RICHMOND, Va. (CN) - A Virginia driver argued to the Fourth Circuit Wednesday that the First Amendment protects his anti-government license plate. 

Curtis Whateley used his license plate that read "FTP&ATF," an acronym for "Fuck the police and the Bureau of Alcohol, Tobacco, Firearms and Explosives," for over a year before the Department of Motor Vehicles received an anonymous complaint. Whateley argued the government's revocation of the license plate violated his right to free speech by imposing viewpoint discrimination. 

A lower court dismissed the challenge, ruling that registration symbols on license plates constitute government speech because they serve as a means of identification. 

"A license plate is not a bumper sticker," government attorney Richard Taylor said. "Unlike a bumper sticker, the license plate belongs to the commonwealth." 

Whateley told the three-judge appellate panel that the plates are personalized messages. Whateley is one of over 930,000 Virginia drivers who use personalized plates, which accounts for 11% of all vehicles registered in the state. 

"There is an expressive element to the requested character combination," attorney Matt Callahan with the American Civil Liberties Union of Virginia, representing Whateley, said. "The whole purpose of the complaint in this case was to eliminate Mr. Whateley's ability to express that message about law enforcement and the nation." 

The government pointed to the Supreme Court's decision in Walker v. Texas Division, Sons of Confederate Veterans, where the majority held that vanity license plate designs are government speech. Whateley drew several distinctions between the cases. 

"There is a rich history of states putting their own messages on license plates, including through legislative acts," Callahan said. 

Whateley said the average person would perceive a preapproved plate design as a government-sponsored message, but no one would read his license plate as a government message. 

"There is no expressive dimension to any license plate requested by the state of Virginia, either now or throughout its history of issuing license plates; the license plate functions merely as a kind of fingerprint," Callahan said. 

Callahan also pointed out that in Walker, the court considered 350 license plate designs. In contrast, in the present case, the government contends that any of the millions of possible combinations of symbols a driver selects is government speech. 

Callahan said his client's case is more analogous to the Supreme Court's ruling in Matal v. Tam. Matal concerned a band's request to register the name "The Slants" as a trademark. Lower courts ruled the trademark office correctly denied the application, finding it racially offensive to Asians under the Disparagement Clause of the Lanham Act of 1946. The high court ruled the clause discriminates on the basis of viewpoint and that trademarks aren't protected under the government speech doctrine because the trademark office merely approves or denies a third party's submitted name.  

The Supreme Court held that the government must exercise control over the speech for it to be government speech. The government asserts it controls the personalized plates through its guidelines, which prohibit the combination of symbols deemed profane, sexually explicit, excretory-related, used to describe intimate body parts, used to condone violence or used to describe illegal activities. Callahan countered that, unlike other accepted versions of government speech, which control speech on the front end, these guidelines are issued in response to complaints. 

"Mr. Whateley's requested license plate was actually issued to him three separate times," Callahan said. "If the government is really claiming that it has a compelling interest in expressing a message or a view through these license plates, this kind of loosey-goosey 'issue it first and wait for public complaints posture' is simply incompatible with that interest in the government making a statement." 

U.S. Circuit Judge Pamela Harris, a Barack Obama appointee, asked the government why it wouldn't consider the plates as private speech. 

"Is there really any chance that the state couldn't prevail just by saying 'fine, it's private speech, and we've opened a non-public forum on our license plates, and we don't let people use the f-word'?" Harris asked. "Is that not a reasonable and viewpoint-neutral kind of restriction that you could use?"

Attorneys representing the government did not respond to a request for comment. U.S. Circuit Judge Steven Agee, a George W. Bush appointee, and Senior U.S. Circuit Judge Barbara Keenan, a fellow Obama appointee, completed the panel. 

"The Virginia DMV does not have license to revoke Virginians' right to free speech just because it disagrees with what we have to say," Callahan said in a statement to Courthouse News. "Today we called on the court to recognize our client's personalized plate is private speech, and to reaffirm that all Virginians' personal expression on their license plates is protected by the First Amendment."

Source: Courthouse News Service