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Foundation Wins Specialty License Plate Free Speech Rights Battle

By Robyn Hagan Cain on November 11, 2011 | Last updated on March 21, 2019

A federal district judge ruled Tuesday that the New York Department of Motor Vehicles (DMV) cannot discriminate against the Children First Foundation in its quest to add a “Choose Life” license plate to the state’s custom license plate lineup.

The case, Children First Foundation v. Martinez, has worked its way through the federal court system, bouncing from the district court, to the Second Circuit Court of Appeals, and back since Eliot Spitzer’s pre-Ashley Dupré days in the AG’s Office. This week, Senior District Judge Neil McCurn ordered New York DMV Commissioner Barbara Fiala to approve the Children First Foundation’s “Choose Life” custom plate design application.

Like many other states, New York operates a program that allows vehicle owners to display specialty license plates which bear a specific message or symbol. In December 2001, the Children's First Foundation (CFF), a non-profit organization that promotes and supports adoption as "a positive choice" for women with unwanted pregnancies, applied for a "Choose Life" custom plate through the DMV program.

CFF's application was rejected "on the grounds that the requested custom plate series is inconsistent with [the DMV's] regulations in that the ["Choose Life"] message is patently offensive and could provoke outrage from members of the public."

The DMV said that the phrase "Choose Life" is more commonly associated with the abortion rights debate than it is with the promotion and funding of adoption, and explained, "The [DMV's] issuance of a "Choose Life" custom plate series would readily be perceived as governmental support for one side of a controversy that has existed in this country for several decades."

CFF submitted multiple specialty license plate applications with variations on its design and wording until July 2004, when the DMV informed the organization that it has suspended the program. CFF, represented by the Alliance Defense Fund, sued.

After the aforementioned round of judicial pinball up to the Second Circuit Court of Appeals and back, the district court has ruled that the DMV's repeated denials of the CFF specialty plate application violated the group's free speech rights. According to Judge McCurn, the DMV's rejections constituted viewpoint discrimination.

Judge McCurn's order provides that execution should be stayed long enough to allow for further appeal to the Second Circuit Court of Appeals.

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