An Oahu man is required to surrender his vanity license plates because of an implied profanity after his fight to stop the government from taking them back was denied by the 9th Circuit Court of Appeals.

The court last week affirmed a Hawaii federal judge’s order denying Edward Odquina a temporary restraining order to prevent the government from taking back the personalized plates.

The 9th Circuit three-judge ruling on Wednesday affirmed Judge Derrick Watson’s order denying Odquina’s motion for preliminary injunction and temporary restraining order because of the use of an apparent vulgarity, not because of the viewpoint it expressed.

“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 con- stitutionally permissible,” the 9th Circuit opinion reads.

It adds that the cases Odquina used in his legal arguments do not support that “vulgarities are constitutionally protected in all circumstances.”

The city mistakenly issued the license plate in violation of city and state rules against profanity, according to Watson’s Nov. 4 order, but the first three letters of the vanity plate were red flags noticed by city employees.

Odquina filed a civil rights complaint Sept. 9 against the City and County of Honolulu and state Attorney General Holly Shikida in U.S. District Court in Hawaii because they had denied him his constitutional rights to have the license plate, which had been mistakenly issued to him.

The state Department of the Attorney General and the city issued a statement saying that the 9th Circuit ruled in their favor “in a lawsuit challenging state and local rules prohibiting the use of expletives on personalized license plates, finding that the relevant state and local rules are constitutional.”

However, Odquina’s attorney, Kevin O’Grady, said the ruling applies only to the preliminary injunction and TRO. The underlying complaint will resume in the lower court.

“That’s not the end of the issue,” he said. “I’m going to argue that it’s unconstitutional whether you call it viewpoint or content implied profanity. … If swear words are content, then it’s OK to discriminate against content?”

“Content and viewpoint are very closely related,” he said. “When you discriminate against one, then you discriminate against both.

Odquina’s Jan. 5, 2021, application for a vanity plate was flagged and sent to a supervisor for review. When the supervisor called and asked Odquina what the letters meant, he said it was an acronym for his business, and received approval even though the supervisor knew that the letters contained an abbreviated swear word.

When Odquina went to pick up the plates at the Hawaii Kai Satellite City Hall, a city worker told him she could not issue the plates since they violated the city’s profanity policy. But he became agitated and insisted it was an acronym for his business. Supervisors directed the city worker to issue it rather than cause Odquina to become aggressive to the staff, saying it would later be recalled.

The city recalled the license plates in July 2021, but Odquina failed to surrender them despite repeated notices.

On Aug. 13, 2021, a year after telling the state the letters were an acronym for his business, Odquina opened a business using the letters. On Sept. 22, 2021, he created a nonprofit using the letters and also operates a website using them.

On Aug. 14, 2021, before he became Honolulu police chief, Arthur “Joe” Logan, then a Department of the Attorney General investigator, was patrolling the state Capitol during protests against the COVID-19 mask mandates when he noticed the inappropriate license plate, which included an implied profanity directed at the Black Lives Matter movement, and he approached the car.

“Mr. Odquina told me that he lied about the meaning of the plate when he talked to the license plate office,” Logan said in his written declaration. “He said he made up some story about (the letters) standing for the name of his business but that he knew what it really meant.”

Whether he lied or not is “irrelevant, and it’s nobody’s business,” O’Grady said.

Odquina’s LinkedIn account shows him wearing a Navy sailor’s uniform, but he is not currently an active-duty military member.

O’Grady said he could not say for sure what Odquina does for a living, but he won’t have to pay for representation because it is a civil rights lawsuit against the county and state, not a private actor.

“If I lose, I don’t get paid,” he said. If he wins, the state or county will pay his fees.

“I suspect that no matter who loses that one (the underlying case), they are going to appeal,” he said.

Odquina said in a Jan. 9 court declaration that his 1987 Pontiac Trans Am and its license plates were stolen Dec. 26; although the car was recovered Dec. 27, the plates remain missing.