The proposed layout for the specialty license plate (rejected by the New York Department of Motor Vehicles).

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.” Seems like a First Amendment violation to me, but the Second circuit just upheld this today, Children First Foundation, Inc. v. Fiala, by a 2-to-1 vote.

1. All the judges agreed that the specialty license plate program, in which the DMV allowed groups to sponsor plates supporting their organizations or causes, created a so-called “nonpublic forum” for the groups’ and drivers’ own speech (rather than being government speech). In such a “nonpublic forum,” the government may select which speech is allowed, so long as the restriction is reasonable, viewpoint-neutral, and doesn’t vest excessive discretion in government officials, since such excessive discretion would lend itself to forbidden viewpoint discrimination.

2. But was the program excessively discretionary, or indeed administered in a viewpoint-based way? The majority says the program was fine, because it contains “objective criteria [that] limit the exercise of the Commissioner’s discretion,” because the program would exclude all viewpoints on the subject of abortion (apparently the New York DMV had excluded an “RU486” license plate from the personalized license tag program, which it administers alongside the organizational specialty plate program), and because the exclusion of “controversial” messages from such a nonpublic forum is viewpoint-neutral. Moreover, the majority says, it’s reasonable for the government to exclude such messages, because of the risk that they might lead to “road rage” attacks against drivers by other drivers who are angered by the license plate, and because people might perceive the government as endorsing the message on the license plate.

3. Yet wait: This isn’t a program such as the one upheld in Lehman v. City of Shaker Heights (1974), in which a nonpublic forum (there, advertising on buses) was opened only to commercial advertising and not political speech at all. Here, cause-related messages are allowed (indeed, specifically solicited), unless they are too “controversial.” And in particular, the DMV had allowed a “Union Yes” plate and a plate showing cross-hairs, blood spatter, and “Support Police” (a fund-raiser for “‘Cop Shot,’ an organization providing monetary rewards for information concerning officers harmed in the line of duty”). Not a problem, says the majority (paragraph breaks added):

[T]he issue of bringing to justice individuals who have attacked police officers cannot reasonably compare — either by its very nature or by the level of contentiousness that surrounds it — to the issue of abortion.

With respect to the decision to issue a “Union Yes” plate, while the myriad issues pertaining to organized labor in the United States are social and political in nature, 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 than it did with the “Choose Life” plate. It is not our place to evaluate and weigh the various hot button issues of our time against one another, assigning to each a specific place in the landscape of public debate in this country. The DMV’s policy does require interpretation and line drawing as to which subjects to exclude entirely, but that does not undermine the policy’s potency as a safeguard against the Commissioner’s exercise of unbridled discretion.

Put another way, some discretion — particularly in a nonpublic forum, where “[s]electivity and discretion are some of the defining characteristics” of the forum — does not constitute unbridled discretion. After all, “perfect clarity and precise guidance” are not required. The commissioner’s approval of the “Union Yes” plate does not indicate inconsistent application of the DMV’s policy.

The dissent, though, disagreed, and I think correctly so:

Despite rejecting the “Choose Life” and “Restore the Wolf” plates [the one other design that the DMV had rejected -EV] 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 schoolreform, andunioncampaign 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….

The Supreme Court … “has long been sensitive to the special dangers inherent in a law placing unbridled discretion directly to license speech … in the hands of a government official.” … [The majority] argues with regard to the “Union Yes” plates that “there is no basis to conclude that the Department failed to apply [its] policy against creating plates that touch upon contentious political issues” when considering the pro-union designs “as opposed to having applied the policy and merely reaching a different result than it did with the ‘Choose Life’ plate.” This, however, is precisely the point: that a policy that takes two issues of similar [valence] and rejects one while blessing the other thrice over, based on agency employees’ subjective views that one is more divisive than the other, self-evidently places no meaningful constraint on the Commissioner’s discretion…. [T]he Commissioner was free to grant or deny [the “Union Yes"] applications according to his whim. The majority cautions that “[i]t is not our place to evaluate and weigh the various hot button issues of our time against one another, assigning to each a specific place in the landscape of public debate in this country.” Indeed, it is not our place — and neither should it be the Commissioner’s….

At base, the statute, regulation and practice here are so malleable as to defy definition. To be clear, this is not to suggest that limits cannot be placed on the content of custom license plates, as our decision in Perry makes clear. 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.

4. Now whenever we talk about speech on license plates, we have to acknowledge that these restrictions do not, by themselves, much affect public debate. Anything you want to say on a license plate can be said more cheaply, and likely more visibly, with a bumper sticker, and nothing stops New York drivers from putting “Choose Life” on their cars.

But the Second Circuit, alongside other courts, has held that the license plate program is a nonpublic forum, so pretty much the same rules would be applicable as to other nonpublic fora (and limited public fora, where the rules are similar to those in nonpublic fora) — such as speech by university student groups on campus bulletin boards, leafleting on various kinds of government property (setting aside traditional public fora such as parks and sidewalks), quite possibly tax exemption programs, 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 (the way bumper stickers offer an easy alternative to license plates).

So it seems to me that Judge Livingston’s dissent expresses the better view here; I hope the Second Circuit agrees to hear the case en banc, or, if there is no en banc rehearing, that the Supreme Court agrees to hear the case (assuming the Walker v. Sons of Confederate Veterans opinion, due to come down within the next month or so, doesn’t have clear language contradicting the panel majority’s reasoning).