Denying 'BEER4ME' license plate violates free speech, says South Dakota ACLU

PIERRE, S.D. — Everybody loves a vanity plate. Whether it is in support of a favorite sports team or a play on words, for a couple extra bucks you can proudly display your favorite word or phrase to the commuters riding your tail on the interstate.

Not if the South Dakota Motor Vehicle Division has anything to say about it.

The MVD has an internal policy that states that requests will be denied if they contain, among other things, “vulgar words, terms, or abbreviations” that are “offensive or disrespectful of a race, religion, color, deity, ethnic heritage, gender, sexual orientation, disability status or political affiliation” or “words or terms that support lawlessness, unlawful activities, or that relate to illegal drugs or paraphernalia.”

The South Dakota ACLU wrote to Attorney General Marty Jackley and Department of Revenue Cabinet Secretary Michael Houdyshell on August 29, 2023, that this policy isn’t just annoying, it’s a legitimate infringement on South Dakotans’ freedom of speech.

ACLU said the law violates the First and Fourteenth Amendments to the U.S. Constitution, that SDCL 32-5-89.2 gives the Secretary of Revenue the power to deny personalized license plate applications with “any letter combination which carries connotations offensive to good taste and decency.”

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The MVD “rejected seemingly benign personalized plate applications for supposedly being offensive to good taste and decency.”

These were the plates:

The ACLU said when the “offensive to good taste and decency” standard is applied, it is not applied consistently, and they make the case by listing some of the plates that have been approved and denied by the MVD, seemingly arbitrarily:

One plate, WINE, was both approved and denied by the MVD in two instances.

One example of the MVD’s viewpoint discrimination, according to the ACLU, was when Mr. Lyndon Hart, the owner of a business called Rez Weed Indeed, which does not sell any marijuana products but instead “supports and promotes the legal selling and use of medical and recreational marijuana on all Federally recognized Indian reservations,” submitted an application for a personalized license plate that read “REZWEED” that was denied by the MVD under statute § 32-5-89.2 as it was “found to be in poor taste.”

Since the denial of Hart’s plate, the ACLU pressed the MVD to grant him the license plate, which it ultimately did.

“The initial denial of Mr. Hart’s attempt to advocate for Tribal Sovereignty as being allegedly ‘in poor taste’ highlights the unbridled discretion granted to MVD employees by SDCL § 32-5-89.2, which has resulted in the blatant trampling of Mr. Hart’s freedom of speech, along with all other South Dakotans,” the ACLU wrote to Jackley and Houdyshell.

The ACLU concluded by demanding that the MVD, within 14 days of the date of the letter:

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