Edward Odquina v. City and County of Honolulu ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 28 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDWARD ODQUINA, No. 22-16844
Plaintiff-Appellant, D.C. No.
1:22-cv-00407-DKW-WRP
v.
CITY AND COUNTY OF HONOLULU, a MEMORANDUM*
municipal corporation; HOLLY T.
SHIKADA, Esquire, Deputy Assistant
Attorney General, in her Official Capacity as
the Attorney General of the State of Hawaii,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Hawaii
Derrick Kahala Watson, Chief District Judge, Presiding
Argued and Submitted June 8, 2023
Honolulu, Hawaii
Before: BADE, BUMATAY, and SANCHEZ, Circuit Judges.
Appellant Edward Odquina appeals an order from the district court denying
a motion for preliminary injunction and a temporary restraining order. We have
jurisdiction under 28 U.S.C. § 1292 and affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
We assume without deciding that license plates bearing customized
alphanumeric inscriptions—commonly known as vanity plates—fall outside the
government-speech doctrine as explained in Walker v. Texas Division, Sons of
Confederate Veterans, 576 U.S. 200 (2015), and are properly analyzed as
nonpublic forums. We conclude the district court’s denial was proper because the
relevant restrictions are not viewpoint based. See Mitchell v. Md. Motor Vehicle
Admin., 148 A.3d 319, 337 (Md. 2016).
The government may restrict speech in nonpublic forums so long as such
restrictions are reasonable in light of the forum’s purpose and are viewpoint
neutral. Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 806 (1985).
Odquina does not contest the district court’s conclusion that Hawaii’s prohibition
on the use of vulgar language on vanity plates is reasonable. It is also undisputed
that Odquina’s license plate was recalled solely for the use of an implied vulgarity
and not because of the plate’s overall message.
Odquina contends that using profanity or vulgar language is a viewpoint that
may not be constitutionally abridged. The district court properly concluded that
Odquina’s challenge went to the content of his message, rather than its viewpoint,
and that such content-based restrictions are constitutionally permissible. And
Odquina’s arguments to the contrary here rely on a misreading of precedent. For
example, his invocation of a line of cases involving criminal statutes does not
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support the proposition that vulgarities are constitutionally protected in all
circumstances. See Cohen v. California, 403 U.S. 15, 18–23 (1971)
(acknowledging that the First Amendment has “never been thought to give
absolute protection to every individual to speak whenever or wherever he pleases
or to use any form of address in any circumstances that he chooses” but
overturning conviction of protestor for wearing a jacket containing an obscenity);
Eaton v. City of Tulsa, 415 U.S. 697, 698 (1974) (per curiam) (“Th[e] single
isolated usage of street vernacular, not directed at the judge or any officer of the
court, cannot constitutionally support the conviction of criminal contempt.”);
Rosenfeld v. New Jersey, 408 U.S. 901 (1972) (remanding in light of Cohen).
Moreover, Odquina’s reliance on authorities invalidating overly broad
statutes that would impermissibly restrict constitutionally protected speech is
misplaced; these authorities are inapposite given the relatively narrow scope of the
regulations here. See Lewis v. City of New Orleans, 415 U.S. 130, 132–34 (1974)
(finding city’s prohibition on “obscene or opprobrious language toward or with
reference to any member of the city police while in the actual performance of . . .
duty” was overly broad because it impermissibly reached protected speech);
accord Hess v. Indiana, 414 U.S. 105, 107–08 (1973) (per curiam).
Because the relevant regulations are reasonable and do not restrict messages
based on their viewpoint, they are constitutionally permissible, and we affirm the
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district court’s denial of Odquina’s request for a preliminary injunction and
temporary restraining order.
AFFIRMED.
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