Appeals Court overturns lower court judge, upholds ban on “Choose Life” license plate

By Dave Andrusko

NYlicenseplateWhen last we visited the battle over a Choose Life license plate in New York, Judge Neal McCurn had just 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.”

“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.”

That was 2011!

The state appealed and the 2nd Circuit Court of Appeals heard oral arguments.

That was on Dec. 11, 2012!

Last Friday—almost two and one-half years after hearing arguments and 13 years after the state Department of Motor Vehicles turned down The Children First Foundation’s request—a divided three-judge panel agreed with the DMV that it was okay to discriminate out of fear that a license plate with the image of two smiling children on it might provoke road rage. (The DMV decided that the image fell into the ”patently offensive” category.)

Judge Rosemary Pooler, an appointee of President Clinton, wrote the majority opinion. But in a withering dissent, Judge Debra Ann Livingston brushed aside the notion that the DMV would only allow license plates that were not “contentious and divisive”:

“Despite rejecting the ‘Choose Life’ and “Restore the Wolf’ plates on the ground that they were ‘contentious and divisive,’ the commissioner had no trouble approving three separate ‘Union Yes’ plates, along with a custom plate bearing the legend ‘Support Police’ and featuring a cross-hair and blood splatter. The commissioner argues that there is no inconsistency in these decisions, because abortion and wolf restoration are in a different class, in terms of the societal debate that they provoke.

“But it will no doubt come as a surprise to many that the national debate over right-to-work laws, municipal labor contracts, public school reform, and union campaign spending has fallen to the wayside – or that a license plate depicting a blood splatter and urging support for law enforcement is devoid of controversy.”

In fact the state was so determined not to allow the Choose Life specialty plates that in 2004 the DMV imposed a still-standing moratorium on new custom plate applications.