The American Civil Liberties Union of South Dakota filed a lawsuit in the U.S. District Court for the Southern District of South Dakota on Friday, November 3, 2023, challenging South Dakota’s personalized license plate law.
South Dakota resident Lyndon Hart runs a business called Rez Weed Indeed, which “‘support[s] and promote[s] the legal selling and use of Medical and Recreational Marijuana on all Federally recognized Indian reservations. . . in America’ as a way of ‘respecting and honoring and supporting out Tribal Sovereignty lands.'” Rez Weed Indeed does not sell any marijuana products. Hart, who is Indigenous and Black, is an enrolled Tribal Member of the Yankton Sioux Tribe. In the past, Hart has advocated in favor of legislation making Tribal IDs a valid form of identification, spoken at events around the country, and has been inducted into the National Western Multicultural Museum Hall of Fame. Hart also formerly served in the U.S. Marine Corps.
On May 31, 2022, Hart applied for a personal vanity license plate reading “REZWEED” to raise awareness of his business and its message of tribal sovereignty. The South Dakota Department of Revenue Motor Vehicle Division denied Hart’s application for the vanity plate for being “in poor taste” per S.D.C.L. § 32-5-89.2. Although Hart was eventually granted the vanity plate with assistance from the ACLU of South Dakota, there is a chance the plate may be recalled if it is found to carry “connotations offensive to good taste and decency.”
The complaint filed by the ACLU alleges that S.D.C.L. § 32-5-89.2 “contains a content-based and viewpoint-based restriction that grants Secretary [of the South Dakota Department of Revenue Michael] Houdyshell the discretion to ‘refuse to issue any letter combination which carries connotations offensive to good taste and decency.'” The complaint states that this standard is not defined by the statute. “Due to the ambiguity and unfettered discretion in the personalized plate statute. . ., an applicant for a personalized license plate cannot determine what the standard is and whether his requested message meets that standard.” Further, someone with a vanity plate “is at constant risk of having his speech censored at any time at the whim of the government due to the lack of any limitation on the time a plate may be recalled or not renewed. . . These statutes afford the state limitless authority both in the content and amount of time to censor free speech.”
South Dakota Senate Bill 20 was brought in 2008 in an attempt to repeal the statute in question. The bill was sponsored by the Committee on Transportation at the request of the Department of Revenue. The South Dakota legislature, however, chose not to repeal the law. “[T]he statute continues to garner substantial state revenue of approximately $250,000 annually or more.” In 2015, the Department of Revenue enacted Policy #MV118 in an attempt “[t]o clarify the approval process for personalized plates and the allowable messages.” The policy was revised in September 2023. The complaint alleges that this policy censors free speech more than S.D.C.L. § 32-5-89.2. Since September 2019, at least 12 personalized vanity plates that had previously been issued have been recalled.
The complaint cites multiple instances where applications for certain vanity plates were rejected as being offensive to good taste and decency but other similar applications for vanity plates were approved. For example, applications for “HELLBOY,” “RZNHELL,” and “HELLHRS” were denied while applications for “HELLBNT,” “HELLBRD,” and “HELLCAT” were approved. Further, an application for “MAFIA” was denied but applications for “MOBBIN,” “GANGSTA,” and “GANGSTR” were approved. An application for “CBD OIL” was rejected but an application for “CBD4ALL” was approved.
The complaint claims (1) a First Amendment facial challenge based on content and viewpoint discrimination; (2) a Fourteenth Amendment facial challenge based on void for vagueness; (3) a First Amendment facial challenge based on the overbreadth doctrine; (4) a First Amendment as applied challenge based on content and viewpoint discrimination; and (5) a Fourteenth Amendment as applied challenge based on void for vagueness. The complaint seeks relief in the form of declaratory judgments, preliminary and permanent injunctions, compensatory and nominal damages, and attorneys’ fees.
Additional Reading
ACLU sues South Dakota over its vanity plate restrictions, The Associated Press (November 6, 2023)
ACLU of South Dakota Files Constitutional Challenge to South Dakota’s Vanity Plate Law, ACLU of South Dakota (November 6, 2023)
Hart v. Houdyshell et al (Case No. 3:2023cv03030)
Complaint in Hart v. Houdyshell et al
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