MANHATTAN (CN) – New York’s decision not to issue “Choose Life” vanity plates because the state feared the anti-abortion message might inspire road rage was “viewpoint neutral” and therefore will stand, a divided 2nd Circuit ruled on Friday.
The license plates proposed by the Children First Foundation display its logo of a crudely-drawn sketch of two smiling children over the well-known political message.
Despite the sunny imagery, New York State’s commissioner of the Department of Motor Vehicles saw a public safety hazard in bringing a burning controversy to the Empire State’s roadways.
Commissioner Barbara Fiala’s department decided that putting the DMV’s stamp on the plates “would readily be perceived as governmental support for one side of a controversy that has existed in this country for several decades.”
U.S. District Judge Neal McCurn found that rejection to have violated the foundation’s First Amendment rights.
Overturning that decision, U.S. Circuit Judge Rosemary Pooler wrote an appellate court opinion finding that the state’s aim had been to protect the public rather than violate freedom of speech.
“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,” she wrote.
Judge Peter Hall joined the majority opinion.
Their colleague, Judge Debra Ann Livingston contrasted the “Choose Life” plates with proposals that won the DMV’s approval, in a lengthy dissent.
“Notably, the Commissioner approved plates for both ‘Cop Shot,’ an organization providing monetary rewards for information concerning officers harmed in the line of duty whose custom plate depicts a blood splatter, a cross-hair, and the words ‘SUPPORT POLICE,’ and the ‘Union Yes’ campaign, with three separate pro-union plates promoting the New York State AFL-CIO, New York State United Teachers union, and unions generally,” she wrote.
Livingston’s colleagues countered that “the 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.”
Refusing to get drawn in a debate about labor issues, the majority wrote: “It is not our place to evaluate and weigh the various hot button issues of our time against one another, assigning to each a specific place in the landscape of public debate in this country.”
Alliance Defending Freedom, a conservative Christian legal group representing the foundation, commented that it “will review our legal options.”
“Pro-adoption organizations should have the same speech rights as any other organization,” their attorney Jeremy Tadesco wrote in a statement. “While the district court affirmed this basic freedom, the circuit court denied free speech in favor of government censorship.”
New York Attorney General Eric Schneiderman’s office declined to comment on the ruling.
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