Attorney loses bid to keep profane license plate

Friday, August 3, 2012

Maryland Motor Vehicle officials can recall a personalized license plate that reads “MIERDA” (Spanish for “shit”) issued several years ago to a Maryland resident, an administrative law judge has ruled.

John T. Mitchell, an attorney, applied for the personalized tag in June 2009 and received it. He drove with this plate on his car virtually without incident – save for some people supporting it with “thumbs-up” gestures. However, in December 2011, the Maryland Motor Vehicle Administration notified Mitchell that it was recalling his plate because it was offensive.

In January, Mitchell requested reconsideration and was given a hearing. In April, Mitchell argued for his plate before Administrative Law Judge Marleen B. Miller. Mitchell was opposed by the Maryland Motor Vehicle Administration at the hearing.

On July 17, Miller sided with the state and against Mitchell. She acknowledged that “MIERDA” has many meanings, some of which are not profane. However, she said the state could recall the plate because it might offend others.

“The Appellant may feel comfortable driving around in a car labeled with what many Spanish-speaking individuals might consider obscene under at least one definition,” she wrote in her opinion in Mitchell v. Maryland Motor Vehicle Administration. “Nevertheless, a government agency such as the MVA is justified in choosing not to officially support such action. Furthermore, the First Amendment does not require the MVA to do otherwise.”

Mitchell pointed out some interesting aspects of the judge’s ruling.

“The test is not what the speaker of a particular language ‘might consider obscene,’ but what the law in fact determines to be obscene,” he told the First Amendment Center. “Plus, she never mentions ‘at least one’ definition that might be considered obscene — presumably, she is referring to the only one she mentions as the reason for the recall: ‘shit’ — which I don’t believe can possibly be obscene under any Miller-type test.”

Mitchell refers to the U.S. Supreme Court’s landmark obscenity decision — Miller v. California (1973) — in which the Court said material that has serious literary, artistic, political or scientific value cannot be considered obscene.

Under this ruling, it is hard to see how a single profane word can rise to the level of obscenity.

Mitchell now has to decide whether to appeal this decision or challenge it in federal court.

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