By Dave Andrusko
It took nine long years, but a judge in the Northern District court in New York has ruled that the state Department of Motor Vehicles (DMV) violated the First Amendment rights of the Children First Foundation when it denied a request in 2002 for a custom license plate reading “Choose Life.”
Judge Neal McCurn concluded that “The exclusion of the entire subject of abortion from the forum is not permissible content-based discrimination, but is discrimination based on viewpoint, which runs afoul of the First Amendment.” McCurn added, “New York has run afoul of the First Amendment by giving the commissioner unbridled discretion to engage in viewpoint discrimination.”
The state has 30 days to appeal McCurn’s decision.
While McCurn observed that Federal appeals courts have been divided in similar cases from other states, in fact 29 states have “Choose Life” license plates and only one appeals court has held against the license plate.
Attorney Jeffrey Shafer of the Alliance Defense Fund, who argued on behalf of the Children First Foundation, said, “Illinois was kind of an odd turn, an anomalous result,” adding, “We’ve had success in just about every other state we’ve sought to have some progress in this issue.”
Elizabeth Rex, director of Children First, told the Post-Standard newspaper she hoped the state would accept McCurn’s ruling. “Let us have a plate, let all other organizations that meet the criteria have a plate,” Rex said. “It’s called freedom of speech.”
“Hopefully, our great state will end the national humiliation of having shushed up the people by choosing not to appeal,” said Lori Kehoe,spokeswoman for New York State Right to Life. “And with or without a license plate, the simple fact is that the love for life is catching on like wildfire. More and more people self-identify as pro-life and fewer and fewer people are killing their unborn kids.”
Kehoe added, “Now, imagine what can happen if we are allowed to speak – dare I say – freely?”
In 2004 a lawyer for DMV thought otherwise. They wrote that the “Choose Life” plate would be “inconsistent with DMV’s regulations in that the message is patently offensive and could provoke outrage from members of the public.”
To which Rex responded, “That’s pretty crazy, isn’t it?”
The Alliance Defense Fund first took the case in 2004 and its lawsuit prompted then-Governor George Pataki to impose a moratorium on all requests for custom license plates. Shafer says about the state has denied about another 100 requests because of the moratorium.
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