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THE SUPREME COURT OF NEW HAMPSHIRE 

___________________________ 

Strafford 

No. 2012-624 

DAVID MONTENEGRO 

v. 

NEW HAMPSHIRE DIVISION OF MOTOR VEHICLES 

Argued: November 7, 2013 

Opinion Issued: May 7, 2014 

 David Montenegro, self-represented party, by brief and orally. 

 Michael A. Delaney, attorney general (David M. Hilts, assistant attorney 

general, on the brief, and Richard W. Head, associate attorney general, orally), 

for the respondent. 

 Nixon Peabody LLP, of Manchester (David A. Vicinanzo and Anthony J. 

Galdieri on the brief, and Mr. Galdieri orally), for New Hampshire Civil Liberties 

Union, as amicus curiae. 

 CONBOY, J. The petitioner, David Montenegro, appeals an order of the 

Superior Court (Lewis, J.) dismissing his petition for injunctive relief seeking to 

compel the respondent, New Hampshire Division of Motor Vehicles (DMV), to 
2

issue him a personalized vanity motor vehicle registration plate reading 

“COPSLIE,” and arguing that the DMV’s denial of his request violated his right 

to free speech. Because we find that the regulation relied upon by the DMV in 

denying the petitioner’s request is unconstitutionally vague, we reverse and 

remand. 

I. Background 

 On May 4, 2010, the petitioner applied for a vanity registration plate 

reading “COPSLIE.” See RSA 261:89 (Supp. 2013). The petitioner 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.” 

 The petitioner appealed to the director of the DMV by letter dated May 5, 

2010. See N.H. Admin. Rules, Saf-C 514.61(e). On May 12, the director denied 

the petitioner’s appeal, citing the New Hampshire Code of Administrative Rules, 

Saf-C 514.61. He concluded that “a reasonable person would find COPSLIE 

offensive to good taste.” See N.H. Admin. Rules, Saf-C 514.61(c)(3) (“[a] vanity 

. . . registration plate shall . . . [n]ot be ethnically, racially or which a 

reasonable person would find offensive to good taste”). 

 On July 9, the petitioner wrote to the commissioner of safety seeking 

reconsideration of the DMV’s decision concerning his application for the vanity 

registration plate. On July 14, the commissioner’s office responded to the 

petitioner, explaining that the commissioner had reviewed the petitioner’s letter 

and agreed with the DMV’s “decision to deny the license plate, for the same 

reasons which were set forth” by the director. 

 On August 30, the petitioner again applied for a vanity registration plate. 

This time, he listed “COPSLIE” as his first choice, but also provided alternative 

choices, in order of preference, as follows: “GR8GOVT,” “LUVGOVT,” 

“GOVTSUX,” “SEALPAC,” and “GOVTLAZ.” The DMV denied the petitioner’s 

first choice as “insulting,” but issued the petitioner a vanity registration plate 

with the alternative text “GR8GOVT.” That same day, the petitioner 

surrendered the “GR8GOVT” vanity registration plate for standard registration 

plates. 

 Thereafter, the petitioner sought an injunction directing the DMV to 

issue him a vanity registration plate with the text “COPSLIE,” as well as a 

permanent injunction enjoining the DMV from recalling the vanity registration 

plate. He also argued that Saf-C 514.61(c)(3) violates the right to free speech 

guaranteed under both Part I, Article 22 of the New Hampshire Constitution 

and the First Amendment to the United States Constitution. By order dated 

July 3, 2012, the trial court upheld the DMV’s denial of the petitioner’s 
3

requested vanity registration plate, finding no violation of the petitioner’s right 

to free speech under the State or Federal Constitutions, and dismissed the 

petition. The petitioner’s motion to reconsider was denied, and this appeal 

followed. 

II. Analysis 

 On appeal, the petitioner argues that the trial court erred by ruling that 

the DMV did not violate his free speech rights under the State and Federal 

Constitutions. He contends that vanity registration plates constitute a 

“designated public forum” and that the DMV’s denial of his vanity registration 

plate was not narrowly tailored to serve a legitimate or compelling government 

interest. In the alternative, he contends that, if vanity registration plates are a 

“nonpublic forum,” the restrictions in Saf-C 514.61(c)(3) “are not viewpointneutral, for what one considers ‘offensive’ is fundamentally a matter of 

viewpoint.” The petitioner also raises a facial challenge to Saf-C 514.61(c)(3) on 

the grounds that the regulation is unconstitutionally vague and overbroad. 

We first address the petitioner’s claims under our State Constitution, 

State v. Ball, 124 N.H. 226, 231-32 (1983), and rely upon federal law only to 

aid in our analysis, id. at 233. We review the constitutionality of state 

regulations de novo. See Doyle v. Comm’r, N.H. Dep’t of Resources & Economic 

Dev., 163 N.H. 215, 220 (2012). 

We begin by noting that, although in his brief the petitioner refers 

generally to Saf-C 514.61(c)(3), the trial court found that the petitioner’s 

challenge was to the regulation prohibiting vanity registration plates “which a 

reasonable person would find offensive to good taste,” and that the petitioner 

did not “squarely challenge the regulatory restriction of plates related to 

ethnicity or race.” See N.H. Admin. Rules, Saf-C 514.61(c)(3). Since the 

petitioner has not appealed that finding, we confine our analysis to the 

language in the regulation prohibiting vanity registration plates “which a 

reasonable person would find offensive to good taste.” See id. 

A. Forum Analysis 

 Part I, Article 22 of our State Constitution provides: “Free speech and 

liberty of the press are essential to the security of freedom in a state: They 

ought, therefore, to be inviolably preserved.” N.H. CONST. pt. I, art. 22. 

Similarly, the First Amendment to the United States Constitution prevents the 

passage of laws “abridging the freedom of speech.” U.S. CONST. amend I. It 

applies to the states through the Fourteenth Amendment to the United States 

Constitution. Lovell v. Griffin, 303 U.S. 444, 450 (1938). 
4

The First Amendment’s “Free Speech Clause restricts government 

regulation of private, not government, speech.” Children First Foundation, Inc. 

v. Martinez, 829 F. Supp. 2d 47, 54 (N.D.N.Y. 2011). “It is well established that 

the government need not permit all forms of speech on property that it owns 

and controls.” Perry v. McDonald, 280 F.3d 159, 166 (2d Cir. 2001) (quotation 

omitted). Here, because neither party has argued otherwise, we will assume, 

without deciding, that the speech at issue in this case is private speech and 

that vanity registration plates are government property. 

 “In evaluating government regulations concerning private individuals’ 

speech on government-owned property, the Supreme Court has identified three 

categories of forums – the traditional public forum, the designated public 

forum, and the nonpublic forum and – has developed a body of law styled 

‘forum analysis.’” Id.; see also HippoPress v. SMG, 150 N.H. 304, 312 (2003). 

The parties do not dispute that vanity registration plates are not a traditional 

public forum. The petitioner argues that by enacting RSA 261:89 to allow for 

vanity registration plates, the State intended to create a designated public 

forum. Thus, he contends that any restrictions on the messages displayed on 

vanity registration plates must be narrowly tailored to serve a compelling 

government interest. See HippoPress, 150 N.H. at 312 (explaining that 

restrictions on speech in a designated public forum are subject to highest 

scrutiny and survive only if they are narrowly drawn to achieve a compelling 

state interest). The DMV disagrees, arguing that vanity registration plates 

constitute a nonpublic forum and therefore any restrictions need only be 

reasonable and viewpoint neutral. See id. at 312-13 (explaining that 

restrictions on speech in a nonpublic forum must be reasonable and not an 

effort to suppress expression based on the speaker’s viewpoint). 

We need not decide what type of forum a vanity registration plate is 

because we conclude that the challenged restriction in Saf-C 514.61(c)(3) is 

facially unconstitutional regardless of the forum. See Airport Comm’rs v. Jews 

for Jesus, Inc., 482 U.S. 569, 573-74 (1987); Lewis v. Wilson, 253 F.3d 1077, 

1079 (8th Cir. 2001). Nonetheless, we express some skepticism about 

characterizing vanity registration plates as a designated public forum given 

that individuals must obtain permission in order to gain access to the forum, 

see RSA 261:89; N.H. Admin. Rules, Saf-C 514.61(c), (d). See Sons of 

Confederate v. Comm’r of Va Dept of Motor Vehicles, 288 F.3d 610, 622 n.10 

(4th Cir. 2002) (explaining that in nonpublic forum “government reserve[s] 

eligibility for access to the forum to a particular class of speakers, whose 

members must then, as individuals, obtain permission to use” forum 

(quotations and ellipsis omitted)). Moreover, as the petitioner acknowledges, 

the primary function of vanity registration plates is to serve as a means of 

“vehicle identification,” see RSA 259:85 (2004); N.H. Admin. Rules, Saf-C 

514.61(c)(8). See Perry, 280 F.3d at 167 (determining that Vermont did not 

intend to create designated public forum when it established vanity license 
5

plate regime, in part, because “stated policy in issuing license plates, including 

vanity plates, is to aid in vehicle identification”). 

B. Facial Challenge 

The petitioner argues that the restriction at issue in Saf-C 514.61(c)(3) is 

facially invalid because it is unconstitutionally vague and overbroad. He 

maintains that “‘[t]he offensive to good taste’ standard . . . promulgated by [SafC 514.61(c)(3)] casts too wide a net, and encroaches on the realm of protected 

speech” and “is implemented by [the] DMV to mean ‘any point of view with 

which the DMV disagrees.’” 

The DMV argues preliminarily that the petitioner “improperly merges the 

concepts of vagueness and overbreadth” and that, in any event, the petitioner 

has not adequately briefed the vagueness issue. The DMV therefore concludes 

that the vagueness issue should be deemed waived. We disagree. In his brief, 

the petitioner separately challenges the restriction at issue as both 

unconstitutionally vague and unconstitutionally overbroad, and has 

sufficiently briefed these issues for our review. We, therefore, turn to the 

merits of the petitioner’s arguments. 

“In the First Amendment context, courts are especially concerned about 

overbroad and vague laws that may have a chilling effect on speech.” Act Now 

to Stop War v. District of Columbia, 905 F. Supp. 2d 317, 329 (D.D.C. 2012). 

“Courts are suspicious of broad prophylactic rules in the area of free 

expression, and therefore precision of regulation must be the touchstone in an 

area so closely touching our most precious freedoms.” Id. at 330 (quotation 

and brackets omitted). 

“Although not identical, vagueness and overbreadth challenges in the 

First Amendment context are alternative and often overlapping grounds for the 

same relief, namely invalidation of the offending regulation.” Jordan v. Pugh, 

425 F.3d 820, 827 (10th Cir. 2005); see also Kolender v. Lawson, 461 U.S. 352, 

358 n.8 (1983) (“[W]e have traditionally viewed vagueness and overbreadth as 

logically related and similar doctrines.”); Act Now to Stop War, 905 F. Supp. 2d 

at 330 (“The doctrines of substantial overbreadth and vagueness often overlap, 

and Courts frequently blend them together.”); State v. Princess Cinema of 

Milwaukee, 292 N.W.2d 807, 813 (Wis. 1980) (“The problems of vagueness and 

overbreadth in statutes, although raising separate problems, often arise 

together.”). “The same evils are addressed, i.e., application of the statute’s 

sanctions to protected activity and deterrence of others from engaging in 

similar conduct, and the same remedies are available, i.e., a narrowing 

interpretation or facial invalidation.” United States v. Lambert, 446 F. Supp. 

890, 897 (D. Conn. 1978). “As a result, some courts have made no attempt to 

distinguish the two doctrines when measuring a statute against the 
6

requirements of the First Amendment.” Id.; see, e.g., Forsyth County v. 

Nationalist Movement, 505 U.S. 123, 129-30 (1992) (“[A] party [may] challenge 

an ordinance under the overbreadth doctrine in cases where every application 

creates an impermissible risk of suppression of ideas, such as an ordinance 

that delegates overly broad discretion to the decisionmaker, and in cases where 

the ordinance sweeps too broadly, penalizing a substantial amount of speech 

that is constitutionally protected.” (citations omitted)); Cox v. Louisiana, 379 

U.S. 536, 551 (1965) (“The statute at issue in this case . . . is 

unconstitutionally vague in its overly broad scope.”); Jordan, 425 F.3d at 828 

(“Overbreadth and vagueness may overlap when the challenged statute is so 

unclear in its scope that officials enforce it in an overbroad manner.”). With 

this in mind, we address whether Saf-C 514.61(c)(3) is unconstitutional on its 

face. 

The petitioner argues that the restriction in Saf-C 514.61(c)(3) is 

unconstitutionally vague because it is “so loosely constrained” that it 

“authorizes or even encourages arbitrary and discriminatory enforcement.” 

(Quotation omitted.) We agree. 

The vagueness doctrine, “originally a due process doctrine, applies when 

the statutory language is unclear, and is concerned with notice to the potential 

wrongdoer and prevention of arbitrary or discriminatory enforcement.” 

Lambert, 446 F. Supp. at 897; see also State v. MacElman, 154 N.H. 304, 307 

(2006) (explaining that vagueness may invalidate a statute for either of two 

independent 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). “A 

vague law impermissibly delegates basic policy matters to policemen, judges, 

and juries for resolution on an ad hoc and subjective basis, with the attendant 

dangers of arbitrary and discriminatory application.” Grayned v. City of 

Rockford, 408 U.S. 104, 108-09 (1972). “The absence of clear standards 

guiding the discretion of the public official vested with the authority to enforce 

the enactment invites abuse by enabling the official to administer the policy on 

the basis of impermissible factors.” United Food v. Southwest Ohio Regional 

Transit, 163 F.3d 341, 359 (6th Cir. 1998). 

Thus, the vagueness doctrine serves to “[rein] in the discretion of 

enforcement officers.” Act Now to Stop War, 905 F. Supp. 2d at 330. As the 

Supreme Court has stated, “if arbitrary and discriminatory enforcement is to 

be prevented, laws must provide explicit standards for those who apply them.” 

Grayned, 408 U.S. at 108. In particular, “where a vague statute abuts upon 

sensitive areas of basic First Amendment freedoms, it operates to inhibit the 

exercise of those freedoms.” Id. at 109 (quotations and brackets omitted). 

“Uncertain meanings inevitably lead citizens to steer far wider of the unlawful 

 
7

zone than if the boundaries of the forbidden areas were clearly marked.” Id. 

(quotation and ellipsis omitted). 

We recognize that “perfect clarity and precise guidance have never been 

required even of regulations that restrict expressive activity.” United States v. 

Williams, 553 U.S. 285, 304 (2008) (quotation omitted). “Condemned to the 

use of words, we can never expect mathematical certainty from our language.” 

Grayned, 408 U.S. at 110. Nonetheless, when First Amendment interests are 

at stake, “[c]ourts apply the vagueness doctrine with special exactitude.” Act 

Now to Stop War, 905 F. Supp. 2d at 351. Thus, when a regulation, like Saf-C 

514.61(c)(3), “requires that a speaker receive permission to engage in speech, 

the official charged with granting the permission must be provided specific 

standards on which to base his or her decisions.” Lewis, 253 F.3d at 1080. 

“Without such standards, every application of the regulation creates an 

impermissible risk of suppression of ideas.” Id. (quotation omitted). “[T]his 

principle applies with as much force to civil statutes as it does to criminal 

laws.” Id. 

When considering whether the challenged restriction in Saf-C 

514.61(c)(3) is unconstitutionally vague, we begin with the language of the 

regulation. See Act Now to Stop War, 905 F. Supp. 2d at 347; cf. Appeal of 

Town of Nottingham, 153 N.H. 539, 546 (2006) (“The starting point in any 

statutory interpretation case is the language of the statute.” (quotation 

omitted)). The challenged portion of the regulation prohibits vanity registration 

plates that “a reasonable person would find offensive to good taste.” N.H. 

Admin. Rules, Saf-C 514.61(c)(3). The phrase “offensive to good taste” is not 

defined in the regulation. Further, to the extent the phrase could be construed 

to prohibit obscene material, we note that a separate provision in the 

regulation prohibits vanity registration plates that are “capable of an obscene 

interpretation.” N.H. Admin. Rules, Saf-C 514.61(c)(2); cf. Winnacunnet Coop. 

Sch. Dist. v. Town of Seabrook, 148 N.H. 519, 525-26 (2002) (“When 

construing a statute, we must give effect to all words in a statute and presume 

that the legislature did not enact superfluous or redundant words.”). To 

discern the meaning of “offensive to good taste,” we will look to the plain and 

ordinary meaning of the words used. N.H. Residents Ltd. Partners of Lyme 

Timber Co. v. N.H. Dep’t of Revenue Admin., 162 N.H. 98, 101 (2011) (“When 

construing statutes and administrative regulations, we first examine the 

language used, and, where possible, we ascribe the plain and ordinary 

meanings to words used.”). 

The word “offensive” means, in relevant part, “causing displeasure or 

resentment : giving offense : INSULTING, AFFRONTING.” Webster’s Third New 

International Dictionary 1566 (unabridged ed. 2002). As pertinent here, “good” 

is defined as “conforming to a certain ideal or standard of morality or virtue :

wholly commendable : VIRTUOUS, PURE” and “conforming to some abstract 
8

standard or ideal (as of prudent conduct or proper condition) : RIGHT, 

DESIRABLE, WISE.” Id. at 978. “[G]ood” is also defined as “something that 

possesses desirable qualities, promotes success, welfare, or happiness, or is 

otherwise beneficial” and “something that satisfies or commends itself to the 

ethical consciousness or is conceived as fitting in the moral order of the 

universe.” Id. Finally, “taste” is defined, in relevant part, as “individual 

preference : LIKING, RELISH, FONDNESS, INCLINATION.” Id. at 2343. Taken 

together, these definitions lead to various potential interpretations of the 

phrase “offensive to good taste.” For example, one such interpretation could be 

that no vanity registration plates are allowed that are “insulting to the standard 

of morality or virtue of individual preference.” This reading alone demonstrates 

the arbitrariness of determining whether a vanity registration plate is “offensive 

to good taste.” 

We acknowledge that the phrase “offensive to good taste” is modified by 

the “reasonable person” standard. See N.H. Admin. Rules, Saf-C 514.61(c)(3). 

However, this modifier fails to provide sufficient guidance to DMV officials in 

determining which vanity registration plates shall be authorized. “Reasonable 

people frequently come to different conclusions.” Act Now to Stop War, 905 F. 

Supp. 2d at 348; cf. Coates v. City of Cincinnati, 402 U.S. 611, 611, 614 (1971) 

(finding ordinance that made it a criminal offense for “three or more persons to 

assemble on any of the sidewalks and there conduct themselves in a manner 

annoying to persons passing by” unconstitutionally vague because “[c]onduct 

that annoys some people does not annoy others” (quotation and ellipsis 

omitted)). Indeed, speech that one reasonable person finds “offensive to good 

taste” may not be offensive to the good taste of another reasonable person. As 

the United States District Court for the District of Maine stated thirty years 

ago, “[f]ree public expression cannot be burdened with governmental 

predictions or assessments of what a discrete populace will think about good or 

bad ‘taste.’” Stanton by Stanton v. Brunswick School Dept., 577 F. Supp. 

1560, 1572, 1574 (D. Me. 1984) (concluding that prohibition of quotation in 

high school yearbook “on the basis of a standard of ‘poor taste’” was vague and 

uncertain and did not pass constitutional muster). “If the intellectual and 

ideological ferment of the last four decades of the American social experience 

teaches anything, it teaches us that whatever may be the accepted meaning of 

‘good taste’ on any given day, the content of that meaning does not rigidly abide 

through time.” Id. at 1574. Because the “offensive to good taste” standard is 

not susceptible of objective definition, the restriction grants DMV officials the 

power to deny a proposed vanity registration plate because it offends particular 

officials’ subjective idea of what is “good taste.” 

 To the extent the DMV argues that its reasoning for denying the 

petitioner’s requested vanity registration plate in this case aids in interpreting 

the phrase “offensive to good taste,” we disagree. The DMV initially denied the 

petitioner’s request because several DMV employees believed the text to be 
9

“insulting.” The DMV then argued that the phrase was applied “to exclude 

. . . accusation[s] of moral turpitude.” We are not persuaded that these 

interpretations clarify or explain the meaning of “offensive to good taste” so as 

to render it constitutionally sufficient. Moreover, we question whether 

prohibition of accusations of moral turpitude would constitute “viewpointneutral” regulation. Regardless, in order to construe the phrase to avoid 

unfettered discretion in enforcement, we would have to add or delete text to the 

regulation. This we decline to do. 

The DMV further maintains that “the concept of vagueness is 

inapplicable” in this case because the disputed language “is not a prohibition 

on the [petitioner’s] conduct but rather a standard by which State employees 

are to discharge their duties.” As explained above, a regulation may be 

invalidated as unconstitutionally vague when “it authorizes or even encourages 

arbitrary and discriminatory enforcement.” MacElman, 154 N.H. at 307. The 

challenged restriction in Saf-C 514.61(c)(3) does just that. As a result, it is 

precisely the type of restriction that the vagueness doctrine serves to protect 

against. See Act Now to Stop War, 905 F. Supp. 2d at 330-31, 348; see also 

United Food, 163 F.3d at 360 (concluding that term “aesthetically pleasing” in 

authority’s advertising policy “invites arbitrary or discriminatory enforcement”); 

cf. Penthouse Intern., Ltd. v. Koch, 599 F. Supp. 1338, 1351 (S.D.N.Y. 1984) 

(concluding that “offensive to good taste” language used to determine 

acceptability of advertisements in subway stations was “too vague and 

subjective to meaningfully circumscribe the discretion of subway officials”). 

III. Conclusion 

We conclude that the restriction in Saf-C 514.61(c)(3) prohibiting vanity 

registration plates that are “offensive to good taste” on its face “authorizes or 

even encourages arbitrary and discriminatory enforcement,” see MacElman, 

154 N.H. at 307, and is, therefore, unconstitutionally vague. Accordingly, we 

hold that, on its face, this restriction violates the right to free speech 

guaranteed by Part I, Article 22 of the State Constitution. In light of our 

decision, we need not address the petitioner’s remaining arguments, including 

his arguments under the Federal Constitution. See Doyle, 163 N.H. at 228. 

 The New Hampshire Civil Liberties Union (NHCLU), as amicus curiae, 

has filed a motion for leave to file late authority, to which the petitioner 

assents. The DMV objects. Because our ruling today does not rely upon the 

authority cited by the NHCLU, we decline to rule upon the NHCLU’s motion as 

it is moot. 

 Reversed and remanded. 

DALIANIS, C.J., and HICKS, LYNN and BASSETT, JJ., concurred.