This article appeared in The Intellectual Property Strategist, an ALM/Law Journal Newsletters publication that provides a practical source of both business and litigation tactics in the fast-changing area of intellectual property law, including litigating IP rights, patent damages, venue and infringement issues, inter partes review, trademarks on social media – and more.

Depravity or lust, hostility or prejudice? Whatever those might be. In Ogilvie v. Gordon, No. 20-cv-01707 (N.D. Cal. Nov. 24, 2020), the Northern District of California found that California DMV regulations excluding plaintiffs' personalized plates were like the PTO trademark registration restrictions of SLANTS and FUCT — restrictions struck down by the U.S. Supreme Court for violating the First Amendment. The district court followed the Supreme Court in the trademark cases Matal v. Tam, 137 S. Ct. 1744 (2017) and Iancu v. Brunetti, 139 S. Ct. 2294 (2019), finding the PTO's refusal to register certain trademarks was improper viewpoint discrimination. The result for would-be vanity license plates holders? The California DMV may not prevent registration of vanity plates like QUEER, BO1LUX, DUK N A, or OGWOOLF.

The First Amendment prohibition on viewpoint discrimination does not extend to government speech. For private speech, the government may place restrictions on the use of certain fora, but the extent to which the government controls access depends on the type of forum. The Supreme Court has recognized "(1) the traditional public forum; (2) the designated public forum; (3) the limited public forum; and (4) the nonpublic forum." Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 576 U.S. 200, 215-16 (2015). A traditional public forum "ha[s] immemorially been held in trust for the use of the public and, time out of mind, ha[s] been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions." Id. at 215. A designated public forum occurs where "government property that has not traditionally been regarded as a public forum is intentionally opened up for that purpose." Id. A limited public forum "exists where a government has reserve[ed a forum] for certain groups or for the discussion of certain topics", and a nonpublic forum is one where "the government is acting as a proprietor, managing its internal operations." Id. In a traditional and designated public forum, the court applies strict scrutiny to government restrictions on private speech. Pleasant Grove City v. Summum, 555 U.S. 460, 469-70 (2009). Government restrictions on private speech in a limited and nonpublic forum must be reasonable and viewpoint neutral. Id. at 470.

Ogilvie is factually distinct from the Supreme Court in Walker — the case prohibiting registration of the Confederate flag on citizens' license plates. In Walker, the Texas Division of the Sons of the Confederate Veterans challenged the State of Texas after the Department of Motor Vehicles Board denied a proposed specialty license plate design featuring a Confederate battle flag. The Sons of Confederate Veterans argued that the DMV had committed unconstitutional viewpoint discrimination by denying their Confederate flag license plate design on the basis that it was "offensive to any member of the public." Walker, 576 U.S. at 205. Rejecting this argument, the Supreme Court applied the following factors to determine that license plate designs are government speech: "(1) whether the government had historically used the designs to communicate messages from the States; (2) whether Texas license plate designs are often closely identified in the public mind with the State; and (3) the degree to which Texas maintained direct control over the messages conveyed on its specialty plates." Ogilvie v. Gordon, No. 20-cv-01707 (N.D. Cal. July 08, 2020) at 4-5. Justice Breyer explained that like monuments in public parks, license plates are government speech and "[w]hen government speaks, it is not barred by the Free Speech Clause from determining the content of what it says." Walker, 576 U.S. at 207.