Virginians’ license plate messages are not government speech but private speech protected by the First Amendment

RICHMOND, Va. – Today a federal appeals court reaffirmed that personalized license plates – or vanity plates – are private speech protected by the First Amendment and allowed Curtis M. Whateley’s lawsuit against the Virginia Department of Motor Vehicles (DMV) to go forward.

“Today the Court of Appeals reaffirmed what courts across the country have already found: that messages conveyed on vanity license plates constitute private speech protected by the First Amendment,” said ACLU-VA Legal Director Eden Heilman. “Today’s ruling is especially significant in Virginia, where drivers use personalized license plates at a higher rate than in any other state.”

Curtis M. Whateley applied for and was issued the vanity plate “FTP&ATF” by the Virginia DMV in 2023. For about a year, the plate was displayed on his car with no issue. He even got the license plate re-issued after he realized the “&” symbol was missing.

But in May 2024, the DMV recalled the license plate, claiming the message could be perceived as profane, obscene, or vulgar, and used to condone violence. In response to Mr. Whateley’s lawsuit challenging this determination, the DMV argued that vanity plates are not private speech, but government speech, and therefore excluded from First Amendment protections. In May 2025, a judge in the Western District of Virginia agreed, citing a 2015 Supreme Court case that ruled Texas’ “specialty plates” – plates that have different designs from the state’s default plate – are government speech.

But vanity plates and specialty plates are not the same: courts throughout the country have divided on the question of whether the personalized messages on vanity plates are in fact private speech. In 2019, the ACLU of Kentucky won a similar case on behalf of a man whose “IM GOD” vanity plate was found to be constitutionally protected speech, and as recently as 2024, the ACLU of Delaware won a case on behalf of a cancer survivor who sought to use the license plate “FCANCER.”

Today’s ruling is the first by a federal appellate court since the 2015 Supreme Court case deciding the question of whether personalized license plates are not government speech, and it holds that they are instead private speech protected by the First Amendment. Now, Mr. Whateley’s case will be remanded to the district court to be reviewed under the relevant First Amendment standard.

“The First Amendment is a foundational American principle created specifically to ensure that the government cannot silence people for speech it does not agree with,” said ACLU-VA Senior Supervising Attorney Matt Callahan. “Today’s ruling goes beyond Mr. Whateley, reaffirming these protections for the almost one million drivers in Virginia who have exercised their free speech rights through personalized license plates.”