Ninth Circuit Says City’s Rejection Of Man’s ‘FCKBLM’ License Plate Is Totally Constitutional

The law surrounding vanity license plates is unsettled, to vastly understate the reality. There's no consensus across states, much less federal jurisdictions. Every government seems to have its own idea about what's offensive and what isn't, as well as its own take on whether a personalized plate is government speech or merely the expression of the person who acquired the plate.

As a result, vanity plates are a gamble. Everything good is probably already taken. And everything else has to run a very subjective gauntlet past reviewers who may see something offensive in the most innocuous combination of numbers and letters.

Consquently, we've seen legal battles over O1NK" (requested by a cop no less), COPSLIE" (not requested by a cop), 69PWNDU" (no comment), LOVETOFU" (requested by a tofu lover), and 1NFOS3C" (somehow rejected as a term of lust or depravity").

This case - handled in a short, unpublished opinion [PDF] by the Ninth Circuit Appeals Court - finds on the side of the Hawaiian government, which initially released, then rejected, Edward Odquina's FCKBLM" license plate. (h/t Courthouse News Service)

The Ninth Circuit says this has nothing to do with what the FCK is directed at, in this case BLM, the recognizable acronym for the Black Lives Matter movement. It's the FCK itself, which is readily recognizable as shorthand for fuck," which the government is free to censor when it comes to personalized plates.

Odquina contends that using profanity or vulgar language is a viewpoint that may not be constitutionally abridged. The district court properly concluded that Odquina's challenge went to the content of his message, rather than its viewpoint, and that such content-based restrictions are constitutionally permissible.

That's pretty much it for Odquina. As long as the state DMV consistently rejects FCK - no matter what follows these three letters - it's making content-based restrictions, which are far more constitutionally acceptable than viewpoint-based restrictions, which would suggest the government is in the business of only approving plates that align with reviewers' personal views.

While the resolution of this episode is concise, if a bit unsatisfying, there's more to the story than the end of it. The real fun is the beginning of it. Reading the Courthouse News report on this decision, I happened across this tantalizing bit of info:

Although the city flagged the plate as a publicly objectionable" message, Odquina explained to City Hall staff that the letters were an acronym for his business. The city eventually approved the plate and gave it to Odquina.

Well, now I had to find out what Odquina's business name was. Obviously, this was a case of reverse engineering, where Odquina had decided what sentiment he wanted to express via a personalized plate and worked backwards from there. I was not disappointed. In fact, I was extremely amused. It's far better than I thought it would be.

Tracking down Odquina's original complaint [PDF], I began looking for the narrative describing this interaction with the DMV over the disputed plate. Lots of the complaint is given over to explaining how much Odquina doesn't care for the Black Lives Matter movement and how that personal animus led him to request a plate that would allow other drivers to draw the intended inference.

But here's the good stuff. The stuff I was looking for:

Odquina started and incorporated the business Film Consulting KravMAGA Bloomberg, LLC" on August 13, 2021 in Hawaii and intended to use the acronym FCKBLM" to advertise that business.

First off, Odquina started this business seven months after he applied for the plate. He did more than a month after he told a county employee the requested plate was just an acronym for his business - a business he hadn't even started yet. So, there's more than one form of reverse engineering going on here.

But Odquina can't even acronym right. He was apparently so enthralled with his own cleverness, he forgot he was supposed to be building an acronym. I'm sure he felt KravMAGA was [chef's kiss], but that portmanteau FCKs up his belated attempt to salvage the legitimacy" of his personalized plate. That's not FCKBLM." That's FCKMBL," my man. And that is somehow even stupider than trumpeting your antipathy towards Black Lives Matter by utilizing a letter combination pretty much universally rejected by DMVs everywhere (including this one).

If you're into that sort of thing, his filing also contains his business" website. The pages take forever to load, but at least the welcome page contains something that can be abbreviated to FCKBLM" correctly.

Someone at some point may come up with a better challenge to Hawaii's personalized plate rules. This result is just the expected endpoint of someone litigating because they're angry, not because they have a case. And, as local news continues to report, Odquina has decided these legal losses don't require him to abide with local laws, so he's spent the last couple of years driving around in a (ridiculous) unregistered vehicle just to own the libs.