By Joel Stashenko, from New York Law Journal

New York’s Department of Motor Vehicles acted reasonably and within its authority when it refused to issue a “Choose Life” license plate because it feared being seen as taking sides in the volatile abortion debate, the U.S. Court of Appeals for the Second Circuit has ruled.

It is “manifestly legitimate” for the DMV to seek to avoid injecting itself in a matter of such intense public controversy, Judge Rosemary Pooler wrote for the 2-1 majority. She said that was especially the case in 2002, when the DMV first turned down the request by the Children First Foundation to issue the plate to promote adoptions, Pooler said. At that time, Pooler noted in Children First Foundation v. Fiala, 11-5199-cv, bombings of clinics and other violence against abortion providers was occurring with some frequency.

“Excluding a highly charged topic—one which in our nation’s recent history has driven people to violent behavior, including bombings and murder—from an environment set aside for the use of countless multi-ton vehicles traveling at high rates of speed where thousands of deaths occur each year, is consistent with the governor’s interest in safety,” Pooler wrote in Friday’s ruling.

Pooler and her colleague in the majority, Judge Peter Hall, agreed that the DMV’s custom license plates—like the vanity plates offered to motorists, at an extra cost—represent a nonpublic forum over which the state “maintains discretion to limit speech.”

“New York established this forum not to create discourse, but to raise revenue,” Pooler said. “The forum was intended to allow for limited speech in order to raise money, not to invite debate.”

As a nonpublic forum, the majority reasoned, the DMV’s refusal to issue the “Choose Life” plates was consistent with the restrictions on the Vermont vanity license plates that the Second Circuit upheld in Perry v. McDonald, 280 F.3d 159 (2001) and Byrne v. Rutledge, 623 F.3d 46 (2010).

In Perry, Vermont refused to issue a motorist a plate marked “SHTHPNS”—short for “shit happens,” the circuit noted—and in Byrne the state declined to issue a “JN36TN” plate, which it said was an impermissible reference to a Christian message contained in the Biblical passage John 3:16.

“We conclude that there is no material difference between Vermont’s vanity plate program and New York’s custom plate program —or between the nature of custom and vanity plates generally—that permits us to diverge from Perry and Byrne,” Pooler wrote.

She added that the DMV custom license plate program was viewpoint neutral and it does not invest the DMV’s commissioner with unbridled discretion over plate designs.

She cited other instances where the DMV had refused to issue custom plates, such as a “Rescue the Wolf” plate in the 1990s when bringing back the wolf was a matter of controversy among residents of the Adirondack Mountains, as examples of reasonable use of the commissioner’s discretion.

“We conclude that the DMV’s policy of excluding completely controversial political and social issues … 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,” Pooler wrote.

Judge Debra Ann Livingston in dissent said the majority improperly “downplays” the true extent of the DMV’s discretion and will effectively shield New York’s custom plate program from judicial review.

Except for requiring the DMV to collect special fees for the custom plate program, Livingston said state law provides no standards for how the commissioner is to define what message would be offensive or potentially incite violence.

Livingston wondered how the DMV commissioner could deem the proposed “Choose Life” plate—which would depict a sun and two smiling children drawn in crayon—”patently offensive” while allowing more potentially controversial messages to be put on plates.

“To be clear, this is not to suggest that limits cannot be placed on the content of custom license plates, as our in decision in Perry makes clear,” Livingston wrote. “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.”

Joe Morrissey, a spokesman for the New York DMV, said the agency was pleased with the ruling.

“Since we have not issued any new administratively-created plate series since we declared a moratorium in 2004, the decision supports the current situation,” Morrissey said.

Deputy Solicitor General Andrea Oser represented the state.

Jeremy Tedesco led a team of attorneys from the Alliance Defense Fund of Scottsdale, Arizona, which represented the Children First Foundation. Tedesco said the group was considering an appeal.

The circuit decision reversed a finding by Northern District of New York Judge Neal McCurn that New York’s refusal to issue the “Choose Life” plate was viewpoint discrimination and a violation of the foundation’s First Amendment rights (NYLJ, Nov. 10).

Friday’s ruling came with a caveat, however. While upholding the DMV’s actions in the “Choose Life” matter, the circuit held its determination in abeyance pending the U.S. Supreme Court’s ruling in Walker v. Texas Div., Sons of Confederate Veterans, 135 U.S. 752. In Walker, the Supreme Court will decide whether the state of Texas’ attempt to keep the logo of the Sons of Confederate Veterans—which contains the Confederate flag—off a custom plate violates the group’s First Amendment rights.

The Supreme Court heard arguments in Walker case in December 2014.

The DMV began the “Take Your Pride for a Ride” program in 1992 as a money-raising venture.

It allowed not-for-profit groups to sponsor special plates featuring the groups’ logos to promote their organizations or causes, with the state and the organizations splitting the revenues from the special fees the DMV charged for the plates.

Groups which sponsored plates included the Autism Society of America and the National Multiple Sclerosis Society. The state stopped issuing new plates in 2004 amid the dispute over the issuance of the “Choose Life” plate. Plates issued between 1992 and 2004 remain valid, if vehicle owners have continued to pay the extra fees.

For more on this story go to: http://www.newyorklawjournal.com/id=1202727336162/DMV-Rejection-of-Licence-Plate-Found-Reasonable#ixzz3bFi9k9o2