This decision provides a detailed overview of the ways a regulatory ordinance can run afoul of protections afforded to free speech under the New Hampshire and U.S. Constitutions. The decision also provides valuable lessons on how an ordinance or regulation should be drafted to avoid infringing on free speech freedoms.
The plaintiff, David Montenegro, applied to the NH Division of Motor Vehicles for a vanity motor vehicle registration plate reading "COPSLIE.". Montenegro stated on his application that the intended meaning of the requested vanity registration plate was "cops lie." That same day, the petitioner's application was rejected because several DMV employees believed the text to be "insulting." Montenegro appealed this denial to the director of the DMV and the director denied that appeal citing to a DMV regulation that prohibited the issuance of a vanity plate that a “ . . reasonable person would find offensive to good taste". After further appeals to the Director of the NH Department of Safety, Montenegro sought an order from Superior Court seeking to compel the DMV to issue the requested “COPSLIE” plate. After that petition was denied by the Superior Court, Montenegro appealed to the NH Supreme Court.
Montenegro argued that the DMV regulation is unconstitutionally vague and overbroad. In essence the Plaintiff argued that the phrase “offensive to good taste” casts too wide a net, and encroaches on the realm of protected speech and was being implemented by the DMV to prohibit any point of view with which the DMV disagrees.
The NH Supreme Court noted that when dealing with regulations that affect free speech guaranteed by the First Amendment, courts are especially concerned about overbroad and vague laws that may have a chilling effect on speech. A party may challenge an ordinance under the overbreadth doctrine in cases where every application of the statute in question creates an impermissible risk of suppressing ideas, such as an ordinance that delegates overly broad discretion to the decision maker, and in cases where the ordinance sweeps too broadly, penalizing a substantial amount of speech that is constitutionally protected.
The vagueness doctrine applies when the regulatory language is unclear. Vagueness may invalidate a statute or regulation for either of two reasons: (1) it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits; or (2) it authorizes or even encourages arbitrary and discriminatory enforcement.
The NH Supreme Court characterized the DMV regulation as one that requires the speaker to receive permission to engage in speech, and so therefore the official charged with granting the permission must be provided specific standards on which to base his or her decisions. Without such standards, every application of the regulation creates an impermissible risk of suppression of ideas.
After carefully examining dictionary definitions the Court concluded that the phrase "offensive to good taste" is not susceptible of objective definition. For that reason the Court ruled that the regulation grants DMV officials the power to deny a proposed vanity registration plate because it offends a particular officials' subjective idea of what is "good taste." Based on that conclusion, the Court declared the regulation violates the right to free speech guaranteed by Part I, Article 22 of the NH Constitution.
To be enforceable, municipal regulations should not use language such as, “ ...in a format to be approved by the town manager.” Instead, the regulation should include criteria that are specific enough to allow any applicant to understand what information is required to be submitted, and allow municipal employees to make decisions based solely upon criteria contained in the regulation.