We are nowhere near achieving COVID-19 herd immunity according to a new study in the journal JAMA Internal Medicine. The researchers reached this conclusion based on an analysis of routine blood tests sent to commercial laboratories through the end of September taken from nearly 178,000 people in 52 U.S. jurisdictions. In this seroprevalence screening study, the researchers are seeking to detect what proportion of Americans have developed disease resistance antibody proteins produced by the immune system in response to infections by the COVID-19 virus. The study relied upon the results of routine blood tests while excluding tests taken from patients suspected of having COVID-19.
Herd immunity is the resistance to the spread of a contagious disease that results if a sufficiently high proportion of a population is immune to the illness. Some people are still susceptible, but they are surrounded by immune individuals, who serve as a barrier preventing the microbes from reaching them. Herd immunity is generally achieved via mass vaccination. An accompanying commentary by three public health researchers noted, “Unfortunately, history has shown that although herd immunity resulting from infection can curb pandemics, it does not eradicate diseases.”
Earlier in the pandemic, various researchers made speculative calculations (many of which I reported) suggesting that COVID-19 infections were much more prevalent than had been detected and that the herd immunity threshold for COVID-19 might be reached if only 15 percent of the population were infected. The recent massive surge in infections belies these hopeful hypotheses.
Most researchers now believe that achieving the herd immunity threshold for COVID-19 would require that close to 60 to 70 percent of the population will have to have been infected or vaccinated. Without a vaccine, that means that around 200 million Americans would have to get infected before we reach this threshold. Data scientist Youyang Gu over at the COVID-19 Projections website estimates that perhaps 50 million Americans have so far been infected by the virus.
The JAMA study finds that by the end of September fewer than 10 percent of people in the U.S. had evidence of previous COVID-19 infection using currently available antibody tests. The researchers note, “Seroprevalence varied across regions and between metropolitan/nonmetropolitan areas, with estimates as high as 23% in the Northeast and 13% in the South, while estimates in the Midwest and West were less than 10%.” They conclude, “Our results reinforce the need for continued public health preventive measures, including the use of face masks and social distancing, to limit the spread of SARS-CoV-2 in the US.”
The JAMAcommentary observes, “In summary, a robust and well-designed seroprevalence study using residual serum samples from across the US has found that herd immunity to [COVID-19] is nowhere in sight, even as the COVID-19 pandemic has raged on for a year.” The commentators conclude that “achieving herd immunity through natural infections will take years of painful sacrifice that are tallied in numerous deaths, severe long-term health sequelae, and widespread economic disruption and hardship. Let us hope that safe and effective vaccines help avoid the consequences of naturally developing herd immunity to COVID-19, as they have reliably done for so many other respiratory viruses.”
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It wasn’t blowhards on cable news, Twitterati members of the “Resistance,” or protesters marching in the streets who ultimately prevented President Donald Trump and his Republican abettors from stealing the 2020 election.
It was people like Aaron Van Langevelde, a Republican member of the Michigan Board of State Canvassers, the four-member body responsible for certifying election results. With the other Republican on the board abstaining from Monday’s vote to certify the presidential election in Michigan—a maneuver that Trump’s legal team and state Republican officials were hoping would keep the outcome of the election an open question—Van Langevelde did the right thing. He acknowledged reality and voted to certify that Biden had won the state of Michigan by about 154,000 votes.
Van Langevelde is, deservingly, the hero of a must-read, deeply reported piece from Politico‘s Tim Alberta, who has emerged as one of the best chroniclers of the Republican Party’s Trumpist takeover.
In the end, it wasn’t a senator or a judge or a general who stood up to the leader of the free world. There was no dramatic, made-for-Hollywood collision of cosmic egos. Rather, the death knell of Trump’s presidency was sounded by a baby-faced lawyer, looking over his glasses on a grainy Zoom feed on a gloomy Monday afternoon, reading from a statement that reflected a courage and moral clarity that has gone AWOL from his party, pleading with the tens of thousands of people watching online to understand that some lines can never be uncrossed.
“We must not attempt to exercise power we simply don’t have,” declared Van Langevelde, a member of Michigan’s board of state canvassers, the ministerial body with sole authority to make official Joe Biden’s victory over Trump. “As John Adams once said, ‘We are a government of laws, not men.’ This board needs to adhere to that principle here today. This board must do its part to uphold the rule of law and comply with our legal duty to certify this election.”
A few hours after Michigan certified its results, the federal General Services Administration announced the start of the official transition process. Later on Monday night, Trump tweeted that such steps were “in the best interest of our country”—probably the closest thing to a concession Biden will get.
Van Langevelde did his duty, and even the most powerful man in the world couldn’t stand in the way.
That’s been one of the silver linings to emerge from the unprecedented (at least in recent history) stress test of American democracy that was the 2020 election. The combination of Trump and the COVID-19 pandemic could have been a disaster, but the country avoided the worst-case scenarios in part because enough civic-minded people stepped up to the plate and put their partisan preferences aside.
In Georgia, for example, there was Republican Secretary of State Brad Raffensperger, who refused to give any oxygen to Trump’s claims of voter fraud. Raffensperger stood firm even as Trump attacked him personally and other prominent Republicans called for him to resign from his job because he was doing his job.
“After any election, half of the voters will be happy and the other half will be disappointed. But I wanted to make sure everyone felt confident in the process and confident in the outcome,” Raffensperger wrote in an op-ed published Wednesday by USA Today. “In times of uncertainty, when the integrity of our political system is most at risk, the integrity of our politicians is paramount.”
Without Van Langevelde and Raffensperger, Trump’s scheme probably would have failed anyway. His top legal team produced the Four Seasons Total Landscaping debacle and pushed a bunch of nutty conspiracy theories to “explain” how the election was “stolen” from Trump, but their myriad lawsuits were rejected by judge after judge.
With the courthouse strategy failing miserably, Trump’s only hope was a statehouse strategy—one that would have required Republican lawmakers and election officials in several states to reject their duties to the Constitution and substitute them with fealty to Trump by refusing to certify results. If the Michigan State Board of Canvassers had been unable to certify the state’s results—which would have happened if Van Langevelde had joined his fellow Republican in refusing to vote on Monday—then certification of the outcome would have fallen to the Republican-controlled state legislature. Blocking certifications in enough states to change the outcome of the race was never anything more than an extreme long shot, but Van Langevelde ensured it wouldn’t happen.
Still, the attempt to subvert the results of the election matter. The Republican officials who went along with the plot—including some of the highest-ranking Republicans in Michigan—ought to be ashamed and booted from their positions of authority. Republicans should root out anyone who has attempted to undermine the public’s trust in elections with the same fervor they apply to stopping voter fraud. The stakes are the same, and the threats to the system revealed by the 2020 election will not vanish on January 20.
America never got to the very edge of the precipice in the weeks after the 2020 election. But for a little while, the country was staggering in that direction. Thank the Van Langeveldes and Raffenspergers of the country for doing the right thing and steering the country away from the edge.
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We are nowhere near achieving COVID-19 herd immunity according to a new study in the journal JAMA Internal Medicine. The researchers reached this conclusion based on an analysis of routine blood tests sent to commercial laboratories through the end of September taken from nearly 178,000 people in 52 U.S. jurisdictions. In this seroprevalence screening study, the researchers are seeking to detect what proportion of Americans have developed disease resistance antibody proteins produced by the immune system in response to infections by the COVID-19 virus. The study relied upon the results of routine blood tests while excluding tests taken from patients suspected of having COVID-19.
Herd immunity is the resistance to the spread of a contagious disease that results if a sufficiently high proportion of a population is immune to the illness. Some people are still susceptible, but they are surrounded by immune individuals, who serve as a barrier preventing the microbes from reaching them. Herd immunity is generally achieved via mass vaccination. An accompanying commentary by three public health researchers noted, “Unfortunately, history has shown that although herd immunity resulting from infection can curb pandemics, it does not eradicate diseases.”
Earlier in the pandemic, various researchers made speculative calculations (many of which I reported) suggesting that COVID-19 infections were much more prevalent than had been detected and that the herd immunity threshold for COVID-19 might be reached if only 15 percent of the population were infected. The recent massive surge in infections belies these hopeful hypotheses.
Most researchers now believe that achieving the herd immunity threshold for COVID-19 would require that close to 60 to 70 percent of the population will have to have been infected or vaccinated. Without a vaccine, that means that around 200 million Americans would have to get infected before we reach this threshold. Data scientist Youyang Gu over at the COVID-19 Projections website estimates that perhaps 50 million Americans have so far been infected by the virus.
The JAMA study finds that by the end of September fewer than 10 percent of people in the U.S. had evidence of previous COVID-19 infection using currently available antibody tests. The researchers note, “Seroprevalence varied across regions and between metropolitan/nonmetropolitan areas, with estimates as high as 23% in the Northeast and 13% in the South, while estimates in the Midwest and West were less than 10%.” They conclude, “Our results reinforce the need for continued public health preventive measures, including the use of face masks and social distancing, to limit the spread of SARS-CoV-2 in the US.”
The JAMAcommentary observes, “In summary, a robust and well-designed seroprevalence study using residual serum samples from across the US has found that herd immunity to [COVID-19] is nowhere in sight, even as the COVID-19 pandemic has raged on for a year.” The commentators conclude that “achieving herd immunity through natural infections will take years of painful sacrifice that are tallied in numerous deaths, severe long-term health sequelae, and widespread economic disruption and hardship. Let us hope that safe and effective vaccines help avoid the consequences of naturally developing herd immunity to COVID-19, as they have reliably done for so many other respiratory viruses.”
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It wasn’t blowhards on cable news, Twitterati members of the “Resistance,” or protesters marching in the streets who ultimately prevented President Donald Trump and his Republican abettors from stealing the 2020 election.
It was people like Aaron Van Langevelde, a Republican member of the Michigan Board of State Canvassers, the four-member body responsible for certifying election results. With the other Republican on the board abstaining from Monday’s vote to certify the presidential election in Michigan—a maneuver that Trump’s legal team and state Republican officials were hoping would keep the outcome of the election an open question—Van Langevelde did the right thing. He acknowledged reality and voted to certify that Biden had won the state of Michigan by about 154,000 votes.
Van Langevelde is, deservingly, the hero of a must-read, deeply reported piece from Politico‘s Tim Alberta, who has emerged as one of the best chroniclers of the Republican Party’s Trumpist takeover.
In the end, it wasn’t a senator or a judge or a general who stood up to the leader of the free world. There was no dramatic, made-for-Hollywood collision of cosmic egos. Rather, the death knell of Trump’s presidency was sounded by a baby-faced lawyer, looking over his glasses on a grainy Zoom feed on a gloomy Monday afternoon, reading from a statement that reflected a courage and moral clarity that has gone AWOL from his party, pleading with the tens of thousands of people watching online to understand that some lines can never be uncrossed.
“We must not attempt to exercise power we simply don’t have,” declared Van Langevelde, a member of Michigan’s board of state canvassers, the ministerial body with sole authority to make official Joe Biden’s victory over Trump. “As John Adams once said, ‘We are a government of laws, not men.’ This board needs to adhere to that principle here today. This board must do its part to uphold the rule of law and comply with our legal duty to certify this election.”
A few hours after Michigan certified its results, the federal General Services Administration announced the start of the official transition process. Later on Monday night, Trump tweeted that such steps were “in the best interest of our country”—probably the closest thing to a concession Biden will get.
Van Langevelde did his duty, and even the most powerful man in the world couldn’t stand in the way.
That’s been one of the silver linings to emerge from the unprecedented (at least in recent history) stress test of American democracy that was the 2020 election. The combination of Trump and the COVID-19 pandemic could have been a disaster, but the country avoided the worst-case scenarios in part because enough civic-minded people stepped up to the plate and put their partisan preferences aside.
In Georgia, for example, there was Republican Secretary of State Brad Raffensperger, who refused to give any oxygen to Trump’s claims of voter fraud. Raffensperger stood firm even as Trump attacked him personally and other prominent Republicans called for him to resign from his job because he was doing his job.
“After any election, half of the voters will be happy and the other half will be disappointed. But I wanted to make sure everyone felt confident in the process and confident in the outcome,” Raffensperger wrote in an op-ed published Wednesday by USA Today. “In times of uncertainty, when the integrity of our political system is most at risk, the integrity of our politicians is paramount.”
Without Van Langevelde and Raffensperger, Trump’s scheme probably would have failed anyway. His top legal team produced the Four Seasons Total Landscaping debacle and pushed a bunch of nutty conspiracy theories to “explain” how the election was “stolen” from Trump, but their myriad lawsuits were rejected by judge after judge.
With the courthouse strategy failing miserably, Trump’s only hope was a statehouse strategy—one that would have required Republican lawmakers and election officials in several states to reject their duties to the Constitution and substitute them with fealty to Trump by refusing to certify results. If the Michigan State Board of Canvassers had been unable to certify the state’s results—which would have happened if Van Langevelde had joined his fellow Republican in refusing to vote on Monday—then certification of the outcome would have fallen to the Republican-controlled state legislature. Blocking certifications in enough states to change the outcome of the race was never anything more than an extreme long shot, but Van Langevelde ensured it wouldn’t happen.
Still, the attempt to subvert the results of the election matter. The Republican officials who went along with the plot—including some of the highest-ranking Republicans in Michigan—ought to be ashamed and booted from their positions of authority. Republicans should root out anyone who has attempted to undermine the public’s trust in elections with the same fervor they apply to stopping voter fraud. The stakes are the same, and the threats to the system revealed by the 2020 election will not vanish on January 20.
America never got to the very edge of the precipice in the weeks after the 2020 election. But for a little while, the country was staggering in that direction. Thank the Van Langeveldes and Raffenspergers of the country for doing the right thing and steering the country away from the edge.
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From a brief filed by the California Attorney General’s office in Ogilvie v. Gordon, a case dealing with restrictions on personalized license plates (such as exclusions of “racially degrading term[s]”):
There are well-defined and narrowly-limited classes of speech, “the prevention and punishment of which have never been thought to raise any Constitutional problem.” Chaplinsky v. N.H., 315 U.S. 568, 571-572 (1942) (emphasizing that certain types of speech are protected by the First Amendment). Obscenity, vulgarity, profanity, hate speech, and fighting words fall outside the scope of the First Amendment’s protections. See Brunetti, 139 S. Ct. at 2303 (Roberts, C.J., concurring in part and dissenting in part) (forbidding registration of “obscene, vulgar, or profane marks does not offend the First Amendment”); Brown v. Entertainment Merchants Ass’n, 564 U.S. 786, 791 (2011) (listing instances where the First Amendment does not protect speech); R.A.V. v. City of St. Paul, 505 U.S. 377, 383, 393 (1992) (“fighting words,” defamation, and obscenities fall outside the First Amendment).
Actually, nothing in Chief Justice Roberts’ separate opinion in Brunetti, or the majority opinions in Brown and R.A.V., says or even suggests that “hate speech” is “outside the scope of the First Amendment’s protections.” Indeed, R.A.V. holds that selective bans on racist fighting words (as opposed to broader bans on all fighting words, racist or otherwise) are unconstitutional; and Justice Alito’s four-Justice opinion in Matal v. Tam, which Roberts joined and on which the Brunetti decision relied, expressly says:
[The idea that the government may restrict] speech expressing ideas that offend … strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.”
Justice Kennedy’s separate four-Justice opinion in Matal agreed with Alito and Roberts that restrictions on allegedly bigoted speech are unconstitutional. There and elsewhere, the Supreme Court has made clear that there is no “hate speech” exception to the First Amendment.
The California AG’s office is of course entitled to argue to the Supreme Court that it should recognize a new First Amendment exception, though I think the Court has been wise to reject this one. (Of course, if such an exception were recognized, then it means that speech could be outright criminalized, and not just excluded from personalized license plates, which is the question involved in the Ogilvie case.) But I can’t see how the office can just assert this claim as if it were indeed supported by the opinions that it cites.
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From the great torts scholar William Prosser, writing in 1953:
The realm of the conflict of laws is a dismal swamp, filled with quaking quagmires, and inhabited by learned but eccentric professors who theorize about mysterious matters in a strange and incomprehensible jargon.
I think things have improved, at least in this narrow area, since then, but I still like the quote. My searching to confirm the source, by the way, led me to this other quote, from the Kentucky Bar Journal in 1942 (writing about the word “quisling”):
Q … (with one august exception) has long seemed to the British mind to be a crooked, uncertain and slightly disreputable letter, suggestive of the questionable, the querulous, the quavering of quaking quagmires and quivering quicksands, of quibbles and quarrels, of queasiness, quackery, qualms, and Quilp …
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From a brief filed by the California Attorney General’s office in Ogilvie v. Gordon, a case dealing with restrictions on personalized license plates (such as exclusions of “racially degrading term[s]”):
There are well-defined and narrowly-limited classes of speech, “the prevention and punishment of which have never been thought to raise any Constitutional problem.” Chaplinsky v. N.H., 315 U.S. 568, 571-572 (1942) (emphasizing that certain types of speech are protected by the First Amendment). Obscenity, vulgarity, profanity, hate speech, and fighting words fall outside the scope of the First Amendment’s protections. See Brunetti, 139 S. Ct. at 2303 (Roberts, C.J., concurring in part and dissenting in part) (forbidding registration of “obscene, vulgar, or profane marks does not offend the First Amendment”); Brown v. Entertainment Merchants Ass’n, 564 U.S. 786, 791 (2011) (listing instances where the First Amendment does not protect speech); R.A.V. v. City of St. Paul, 505 U.S. 377, 383, 393 (1992) (“fighting words,” defamation, and obscenities fall outside the First Amendment).
Actually, nothing in Chief Justice Roberts’ separate opinion in Brunetti, or the majority opinions in Brown and R.A.V., says or even suggests that “hate speech” is “outside the scope of the First Amendment’s protections.” Indeed, R.A.V. holds that selective bans on racist fighting words (as opposed to broader bans on all fighting words, racist or otherwise) are unconstitutional; and Justice Alito’s four-Justice opinion in Matal v. Tam, which Roberts joined and on which the Brunetti decision relied, expressly says:
[The idea that the government may restrict] speech expressing ideas that offend … strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.”
Justice Kennedy’s separate four-Justice opinion in Matal agreed with Alito and Roberts that restrictions on allegedly bigoted speech are unconstitutional. There and elsewhere, the Supreme Court has made clear that there is no “hate speech” exception to the First Amendment.
The California AG’s office is of course entitled to argue to the Supreme Court that it should recognize a new First Amendment exception, though I think the Court has been wise to reject this one. (Of course, if such an exception were recognized, then it means that speech could be outright criminalized, and not just excluded from personalized license plates, which is the question involved in the Ogilvie case.) But I can’t see how the office can just assert this claim as if it were indeed supported by the opinions that it cites.
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From the great torts scholar William Prosser, writing in 1953:
The realm of the conflict of laws is a dismal swamp, filled with quaking quagmires, and inhabited by learned but eccentric professors who theorize about mysterious matters in a strange and incomprehensible jargon.
I think things have improved, at least in this narrow area, since then, but I still like the quote. My searching to confirm the source, by the way, led me to this other quote, from the Kentucky Bar Journal in 1942 (writing about the word “quisling”):
Q … (with one august exception) has long seemed to the British mind to be a crooked, uncertain and slightly disreputable letter, suggestive of the questionable, the querulous, the quavering of quaking quagmires and quivering quicksands, of quibbles and quarrels, of queasiness, quackery, qualms, and Quilp …
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California allows drivers to select their own personalized license plates (not the designs, but the actual seven-letter/digit code); but Cal. Admin. Code § 206.00(c)(7)(D) imposes some limits:
The department shall refuse any configuration that may carry connotations offensive to good taste and decency, or which would be misleading, based on criteria which includes, but is not limited to, the following:
The configuration has a sexual connotation or is a term of lust or depravity.
The configuration is a vulgar term; a term of contempt, prejudice, or hostility; an insulting or degrading term; a racially degrading term; or an ethnically degrading term.
The configuration is a swear word or term considered profane, obscene, or repulsive.
The configuration has a negative connotation to a specific group.
The configuration misrepresents a law enforcement entity.
The configuration has been deleted from regular series license plates.
The configuration is a foreign or slang word or term, or is a phonetic spelling or mirror image of a word or term falling into the categories described in subdivisions 1. through 6. above.
Earlier this year, Judge Jon S. Tigar held that this program provided a space for the drivers’ own speech, rather than (as with the license plate designs in Walker v. Sons of Confederate Veterans (2015)) for the government’s speech. This means that any restrictions on such private speech had to be viewpoint-neutral and reasonable; and yesterday, in Ogilvie v. Gordon, he held that these restrictions were unconstitutional:
First, the Court holds that California’s prohibition on personalized license plate configurations “that may carry connotations offensive to good taste and decency” constitutes viewpoint discrimination under Matal v. Tam (2017) and Iancu v. Brunetti (2019). Kohli, who identifies as gay and established “Queer Folk Records” and the music label “Queer Folk”—which is trademarked by the United States Patent and Trademark Office—describes his “effort to reclaim the word ‘Queer'” in a manner that mirrors Tam’s efforts to “drain [‘slants’ of] its denigrating force.” The DMV’s determination that “QUEER” “may be considered insulting, degrading, or expressing contempt for a specific group or person,” and thus “may be considered offensive,” reflects both the assessment of a viewpoint—an assessment that may or may not be correct, depending on the context—and the regulation’s effect of “disfavoring ‘ideas that offend.'” This is “discriminat[ion] against speech based on the ideas or opinions it conveys.”
Section 206.00(c)(7)(D)’s focus on “good taste and decency” likewise sets up a facial distinction between societally favored and disfavored ideas. As an example of how the Lanham Act’s “immoral or scandalous” bar constituted viewpoint-based discrimination, Brunetti emphasized that “[l]ove rules” would be an acceptable mark, whereas “[h]ate rules” would not. The DMV’s Environmental License Plates Review Procedures similarly lists “Hate” and “H8” as configurations that should be denied, ECF No. 48 at 24, but approves configurations that incorporate versions of the word “love.” Compare ECF No. 41-23 at 9 (denying the configuration “GO AHDH8,” which the applicant explained meant “go ahead hate”) with id. at 8 (approving the plate “BLUVED,” which the applicant translated as “beloved”)….
Second, the Court rejects Gordon’s contention that the “connotations offensive to good taste and decency” phrase is a “preamble” that is “defined with specificity in seven subparts.” The plain text of Section 206.00(c)(7)(D) clarifies that the subparts do not define “offensive to good taste and decency.” The regulation states that the DMV “shall refuse any configuration that may carry connotations offensive to good taste and decency, or which would be misleading, based on criteria which include[], but [are] not limited to” the more specific subparts.
In addition, the DMV denial codes instruct reviewers to deny categories of speech that are not enumerated in the subparts. Configurations that the DMV has decided “may carry connotations offensive to good taste and decency,” include those that contain a “reference to drugs,” a reference “to guns, weaponry, shooting, or an instrument normally used to inflict harm,” or “a number, color, phrase, or code commonly used to represent gang affiliation.” Such categories of speech are not delineated in Section 206.00(c)(7)(D)’s subparts.
Finally, … the subparts are themselves likely viewpoint-based. The Court need not examine the individual subparts in depth, but notes that each of the four relevant subparts employs language that either echoes the “immoral” language in Brunetti, or “disfavor[s] ‘ideas that offend,'” like the disparagement clause in Tam. The Court finds the following words and phrase to be examples of such language: “depravity,” “repulsive,” “degrading,” and having a “negative connotation to specific group.” See also Matwyuk v. Johnson (W.D. Mich. 2014) (holding that a state’s internal guidelines for a statute banning personalized license plates that were “offensive to good taste and decency” “[did] not alleviate the potential for viewpoint discrimination” because precluding combinations “that negatively portray a given racial, religious, ethnic, or socioeconomic group, including persons of a particular gender or sexual orientation, explicitly sanction[s] viewpoint discrimination.”).
Of course, not regulating for taste means allowing speech that many—including this Court—might find in poor taste or even offensive. But “[y]ou can’t say you’re going to ban something in the name of good taste, because then you have directed someone to play the role of good-taste police.” And as the Supreme Court “ha[s] said time and again,” “‘the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.'”
Judge Tigar went on to say that the regulation was also not a “reasonable” restriction because “it fails to provide an ‘objective, workable standard[]’ and so is not ‘capable of reasoned application'”:
In Minnesota Voters Alliance v. Mansky (2018), the Supreme Court held that a Minnesota statute prohibiting wearing political insignia inside a polling place on election day was facially unconstitutional because the state failed “to articulate some sensible basis for distinguishing what may come in from what may stay out” and so the statute was not “capable of reasoned application.” The Supreme Court determined that the statute was an unreasonable restriction on expression because its enforcement would “turn in significant part on the background knowledge and media consumption of the particular election judge applying it.”
Section 206.00(c)(7)(D) presents a similar problem. Because there is no objective, workable standard of what is “offensive to good taste and decency,” different reviewers can reach opposing conclusions on whether a certain configuration should be rejected based on their judgment of what might be “offensive” or not in “good taste.” …
[T]he record does not support Gordon’s argument that the review process employed by the DMV “ensure[s] consistency.” The record reflects that even the DMV’s denial codes and the Environmental License Plates Review Procedures’ list of combinations that ought to be denied are not uniformly followed. For example, the current denial codes explain that “the number 69 is restricted to use on 1969 model vehicles only.” In keeping with this policy, the license plate 1969Z was issued for a 1969 Camaro Z28, and the following plates were denied: 65VET69 (which the applicant explained was meant to represent “veteran from 1966 to 1969”); and 698 (which the applicant explained was to stand for June 1998). However, three other license plate configurations were denied despite the applicants explaining that 69 was the year each vehicle was made. Id. (69LUIE); ECF No. 41-23 at 4 (F9 69); id. at 8 (69MXNVW). And the license plate “SEPT369” was issued to an applicant who explained that it was his/her birthday. Finally, 69 LUV N—arguably the configuration most likely to be interpreted as a sexual reference—was accepted because the applicant described the meaning as “loving my 69 GMC.” The Court therefore finds that even the straightforward ban on the number 69 has been arbitrarily applied.
Unsurprisingly, other configurations identified by the DMV as “offensive to good taste and decency” have also been treated inconsistently. The Environmental License Plates Review Procedures, for example, include “AF” as a reason to deny a configuration because it is recognized as an acronym for “as fuck,” and so considered to be “profanity/repulsive.” However, reviewers have recognized that “AF” also stands for “Air Force.” The result of these conflicting interpretations is that some license plate configurations that include “AF” have been accepted, while others have been rejected.
The configuration AAFP51 was denied even though the applicant explained that the configuration was an “aviation reference,” whereas 1USAF, AF81170, and AF91 were all approved, presumably because the reviewer decided “AF” was referencing the Air Force, In addition, Plaintiffs point to other instances of inconsistent applications of Section 206.00(c)(7)(D), including: the approval of SPAAAZ, but the rejection of RSPAZ; the approval of DUK N GO, but the rejection of DUK N A,; and the approval of FN RIDE, but the rejection of FNN LEXS. Finally, although Ogilvie was denied the configuration OGWOOLF, the DMV approved the configuration OG 69LRK for a 1969 Buick after flagging it for containing “OG.”
In response to this inconsistency, Gordon explains that because “[l]anguage evolves and certain terms change in meaning,” “‘OG’ may be approved in 2020 depending on the context.” But Gordon offers no insight into who determines when language has sufficiently “evolved” so that a word or phrase is no longer “offensive to good taste and decency,” or how that determination is made.
The fact that initial reviewers are reversed on appeal “approximately 65 to 75 percent of the time,” supports the Court’s conclusion that the DMV’s “haphazard interpretations” of Section 206.00(c)(7)(D) apparent in the record are not anomalous. The Court therefore concludes that the DMV has failed “to articulate [a] sensible basis for distinguishing what may come in from what must stay out,” and holds Section 206.00(c)(7)(D) to be unreasonable.
The court left open the possibility that the DMV could impose viewpoint-neutral bans, for instance on “profanity” (likely meaning vulgarities rather than “profanity” in the religious sense); Matal v. Tam and Iancu v. Brunetti itself left open that possibility as to the trademark registration program involved in those cases. But, “[o]nce [a court has] found that [Section 206.00(c)(7)(D)] ‘aim[s] at the suppression of’ views,” it no longer “matter[s] that [the DMV] could have captured some of the same speech through a viewpoint-neutral [regulation].”
Congratulations to my friends at the Pacific Legal Foundation, Joshua Thompson and Wencong Fa, who represented the First Amendment claimants here.
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California allows drivers to select their own personalized license plates (not the designs, but the actual seven-letter/digit code); but Cal. Admin. Code § 206.00(c)(7)(D) imposes some limits:
The department shall refuse any configuration that may carry connotations offensive to good taste and decency, or which would be misleading, based on criteria which includes, but is not limited to, the following:
The configuration has a sexual connotation or is a term of lust or depravity.
The configuration is a vulgar term; a term of contempt, prejudice, or hostility; an insulting or degrading term; a racially degrading term; or an ethnically degrading term.
The configuration is a swear word or term considered profane, obscene, or repulsive.
The configuration has a negative connotation to a specific group.
The configuration misrepresents a law enforcement entity.
The configuration has been deleted from regular series license plates.
The configuration is a foreign or slang word or term, or is a phonetic spelling or mirror image of a word or term falling into the categories described in subdivisions 1. through 6. above.
Earlier this year, Judge Jon S. Tigar held that this program provided a space for the drivers’ own speech, rather than (as with the license plate designs in Walker v. Sons of Confederate Veterans (2015)) for the government’s speech. This means that any restrictions on such private speech had to be viewpoint-neutral and reasonable; and yesterday, in Ogilvie v. Gordon, he held that these restrictions were unconstitutional:
First, the Court holds that California’s prohibition on personalized license plate configurations “that may carry connotations offensive to good taste and decency” constitutes viewpoint discrimination under Matal v. Tam (2017) and Iancu v. Brunetti (2019). Kohli, who identifies as gay and established “Queer Folk Records” and the music label “Queer Folk”—which is trademarked by the United States Patent and Trademark Office—describes his “effort to reclaim the word ‘Queer'” in a manner that mirrors Tam’s efforts to “drain [‘slants’ of] its denigrating force.” The DMV’s determination that “QUEER” “may be considered insulting, degrading, or expressing contempt for a specific group or person,” and thus “may be considered offensive,” reflects both the assessment of a viewpoint—an assessment that may or may not be correct, depending on the context—and the regulation’s effect of “disfavoring ‘ideas that offend.'” This is “discriminat[ion] against speech based on the ideas or opinions it conveys.”
Section 206.00(c)(7)(D)’s focus on “good taste and decency” likewise sets up a facial distinction between societally favored and disfavored ideas. As an example of how the Lanham Act’s “immoral or scandalous” bar constituted viewpoint-based discrimination, Brunetti emphasized that “[l]ove rules” would be an acceptable mark, whereas “[h]ate rules” would not. The DMV’s Environmental License Plates Review Procedures similarly lists “Hate” and “H8” as configurations that should be denied, ECF No. 48 at 24, but approves configurations that incorporate versions of the word “love.” Compare ECF No. 41-23 at 9 (denying the configuration “GO AHDH8,” which the applicant explained meant “go ahead hate”) with id. at 8 (approving the plate “BLUVED,” which the applicant translated as “beloved”)….
Second, the Court rejects Gordon’s contention that the “connotations offensive to good taste and decency” phrase is a “preamble” that is “defined with specificity in seven subparts.” The plain text of Section 206.00(c)(7)(D) clarifies that the subparts do not define “offensive to good taste and decency.” The regulation states that the DMV “shall refuse any configuration that may carry connotations offensive to good taste and decency, or which would be misleading, based on criteria which include[], but [are] not limited to” the more specific subparts.
In addition, the DMV denial codes instruct reviewers to deny categories of speech that are not enumerated in the subparts. Configurations that the DMV has decided “may carry connotations offensive to good taste and decency,” include those that contain a “reference to drugs,” a reference “to guns, weaponry, shooting, or an instrument normally used to inflict harm,” or “a number, color, phrase, or code commonly used to represent gang affiliation.” Such categories of speech are not delineated in Section 206.00(c)(7)(D)’s subparts.
Finally, … the subparts are themselves likely viewpoint-based. The Court need not examine the individual subparts in depth, but notes that each of the four relevant subparts employs language that either echoes the “immoral” language in Brunetti, or “disfavor[s] ‘ideas that offend,'” like the disparagement clause in Tam. The Court finds the following words and phrase to be examples of such language: “depravity,” “repulsive,” “degrading,” and having a “negative connotation to specific group.” See also Matwyuk v. Johnson (W.D. Mich. 2014) (holding that a state’s internal guidelines for a statute banning personalized license plates that were “offensive to good taste and decency” “[did] not alleviate the potential for viewpoint discrimination” because precluding combinations “that negatively portray a given racial, religious, ethnic, or socioeconomic group, including persons of a particular gender or sexual orientation, explicitly sanction[s] viewpoint discrimination.”).
Of course, not regulating for taste means allowing speech that many—including this Court—might find in poor taste or even offensive. But “[y]ou can’t say you’re going to ban something in the name of good taste, because then you have directed someone to play the role of good-taste police.” And as the Supreme Court “ha[s] said time and again,” “‘the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.'”
Judge Tigar went on to say that the regulation was also not a “reasonable” restriction because “it fails to provide an ‘objective, workable standard[]’ and so is not ‘capable of reasoned application'”:
In Minnesota Voters Alliance v. Mansky (2018), the Supreme Court held that a Minnesota statute prohibiting wearing political insignia inside a polling place on election day was facially unconstitutional because the state failed “to articulate some sensible basis for distinguishing what may come in from what may stay out” and so the statute was not “capable of reasoned application.” The Supreme Court determined that the statute was an unreasonable restriction on expression because its enforcement would “turn in significant part on the background knowledge and media consumption of the particular election judge applying it.”
Section 206.00(c)(7)(D) presents a similar problem. Because there is no objective, workable standard of what is “offensive to good taste and decency,” different reviewers can reach opposing conclusions on whether a certain configuration should be rejected based on their judgment of what might be “offensive” or not in “good taste.” …
[T]he record does not support Gordon’s argument that the review process employed by the DMV “ensure[s] consistency.” The record reflects that even the DMV’s denial codes and the Environmental License Plates Review Procedures’ list of combinations that ought to be denied are not uniformly followed. For example, the current denial codes explain that “the number 69 is restricted to use on 1969 model vehicles only.” In keeping with this policy, the license plate 1969Z was issued for a 1969 Camaro Z28, and the following plates were denied: 65VET69 (which the applicant explained was meant to represent “veteran from 1966 to 1969”); and 698 (which the applicant explained was to stand for June 1998). However, three other license plate configurations were denied despite the applicants explaining that 69 was the year each vehicle was made. Id. (69LUIE); ECF No. 41-23 at 4 (F9 69); id. at 8 (69MXNVW). And the license plate “SEPT369” was issued to an applicant who explained that it was his/her birthday. Finally, 69 LUV N—arguably the configuration most likely to be interpreted as a sexual reference—was accepted because the applicant described the meaning as “loving my 69 GMC.” The Court therefore finds that even the straightforward ban on the number 69 has been arbitrarily applied.
Unsurprisingly, other configurations identified by the DMV as “offensive to good taste and decency” have also been treated inconsistently. The Environmental License Plates Review Procedures, for example, include “AF” as a reason to deny a configuration because it is recognized as an acronym for “as fuck,” and so considered to be “profanity/repulsive.” However, reviewers have recognized that “AF” also stands for “Air Force.” The result of these conflicting interpretations is that some license plate configurations that include “AF” have been accepted, while others have been rejected.
The configuration AAFP51 was denied even though the applicant explained that the configuration was an “aviation reference,” whereas 1USAF, AF81170, and AF91 were all approved, presumably because the reviewer decided “AF” was referencing the Air Force, In addition, Plaintiffs point to other instances of inconsistent applications of Section 206.00(c)(7)(D), including: the approval of SPAAAZ, but the rejection of RSPAZ; the approval of DUK N GO, but the rejection of DUK N A,; and the approval of FN RIDE, but the rejection of FNN LEXS. Finally, although Ogilvie was denied the configuration OGWOOLF, the DMV approved the configuration OG 69LRK for a 1969 Buick after flagging it for containing “OG.”
In response to this inconsistency, Gordon explains that because “[l]anguage evolves and certain terms change in meaning,” “‘OG’ may be approved in 2020 depending on the context.” But Gordon offers no insight into who determines when language has sufficiently “evolved” so that a word or phrase is no longer “offensive to good taste and decency,” or how that determination is made.
The fact that initial reviewers are reversed on appeal “approximately 65 to 75 percent of the time,” supports the Court’s conclusion that the DMV’s “haphazard interpretations” of Section 206.00(c)(7)(D) apparent in the record are not anomalous. The Court therefore concludes that the DMV has failed “to articulate [a] sensible basis for distinguishing what may come in from what must stay out,” and holds Section 206.00(c)(7)(D) to be unreasonable.
The court left open the possibility that the DMV could impose viewpoint-neutral bans, for instance on “profanity” (likely meaning vulgarities rather than “profanity” in the religious sense); Matal v. Tam and Iancu v. Brunetti itself left open that possibility as to the trademark registration program involved in those cases. But, “[o]nce [a court has] found that [Section 206.00(c)(7)(D)] ‘aim[s] at the suppression of’ views,” it no longer “matter[s] that [the DMV] could have captured some of the same speech through a viewpoint-neutral [regulation].”
Congratulations to my friends at the Pacific Legal Foundation, Joshua Thompson and Wencong Fa, who represented the First Amendment claimants here.
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