Oklahoman Keith Kimmel asked for a personalized license plate with the text “IM GAY.” No, said the Oklahoma Tax Commission’s Motor Vehicle Division, and a Tax Commission Administrative Law Judge agreed: The license plate is rejected because of a rule that says, “No special license plate will be issued which may be offensive to the general public.”
Now it’s an interesting question whether such exclusion decisions violate the First Amendment. The burden on self-expression is slight, since the denial of the plate doesn’t prevent Mr. Kimmel from having a bumper sticker with exactly the same message. What’s more, the license plate might be seen a form of government speech, and that the government should be free not to associate itself with messages it disapproves of.
The lower court decisions I’ve seen generally conclude that viewpoint discrimination in issuing personalized license plates is unconstitutional (I speak here of the unique car identification tag on the plate; programs that provide for special background designs are a more complicated matter). Applying this test would require some inquiry into whether the policy here is viewpoint-neutral. (Mr. Kimmel argues that STR8FAN and STR8SXI were allowed, but it’s not clear whether they might just not have been recognized as sexual orientation references.)
But I want to set that aside here and focus instead on the rationale the Commission gave: That the very message “IM GAY” is “offensive to the general public” in Oklahoma. It’s not just that the general public might disagree with the message, or might think that the conduct it describes is immoral. That one publicly admits to doing or being something bad (assuming for purposes of this argument that being gay is bad, which is not my view) isn’t inherently “offensive to the general public.”
Rather, the very self-identification as gay, [...]