Is a state rule that bars any vanity license plate a "reasonable person" might find "offensive to good taste" so subjective and vague that it's unconstitutional?
Or is "good taste" something that - like pornography - you recognize when you see it?
That's what the New Hampshire Supreme Court has to decide after hearing oral arguments last week in a case brought by a Dover man whose application for a vanity plate reading "COPSLIE" was denied by the state Division of Motor Vehicles more than three years ago.
David Montenegro was living in Dover when he requested that plate on May 4, 2010, for his 1993 Chevrolet Caprice. The DMV clerk denied his application, telling him the requested phrase was "insulting," citing a Department of Safety administrative rule that bars text "a reasonable person would find offensive to good taste."
Montenegro appealed that denial, first to the DMV director and commissioner of safety, then in Strafford County Superior Court. All sided with the DMV.
He appealed to the Supreme Court, and last Thursday, he got his day in court, representing himself.
Earlier this year, Montenegro, 35, notified the court that he had legally changed his name to "human." And that's how the justices addressed him during oral arguments.
On recent court documents, "human" signed his name with random numbers and squiggly lines. He also changed his legal mailing address, from a post office box in Farmington to a P.O. Box - 666 - in Durham.
In court, he argued that his choice of vanity plate is an expression of political speech protected under the Constitution. But he may not have endeared himself to the justices with his opening comments.
He told the justices his case is based on "such clear principles" that it should have been decided in superior court. "The only reason this case has made it so far is because of the level of corruption that exists within the judicial branch in this state," he said.
"This court stands as one of the last lines of defense for citizens whose rights have been violated by the state of New Hampshire and its political subdivisions."
That prompted a question from Associate Justice Robert Lynn: "Are you sort of saying you're willing to give us the benefit of the doubt that we're not corrupt until you get a final decision, and then if it's not favorable to you, then we're corrupt also?"
In a written brief, "human" said the DMV does not have a legitimate interest in denying his choice of vanity plate.
"If the state has any interest, at all, in the suppression of a license plate reading 'COPSLIE,' it would be for the sole purpose of suppressing criticism," he wrote.
But in its brief for the Division of Motor Vehicles, the Attorney General's Office argued that a vanity license plate is government property and that the state's rule "is reasonable in light of the government's intended purpose of identifying individual vehicles in a manner which does not imply that the government approves of combinations of letters that are offensive."
A few months after the DMV denied his first vanity plate application, Montenegro went back with a new list of choices. "COPSLIE" was still at the top of his list, but "GR8GOVT" was second. And the DMV issued the latter phrase as a vanity plate, although "human" said in court documents he turned it in for a regular number plate.
In his written brief, he pointed out that the DMV denied him a vanity plate critical of the state but issued him a plate that praised government. That proved the rule is not viewpoint-neutral, he said.
The Supreme Court put out a call for amicus briefs in the case, and the New Hampshire Civil Liberties Union responded. The NHCLU argued that the Department of Safety's rule is "unconstitutionally vague, overbroad and viewpoint discriminatory on its face."
Anthony Galdieri, representing the NHCLU, told the justices the rule needs to be rewritten.
Senior Associate Justice Gary Hicks asked, "Doesn't it make a difference that it could appear that the state is in fact endorsing a view of 'cops lie' by allowing such a plate to issue, and wouldn't the state have some interest in promoting a central function of government, i.e., enforcement of laws?"
That may be so, Galdieri said, "but the regulation at issue is simply not a constitutional way to accomplish that goal."
Associate Justice Carol Ann Conboy asked Associate Attorney General Richard Head, representing the DMV, about the superior court's ruling that the proposed vanity plate was rightly denied because it was an "accusation of moral turpitude." Wasn't that a different standard from what's in the rule? she asked.
Head said an "accusation of moral turpitude" is well within the scope of what a reasonable person would find offensive to good taste. And the "reasonable person" standard is a long-accepted legal concept, he said.
Conboy agreed the court is familiar with that language in the rule. "What we're not familiar with is 'good taste.' What is good taste?" she asked.
Head said it's difficult to write a rule that accounts for all the "creative" ways people might find to get offensive text onto license plates - by writing letters backwards, for instance, so they spell out an offensive phrase only when viewed in a rear-view mirror.
"Of course it's hard," Chief Justice Linda Dalianis replied. "That's why we're all here arguing about angels on the heads of pins.
"But the point is, it strikes me that if this regulation were a little more robust and anchored to something a little less amorphous than random good taste, it might be less hard," she said.
According to the DMV, there were 173,643 vanity license plates registered in New Hampshire as of Nov. 2, and 924,995 "regular" passenger plates.
The DMV provided a 96-page list of "denied" vanity plates to the New Hampshire Sunday News, and it shows how people try to get around the "good taste" rule. There are plenty of examples of foul words spelled backwards or using symbols to represent letters.
But phrases that may seem less obvious are also on the list, including SEXY, HEMP, GOD4ME, DARWIN, BRA and YNKEHTR.
And some do get through - including a recently spotted plate that reads "SHAT," which could be interpreted as an archaic past tense version of a curse word. David Hilts, legal counsel for the Department of Safety, declined to comment on how such a plate was issued.
However, Head said in an interview that if the state gets enough complaints about a vanity plate, the DMV may retract that plate. "The public gets to weigh in on the reasonableness of the plates that get out," he said. "And the courts get to weigh in on the reasonableness of the ones that get pulled."
Head warned about what could happen if the state were to adopt a more specific rule about what can or can't be on vanity plates.
"People are trying to avoid the rule," he said. "If you're too specific on the rule, you're going to have things that get through that can be incredibly offensive. So you need to have some level of discretion that applies or the rule's going to be so specific that you are going to end up offending an awful lot of people with your plates."
People are free to put whatever bumper stickers they want on their vehicles to express points of view, Head said. However, he said, "Given the purpose of license plates, why we have them, and the nature of speech in seven digits or less, it is not an open forum for debate. It is a way in which we identify vehicles."
But Gilles Bissonnette, staff attorney for NHCLU, said "human's" case ultimately is about free speech. "When the state opens up the forum, which it has in this case, it cannot discriminate on the basis of viewpoint in determining what speech is permissible on license plates."
The problem with the current rule, he said, is that it is "incapable of objective interpretation."