DOVER, Del. (AP) — A federal judge on Monday refused to dismiss a lawsuit filed against Delaware government officials who recalled a vanity license plate issued to a breast cancer survivor because of what the state transportation secretary described as a “perceived profanity.”
The judge said in a ruling that the lawsuit by Kari Lynn Overington of Milton raises a “significant constitutional issue.”
“I am ready for my day in court,” Overington, 41, said in a brief phone interview.
In December 2020, Overington applied for a vanity license plate reading “FCANCER” and received it two months later.
In June 2021, she received a letter from the manager of the Division of Motor Vehicles office in Dover telling her that the plate “does not represent the division and the state in a positive manner.” DMV manager Levi Fisher wrote that any plate considered offensive will be denied or recalled, if issued in error.
Overington responded by emailing state Transportation Secretary Nicole Majeski and asking for her help. She argued that the average person would not consider her vanity tag to be obscene. She also said court rulings in other states suggest that First Amendment rights apply to vanity tags, and that any regulations must be “viewpoint neutral.”
“My vanity plate receives positive feedback everywhere I go, and I have had more than a few deep conversations with complete strangers about my cancer and how cancer has touched their lives because of it,” Overington wrote. “The community of cancer warriors, cancer survivors, and those who love them is far reaching and very supportive.”
Majeski stood by the decision to recall the vanity plate, saying officials must ensure that they are not approving license tags that contain “obscenity, vulgarity, profanity, hate speech or fighting words.”
“Your vanity plate FCANCER contains a perceived profanity, the abbreviation for the word “F(asterisk)@k”, and for that reason, it must be recalled,” Majeski wrote, apologizing for the oversight by DMV staff in initially approving the plate.
Overington then asked DOT officials to seek input from Gov. John Carney.
“In other states the governor has gotten involved in these cases and the person was able to keep their vanity tags,” she wrote. “I’d be disappointed if Governor Carney was not willing to at least consider stepping in, especially given his work with the Delaware Cancer Consortium and his connection to Beau Biden and the entire Biden family.”
Beau Biden, a former Delaware attorney general and the eldest son of President Joe Biden Jr., died of brain cancer in 2015.
Overington noted in a later email that there are plenty of other “F” words in the English language, including “freedom” and that her license tag did not actually spell the word about which DMV officials were concerned. She also pointed out that the DMV itself has used implied profanity on electronic signs advising motorists to drive safely. Those messages include “Get your head out of your Apps” and “Oh Cell No.”
DMV Director Jana Simpler stood fast, however, insisting that Overington could no longer display the vanity tag.
Overington responded by filing a lawsuit last year, claiming that the state officials had violated her First Amendment rights by imposing content-based and viewpoint-based restrictions on her speech.
State officials sought to dismiss the complaint, arguing that it failed to state a a proper claim and that the defendants — Fisher, Simpler and Majeski — have qualified immunity against claims raised against them in their individual capacities.
“This lawsuit is one of those instances where an individual seeks to push the boundaries of what DMV will permit to be displayed on a vanity license plate, to allow the display of profanity,” an attorney for the state wrote.
Judge Richard Andrews denied the dismissal motion and granted a motion by Overington to amend her complaint to clarify that the defendants were being sued in their official, not individual, capacities.
Citing a 1988 U.S. Supreme Court ruling, Andrews wrote that challenges to laws that burden free expression are permitted when a licensing statute places “unbridled discretion in the hands of a government official.”
Andrews also noted that, while Overington has represented herself well without a lawyer, the constitutional issue in dispute should be decided through a process that includes lawyers on both sides. He said he would ask the court clerk whether an attorney could be obtained as a “friend of the court” supporting Overington’s position.
A spokesman for the Department of Transportation did not immediately respond to an email seeking comment.