Wikipedia:Reference desk/Archives/Humanities/2019 June 26

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June 26

What's the difference? Questions about free speech after the Iancu v. Brunetti case

The case of Iancu v. Brunetti was recently decided by the U.S. Supreme Court. In a nutshell, it holds that immoral or scandalous trademarks cannot be denied, as that violates the First Amendment. So, how is it different when a state Department of Motor Vehicles denies someone a vanity license plate that contains objectionable words? I am pretty sure that I have read of cases in which plaintiffs objected (to license plates being denied); and the plaintiffs always lose such suits. The only distinction that I can see is that a vanity license plate is not "required"; rather, it is "optional". I assume a trademark is required – and not optional – when one wants to protect their intellectual property rights. Any thoughts or ideas? Thanks. Joseph A. Spadaro (talk) 04:16, 26 June 2019 (UTC)

I supposed provocative or inflammatory trademarks might be effective marketing, but license plates that get people riled up on the freeway might be a safety hazard. 173.228.123.207 (talk) 04:50, 26 June 2019 (UTC)

Because a license plate is not your speech, it's the government's speech. Or maybe it's a non-public forum and therefore the first-amendment does not apply. Or maybe you don't have standing to sue, so go away. Or maybe, crap, you're right, it's free speech. The hell am I going on about? Well, circuit courts have been asked about this many times, and often come to contradictory conclusions. The Supreme Court weighed in for a 2015 case to say that the state can at least refuse to put the confederate flag on a plate. Read more here. Someguy1221 (talk) 04:56, 26 June 2019 (UTC)

good ref. Because a license plate is not your speech, it's the government's speech seems a key here. Gem fr (talk) 13:43, 26 June 2019 (UTC)

For a "regular" license plate, yes, that makes sense: it's the government's speech. But, it's hard to make that claim with a straight face, when a vanity license plate is involved. That's pretty clearly the speech of the car owner. Calling it the speech of the government is a legal fiction. Joseph A. Spadaro (talk)

Speech is not always a single person's. It can be both the government's, and the car owner's. So the gov MAY put its motto on it, and the car owner MAY hide the motto, as has been ruled. Also, "legal fiction" seem pretty pleonastic to me. Gem fr (talk) 16:03, 26 June 2019 (UTC)

My point was that a vanity license plate is really the speech of the car driver, not of the government. What (actual) interest does the governmental have in a license plate that says "Eye Doctor" or "Yankees Fan" or "Bob + Sue" or what have you? Joseph A. Spadaro (talk) 21:17, 26 June 2019 (UTC)

In my experience, what's in it for the state is an additional fee for vanity plates. ←Baseball Bugs ^{What's up, Doc?} carrots→ 21:31, 26 June 2019 (UTC)

@Joseph A. Spadaro: consider this very website. Legally, what you write here is your speech. But this whole site is also, to an extent, the Wikimedia Foundation's speech. And the WMF has a legal right to stop speaking your words if it chooses. I see the difference between a trademark and a license plate in their purpose. A license plate is intended as a government designation of your car for identification purposes, but they are allowing you to have input on what that designation is. A trademark is a government-granted process to help you prevent confusion in the market place by registering the word/phrase/image you use to self-designate. The government has no part in creating the trademark, and is merely keeping a record of it. Now, that record is necessarily kept in a government database on government property, and will be retrievable by anyone searching a government website, but I think it makes more sense to consider that a service rather than speech. The purpose of a trademark is not getting the government to say something, but merely getting them to record how you advertise your self/company/product/services. The speech-like aspects the government must engage in are not the purpose of the trademark registration, but a necessary consequence of the right the government created. Going back to the license plate, no, it's not incidental that there is speech involved - the whole point is to have a big, obvious government-issued piece of metal on your car that reads your license plate number. Someguy1221 (talk) 00:14, 27 June 2019 (UTC)

At least in my state, the license plate is the property of the state, the driver is simply the user of it. The state is nice enough to offer the driver the option to choose the sequence on said plate, but (because of said ownership) the text is the "speech" of the government and they can thus refuse to allow certain sequences. --Khajidha (talk) 02:15, 30 June 2019 (UTC)

The ruling was specifically about trademarks. Whether a word is "immoral" is a matter of personal opinion. A license plate is not a trademark. And there's no constitutional right to drive a car on a public road. The rules about who can drive and what's on the license plates are established by the individual states. ←Baseball Bugs ^{What's up, Doc?} carrots→ 10:02, 26 June 2019 (UTC)

I am pretty sure there is a constitutional right to drive a car on a public road; this right may be regulated (you need a driving license), but not in a way that make it disappear because, say, you are black, or you said something offensive to the governor of the state, or are foreigner to the community. Gem fr (talk) 13:38, 26 June 2019 (UTC)

I'd like to know where it says that in the Constitution. ←Baseball Bugs ^{What's up, Doc?} carrots→ 16:10, 26 June 2019 (UTC)

Freedom of movement under United States lawGem fr (talk) 22:52, 26 June 2019 (UTC)

Interesting. But it doesn't stop the individual states from setting their own rules of the road. ←Baseball Bugs ^{What's up, Doc?} carrots→ 23:39, 26 June 2019 (UTC)

Correct. There is a right to movement, but not a right to a specific mode of transportation, and so the right to drive a car is, in fact, granted by the government, and is not fundamental. However, this does not mean the government can remove that right capriciously, and most importantly they may not remove that right based on membership of a protected class, or as punishment for exercising a civil right. It also may not be granted in a similarly discriminatory fashion. Someguy1221 (talk) 00:14, 27 June 2019 (UTC)

And, I am pretty sure that the ruling was NOT specifically about trademarks: justices wording clearly make it applicable much more broadly than that, and basically forbid the government to engage in morality regulations (If I understand correctly).

But don't trust me on these, I am no lawyer Gem fr (talk) 13:38, 26 June 2019 (UTC)

Perhaps the degree of exposure is a factor, with license plates being akin to billboards. I wonder if FUCT (clothing) is allowed any degree of visual prominence that they please. Can they rent large billboard space? Bus stop (talk) 14:07, 26 June 2019 (UTC)

Interesting question. Here's a related question. You cannot say "fucked" in a TV commercial or a radio commercial. Or even on a TV show or a radio show. (Right?) Now, can you say "FUCT" in a TV commercial or a radio commercial, if the FUCT Company decides to advertise its brand? Can you say "FUCT" on a TV show or a radio show, if you are doing a segment about the FUCT Company? Joseph A. Spadaro (talk) 14:51, 26 June 2019 (UTC)

Compare the French Connection UK company founded in 1972 which from 1991 (a year after FUCT's founding) began using the branding fcuk or FCUK, not without controversy. {The poster formerly known as 87.81.230.195} 2.122.177.55 (talk) 15:31, 26 June 2019 (UTC)

You cannot say "fucked" in a TV commercial or a radio commercial, but not because government forbid it, only because some sort of Broadcast Standards and Practices self-imposed code. Some broadcasters might accept "FUCT" ad, while other wouldn't, just like some accept porn ad and others do not. Gem fr (talk) 15:50, 26 June 2019 (UTC)

Isn't all of that (not allowing obscene words on TV and radio) dictated by the FCC? And isn't the FCC a governmental body? Joseph A. Spadaro (talk) 21:20, 26 June 2019 (UTC)

The FCC controls the public airwaves. But on pay cable, you can say pretty much anything, short of something that's illegal such as threatening to murder a public official. ←Baseball Bugs ^{What's up, Doc?} carrots→ 21:31, 26 June 2019 (UTC)

Historically the FCC has declined to attempt regulating transmissions over non-public media on the understanding that broadcasters would self-regulate (note the FTC still has general regulatory authority over such things as false advertising). This was considered the best of both worlds, as naughty content would be minimized, and the government could avoid the appearance of a censor, or a supreme court ruling that it could not censor, which would have the effect of removing the proverbial ax the stations feared. This manifested as the Code of Practices for Television Broadcasters, which was later abandoned after charges of antitrust violations. See FCC v. Pacifica Foundation for the Supreme Court case that affirmed the FCC's power to regulate some "indecent" content on public airwaves. Someguy1221 (talk) 00:25, 27 June 2019 (UTC)

So, why are they not allowed to say swear words ("fuck", "shit", etc.) on regular TV (for example, ABC, NBC, CBS, etc.)? Is not that due to the FCC? Joseph A. Spadaro (talk) 03:54, 27 June 2019 (UTC)

That is often due to the FCC, but it's a lot easier for them to act there, constitutionally, because anything in the form of a radio broadcast is special, being part of the commons. That is, if you print your own books, your existence does not interfere with anyone else's right to speak, and so the government's ability to regulate your behavior is quite limited. However, if you are broadcasting a signal through the air that is strong enough for receivers to pick up, you are actually blocking anyone else from broadcasting with the same and nearby frequencies to those same receivers. In the interest of preserving the right to free speech in the public forum known as "the air", it was actually necessary for the government to regulate its use, as a bad actor might otherwise silence other citizens either for his own benefit or merely out of malice or stupidity. Anyway, as a result the FCC is assumed to have broad powers to regulate broadcasts over frequencies the government has deemed "public airwaves", and this includes penalizing obscene broadcasts. The major networks typically simulcast the same programs to cable and broadcast television, so they will be following FCC rules. Someguy1221 (talk) 04:07, 27 June 2019 (UTC)

OK, so the FCC is a governmental body and, thus, implicates the First Amendment. So, TV personalities are not allowed to say "fucked" on TV (or radio). After the Brunetti case, are they allowed or not allowed to say "FUCT" on TV and/or radio? Joseph A. Spadaro (talk) 04:38, 27 June 2019 (UTC)

Unclear. As mentioned, FCC v. Pacifica (1973) upheld the FCC's broad authority to police obscenity and indecency transmitted by broadcast, stating that the government had a legitimate interest in both "Shielding children from potentially offensive material" and "ensuring that unwanted speech does not intrude on the privacy of one's home." The Supreme Court has declined to make subsequent rulings on the real foundation of this subject. More recently they ruled in FCC v. Fox (2009) that the FCC is within its authority to change its standards for indecency, and in FCC v. Fox (2012) that those standards may be unenforceable if vague. In both cases, the Supreme Court avoided the question of whether the regulations themselves are compatible with the first amendment, i.e. whether the court affirms or denies the standard set by Pacifica. Ginsburg has written that the Pacifica decision "was wrong when it issued", and has wanted to revisit the issue. Someguy1221 (talk) 04:53, 27 June 2019 (UTC)

The station and/or network still have the upper hand, because they decide whose advertising dollars they will accept. ←Baseball Bugs ^{What's up, Doc?} carrots→ 11:02, 27 June 2019 (UTC)

Maybe so for TV or radio commercials. But, what about a TV show proper or a radio show proper? If a host is interviewing the President of the FUCT company, or a host is doing a segment about this Supreme Court case, he would have to say "FUCT" at some point. It would be silly to leave out the valid name of a valid company that holds a valid trademark of that valid name. The (silly) alternative is for the TV/radio host to say "He is the President of some company, but we can't say the name of that company." Joseph A. Spadaro (talk) 17:30, 27 June 2019 (UTC)

We might have to wait until (or if) someone on radio or TV decides to interview this character. ←Baseball Bugs ^{What's up, Doc?} carrots→ 17:40, 27 June 2019 (UTC)

Or, more likely, talk about this specific Supreme Court case. Joseph A. Spadaro (talk) 17:43, 27 June 2019 (UTC)

The average radio or TV station probably wouldn't touch it. In contrast, I'm sure Howard Stern would be all over it. But that's subscription radio, so the public airwaves rules don't much matter. ←Baseball Bugs ^{What's up, Doc?} carrots→ 17:46, 27 June 2019 (UTC)

Legitimate and respectable TV shows and radio shows (not of the Howard Stern ilk) often talk about Supreme Court cases. High-profile ones, much more so. Joseph A. Spadaro (talk)

CNN.com and FoxNews.com have covered it. At least one is saying it's supposed to be spelled out rather than pronounced like a word. ←Baseball Bugs ^{What's up, Doc?} carrots→ 18:21, 27 June 2019 (UTC)

That's a "work-around" solution, in this particular situation. But, it doesn't really address the real problem or issue. Can a word that "sounds like" -- or even a word that actually is -- a swear word be said on TV/radio? Joseph A. Spadaro (talk) 16:29, 1 July 2019 (UTC)

Wait till it happens, and then you'll find out. ←Baseball Bugs ^{What's up, Doc?} carrots→ 17:28, 1 July 2019 (UTC)

How is that a helpful reply for a Reference Desk? "Wait until it happens, and then you will have your answer." And who is to say that it has not yet happened, by the way? Joseph A. Spadaro (talk) 20:27, 1 July 2019 (UTC)

What has your own research uncovered? Or do you expect someone else to do your work for you? ←Baseball Bugs ^{What's up, Doc?} carrots→ 20:36, 1 July 2019 (UTC)

You did not answer my question. Don't side-step the issue by creating a new issue. Just answer my question. Thanks. Joseph A. Spadaro (talk) 00:45, 2 July 2019 (UTC)

I did not answer because I don't know the answer and don't care. If you care about it so much, do your own research. ←Baseball Bugs ^{What's up, Doc?} carrots→ 15:59, 2 July 2019 (UTC)

If you -- quote -- "don't care" ... why do you have about 20-30 postings on this thread? Also: great theory you have. I am licking my chops, hoping someone will do my research for me ... so I don't have to go out and hire another researcher for this topic and pay them. Great theory you have there. Or maybe it's just a discussion board question. Nah, your theory makes more sense. Joseph A. Spadaro (talk) 16:54, 2 July 2019 (UTC)

Your unwillingness to do any research suggests that you don't care either. ←Baseball Bugs ^{What's up, Doc?} carrots→ 18:37, 2 July 2019 (UTC)

Love how you never answer a question. And keep "changing the issue" so that you are never accountable for your comments. You just keep avoiding the (valid) questions and side-stepping the (valid) issues. By starting up new issues. LOL. Sad, actually. Best of luck to you. Bye. Joseph A. Spadaro (talk) 19:25, 2 July 2019 (UTC)

Does that "Bye" mean you're done with this and the section can be closed? ←Baseball Bugs ^{What's up, Doc?} carrots→ 22:12, 2 July 2019 (UTC)

• The license plate question is actually being litigated. On April 9, 2019, Pacific Legal Foundation filed suit on behalf of USC law professor Jon Kotler who was denied a California license plate "COYW" in reference to the Fulham F.C. slogan "Come On You Whites". The plate was denied on the grounds that "Come On You Whites" could have racial connotations. [1] The case is Kotler v. Webb and is before the Central District of California. —/Mendaliv/^2¢/_Δ's/ 00:36, 27 June 2019 (UTC)
  • And if the state loses the case, they can get around it by abolishing the vanity-plate program. ←Baseball Bugs ^{What's up, Doc?} carrots→ 11:03, 27 June 2019 (UTC)
    • Yep, that's part of the point: If you permit people to express themselves using their license plates, any content-based restriction must meet strict scrutiny. But states aren't mandated to provide vanity plates.
      Interestingly, abolishing that program isn't as simple as it might sound. The State of California nets a lot of money a year from vanity plates and renewals of vanity plates. I can't find exact numbers, but it seems like a lot. In 2013 there was a controversy about undercharging for people with specialty and vanity license plates, where the state failed to collect up to $22 million from people with these types of plates. Sure it seems like it'd be a drop in the bucket to them, but a little bit of money here and there can make a huge problem with the budget. I remember playing city management sims when I was younger, and just how hard it was to get rid of toll booths once you'd had them for awhile, and closing them would instantly kill any budget surplus you had. —/Mendaliv/^2¢/_Δ's/ 11:36, 27 June 2019 (UTC)
      • Taking away the state's right to regulate license plate content could lead to trouble. Like if someone counters that one with "KILWHITY". The solution to the problem of stopping vanity plates is to raise license tag fees to make up the difference. ←Baseball Bugs ^{What's up, Doc?} carrots→ 15:10, 27 June 2019 (UTC)

Another problem with abolishing vanity plates: License plates are just a random collection of letters (and numbers). For example, BB1CL7, or whatever. If they randomly "cycle through" all letters (and numbers), they will eventually come upon a vanity-type plate. For example, let's say that my vanity plate is "RED SOX FAN". Eventually, as they "cycle through" all of the letters of the alphabet, they will hit upon the letter combination of "RED SOX FAN". So, it's not OK to have those 9 letters as a vanity plate, but it is perfectly fine to have those 9 random letters as a "regular" license plate? Seems like more trouble. Joseph A. Spadaro (talk) 17:39, 27 June 2019 (UTC)

In my experience and observations, states typically use combinations of letters and numbers, such as 3 letters + 3 numbers, or possibly intermixing them. And typically 7 or 8 characters at most. So it's unlikely RED SOX FAN would show up. They also typically have algorithms to weed out letter combinations that suggest obscenities or other inappropriate content. ←Baseball Bugs ^{What's up, Doc?} carrots→ 17:44, 27 June 2019 (UTC)

"Red Sox Fan" was just an example off the top of my head. And that was not the point of my posted comment. Let's use "CAT LUVR" instead. You get the idea. When they cycle through all random letters/numbers, yes, they can weed out obscene words. But they would not weed out "CAT LUVR" (as obscene). So, again, it's not OK to have those 7 letters as a vanity plate, but it is perfectly fine to have those 7 random letters as a "regular" license plate? Joseph A. Spadaro (talk) 17:50, 27 June 2019 (UTC)

That's why they use random letters and numbers. Plate numbers of the type ABC 1234 are seldom going to result in recognizable full words. Plus, when you get your plate for your new car, you're not going to get a choice, they're just going to hand you the next one in the stack. ←Baseball Bugs ^{What's up, Doc?} carrots→ 17:55, 27 June 2019 (UTC)

You totally missed my point. Joseph A. Spadaro (talk) 17:58, 27 June 2019 (UTC)

MY point is that those seven random letters aren't going to turn up. ←Baseball Bugs ^{What's up, Doc?} carrots→ 18:04, 27 June 2019 (UTC)

You randomly select every slot of the license plate character-slots ... every single letter/number combination will eventually come up. Every one. With 100% certainty. And that specific plate ("CAT LUVR") is not the point of my comment. It could be any vanity plate. Can you understand that concept? The vanity plate is "Joe 1234". Does that placate you? Sheesh, dude. Come on. Joseph A. Spadaro (talk) 18:11, 27 June 2019 (UTC)

JOE 1234 theoretically might turn up, but if the state doesn't do vanity plates, you don't get to choose it. And CAT LUVR will never turn up, unless you can figure out how to make 4 digits resemble LUVR. ←Baseball Bugs ^{What's up, Doc?} carrots→ 18:23, 27 June 2019 (UTC)

Item 1: Again, you miss my point. So, I will spell it all out, step-by-step, to, ummm, "accommodate" your misunderstandings. Step 1: I have a vanity license plate that says "JOE 1234". Step 2: The State discontinues the vanity plates and takes mine away from me. Because it's a vanity plate. Step 3: The State issues random-letter license plates to all drivers. Step 4: The next in line in the random order is "JOE 1234". Step 5: My next-door neighbor, who is next in line, gets the "random" plate of "JOE 1234". Step 6: The problem is that I cannot have that license plate, because it's a vanity plate. But, my next-door neighbor can have it because the computer randomly generated those 7 random characters. Step 7: The original point of discussion here was, (as I mentioned above) quote, "Another problem with abolishing vanity plates: License plates are just a random collection of letters (and numbers). For example, BB1CL7, or whatever. If they randomly "cycle through" all letters (and numbers), they will eventually come upon a vanity-type plate. For example, let's say that my vanity plate is "RED SOX FAN". Eventually, as they "cycle through" all of the letters of the alphabet, they will hit upon the letter combination of "RED SOX FAN". So, it's not OK to have those 9 letters as a vanity plate, but it is perfectly fine to have those 9 random letters as a "regular" license plate? Seems like more trouble." Do you now get my point or shall I explain more? Joseph A. Spadaro (talk) 03:08, 28 June 2019 (UTC)

Item 2: "CAT LUVR" will eventually come up in a random character rotation. You -- for some reason -- are providing some license-plate restrictions that needn't be superimposed upon the problem/question. Joseph A. Spadaro (talk) 03:08, 28 June 2019 (UTC)

Most of your premise is incorrect. Look through United States license plate designs and serial formats and you will see that none of them use all-letters for plate numbers. So things like RED SOX FAN and CAT LUVR will never turn up. As to the JOE 1234, it's theoretically possible - but it's also possible the state's numbering algorithm weeds out recognizable words. ←Baseball Bugs ^{What's up, Doc?} carrots→ 11:43, 28 June 2019 (UTC)

My premise is not incorrect. My state, for example, uses 6 (or maybe 7) characters -- any characters, letters or numbers. And I, myself, personally have all letters (no numbers) on my license plate. So, that Chart -- which I had already seen -- is incorrect for my state. And probably for several other states, also. And 95% of that Chart does not contain any sources. So, again, probably rife with erroneous information. So, whom should I believe? A Wikipedia Chart with no sources ... or my own lying eyes? Joseph A. Spadaro (talk) 18:59, 28 June 2019 (UTC)

If the article is incorrect, maybe you could do something about it. For starters, contact your secretary of state and pose your premise to them. ←Baseball Bugs ^{What's up, Doc?} carrots→ 19:10, 28 June 2019 (UTC)

And you, too -- as a Wikipedia editor -- can also fix the article, yes? You are the one who brought it up during discussion, presumably for its, ummmmm, accuracy ... no? Joseph A. Spadaro (talk) 21:06, 28 June 2019 (UTC)

I cited the article, and you've cited nothing. And it's fair to say you care a lot more about this than I do. :) ←Baseball Bugs ^{What's up, Doc?} carrots→ 21:17, 28 June 2019 (UTC)

What are you talking about and what do you want me to cite? I have my license plate, I have had it for decades, and I know what it says. As does anyone with vision. The local TV and local newspapers never did a story about my license plate, so I have no reliable sources to cite. What are you talking about and what do you want me to cite? Joseph A. Spadaro (talk) 21:39, 28 June 2019 (UTC)

Do you care if anyone knows which state you reside in? If so, then this would necessarily be the end of this discussion. If not, then you could look for a website that would explain how plate numbers/letters are generated in your state, and link to it. ←Baseball Bugs ^{What's up, Doc?} carrots→ 22:10, 28 June 2019 (UTC)

Nah ... This sub-discussion has already wandered too far afield of the original question I posed. Thanks. Joseph A. Spadaro (talk) 19:14, 29 June 2019 (UTC)

Tangentially, I think that Kramer on the Seinfeld TV show tried to get the license plate "Ass Man". No? I forget what happened in that episode. Joseph A. Spadaro (talk) 17:57, 27 June 2019 (UTC)

It's all very convoluted, and leads up to a joke. See The Fusilli Jerry. ←Baseball Bugs ^{What's up, Doc?} carrots→ 18:04, 27 June 2019 (UTC)

And if the state loses the case, they can get around it by just changing the vanity-plate program, so that the car owner do not ask/propose, instead, the state propose a collection of (acceptable) plate to choose from, some free (because, random meaningless), other for a fee (or even by auction), because, meaningful and maybe valuable. No way the justices will dictate that, to propose a FUCK-U (or whatever offensive) plate is a constitutional obligation of the state, just because some moron wants it (the said moron still can have it as a sticker, so his constitutional right to advertise his being a moron still stands). Gem fr (talk) 18:41, 27 June 2019 (UTC)

Has any licensing authority ever attempted this degree of anonymisation? After all, most pronounceable combinations are recognisable words in some or other language. 92.31.143.72 (talk) 14:19, 28 June 2019 (UTC)

Hullo VxFC!  :) ——SerialNumber54129 14:21, 28 June 2019 (UTC)

Sure, they can do that. And they can massively decrease their annual income from vanity plates. I don't know exactly how much California gets annually from vanity plates, but it's nothing to sneeze at. —/Mendaliv/^2¢/_Δ's/ 18:50, 29 June 2019 (UTC)

Thanks, all. Joseph A. Spadaro (talk) 18:39, 4 July 2019 (UTC)