wins adopted a broad concept of viewpoint discrimination.
Indeed, even Perry, the state administrator from Vermont, has similar concerns after fighting for SHTHPNS two decades ago.
Now 68, she supports the careful issue of vanity plates — nothing concerning race or civil rights issues should get on a plate, she says. SHTHPNS was Perry’s first and last vanity plate. Vanity plates continue to hold the unusual position of both identifier and identity, but Perry no longer sees any reason to let the state know anything about her belief systems. “I’m sick of the whole thing now — plates are the furthest thing from my mind these days,” she says.