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Inconsistent decisions spark vanity plate debate in South Dakota

Some are concerned a potential double standard is being enforced when it comes to South Dakota vanity plate policy – leading to a formal letter from the state American Civil Liberties Union chapter.

ACLU staff attorney Andrew Malone said this is a question with first amendment implications.

“There’s certainly some ways the government can impose some restrictions on when and where people can exercise their free speech rights – but really one of the key things of the first amendment is that any prohibition on free speech needs to be applied in an objective, consistent, and neutral manner,” Malone said.

Malone argued vanity plates are a manner of self-expression, like a bumper sticker. The base of his criticism questions if the state is evenly applying its own standards.

“The state is denying some people the ability to express themselves using this ‘offensive to good taste and decency’ standard – and that standard is so vague and broad its practically meaningless," Malone said. "I mean, whose good taste? Whose decency? All this ends up doing is give state employees complete discretion to decide what messages and viewpoints to approve or deny.”

The ACLU noted two examples they said shows a lack of consistency: The DMV denied plates like ‘HLDMYBR’ and ‘BEERMOM’ while approving ‘BEERRUN’ and ‘BEERMAN.’

The ACLU has requested vanity plates rejected in the last year be reassessed. State Attorney General Marty Jackley said his office is deferring on the subject.

“My role as Attorney General is to defend any position the Department of Revenue ultimately takes," Jackley said. "It’s too early to say what position they’ll take at this time. I don’t foresee my office having further involvement unless the matter were to go to litigation.”

In a prior decision, the 8th Circuit Court of Appeals ruled vanity plates to be a legitimate forum for personal or political expression.

C.J. Keene is a Rapid City-based journalist covering the legal system, education, and culture