(Seth Tupper – South Dakota Search Light ) – It’s OK to be a “HELLCAT,” but not a “HELLBOY.” Don’t tell anybody to “HLDMYBR,” but it’s fine to go on a “BEERRUN.” And don’t say “IH8U,” but “YUH8ME” is acceptable.
Those are some of the inconsistencies in state government’s evaluation of specialized vehicle license plate requests, according to the American Civil Liberties Union of South Dakota. The ACLU sent a letter to state officials Tuesday citing what the organization described as actual examples of approvals and denials.
“Unfortunately, the state is censoring the free speech protected by the First Amendment and is inserting its own voice in the place of the citizens’ voices of South Dakota,” said Andrew Malone, ACLU of South Dakota staff attorney, in a news release.
The letter demands that the state Motor Vehicle Division, within 14 days, approve applications that have been denied on the grounds of carrying “connotations offensive to good taste and decency” since Aug. 1, 2022 (the ACLU told South Dakota Searchlight later that the date has no particular significance, but represents about a year’s worth of denials). The letter also demands that the state refrain from using the quoted rationale to deny any future applications.
The letter specifically mentions the example of Lyndon Hart, whose application for a “REZWEED” plate was initially denied and later approved. Hart runs a business called Rez Weed Indeed that supports and promotes the legal selling and use of medical and recreational marijuana on Native American reservations, the ACLU letter says.
“The MVD’s violation of free speech creates an actionable claim under federal law by Mr. Hart and those whose personalized plate applications are being denied,” the letter states. It does not say a claim or any litigation has been filed.
A news release from the ACLU further notes, “The 8th Circuit U.S. Court of Appeals has ruled that license plates are a legitimate place for personal and political expression, and courts throughout the country have struck down laws similar to South Dakota’s.”
The state Motor Vehicle Division is part of the Department of Revenue.
“Due to threat of litigation which this press release contains, DOR will not be commenting,” said department spokesperson Kendra Baucom in an email reply to South Dakota Searchlight.
The ACLU also sent the letter to the state Attorney General’s Office, which told Searchlight it has received the letter and is reviewing it.
According to the ACLU, the state has denied 2,135 personalized plate applications during the past five years, including 673 — about a third of the denials — for “connotations offensive to good taste and decency.” That language is included in state law as an acceptable rationale for denying specialized plate requests.
The ACLU says a state policy further specifies that plate requests will be denied if they contain, among other things, “vulgar words, terms or abbreviations” that are “offensive or disrespectful of a race, religion, color, deity, ethnic heritage, gender, sexual orientation, disability status or political affiliation,” or “words or terms that support lawlessness, unlawful activities, or that relate to illegal drugs or paraphernalia.”
The law and the policy are violations of the First and 14th amendments to the U.S. Constitution, the ACLU alleges. Included in those amendments are the rights of free speech, due process and equal protection under the law.
“Here,” the ACLU letter says, “the South Dakota MVD has stifled the freedom to speak one’s mind, thus suppressing an important recognized liberty of all South Dakotans, including Indigenous Peoples.”