New dispute over vanity license plate language appealed to Supreme Court

How freely can states can censor what drivers wish to say on vanity license plates? The state of Virginia is asking the Supreme Court to consider that question in Jack v. Whateley (26-584), which would add a significant First Amendment dispute to the Court’s docket, if the justices agree to step in.

The last time the Supreme Court considered messages on license plates was in 2015. By a 5-4 vote, the Court ruled that Texas could prohibit a specialty license plate displaying the Confederate battle flag without violating the First Amendment. The issue in Walker v. Texas Division, Sons of Confederate Veterans, Inc., was who was doing the speaking on the license plates: the state or the driver?

The Court held that the plates represented government speech, at least when it came to specialty license plates. The First Amendment applies when governments try to regulate the speech of others, but not when governments are doing the talking.

“As a general matter, when the government speaks, it is entitled to promote a program, to espouse a policy or to take a position,” Justice Stephen Breyer wrote for the Court, explaining why it was permissible for Texas to have hundreds of specialty plates, including “Choose Life,” “God Bless Texas” and “Fight Terrorism,” while the state declined to allow the Confederate symbol.

The Virginia case goes at the question of personalized plates that Breyer’s opinion expressly did not resolve. For a $10 fee, Virginia allows drivers to choose their own letters, numbers and symbols for license plates, instead of accepting the standard computer-generated plates. Roughly 1 million vehicles registered in Virginia have some kind personalized plate, making it among the most popular of widely used vanity programs, according to court records.

The case the justices may consider in the next few months arises from one particular license plate that reads “FTP&ATF.” There is no dispute that the first F is an F-bomb.

In 2023, Lynchburg resident Curtis Whateley requested front and rear plates bearing that message from the state’s Department of Motor Vehicles (DMV). He received the plates and drove with them for more than a year, until someone complained that the message was offensive.

Then-DMV Commissioner Gerald Lackey reviewed the complaint and used his authority to recall the plates. Whateley eventually sued in federal court, representing himself.

The message he chose “is Private Political Free Speech expressing my opinion on the current state of policing in this country, and the Department of Alcohol, Tobacco, Firearms and Explosives,” Whateley wrote in his complaint. Whateley lost the first round.

“Plaintiff has no First Amendment interest in the license plate,” U.S. District Judge Norman Moon wrote in granting the state’s motion to dismiss Whateley's lawsuit. Moon relied heavily on the high court’s Texas decision.

But a unanimous three-judge panel of the Fourth U.S. Circuit Court of Appeals threw out Moon’s ruling. Judge Pamela Harris wrote for the panel that “Virginia’s personalized license plates extend beyond the bounds of the government-speech doctrine set out in Walker and instead constitute private speech subject to First Amendment protection.”

Virginia’s main argument to the Supreme Court is that the license plate is not like a bumper sticker slapped on the car by its driver. Instead, the state said, license plates are government property, and so what appears on them is not private individuals’ speech but the government’s speech.

The Fourth Circuit was the first federal appeals court to rule on the issue since the 2015 Supreme Court ruling. State supreme courts in Indiana and Tennessee have sided with the state. Maryland’s top court and the Fourth Circuit have ruled for drivers. The U.S. Court of Appeals for the Seventh Circuit heard arguments over the same issue in September in a case from Wisconsin and has yet to issue a decision. “The issue is not going away without this Court’s Guidance,” the state of Virginia told the Supreme Court in its petition filed on Oct. 29, 2026.

Even if the Court takes up the case and rules in Whateley’s favor or leaves the Fourth Circuit ruling in place by declining to get involved, there’s no guarantee that Whateley, now represented by the American Civil Liberties Union, will win in the end.

Courts would have to analyze the case under the First Amendment, looking at whether Virginia’s prohibition on messages that could reasonably be viewed as profane, obscene, or vulgar and as condoning or encouraging violence is permissible.

Mark Sherman is a regular contributor to Constitution Daily. Sherman covered the Supreme Court for the Associated Press for 20 years, and he has previously written about the Justice Department, health care, and national politics.

Editor’s Note: Blog posts written by contributors reflect the analysis and opinions of the authors, and do not represent the opinions or positions of the National Constitution Center.