A Milton woman and breast cancer survivor is embroiled in a federal lawsuit with the Delaware Department of Transportation over a vanity license plate.
The suit was filed in August 2021 in U.S. District Court of Delaware by Kari Overington, who had reserved a vanity license plate reading “FCANCER,” to commemorate her victory over breast cancer. She formally purchased the plate from the Delaware Division of Motor Vehicles in January of that year and it was delivered the next month.
In June 2021, Overington was notified by Levi Fisher of the DMV, one of three named defendants, that her plate was being recalled because, according to court filings, it “does not represent the state and the division in a positive manner” and that “any plate considered offensive in nature will be denied or recalled if issued in error.”
In July, DelDOT Secretary Nicole Majeski, the second defendant, confirmed to Overington that her plate was being recalled and the department had to ensure it was “not approving vanity plates that contain obscenity, vulgarity, profanity, hate speech or fighting words.”
Later that month, DMV Director Jana Simpler, the third of the defendants, stated that the word F**K is defined as profanity, a statement that Overington said was false. Overington said in court filings that her license plate did not contain the word F**K and that Simpler was drawing subjecting conclusions.
Overington claimed her First Amendment rights had been violated and asked that her plate be returned.
Fisher, Majeski and Simpler filed a motion to dismiss Overington’s complaint for failure to state a claim. Represented by Deputy Attorney General George Lees, the defendants argued that a vanity license plate is government property, and while a vanity plate gives the public some level of personal expression, that expression is limited to not include obscenities.
On Aug. 1, Judge Richard Andrews denied the defendants’ motion to dismiss and allowed Overington, who was representing herself, to amend her complaint.
That same day, Overington’s case was taken up by the American Civil Liberties Union of Delaware.
ACLU of Delaware Legal Director Dwayne Bensing said he is filing an amended complaint to include additional DelDOT employees.
“The ACLU-DE has always been a fierce defender of our First Amendment right of freedom of expression,” Bensing said. “Ms. Overington, a cancer survivor, has opted to express herself through the state’s vanity license plate program. However, the Delaware Department of Transportation has subjectively interpreted her ‘FCANCER’ license plate to be offensive. Such state-sanctioned censorship is unconstitutional. As such, the ACLU-DE has offered to assist Ms. Overington in her case. We will await the state’s answer to the complaint and begin discovery to understand the breadth of the state’s subjective license-approval scheme. Once discovery is completed, we will present the facts and law to the court for a final decision affirming Ms. Overington’s constitutional right to this protected speech.”
In a statement released by the ACLU of Delaware, Overington said, “As a cancer survivor, the fight to end cancer is extremely personal to me. I was shocked when the DMV recalled my license plate because fighting cancer in our communities is imperative, and a message I assumed everyone would embrace.”
She continued, “Before my license plate was recalled, I received encouragement from other cancer survivors, family members of those lost to cancer, and many other community members. My license plate was an important message to others like me whose lives have been touched by cancer: that you are not alone. As my license plate declared that we have to fight cancer, I will also fight to make sure I can continue to provide that message to my community.”