Free speech is being targeted via vanity plates.
The First Amendment dispute over New York state’s rejection of a “Choose Life” anti-abortion vanity license plate is headed back to the Northern District’s court.
The U.S. Court of Appeals for the Second Circuit on Wednesday withdrew part of its May 22 opinion in the case of Children First Foundation, Inc. v. Fiala, 11-5199-cv. The opinion held New York’s license plate program, under which the Department of Motor Vehicles denied the “Choose Life” plate, was facially valid and the state did not violate the foundation’s constitutional rights.
The New York Department of Motor Vehicles interpreted “patently offensive”, the language of the official regulation covering such plates, as covering any “politically sensitive and emotionally charged issues…regardless of the particular viewpoint espoused.”
But despite this seemingly broad definition, the DMV nonetheless allowed a “Union Yes” plate and one that says “Support Police,” while excluding “Choose Life.”
New York is not immune.
The question about whether North Carolina can issue “Choose Life” specialty license plates and not offer the other side of the political debate will be revived in the U.S. Fourth Circuit Court of Appeals.
The U.S. Supreme Court on Monday sent the North Carolina case back to the federal appeals court with instructions to reconsider it in light of a ruling this month in a Texas case.
In a 5-4 decision, the U.S. justices ruled that Texas did not violate the First Amendment when it refused to allow specialty plates bearing the Confederate battle flag.
Such plates, Stephen G. Breyer wrote for the majority, are the government’s speech and because of that immune from First Amendment attacks.
“As a general matter,” Breyer wrote in the Texas case, “when the government speaks it is entitled to promote a program, to espouse a policy or to take a position.”
If this were not the case, Breyer stated, the government would be powerless to encourage vaccinations or promote recycling.
People use the specialty plates, Breyer added, to suggest the government endorses the message on them. If not, he said, they “could simply display the message in question in larger letters on a bumper sticker right next to the plate.”
In North Carolina, legislators passed a law in 2011 that allowed the production of a “Choose Life” license plate but refused to offer alternatives with messages supported by abortion-rights advocates.
Six amendments were proposed in the legislature to authorize an additional new plate that stated either “Trust Women. Respect Choice” or simply “Respect Choice.” The legislature rejected all six amendments.