The U.S. Court of Appeals for the Second Circuit has ruled that New York can exclude "Choose Life" license plates from the state's specialty license plate program, The Volokh Conspiracy's Eugene Volokh writes. The Department of Motor Vehicles found that the plates are patently offensive, which the Second Circuit, 2-1, upheld.
The license plates are nonpublic forums in which "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," Volokh writes. The Second Circuit said the program excludes all viewpoints on the subject of abortion and thus is reasonable, viewpoint-neutral and doesn't vest excessive discretion in government officials.
Volokh agrees with the dissent that the DMV can't pick and choose what "'custom plates to permit, based solely on ... subjective judgment regarding the degree to which any given political, religious, or social issue is “inflammatory'" at any given time.
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