NEW YORK — A federal appeals court ruled on Friday that the New York Department of Motor Vehicles (DMV) has a right to decline to make “Choose Life” specialty plates if the commissioner deems the message as being “patently offensive.”
The Children First Foundation, which raises funds to support adoption and safe havens for babies in New York, New Jersey, Connecticut and D.C., had first petitioned the DMV for the plates in 2002. However, the request was rejected as the DMV stated that it had a “policy not to promote or display politically sensitive messages” on license plates.
It also outlined that it worried that the plates “would readily be perceived as governmental support for one side of a controversy that has existed in this country for several decades,” and expressed concern that such plates could lead to incidents of road rage from those who disagree.
But the Foundation said that alternatives to the plates, such as “Choose Adoption,” wouldn’t be as popular among drivers and noted that the DMV had approved controversial plates such as “Union Yes” and “Cop Shot.” It filed suit against the state in 2004.
In 2011, U.S. District Judge Neal McCurn declared the DMV’s rejection of the plate unconstitutional, and the state appealed the case to the Second Circuit Court of Appeals. On Friday, the three-judge panel sided 2-1 with the state, ruling that the DMV had a right to reject messages that it found to be offensive or controversial.
“We conclude that the DMV’s policy of excluding completely controversial political and social issues—regardless of the particular viewpoint espoused—from the nonpublic forum of custom license plates, based on concerns pertaining to potential violence and the perception of state endorsement of the message, is sufficiently well-established and has been uniformly enforced so as to render the Commissioner’s discretion adequately bridled,” wrote Judge Rosemary Pooler, appointed to the bench by then-President Bill Clinton.
She and colleague Peter Hall opined that drivers had other means to proclaim their pro-life views, such as with bumper stickers, and stated that the “Cop Shot” plates, which denounce violence against police, were not as controversial as the pro-life plates.
“[T]he issue of bringing to justice individuals who have attacked police officers cannot reasonably compare—either by its very nature or by the level of contentiousness that surrounds it—to the issue of abortion,” Pooler wrote.
But Judge Debra Ann Livingston dissented, stating that she believed it was unconstitutional to give the DMV commissioner unfettered discretion in deciding which plates are and aren’t acceptable.
“[A] policy that takes two issues of similar [valence] and rejects one while blessing the other thrice over, based on agency employees’ subjective views that one is more divisive than the other, self-evidently places no meaningful constraint on the commissioner’s discretion,” she wrote.
“To be clear, this is not to suggest that limits cannot be placed on the content of custom license plates … But the commissioner may not pick and choose what custom plates to permit, based solely on his subjective judgment regarding the degree to which any given political, religious, or social issue is ‘inflammatory’ at any given time,” Livingston continued.
The Christian legal organization Alliance Defending Freedom (ADF), which represented the Children First Foundation, expressed disappointment with the ruling.
“Pro-adoption organizations should have the same speech rights as any other organization,” said Senior Legal Counsel Jeremy Tedesco in a statement. “While the district court affirmed this basic freedom, the circuit court denied free speech in favor of government censorship. The state doesn’t have the authority to target the Children First Foundation specialty plates for censorship based on its life-affirming viewpoint.”
“The state has wrongly gotten away with speech discrimination against our client for more than 10 years,” he stated. “We will review our legal options.”