Milton woman wins federal suit over vanity license plate

A Milton woman was successful in her federal lawsuit over a vanity license plate that the Delaware Division of Motor Vehicles had previously recalled after deeming it obscene. 

The suit dates back to December 2020, when Kari Lynn Overington reserved a vanity license plate reading “FCANCER,” to commemorate her victory over breast cancer. She said in court filings that the “F” stood for fight. She formally purchased the plate from the Delaware DMV in January 2021, and it was delivered the next month. 

In June 2021, Overington was notified by Levi Fisher of the DMV, one of three named defendants, that her plate was being recalled because, according to court filings, it “does not represent the state and the division in a positive manner” and that “any plate considered offensive in nature will be denied or recalled if issued in error.” DMV officials believed the “F” in “FCANCER” stood for the word that rhymes with truck. 

In July 2021, DelDOT Secretary Nicole Majeski, the second defendant, confirmed to Overington that her plate was being recalled and the department had to ensure it was “not approving vanity plates that contain obscenity, vulgarity, profanity, hate speech or fighting words.” The next month, Overington filed a federal lawsuit in the U.S. District Court for the District of Delaware in Wilmington.

Overington was represented by attorney Dwayne J. Bensing of the American Civil Liberties Union’s Delaware chapter, with assistance from Terry Loscalzo of Dilworth Paxon in Philadelphia.

Bensing argued that the state’s regulations regarding vanity plates were unconstitutional and a violation of Overington’s First Amendment rights. Overington was seeking to have her vanity plate restored and to recover attorney’s fees. 

In counterarguments, attorneys for the DMV argued that vanity plates are considered government speech, giving the state latitude to have plates deemed obscene.

In his ruling, Judge Gregory B. Williams agreed with Overington, stating that vanity plates are not government speech and that Delaware’s regulatory scheme regarding vanity plates is unconstitutionally over broad and arbitrarily enforced. His ruling put a halt to all new vanity license plates in Delaware until the state comes up with regulations that better comply with the First Amendment. The injunction will not affect the renewal of existing vanity plates.

In a statement, Bensing said, “DMV's recall of our client's expression of her fight against cancer was an unconstitutional overreach brought on by faulty procedure. Make no mistake, when the government regulates private speech, it must do so without regard to the viewpoint of the speaker. Freedom of expression is a bedrock principle of a free democracy, and this court decision was a great win for free speech.”