Montenegro v. N.H. Div. of Motor Vehicles

166 N.H. 215

93 A.3d 290

David MONTENEGRO

v.NEW HAMPSHIRE DIVISION OF MOTOR VEHICLES

No. 2012–624

Supreme Court of New Hampshire.

Argued: November 7, 2013

Opinion Issued: May 7, 2014

David Montenegro, self-represented party, by brief and orally.

Michael A. Delaney, attorney general (David M. Hilts, assistant attorney general, on the brief, and Richard W. Head, associate attorney general, orally), for the respondent.

Nixon Peabody LLP, of Manchester (David A. Vicinanzo and Anthony J. Galdieri on the brief, and Mr. Galdieri orally), for New Hampshire Civil Liberties Union, as amicus curiae.

CONBOY, J.

The petitioner, David Montenegro, appeals an order of the Superior Court (Lewis, J.) dismissing his petition for injunctive relief seeking to compel the respondent, New Hampshire Division of Motor Vehicles (DMV), to issue him a personalized vanity motor vehicle registration plate reading "COPSLIE," and arguing that the DMV's denial of his request violated his right to free speech. Because we find that the regulation relied upon by the DMV in denying the petitioner's request is unconstitutionally vague, we reverse and remand.

I. Background

On May 4, 2010, the petitioner applied for a vanity registration plate reading "COPSLIE." See RSA 261:89 (Supp.2013). The petitioner stated on his application that the intended meaning of the requested vanity registration plate was "cops lie." That same day, the petitioner's application was rejected because several DMV employees believed the text to be "insulting."

The petitioner appealed to the director of the DMV by letter dated May 5, 2010. See N.H. Admin. Rules, Saf–C 514.61(e). On May 12, the director denied the petitioner's appeal, citing the New Hampshire Code of Administrative Rules, Saf–C 514.61. He concluded that "a reasonable person would find COPSLIE offensive to good taste." See N.H. Admin. Rules, Saf–C 514.61(c)(3) ("[a] vanity ... registration plate shall ... [n]ot be ethnically, racially or which a reasonable person would find offensive to good taste").

On July 9, the petitioner wrote to the commissioner of safety seeking reconsideration of the DMV's decision concerning his application for the vanity registration plate. On July 14, the commissioner's office responded to the petitioner, explaining that the commissioner had reviewed the petitioner's letter and agreed with the DMV's "decision to deny the license plate, for the same reasons which were set forth" by the director.

On August 30, the petitioner again applied for a vanity registration plate. This time, he listed "COPSLIE" as his first choice, but also provided alternative choices, in order of preference, as follows: "GR8GOVT," "LUVGOVT," "GOVTSUX," "SEALPAC," and "GOVTLAZ." The DMV denied the petitioner's first choice as "insulting," but issued the petitioner a vanity registration plate with the alternative text "GR8GOVT." That same day, the petitioner surrendered the "GR8GOVT" vanity registration plate for standard registration plates.

Thereafter, the petitioner sought an injunction directing the DMV to issue him a vanity registration plate with the text "COPSLIE," as well as a permanent injunction enjoining the DMV from recalling the vanity registration plate. He also argued that Saf–C 514.61(c)(3) violates the right to free speech guaranteed under both Part I, Article 22 of the New Hampshire Constitution and the First Amendment to the United States Constitution. By order dated July 3, 2012, the trial court upheld the DMV's denial of the petitioner's requested vanity registration plate, finding no violation of the petitioner's right to free speech under the State or Federal Constitutions, and dismissed the petition. The petitioner's motion to reconsider was denied, and this appeal followed.

II. Analysis

On appeal, the petitioner argues that the trial court erred by ruling that the DMV did not violate his free speech rights under the State and Federal Constitutions. He contends that vanity registration plates constitute a "designated public forum" and that the DMV's denial of his vanity registration plate was not narrowly tailored to serve a legitimate or compelling government interest. In the alternative, he contends that, if vanity registration plates are a "nonpublic forum," the restrictions in Saf–C 514.61(c)(3) "are not viewpoint-neutral, for what one considers ‘offensive’ is fundamentally a matter of viewpoint." The petitioner also raises a facial challenge to Saf–C 514.61(c)(3) on the grounds that the regulation is unconstitutionally vague and overbroad.

We first address the petitioner's claims under our State Constitution, State v. Ball, 124 N.H. 226, 231–32, 471 A.2d 347 (1983), and rely upon federal law only to aid in our analysis, id . at 233, 471 A.2d 347. We review the constitutionality of state regulations de novo . See Doyle v. Comm'r, N.H. Dep't of Resources & Economic Dev. , 163 N.H. 215, 220, 37 A.3d 343 (2012).

We begin by noting that, although in his brief the petitioner refers generally to Saf–C 514.61(c)(3), the trial court found that the petitioner's challenge was to the regulation prohibiting vanity registration plates "which a reasonable person would find offensive to good taste," and that the petitioner did not "squarely challenge the regulatory restriction of plates related to ethnicity or race." See N.H. Admin. Rules, Saf–C 514.61(c)(3). Because the petitioner has not appealed that finding, we confine our analysis to the language in the regulation prohibiting vanity registration plates "which a reasonable person would find offensive to good taste." See id .

A. Forum Analysis

Part I, Article 22 of our State Constitution provides: "Free speech and liberty of the press are essential to the security of freedom in a state: They ought, therefore, to be inviolably preserved." N.H. CONST. pt. I, art. 22. Similarly, the First Amendment to the United States Constitution prevents the passage of laws "abridging the freedom of speech." U.S. CONST. amend I. It applies to the states through the Fourteenth Amendment to the United States Constitution. Lovell v. Griffin, 303 U.S. 444, 450, 58 S.Ct. 666, 82 L.Ed. 949 (1938).

The First Amendment's "Free Speech Clause restricts government regulation of private, not government, speech." Children First Foundation, Inc. v. Martinez, 829 F.Supp.2d 47, 54 (N.D.N.Y.2011). "It is well established that the government need not permit all forms of speech on property that it owns and controls." Perry v. McDonald, 280 F.3d 159, 166 (2d Cir.2001) (quotation omitted). Here, because neither party has argued otherwise, we will assume, without deciding, that the speech at issue in this case is private speech and that vanity registration plates are government property.

"In evaluating government regulations concerning private individuals' speech on government-owned property, the Supreme Court has identified three categories of forums—the traditional public forum, the designated public forum, and the nonpublic forum and—has developed a body of law styled ‘forum analysis.’ " Id . ; see also HippoPress v. SMG, 150 N.H. 304, 312, 837 A.2d 347 (2003). The parties do not dispute that vanity registration plates are not a traditional public forum. The petitioner argues that by enacting RSA 261:89 to allow for vanity registration plates, the State intended to create a designated public forum. Thus, he contends that any restrictions on the messages displayed on vanity registration plates must be narrowly tailored to serve a compelling government interest. See HippoPress, 150 N.H. at 312, 837 A.2d 347 (explaining that restrictions on speech in a designated public forum are subject to highest scrutiny and survive only if they are narrowly drawn to achieve a compelling state interest). The DMV disagrees, arguing that vanity registration plates constitute a nonpublic forum and therefore any restrictions need only be reasonable and viewpoint neutral. See id . at 312–13, 837 A.2d 347 (explaining that restrictions on speech in a nonpublic forum must be reasonable and not an effort to suppress expression based on the speaker's viewpoint).

We need not decide what type of forum a vanity registration plate is because we conclude that the challenged restriction in Saf–C 514.61(c)(3) is facially unconstitutional regardless of the forum. See Airport Comm'rs v. Jews for Jesus, Inc., 482 U.S. 569, 573–74, 107 S.Ct. 2568, 96 L.Ed.2d 500 (1987) ; Lewis v. Wilson, 253 F.3d 1077, 1079 (8th Cir.2001). Nonetheless, we express some skepticism about characterizing vanity registration plates as a designated public forum given that individuals must obtain permission in order to gain access to the forum, see RSA 261:89 ; N.H. Admin. Rules, Saf–C 514.61(c), (d). See Sons of Confederate Veterans, Inc. v. Comm'r of Va. Dept. of Motor Vehicles, 288 F.3d 610, 622 n. 10 (4th Cir.2002) (explaining that in nonpublic forum "government reserve[s] eligibility for access to the forum to a particular class of speakers, whose members must then, as individuals, obtain permission to use" forum (quotations and ellipsis omitted)). Moreover, as the petitioner acknowledges, the primary function of vanity registration plates is to serve as a means of "vehicle identification," see RSA 259:85 (2004); N.H. Admin. Rules, Saf–C 514.61(c)(8). See Perry, 280 F.3d at 167 (determining that Vermont did not intend to create designated public forum when it established vanity license plate regime, in part, because "stated policy in issuing license plates, including vanity plates, is to aid in vehicle identification").

B. Facial Challenge

The petitioner argues that the restriction at issue in Saf–C 514.61(c)(3) is facially invalid because it is unconstitutionally vague and overbroad. He maintains that " ‘[t]he offensive to good taste’ standard ... promulgated by [Saf–C 514.61(c)(3) ] casts too wide a net, and encroaches on the realm of protected speech" and "is implemented by [the] DMV to mean ‘any point of view with which the DMV disagrees.’ "

The...