M J Nichols Company, Inc. et al v. Thompson, Craig

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
M J NICHOLS COMPANY, INC.,
and MICHAEL J. NICHOLS,
Plaintiffs,
v.
CRAIG THOMPSON, in his
Official Capacity as Secretary of the
Wisconsin Department of
Transportation,
Defendant.
OPINION and ORDER
24-cv-566-amb
Plaintiff Michael J. Nichols is a Wisconsin resident and self-described car enthusiast
who, through his plaintiff company, has acquired many vehicles over the years. Nichols has a
long history of expressing himself through personalized vehicle registration plates, also known
as vanity license plates, which the Wisconsin Department of Transportation makes available
through an application and review process. In 2019, plaintiffs’ application for a plate reading
“RD RRAGE” was denied and placed on a list of objectionable proposed plates that the
Department maintains. Wisconsin’s statutory scheme permits the Department to deny
proposed personalized plate text that “may carry connotations offensive to good taste or
decency, or which would be misleading, or in conflict with the issuance of any other registration
plates.” Wis. Stat. § 341.145(7). After their “RD RRAGE” application was denied, plaintiffs
sued defendant Craig Thompson, Secretary of the Wisconsin Department of Transportation,
alleging that this statutory language facially violates the Free Speech clause of the First
Amendment by permitting viewpoint discrimination.
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The parties have filed cross motions for summary judgment and have fully briefed the
issue. For the reasons below, the court finds that the text forming the registration numbers of
Wisconsin’s personalized registration plates is government speech. Consequently, the court
GRANTS defendant’s motion and DENIES plaintiffs’.
JURISDICTION
The parties have consented to jurisdiction by a United States Magistrate Judge.
Dkt. 10. The court has original jurisdiction over plaintiffs’ claim because it arises under the
Constitution of the United States. 28 U.S.C. § 1331.
FACTUAL FINDINGS1
A. Wisconsin’s license plates
Wisconsin drivers must register their motor vehicles with the state before operating
them on Wisconsin’s public highways. Wis. Stat. § 341.04(1)(am). Once a vehicle is
successfully registered, the Department of Motor Vehicles (“the Department”) issues two
registration plates, commonly referred to as license plates, which must be displayed and visible
when the car is operated on public roads. Id. at §§ 341.12(1) & 341.15. By default, Wisconsin
license plates bear a random combination of six letters and numbers that comprise the
1 The only dispute the parties raised in their proposed findings of fact was to defendant’s
reference to the language of certain Wisconsin statutes, which plaintiffs challenged as legal
conclusions, not facts. See, e.g., Dkt. 28 at 4. Defendant replied that the law speaks for itself
and is undisputed. Id. These objections and replies are noted but do not affect the court’s
factual findings, analysis, or resolution.
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registration number assigned to the vehicle. Id. at § 341.12(3)(a). There were 6,296,450
registered vehicles in Wisconsin in 2024. Dkt. 20-1 at 93.
In 1905, Wisconsin began issuing plates that were good for the life of the vehicle.
Dkt. 26-6 at 2. Starting in 1909, vehicles were required to re-register every year. Id.
Beginning in the 1910s, license plates bore either a “W” or “Wis.” to link them to the State of
Wisconsin. Id. at 2–3. In 1932, the word “WISCONSIN” first appeared, id. at 5, and in 1940,
“AMERICA’S DAIRYLAND” was added, id. at 6. In 1946, plates were printed with a number
representing the month the plate expired. Id. at 7.
Today, Wisconsin plates continue to bear “AMERICA’S DAIRYLAND” in addition
graphics of a red barn, trees, a sailboat, and birds, which symbolize Wisconsin’s agriculture
industry, woodlands, popular recreation, and wildlife, respectively. Id. at 9. Wisconsin plates
may also include specific letters to convey certain information, such as “F” for farm vehicles,
“B” for buses, and “RV” for recreational vehicle trailers. Id.; see also Dkt. 26-1.
B. Current personalized plate program
Since 1979, Wisconsin law has permitted residents to apply for personalized
registration plates. Wis. Stat. § 431.145. Under the current statutory scheme, vehicle owners
may propose a combination of between one and seven alphanumeric characters of their
choosing to be that vehicle’s registration number, which is displayed on their license plate in
lieu of the default random combination of six characters. Id. The statute states that the
requested plates shall be issued only if the application and fees are submitted timely and the
proposed combination of characters has not already been issued. Id.
The statute also permits the Department to refuse to issue any proposed plate with a
combination of characters that “may carry connotations offensive to good taste or decency, or
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which would be misleading, or in conflict with the issuance of any other registration plates.”
Id. at § 341.145(7). The Department has guidelines listing criteria it may consider
objectionable:
1. Profanity in any language, read forward, backwards or upside down.
2. Message denoting violence directed toward someone or something.
3. Sexual terms/acts/body parts/sexually related bodily functions or fluids.
4. Derogatory reference to a group or individual based on age, race, nationality,
ethnicity, gender, or religion or a group that promotes racial superiority:
a. White Supremacist/Nazi references. (For example, the numbers 14
and 88 when used together, the letters SS with other German word
or war references).
b. Racial or ethnic slur
5. Reference to illegal substances or criminal acts/organizations:
a. Reference to Gangs, marijuana
6. Identifying as law enforcement or other government organization:
a. P0LICE, BADC0P
7. Messages may not be difficult to distinguish:
a. MWMWMWM
b. XKKXXKX
c. B8B8B8B
d. XYXYXYX
e. 888888U
8. Messages may not conflict with the issuance of any other registration plates.
Dkt. 26-4. The Department’s decision whether to issue a personalized plate is final and not
subject to judicial review. Wis. Stat. § 341.145(7). Additionally, the Department may cancel
and order the return of any personalized plate that the Department retrospectively deems in
conflict with their guidelines. Id. at § 341.145(8).
To apply for a personalized plate, applicants complete and submit a form issued by the
Department and pay the requisite fees. Dkt. 26-2. A trained Department staff member reviews
the application and determines whether the proposed text is objectionable under the
Department’s guidelines. Dkt. 26 at 3. If the proposed text is deemed not objectionable and
the other registration requirements are met, the staff member processes the application and
issues the plates. Id. at 4.
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If the proposed text is deemed objectionable, the staff member puts a hold on the
application and fills out a form email with information about the requested plate. Id. The
completed email is sent to a team of Department employees from the Department’s Title and
Registration Processing Section (“TARPS”), which reviews potentially objectional text and
determines whether it meets the Department’s criteria for issuance. Id. Relying on internal
guidelines, the TARPS team votes on whether to approve the requested plate. Id. at 4–5. If
the TARPS team votes to deny a plate, the plate is not issued, and the proposed text is added
to a list that the TARPS team maintains. Id. at 5. The TARPS Section Chief or a higher-
ranking Department manager can review the TARPS team’s decision to deny the plate upon a
written customer complaint or an internal request for review. Id.
In Wisconsin in 2024, there were 6,296,450 registered vehicles, 239,413 issued
personalized plates, and 29,496 personalized plate applications. Dkt. 20-1 at 84–85, 93. Of
the 29,496 applications, 1,166 were flagged for additional review and 694 were ultimately
denied. Dkt. 26 at ¶¶ 38 & 39.
C. The Department’s denial of plaintiffs’ application
Plaintiff Nichols is a self-described car enthusiast who, through his plaintiff company
M J Nichols Company, Inc., owns several vehicles. Dkt. 19 at 2. Nichols has a long history of
obtaining personalized plates for every vehicle he owns, which he uses to express his personality
and make political statements. Id.
The story of the plate at issue in this case begins almost twenty-five years ago. In 2001,
plaintiffs obtained a personalized plate reading “RD RRAGE,” which adorned his Pontiac
Firebird Trans Am until sometime in 2003 when he surrendered the car as part of an unrelated
legal action. Id. In 2019, plaintiffs acquired another Trans Am and again applied for a plate
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that read “RD RRAGE” to match the car he surrendered in 2003. Id. at 2–3. This time,
however, the Department denied plaintiffs’ application for the “RD RRAGE” license plate
despite having previously issued it in 2001. Id. at 3. Plaintiffs would later learn that the
Department added “RD RRAGE” to its list of objectionable license plates in June 2019
following its denial of his application. Id. Believing the denial of the application was a mistake,
plaintiffs filed another application for the same personalized plate in December 2023. Id. The
Department denied the application again and informed plaintiffs that the requested plate was
“not available.” Id.
In August 2024, plaintiffs filed this suit, alleging that the statutory language permitting
the Department to deny or revoke personalized plates that “may carry connotations offensive
to good taste or decency” facially violates the First Amendment by restricting the applicant’s
personal expression. Dkt. 1 at 8. Plaintiffs do not allege any other claims.
The parties filed cross motions for summary judgment. Dkts. 17 & 22. The issue has
been fully briefed and is ripe for judgment.
LEGAL STANDARDS
Summary judgment is appropriate when there are no genuine disputes of material fact,
and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). In determining
whether there are genuine factual disputes, the court examines the record in the light most
favorable to the party opposing judgment and construes all reasonable inferences from the
evidence in their favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “[A]
factual dispute is ‘genuine’ only if a reasonable jury could find for either party.” SMS Demag
Aktiengesellschaft v. Material Scis. Corp., 565 F.3d 365, 368 (7th Cir. 2009). Mere conclusory
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allegations do not constitute evidence. See Balderston v. Fairbanks Morse Engine Div. of Coltec
Indus., 328 F.3d 309, 320 (7th Cir. 2003). Disputed facts that are not outcome-determinative
are not material and will not preclude summary judgment. Smith ex rel. Smith v. Severn, 129
F.3d 419, 427 (7th Cir.1997).
DISCUSSION AND ANALYSIS
The parties’ motions raise a threshold question—who speaks through the text displayed
on a personalized registration plate? If the applicant, plaintiffs’ challenge to Wisconsin’s
statutory scheme is protected by the First Amendment and subject to Free Speech forum
analysis because “the government does not have a free hand to regulate private speech on
government property.” Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 469 (2009). If the
government, however, then the Free Speech Clause is inapplicable because the First
Amendment does not bar the government from censoring its own speech. Id. at 467–68. The
parties largely agree on the law that applies to this question but disagree on how it should
resolve the case. It is a close call, as illustrated by the split developing at the district court level,
made all the more difficult because there is no clear guidance in this Circuit. On the whole,
the court finds defendant has the better argument and concludes that the registration number
displayed on personalized license plates constitutes government speech.
A. Government vs. private speech precedent
Determining the identity of the speaker can be difficult when a message is expressed
through a joint venture of private citizens and governmental bodies, as is the case with
Wisconsin’s personalized license plates. The Supreme Court has offered guidance for resolving
this inquiry in four recent cases, discussed below in chronological order.
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In Pleasant Grove City, Utah v. Summum, 555 U.S. 460 (2009), the Court determined
whether the government or a private party spoke through monuments created by private
citizens but approved by the city and permanently exhibited in a public park. The court
focused on three factors: (1) whether governments have historically used monuments to speak
to the public, id. at 470, (2) the general public’s perception of who speaks through monuments
displayed on public property, id. at 471, and (3) whether the government maintains control
over the selection of monuments, id. at 473. The Court concluded that the expression at issue
was government speech, and, in so doing, expressly rejected the notion that the involvement
of private parties in designing the monuments was sufficient to override the other
considerations. See id. at 470–71.
The Court further developed Summum’s three-factor framework in Walker v. Texas
Division, Sons of Confederate Veterans, Inc., 576 U.S. 200 (2015). That case involved Texas’s
specialty license plate program, which permitted private nonprofit entities to propose license
plate designs with unique slogans or graphics. Id. at 205. This specialty plate program was
distinct from a personalized plate program like the one considered here. In fact, the Walker
court expressly proscribed personalized plates from its analysis. Id. at 204.
Per Texas’s specialty plate program, the Texas Department of Motor Vehicles Board
could either approve a submitted design and make it available for cars registered in Texas or
reject it for various reasons. Id. at 205. The plaintiff claimed that the Board perpetrated
impermissible viewpoint discrimination after it rejected plaintiff’s submitted design for a
specialty license plate bearing the Confederate flag. Id. at 206. Applying the same factors as
they did in Summum, the Court concluded that messages conveyed by specialty plates were
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government speech despite the necessary and obvious involvement of private parties in
designing and submitting potential slogans or graphics.
First, just like monuments in public parks, the Court noted the long history of states
conveying messages through license plates to promote tourism, tout local industry, or urge
action towards a goal. Id. at 211. Second, the Court reasoned that license plate designs are
“often closely identified in the public mind with the [State].” Id. at 212 (quoting Summum).
The Court focused on the intrinsic, obvious “governmental nature” of license plates, describing
them as “essentially [] government IDs” whose messages are “routinely—and reasonably—
interpreted as conveying some message on the issuer’s behalf.” Id. (quoting Summum) (cleaned
up). The Court noted that the State of Texas was solely responsible for issuing its license
plates, displayed “TEXAS” in large letters on the top of every license plate, and dictated the
rules of their disposal. Id. Also, the State of Texas owned the designs on its plates, including
specialty ones. Id. Third, the Court found that the state controlled the messages conveyed by
specialty plates by possessing final approval authority over proposed designs and exercising it
by rejecting at least a dozen proposed designs. Id. at 213. For those reasons, the Court
concluded that specialty plates conveyed government speech.
Two years later in Matal v. Tam, 582 U.S. 218 (2017), the Court contrasted the issuance
of specialty license plates under Texas law with the Patent and Trademark Office’s (“PTO”)
registration of trademarks under the Lanham Act, holding that messages conveyed by registered
trademarks are private speech. First, the Court explained that trademarks have not traditionally
been used to convey governmental messages and that trademarks, unlike license plates, are
recognized at common law and are enforceable even if not registered with the PTO. Id. at 224–
25. Further, the Court distinguished the objective, “content-neutral” trademark registration
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process under the Lanham Act from Texas’s final authority over its specialty plate program to
illustrate the relative lack of control the PTO exercises over trademarks and their messages. Id.
at 235. Regarding public perception of the speaker, the Court noted “there is no evidence that
the public associates the contents of trademarks with the Federal Government,” id. at 238, and
further speculated that “it is unlikely that more than a tiny fraction of the public has any idea
what federal registration of a trademark means,” id. at 237. “In sum,” the Court concluded,
“the federal registration of trademarks is vastly different from the . . . monuments in Summum,
and even the specialty license plates in Walker.” Id. at 239.
Finally, in Shurtleff v. City of Boston, Massachusetts, 596 U.S. 243 (2022), the Court
analyzed whether flags flown by private parties on the plaza in front of Boston City Hall as
part of an official city flag-raising program was government speech. The Court reflected on the
competing analyses in Walker and Tam and held that messages conveyed by the flags chosen
and flown by private parties were private speech. Id. at 259. The third Walker factor was
central to the Court’s holding. Boston exercised virtually no oversight or control over the
design or messages conveyed by the private parties’ flags. Id. at 256–57. In fact, the city had
no guidelines about what flags could be flown, and the city official in charge of approving
applications did not even look at the flags the private parties planned to fly ahead of the event.
Id. at 257. As such, the flag raising program was more analogous to the content-neutral,
objective requirements of the PTO’s registry in Tam than to either the Summum monuments or
Walker specialty plate program, which were subject to diligent governmental review and
approval. Id.
A few courts have applied this jurisprudence to the personalized license plate programs
of various states, and the resulting opinions are split. Some courts have found that the text on
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personalized plates is private speech. See Overington v. Fisher, 733 F. Supp. 3d 339, 343 (D.
Del. May 14, 2024); Carroll v. Craddock, 494 F. Supp. 3d 158, 161 (D.R.I. Oct. 2, 2020); Ogilvie
v. Gordon, 540 F. Supp. 3d 920, 926 (N.D. Cal. Nov. 24, 2020); Hart v. Thomas, 422 F. Supp.
3d 1227 (E.D. Ky. Nov. 13, 2019); Mitchell v. Maryland Motor Vehicle Admin., 450 Md. 282,
(Oct. 28, 2016), as corrected on reconsideration (Dec. 6, 2016). Others have found the text
government speech. See Gilliam v. Gerregano, No. M2022-0083-SC-R11-CV, 2025 WL 617603
(Tenn. Feb. 26, 2025); Odquina v. City & Cnty. of Honolulu, No. 22-CV-407-DKW-RT, 2022
WL 16715714 (D. Haw. Nov. 4, 2022); Comm’r of Indiana Bureau of Motor Vehicles v. Vawter,
45 N.E.3d 1200 (Ind. Nov. 6, 2015). The court is unaware of any court in the Seventh Circuit
having ruled on the issue.2
B. Analysis
1. Standing
Before turning to the merits, the court first addresses standing. Plaintiffs challenge the
facial constitutionality of two subsections of Wis. Stat. § 341.145—subsection (7), which
permits the Department to deny personalized plate applications, and subsection (8), which
permits the Department to cancel and order the return of any issued personalized plates that
the Department determines, in hindsight, carry connotations offensive to good taste and
2 The Seventh Circuit did consider a First Amendment challenge involving Illinois’ specialty
license plate program in Choose Life Illinois, Inc. v. White, 547 F.3d 853 (7th Cir. 2008). The
court held that the specialty license plates did not constitute government speech, that the plates
constituted a nonpublic forum, and the exclusion of the plate at issue was a permissible and
reasonable content-based restriction. While the issues considered in Choose Life are adjacent to
those raised here, the opinion predates Summum and Walker, and the test applied to determine
government or private speech was slightly different than the one prescribed in those opinions.
In light of this, the court considered Choose Life as a part of the overall legal landscape but
ultimately relied on Summum and its progeny for the operative law.
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decency, or which may be misleading. There is no question that plaintiffs have standing to
challenge subsection (7). So, the court can and will engage with the constitutional question
raised, if only against subsection (7). But there is a wrinkle involving subsection (8).
Defendant argues that plaintiffs lack standing to challenge subsection (8) specifically because
they have not demonstrated a concrete, particularized, and actual or imminent injury of having
a plate revoked. Dkt. 23 at 36.
“Standing analysis centers on whether the plaintiff has suffered or is likely to suffer an
‘injury in fact.’” Brown v. Kemp, 86 F.4th 745, 761 (7th Cir. 2023) (citation omitted). To
establish standing, the plaintiff's injury must satisfy three fundamental requirements: an injury
that (1) is concrete and particularized, (2) was or will be caused by the defendant, and (3)
likely will be remedied by a favorable judgment. Id. “Future injuries must be ‘imminent, not
“conjectural” or “hypothetical.”’” Id. (citation omitted). A party facing the threat of an
unconstitutional law does not need to expose themself to liability before challenging its
constitutionality if the threatened enforcement is sufficiently imminent, id. (internal
quotations omitted), but mere “[a]llegations of possible future injury are not sufficient,” Clapper
v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013) (internal quotations and citation omitted;
emphasis in original).
Plaintiffs argue that the threat posed by § 341.145(8) “operates now, chilling [their]
speech,” and amounts to a “present barrier[] to expression.” Dkt. 27 at 17. Even if that was
the case, plaintiffs’ reticence to express themselves so long as § 341.145(8) remains good law
is the kind of self-imposed restriction that does not confer standing. Clapper, 568 U.S. at 416
(“[Parties] cannot manufacture standing merely by inflicting harm on themselves based on
their fears of hypothetical future harm that is not certainly impending.”). Plaintiffs also argue
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that that the Department’s denial of the “RD RRAGE” plate “creates a credible threat of
enforcement” of and a “substantial risk that harm will occur” under § 341.145(8). Dkt. 27 at
18. But the Department’s refusal to issue a personalized license plate in the first place negates
the threat of that plate being revoked in the future. The Department cannot revoke and order
returned a license plate it never issued. Plaintiffs have not offered any evidence to suggest they
are facing a credible, imminent threat of having an issued license plate revoked under
§ 341.145(8), and so the court finds that they do not have standing to challenge that
subsection of the statute.
Plaintiffs alternatively argue that “Wis. Stat. §§ 341.145(7) & (8) form an inseparable
statutory scheme [that] cannot be reviewed separately.” Dkt. 27 at 18. Defendant retorts that
plaintiffs’ characterization of the sections as inseparable is unsupported by any authority and
the fact that both subsections incorporate the same challenged language does not make them
inherently inseparable. Dkt. 32 at 19.
These arguments touch on the severability of the two subsections, which is a question
the court would be forced to answer if it found one of the two unconstitutional. As explained
next, the court does not make that finding, so the question of severability as a remedy is moot.
But to the extent the parties rely on concepts of severability to bolster their standing arguments,
the court addresses those points now. Whether provisions of a state law can be severed from
the whole to preserve the rest is a question of state law. Burlington N. & Santa Fe Ry. Co. v.
Doyle, 186 F.3d 790, 804 (7th Cir. 1999). Wisconsin law provides that “the provisions of the
statutes are severable,” and that “if any provision of the statutes . . . is invalid, or if the
application of either to any person or circumstance is invalid, such invalidity shall not affect
other provisions or applications which can be given effect without the invalid provision or
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application.” Wis. Stat. § 990.001(11). Subsection (8) could be given effect in the absence of
subsection (7) because the Department could conceivably exercise no oversight over the
application process but could still retain the ability to recall and cancel a plate. So, even viewed
from this different vantage point, the court cannot find plaintiffs have standing to challenge
subsection (8).
Because the court finds that plaintiffs do not have standing to challenge subsection (8),
the court dismisses plaintiffs’ challenge to Wis. Stat. § 341.145(8) on that basis. But even if
the court had found standing to challenge both subsections, the ultimate conclusion reached
below regarding subsection (7) would apply with equal force to subsection (8), warranting
judgment in defendant’s favor on this alternative basis.
2. Government or private speech
The court now turns to the merits of the constitutional challenge and the threshold
question of whether the text forming the registration numbers of Wisconsin’s personalized
plates is government speech. The parties agree that the three Walker factors are the appropriate
framework through which to analyze the issue, i.e., (1) whether governments have historically
used the text to speak to the public, (2) the general public’s perception of who speaks through
that text, and (3) whether the government maintains control over the text. Applying this
framework, the court concludes that the text is government speech.
a. The history of the expression
Wisconsin’s state-issued license plates convey government information through their
registration numbers and have done so since their inception. The state stamps unique
combinations of numbers and letters on every license plate to identify vehicles and link them
to their owners. This is why the state dictates that all license plates must be displayed and
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legible, and that no plate, including personalized ones, may have the same combination of
characters as any other currently issued plate. See Wis. Stats. §§ 341.145(2)(c) & 341.15(2).
In short, the text on license plates, personalized or otherwise, falls into the category of speech
that the Walker court identified as “essentially government IDs.” Walker, 576 U.S. at 212.
While the personalized plate program allows drivers to request a particular combination of
characters, that does not defeat the ultimate purpose of the text as a unique identifier for a
vehicle and thus does not convert the text into a different form of speech. See Odquina v. City
& Cnty. of Honolulu, No. 22-CV-407-DKW-RT, 2022 WL 16715714, at *9 (D. Haw. Nov. 4,
2022), aff’d, No. 22-16844, 2023 WL 4234232 (9th Cir. June 28, 2023).
Plaintiffs argue that this finding condemns the state to “babbling prodigiously and
incoherently” through the thousands of disparate and potentially conflicting messages on
personalized plates. Dkt. 18 at 11 (quoting Tam 582 U.S. at 219). Certainly, the personalized
plate program permits a wide array of messages to appear on Wisconsin-registered vehicles,
including some that are arguably opposed, such as “GO PACK” and “GO BEARS.” While this
might appear inconsistent on a surface level, it is harmonious with the text’s primary purpose
as a means of identifying and indexing cars. See Universal City Studios, Inc. v. Corley, 273 F.3d
429, 446 (2d Cir. 2001) (“even dry information, devoid of advocacy, political relevance, or
artistic expression” has been considered speech under the First Amendment). Thus, because
“GO PACK” and “GO BEARS” are unique from each other, both combinations satisfy and are
consistent with the state’s ends. Any incidental benefit to an applicant who managed to
personally express an idea through a personalized plate, as plaintiffs argue they did, does not
supersede that essential government purpose or render the scheme incoherent.
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This ultimate purpose distinguishes license plates from trademarks, which primarily
promote brands to consumers. Tam, 582 U.S. at 224. As the Court noted in Tam,
“[c]ompanies spend huge amounts to create and publicize trademarks that convey a message.”
Id. at 239. There is no like corollary with the text of personalized plates. More fundamentally,
trademarks predate the United States and may exist and be enforced at common law without
being registered by the government. Id. at 224. Not so with license plates, whose origins and
existence derive entirely from state statutes and regulations.
b. The public’s perception
The sheer number of license plates allows for the reasonable conclusion that the public
understands license plates and their registration numbers come from the state and convey
governmental information. There were more than six million vehicles registered in Wisconsin
in 2024. See Dkt. 26-9 at 93. There are hundreds of thousands of personalized plates currently
registered in the state, and the Department received tens of thousands of personalized plate
applications each of the previous three years. So a substantial number of Wisconsinites have
firsthand knowledge of the Department’s role in reviewing, approving, and issuing personalized
plates specifically. See id. at 84–85. Indeed, the Walker Court noted that “a person who
displays a message on a . . . license plate likely intends to convey to the public that the State
has endorsed that message.” Walker, 576 U.S. at 212. By contrast, as the Court also observed
in Walker, bumper stickers are the obvious medium by which motorists may broadcast purely
personal messages from their vehicles without any governmental oversight. Id.
Plaintiffs assert that “personalized registration plate configurations . . . are identified
with the plate holder,” offering as evidence only their belief that it would be “ridiculous to
think that the State of Wisconsin is declaring itself a fan of the Chicago Bears” by approving a
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“BEARS” vanity plate. Dkt. 18 at 9. Beyond lacking any evidentiary support, plaintiffs’
argument relies on a reductive interpretation of the second Walker factor. The court concedes
that plaintiffs’ proffered scenario would in fact be ridiculous. But the court is also not so
cynical of the general public’s capacity for nuanced thought. A reasonable person can
understand that the state acquiesced to a resident’s request to identify their vehicle by the word
“BEARS” without also interpreting it as the sovereign State of Wisconsin’s official
announcement of its favorite sports team.
c. The government’s control over the expression
The Department’s exercise of control over the personalized plate program is virtually
identical to that which persuaded the Court to hold for Texas in Walker. Just like the state
Board in Walker, the Department here reviews every personalized plate application and must
approve each before it is issued. And, as in Walker, the Department routinely exercises its
authority, denying 694 applications in 2024 alone. Dkt. 33 at 7. This stands in sharp contrast
to the complete lack of oversight or screening Boston exercised in Shurtleff, which was central
to the Court’s finding of private speech in that case. See Shurtleff, 596 U.S. at 257 (“In Walker,
a state board ‘maintain[ed] direct control’ over license plate designs by ‘actively’ reviewing
every proposal and rejecting at least a dozen. Boston has no comparable record.”) (internal
citation omitted).
Plaintiffs are adamant that Wisconsin does not exercise control over its personalized
plate program “to nearly the extent” that Texas did because Wisconsin does not “design,
develop, or meaningfully endorse” the text on approved personalized plates. Dkt. 18 at 12.
To be sure, Texas’s specialty plate program differs from Wisconsin’s personalized plate program
in certain ways. Most notably, Texas law permits its legislature to specifically call for the
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development of a specialty license plate to promote state sponsored policies, such as plates
stating, “Keep Texas Beautiful.” Walker, 576 U.S. 200. As far as the court is aware, there is
no analogous route through which the State of Wisconsin may call for the creation of a specific
personalized plate.
But these distinctions do not dictate a different result. Although Texas law permits the
state to engage in its own design process, that was not relevant to the Court’s analysis in Walker,
which dealt with a design submitted by a private party, like plaintiffs’ plate application here.
But more importantly, Walker and Shurtleff clarify that the state’s exercise of its own creative
vision is unnecessary to find the state possesses effective control over the expression. Rather,
those cases reveal that the meaningfulness of the state’s oversight and its exercise of veto power
are paramount. Plaintiffs contend that the Department’s “veto power should not transform
the private messages . . . into messages of the state.” Dkt. 18 at 12. But that sentiment is an
argument against the Supreme Court’s holdings in Summum, Walker, Tam, and Shurtleff—not
one this court is at liberty to credit.
This analysis leads the court to conclude that the text on personalized Wisconsin
registration plates is government speech. Accordingly, plaintiffs’ Free Speech claim under the
First Amendment is inapplicable as a matter of law.
CONCLUSION
A thorough review of Summum, Walker, and their progeny convince the court that the
text on Wisconsin’s personalized license plates constitutes government speech. Consequently,
plaintiffs’ First Amendment Free Speech violation claim is inapplicable as a matter of law.
Because plaintiffs’ sole claim is inapplicable as a matter of law, the court will not consider their
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argument that Wis. Stat. § 341.145(7) facially violates the First Amendment. The court thus
GRANTS defendant’s motion for summary judgment, Dkt. 22, and DENIES plaintiffs’
motion, Dkt. 18.
ORDER
IT IS ORDERED that:
1. Defendant’s motion for summary judgment, Dkt. 22, is GRANTED.
2. Plaintiffs’ motion for summary judgment, Dkt. 17, is DENIED.
3. The clerk of court is directed to enter judgment for the defendant and to close this
case.
Entered December 12, 2025.
BY THE COURT:
/s/
________________________________________
ANITA MARIE BOOR
Magistrate Judge
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