Children First Found., Inc. v. Fiala

790 F.3d 328

CHILDREN FIRST FOUNDATION, INC., Plaintiff–Appellee

v.Barbara J. FIALA, in her official capacity as Commissioner of the New York State Department of Motor Vehicles, Defendant–Appellant.^*

Docket No. 11–5199–cv.

United States Court of Appeals, Second Circuit.

Argued: Dec. 11, 2012.

Decided: May 22, 2015.

Jeremy D. Tedesco, (Jeffrey A. Shafer, David A. Cortman, James P. Trainor, Kevin Theriot, on the brief), Alliance Defense Fund, Scottsdale, AZ, for Appellee.

Zainab A. Chaudhry, (Andrea Oser, Barbara D. Underwood, Solicitor General, on the brief) for Eric T. Schneiderman, Attorney General for the State of New York, Albany, N.Y., for Defendant–Appellant.

Before: POOLER, HALL, and LIVINGSTON, Circuit Judges.

Opinion

Judge LIVINGSTON dissents in a separate opinion.

POOLER, Circuit Judge:

A program offered by New York's Department of Motor Vehicles (the “DMV” or “Department”) permitted not-for-profit organizations to sponsor “custom” license plates bearing a picture or logo representing their group. Children First Foundation, Inc. (“CFF”), a nonprofit organization dedicated to promoting adoption, applied for a custom plate that included the message “Choose Life.” The DMV rejected CFF's application, citing a Department policy against placing controversial, politically sensitive messages on license plates, which stemmed from highway safety concerns. CFF sued the DMV, and the United States District Court for the Northern District of New York (Neal P. McCurn, J. ) granted CFF's motion for summary judgment, concluding that the DMV violated CFF's First Amendment rights and, in the alternative, that the entire program was unconstitutional on its face because it afforded the DMV Commissioner unbridled discretion over which custom plates to approve. We reach the opposite conclusion on both issues.

We conclude that the content of New York's custom license plates constitutes private speech and that the plates themselves are a nonpublic forum. CFF's facial challenge fails because New York's custom plate program did not impermissibly vest the DMV Commissioner with unbridled discretion in approving custom plate designs. Furthermore, that program, as applied in this case, was reasonable and viewpoint neutral, which is all that the First Amendment requires of restrictions on expression in a nonpublic forum. As we find no First Amendment violation, the decision of the district court is reversed, and the case is remanded for the purpose of entering judgment in favor of the defendant-appellant.

Judge Livingston dissents in a separate opinion.

BACKGROUND

I. Factual Background

From 1992 to 2004, the New York Department of Motor Vehicles (“DMV” or “the Department”) administered a “Take Your Pride for a Ride” program as a means to raise revenue. The program permitted nonprofit organizations to apply for custom license plates supporting their causes. These plates customarily depict the nonprofit's logo and a mission-oriented tagline, under a “New York” banner. Once approved, the custom plates were made available to motorists as an alternative to the State's standard license plate design. Motorists paid a fee for custom plates, and the State and the organizational sponsor shared the proceeds.

The DMV approved custom plates submitted by a wide range of organizations. There are plates bearing the logos of sports teams, such as a World Series Champions plate celebrating the New York Yankees. Other plates advocate particular causes, such as a “Donate Life” plate proposed by an organization that promotes organ and tissue donation. Groups such as the Autism Society of America, the National Multiple Sclerosis Society, and the Animal Population Control Fund sponsored plates urging support for their causes. Relevant to this appeal, the DMV also approved a “Union Yes” plate in support of organized labor, and a “CopShot” plate, which raised funds to investigate acts of gun violence against police officers. The Department also permitted motorists to design and apply for vanity license plates bearing a unique combination of letters and numbers. Both custom and vanity plates are governed by the same regulations and DMV policies and procedures.

Plaintiff–Appellee Children First Foundation (“CFF”) is a New York nonprofit corporation that promotes adoption as an alternative to abortion. In December 2001, CFF applied for a custom plate bearing its logo—a simulated crayon drawing of two children's smiling faces in front of a yellow sun—and a tagline that reads “Choose Life.”

The DMV Commissioner at the time, Richard Martinez, denied the application in a letter dated February 25, 2002. In the letter, Martinez noted that one of his predecessors, Richard Jackson, had denied a similar application from a different organization in 1998, and that, after reviewing Jackson's analysis of the issue, the DMV decided to again reject the “Choose Life” specialty plate request. The letter did not enclose the 1998 ruling nor explain the basis for the prior denial. Jackson's 1998 denial letter, which is part of the record on appeal, explained that it was the State's “policy not to promote or display politically sensitive messages” on its license plates, and that the Department's “concern is that a plate advocating politically sensitive and emotionally charged issues” may lead to incidents of road rage. App'x at 406.

CFF's counsel wrote a letter to the Department dated March 22, 2002, requesting a detailed explanation of the Department's decision. CFF's counsel sent a second letter, dated May 8, 2002, claiming that the DMV's denial constituted viewpoint discrimination in violation of the First Amendment and was a prior restraint on CFF's speech.

By letter dated June 10, 2002, the Department's Deputy Commissioner and Counsel Jill Dunn responded to CFF's letters. Dunn cited 15 N.Y.C.R.R. § 16.5(e), which states that “no plate shall be issued under this part which is, in the discretion of the commissioner, obscene, lewd, lascivious, derogatory to a particular ethnic or other group, or patently offensive.” J.A. 440. Dunn explained, “despite [CFF'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.” App'x at 441. Dunn also stated that the Department believed “the phrase ‘Choose Life’ is more commonly associated with the abortion rights debate than it is with the promotion and funding of adoption,” and thus the issuance of such a plate “would readily be perceived as governmental support for one side of a controversy that has existed in this country for several decades.” App'x at 441.

Dunn raised a public safety concern, citing “the violence which has erupted outside medical facilities in New York and elsewhere,” and concluding, “a significant segment of the population [would find] such plates to be patently offensive.” App'x at 441. Dunn also stated that the Department's decision was “intended to preserve viewpoint neutrality by insuring [sic ] that plates issued by the State do not present or support either side of this issue, or any other political, religious, or social issue that has proven to be so contentious and divisive.” App'x at 441 (emphasis in the original). Dunn noted that while the Department “cannot control the placement of bumper stickers,” it “will not place an instrumentality on public roadways which may engender violent discourse among drivers,” and that such actions would be counter to the DMV's “very mission [ ] to promote traffic safety for the protection of the general public.” App'x at 441. In closing, Dunn explained that the Department would give “all due consideration” to “an application to display a message that is both directly related to [CFF's] own mission and unrelated to the controversial issues” cited therein. App'x at 441.

In October 2003, CFF submitted a redesigned plate for the Department's consideration. CFF shrank the words “Choose Life” and shifted them from the tagline position at the bottom of the plate to a less prominent position underneath the logo. The new tagline read “FUND–ADOPTION.ORG.” App'x at 314. CFF stated that the new tagline better reflected its purpose, but that a “Support Adoption” or “Choose Adoption” plate would not sell as well as a plate containing the words “Choose Life,” which it maintained must remain on the plate for marketing purposes. App'x at 308. CFF explained that “ ‘Choose Life’ appeals to a much wider audience that encompasses not only pro-adoption, but also [anti-abortion] and anti-death penalty supporters as well.” App'x at 329.

Commissioner Martinez rejected the revised application in a letter dated March 31, 2004. He explained that CFF's revisions failed to address the fundamental concerns that led the DMV to deny CFF's prior application. Martinez conveyed his belief that in its second application, CFF had “acknowledge[d] that the phrase ‘Choose Life’ rather than ‘Choose Adoption’ or ‘Support Adoption’ is more appealing to your organization specifically because it appeals to pro-life and anti-death penalty supporters,” and further stated:

I have little choice but to interpret this as an acknowledgment that the proposed plate design is, in fact, intended to draw attention to the very political, social and religious issues that were addressed in Deputy Commissioner Dunn's June 2002 letter. Based on the acts of violence and death that have surrounded the abortion debate, I simply will not voluntarily put an instrumentality on our public roadways that will incite the type of anger and outrage as we have seen outside abortion clinics in New York State and elsewhere.

App'x at 438. Martinez also suggested that CFF petition the Legislature to approve its custom plate.

Instead of petitioning the Legislature, however, CFF submitted a third application in July 2004 after unsuccessfully urging then-Governor Pataki to direct the Department to issue the Choose Life plate. The third design included “Choose Life”...