A federal appeals court has ruled that the state of New York is allowed to discriminate against an adoption organization by censoring the common “Choose Life” slogan from a license plate program that already allows references to other controversial topics such as mandatory unionization, or the shooting of police officers.
The ruling comes from the 2nd U.S. Circuit Court of Appeals in a case brought by the Children First Foundation against the state license plate slogan program after its plans for a “Choose Life” plate were rejected.
Officials with the Alliance Defending Freedom, who worked with the foundation, said the case might not yet be over – even as a prominent legal scholar warned that such a decision could radically impact speech that is allowed on places like college campuses.
“Pro-adoption organizations should have the same speech rights as any other organization,” said Jeremy Tedesco, senior legal counsel for the ADF. “While the district court affirmed this basic freedom, the circuit court denied free speech in favor of government censorship.
“The state doesn’t have the authority to target the Children First Foundation specialty plates for censorship based on its life-affirming viewpoint. The state has wrongly gotten away with speech discrimination against our client for more than 10 years. We will review our legal options,” he said.
The court opinion agreed with the determination from state lawyer Jill Dunn that “no plate shall be issued … which is, in the discretion of the commissioner, obscene, lewd, lascivious, derogatory to a particular ethnic or other group, or patently offensive.”
The state letter said, “Despite [the organization’s] laudable goals and purposes, the message chosen to convey them, as indicated in the application, is subject to varying interpretations at best, and may even be misleading.”
The state letter said it “will not place an instrument on public roadways which may engender violent discourse among drivers.”
The 2nd Circuit judges noted the state was so determined to prevent the message that when the foundation asked the governor to get involved, officials suspended the entire custom license plate program, which was set up to generate revenue both for the state and the sponsoring groups.
But other messages that were approved included “Union Yes” advocating for all the political issues involving unions, as well as another promoting a fundraiser for a program that offered rewards in cases when officers were attacked.
The court said the messages clearly are private speech and have First Amendment protections, but the state’s program, giving officials the authority to approve or disapprove messages based on their own discretion, was legitimate.
The court said that was reasonable because state policies outlined how no plates would be issued on issues that are “so contentious and divisive.” That, the judges wrote, make the practice “well-established.”
Regarding the “Union Yes” plate, the judges said, “the myriad issues pertaining to organized labor in the United States are social and political in nature, [but] there is no basis to conclude that the department failed to apply the policy against creating plates that touch upon contentious political issues as opposed to having applied the policy and merely reaching a different result.”
The ruling said, “The commissioner’s approval of the ‘Union Yes’ plate does not indicate inconsistent application of the … policy.”
The decision, however, drew a rebuke of sorts from First Amendment expert and prominent legal commentator Eugene Volokh. He said a dissent pointed out the failure of that logic, and he agreed.
He quoted the dissent, “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.”
He noted that people can put such speech on their vehicles much more efficiently with bumper stickers, but the danger is that the precedent could be applied to “speech by university student groups on campus bulletin boards, leafleting on various kinds of government property … and more.”
“Once restrictions on ‘contentious and divisive’ speech are allowed in one of these places (such as the license plate cases), they would generally be allowed in other such nonpublic forum/limited public forum places.
“And those restrictions would be more significant, because there wouldn’t be a trivially easy alternative means of expression in those places,” he explained.
from PropagandaGuard https://propagandaguard.wordpress.com/2015/05/26/court-choose-life-slogan-patently-offensive/
from WordPress https://toddmsiebert.wordpress.com/2015/05/25/court-choose-life-slogan-patently-offensive/
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