A divided federal appeals court gave New York wide authority to regulate the content of custom license plates, and reversed a lower court ruling ordering the state to let an adoption advocacy group put the words “Choose Life” on its own plates.
By a 2-1 vote, the 2nd U.S. Circuit Court of Appeals said the commissioner of the state Department of Motor Vehicles had “broad discretion” to decide which plates to permit, and did not violate the First Amendment free speech rights of the Children First Foundation in rejecting the “Choose Life” plates.
Writing for the majority, Circuit Judge Rosemary Pooler said the content of custom plates was “private speech” and the plates themselves a “nonpublic forum.”
She said it followed that the DMV’s uniform policy of excluding controversial, politically sensitive messages from plates, which the agency said stemmed from highway safety concerns, was “reasonable and viewpoint neutral, which is all that the First Amendment requires.”
The 2nd Circuit ruled as the U.S. Supreme Court prepares to decide whether Texas violated the First Amendment by rejecting a custom plate bearing the Confederate flag, on concern the plate and others like it might offend people.
A decision in that case is expected by the end of June, and perhaps as soon as Tuesday.
Friday’s decision reversed a November 2011 ruling by U.S. District Judge Neal McCurn in Syracuse, New York. The lawsuit began in 2004, when the DMV imposed a still-standing moratorium on new custom plate applications. McCurn died in September.
Jeremy Tedesco, a lawyer for the Scottsdale, Arizona-based Alliance Defending Freedom, which represents Children First, said the 2nd Circuit “denied free speech in favor of government censorship,” while New York has “wrongly gotten away” with speech discrimination.
“We will review our legal options,” he added.
The office of New York Attorney General Eric Schneiderman
defended the DMV program. A spokeswoman for Schneiderman, Liz DeBold, declined to comment.
Circuit Judge Debra Ann Livingston dissented from Friday’s decision, saying the DMV commissioner did not have “carte blanche” to decide that plates such as Children First’s, which also included a sun and two smiling children, were patently offensive.
“New York State’s custom plate program places no meaningful limit on the Commissioner’s discretion, thereby inviting viewpoint discrimination,” she wrote.
The 2nd Circuit needed nearly 2-1/2 years to issue its decision, having heard oral arguments on Dec. 11, 2012.
The case is Children First Foundation Inc v Fiala, 2nd U.S. Circuit Court of Appeals, No. 11-05199.
(Reporting by Jonathan Stempel in Chicago; Additional reporting by Lawrence Hurley. Editing by Andre Grenon)