I know Elizabeth Rex, president of the Children First Foundation. The purpose of this particular custom license plate is to raise money for adoption initiatives. It’s approved in plenty of states, but New York – still fighting against it. Hard to believe, really. It just never ends.
It’s often said that one bit of censorship by the government will inevitably lead down a slippery slope to more censorship. In this case, New York has not gone down a slippery slope. It has strutted right off a cliff.
To buttress its legal case, in 2004 the state issued a moratorium on all new specialty license plates — so it can’t be accused of singling out any particular message. The end result is that the Boy Scouts, the Seneca Park Zoo, even a group honoring 9/11 first responders, can’t get a license plate.
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But the state’s position should offend anyone who values free expression, regardless of where they stand on abortion. Veteran civil libertarian Norman Siegel, who is pro-choice, says that the denial of the license plate is classic “government censorship” by state officials “with a different ideology than the message they are trying to suppress.”
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The foundation first applied in 2001. The DMV said no the following year, arguing that “the message is patently offensive and could provoke outrage” — maybe even road rage — “from members of the public.”
Then came the lawsuit and the moratorium.
The latest twist arrived late last year, when a federal district judge in Syracuse ruled in favor of Children First, saying the state was guilty of viewpoint discrimination because the group had met all the requirements for a specialty plate.
Courts have long allowed states to deny license plates if the prohibition is based on specific content like vulgarities. But Judge Neal McCurn, consistent with reams of opinions over the decades, ruled 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.”
“The DMV,” he said, “created a public forum where it allows the display of messages, slogans, logos and toll-free numbers for advocacy groups. The state cannot permit free speech for some but not for all.”
The DMV, represented by State Attorney General Eric Schneiderman, filed its appeals papers April 13 with the U.S. Court of Appeals for the 2nd Circuit in New York with virtually no public notice. Apparently, it’s not something that the otherwise voluble Schneiderman wants to brag about.
In his legal papers, Schneiderman says that appellate courts have split on whether states can prohibit abortion-related messages on license plates — and urges the court to follow decisions that have allowed such censorship.
He also claims that denying the “Choose Life” license plate was viewpoint neutral — a rather peculiar argument to make for a license plate message the state deemed “offensive.”
It’s rather strange that, like attorney generals before him, Schneiderman — who has an expansive view of individual rights in all other realms — is now calling on the courts to help the state restrict them here.
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