Steve Burns
WMAL.com
WASHINGTON — (WMAL) Attorney John Mitchell wanted to see how far he could take the First Amendment. Apparently, not as far as putting a Spanish obscenity on a license plate.
“He wanted to put on, and initially succeeded in putting on his license plate, a Spanish word whose translation refers to fecal matter,” said Bethesda Attorney Alan Sternstein, who has been following the case. “Eventually the administration got wind of it and revoked the plate, and (Mitchell) challenged that revocation.”
A whole host of different issues came into play, Sternstein said, including what kind of forum a license plate is designated, and whether the word is considered indecent or obscene.
“The ability of the government to control speech (in a nonpublic forum) is greater than it is in either the traditional public forum or the designated public forum,” Sternstein said. “The MVA really has designated, by practice, a public forum in the matter of license plates.”
Another issue is what category of offensive language the world falls under. “Indecent speech is protected but can still be regulated more extensively than unprotected speech like obscene speech,” Sternstein said.
In order to figure it out, “you could use the indecent speech doctrine, which deals with the real problem at issue in this case, the content.” That doctrine came as the result of the famous “Seven Dirty Words” case, which regulated what words can and cannot be broadcast.
Last month, the court found the word “could be considered obscene,” upholding an earlier ruling, forcing Mitchell to get new license plates. Mitchell, a First Amendment attorney, told the First Amendment Center after an earlier ruling “the test is not what the speaker of a particular language ‘might consider obscene,’ but what the law in fact determines to be obscene.”
Sternstein wrote the court focused too closely on the forum of speech, which may lead to “an unjustified tendency for bias in favor of control by the forum owner,” instead of focusing on the content of the speech itself.
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