Tennessee gamer hopes to 'pwn' state in lawsuit over 'offensive' license plate

Woman asserts free speech rights, says law against offensive configurations is vague and unconstitutional

This image appears on the first page of the lawsuit filed by Leah Gilliam contesting revocation of her personalized license plate. / Photo taken from Davidson County court filing
photo This image appears on the first page of the lawsuit filed by Leah Gilliam contesting revocation of her personalized license plate. / Photo taken from Davidson County court filing

NASHVILLE - Tennessee officials' revocation of the personalized license plate belonging to a Nashville astronomy buff and gamer for being "offensive" now faces a legal challenge charging the state is violating the woman's constitutionally protected right to free speech.

According to the complaint, filed Wednesday in Davidson County Chancery Court, Leah Gilliam has for more than a decade had the vanity tag 69PWNDU.

Gilliam's attorney, Daniel Horwitz, writes in the complaint that Gilliam chose "69" in order to celebrate the first Apollo moon landing in 1969. The PWNDU derives from gamer slang and means to "totally defeat or dominate," especially in a video or computer game context.

The suit says that despite the "harmless and constitutionally protected nature of Ms. Gilliam's speech," state Revenue Commissioner David Gerregano and department officials sent her a May 25 "threat letter summarily revoking her longtime vanity plate on the specific basis that it had 'been deemed offensive.'"

The letter does not say what might be offensive about the license plate configuration.

The law cited by the department is a "facially unconstitutional statute that expressly discriminates on the basis of viewpoint," according to Gilliam's lawsuit, noting it says "the commissioner shall refuse to issue any combination of letters, numbers or positions that may carry connotations offensive to good taste and decency, or that are misleading."

Gilliam did not respond Thursday to a reporter's telephone call.

Revenue Department spokeswoman Kelly Cortesi said in response to the Times Free Press that the agency "declines to comment on ongoing litigation."

Speaking in general terms, Cortesi wrote that state law "prohibits the Tennessee Department of Revenue from issuing a personalized license plate that 'may carry connotations offensive to good taste and decency or that are misleading.'" Moreover, Cortesi wrote, state law "authorizes the revocation of a motor vehicle registration plate that was erroneously issued contrary to the law."

The lawsuit points to the 2017 U.S. Supreme Court ruling in Matal v. Tam to say that "governmental discrimination on the basis of viewpoint is forbidden in any form." It says the "sole basis" for department officials' revocation decision is that it has "been deemed offensive." But the Tennessee action notes the Supreme Court held in Matal that courts in multiple jurisdictions "have recently invalidated laws" that are "materially indistinguishable" from the Tennessee provision, the reasoning being "they unconstitutionally discriminated based on viewpoint."

The lawsuit says the criteria in the statute is vague and "requires reasonable people to guess at its meaning."

The state's letter said Gilliam could apply for a different personalized plate or request a regular plate. However, the state's letter also warns Gilliam the law requires her to immediately return the revoked tag and also says she won't be able to renew her vehicle registration until she does.

Gilliam's suit charges that the law exposes her to "immediate threat of criminal liability" with a fine as well as up to 30 days in jail if she "does not acquiesce to the Department's pre-hearing prior restraint against her constitutionally protected speech."

Gilliam's request to the court for the temporary injunction against further action notes among other things that "under case law applicable to free speech claims, the loss of First Amendment freedoms, for even minimal periods of time, is presumed to constitute irreparable harm."

Gilliam said in an affidavit in support of the lawsuit, "To the best of my knowledge, my license plate has never caused anyone harm, and other people enjoy seeing it."

The lawsuit asks the court to allow Gilliam to keep her license plate and strike down the law the department cited in revoking it.

Contact Andy Sher at asher@timesfreepress.com or 615-255-0550. Follow him on Twitter @AndySher1.