Whateley v. Lackey

The ACLU of Virginia joined as counsel of record in the U.S. Court of Appeals for the Fourth Circuit on behalf of Virginia resident Curtis M. Whateley, whose personalized license plate the Virginia Department of Motor Vehicles revoked.

Mr. Whateley applied for and received a personalized license plate with the character combination FTP&ATF from the Virginia DMV in 2023. Mr. Whateley drove with the plate for over a year without incident. When an anonymous citizen complained about his license plate, the DMV recalled it and refused to allow him to continue using the message. Mr. Whateley filed suit in federal district court, arguing that the DMV's recall of his personalized plate because of its message violated his First Amendment right to free speech.

The district court dismissed Mr. Whateley's claim without ever considering the contents of the license plate text. Instead, it determined that all personalized messages placed by all 900,000+ drivers in Virginia on their personalized license plates were not private speech, but actually the speech of the government. Because the First Amendment does not apply to government speech, the district court determined that Virginia could take any action it wished with regard to Mr. Whateley's license plate — regardless of its contents.

Now, Mr. Whateley's appeal argues that by erroneously ruling messages in Virginia's vanity plates are government speech, the district court has denied Mr. Whateley his right to have his First Amendment claim over his license plate considered under the appropriate legal standard. Our appeal requests that the Fourth Circuit vacate the district court's opinion, hold that Mr. Whateley's personalized license plate text is private speech, and remand the case to the district court for review under the appropriate standard.