11

‐ 5199

Rex v. Martinez

UNITED STATES COURT OF APPEALS 1

FOR THE SECOND CIRCUIT 2

__________ __________ 3

4

August Term, 2012 5

6

(Argued: December 11, 2012 Decided: May 22, 2015) 7

8

Docket No. 11

‐ 5199

‐ cv 9

10

__________ __________ 11

12

CHILDREN FIRST FOUNDATION, INC., 13

14

Plaintiff

‐ Appellee, 15

16

v. 17

18

BARBARA J. FIALA, in her official capacity as Commissioner 19

of the New York State Department of Motor Vehicles, 20

21

Defendant

‐ Appellant

. * 22

23

__________ __________ 24

25

Before: POOLER, HALL, and LIVINGSTON, Circuit Judges

. 26

* The Clerk of the Court is directed to amend the caption as set out above.Appeal from United States District Court for the Northern District of New York 1

(Neal P. McCurn, J .) from its grant of a motion for summary judgment in favor of 2

Children First Foundation, Inc. (“CFF”). The Commissioner of the New York 3

Department of Motor Vehicles (“DMV”) argues the district court erred in 4

concluding that the DMV violated CFF’s First Amendment rights when it denied 5

CFF’s application for a “Choose Life” custom license plate. We conclude that the 6

DMV’s custom plate program, as applied in this case, was reasonable and 7

viewpoint neutral, and that the program did not vest the DMV commissioner 8

with unbridled discretion in approving custom plate designs. As we find no First 9

Amendment violation, the decision of the district court is reversed, and the case 10

remanded for the purpose of entering judgment in favor of the 11

defendant

‐ appellant. 12

13

Reversed and remanded. 14

15

Judge Livingston dissents in a separate opinion. 16

__________ __________ 17

18

JEREMY D. TEDESCO, (Jeffrey A. Shafer, 19

David A. Cortman, James P. Trainor, Kevin 20

Theriot, on the brief ), Alliance Defense 21

Fund, Scottsdale, AZ, for Appellee. 22

23

ZAINAB A. CHAUDRY, (Andrea Oser, on 24

the brief ) and Eric T. Schneiderman, 25

Attorney General of the State of New York 26

for Barbara D. Underwood, Solicitor 27

General, Albany, NY, for 28

Defendant

‐ Appellant. 29

30

POOLER, Circuit Judge : 31

32 A program offered by New York’s Department of Motor Vehicles (the 3

“DMV” or “Department”) permitted not

‐ for

‐ profit organizations to sponsor 343 “custom” license plates bearing a picture or logo representing their group. 1

Children First Foundation, Inc. (“CFF”), a nonprofit organization dedicated to 2

promoting adoption, applied for a custom plate that included the message 3

“Choose Life.” The DMV rejected CFF’s application, citing a Department policy 4

against placing controversial, politically sensitive messages on license plates, 5

which stemmed from highway safety concerns. CFF sued the DMV, and the 6

United States District Court for the Northern District of New York (Neal P. 7

McCurn, J .) granted CFF’s motion for summary judgment, concluding that the 8

DMV violated CFF’s First Amendment rights and, in the alternative, that the 9

entire program was unconstitutional on its face because it afforded the DMV 10

Commissioner unbridled discretion over which custom plates to approve. We 11

reach the opposite conclusion on both issues. 12

We conclude that the content of New York’s custom license plates 13

constitutes private speech and that the plates themselves are a nonpublic forum. 14

CFF’s facial challenge fails because New York’s custom plate program did not 15

impermissibly vest the DMV Commissioner with unbridled discretion in 16

approving custom plate designs. Furthermore, that program, as applied in this 17

case, was reasonable and viewpoint neutral, which is all that the First 184 Amendment requires of restrictions on expression in a nonpublic forum. As we 1

find no First Amendment violation, the decision of the district court is reversed, 2

and the case is remanded for the purpose of entering judgment in favor of the 3

defendant

‐ appellant. 4

Judge Livingston dissents in a separate opinion. 5

BACKGROUND 6

I. Factual Background 7

From 1992 to 2004, the New York Department of Motor Vehicles (“DMV” 8

or “the Department”) administered a “Take Your Pride for a Ride” program as a 9

means to raise revenue. The program permitted nonprofit organizations to apply 10

for custom license plates supporting their causes. These plates customarily depict 11

the nonprofit’s logo and a mission

‐ oriented tagline, under a “New York” banner. 12

Once approved, the custom plates were made available to motorists as an 13

alternative to the State’s standard license plate design. Motorists paid a fee for 14

custom plates, and the State and the organizational sponsor shared the proceeds. 15

The DMV approved custom plates submitted by a wide range of 16

organizations. There are plates bearing the logos of sports teams, such as a World 17

Series Champions plate celebrating the New York Yankees. Other plates 185 advocate particular causes, such as a “Donate Life” plate proposed by an 1

organization that promotes organ and tissue donation. Groups such as the 2

Autism Society of America, the National Multiple Sclerosis Society, and the 3

Animal Population Control Fund sponsored plates urging support for their 4

causes. Relevant to this appeal, the DMV also approved a “Union Yes” plate in 5

support of organized labor, and a “CopShot” plate, which raised funds to 6

investigate acts of gun violence against police officers. The Department also 7

permitted motorists to design and apply for vanity license plates bearing a 8

unique combination of letters and numbers. Both custom and vanity plates are 9

governed by the same regulations and DMV policies and procedures. 10

Plaintiff

‐ Appellee Children First Foundation (“CFF”) is a New York 11

nonprofit corporation that promotes adoption as an alternative to abortion. In 12

December 2001, CFF applied for a custom plate bearing its logo—a simulated 13

crayon drawing of two children’s smiling faces in front of a yellow sun—and a 14

tagline that reads “Choose Life.” 15

The DMV Commissioner at the time, Richard Martinez, denied the 16

application in a letter dated February 25, 2002. In the letter, Martinez noted that 17

one of his predecessors, Richard Jackson, had denied a similar application from a 186 different organization in 1998, and that, after reviewing Jackson’s analysis of the 1

issue, the DMV decided to again reject the “Choose Life” specialty plate request. 2

The letter did not enclose the 1998 ruling nor explain the basis for the prior denial. 3

Jackson’s 1998 denial letter, which is part of the record on appeal, explained that it 4

was the State’s “policy not to promote or display politically sensitive messages” 5

on its license plates, and that the Department’s “concern is that a plate advocating 6

politically sensitive and emotionally charged issues” may lead to incidents of 7

road rage. App’x at 406. 8

CFF’s counsel wrote a letter to the Department dated March 22, 2002, 9

requesting a detailed explanation of the Department’s decision. CFF’s counsel 10

sent a second letter, dated May 8, 2002, claiming that the DMV’s denial 11

constituted viewpoint discrimination in violation of the First Amendment and 12

was a prior restraint on CFF’s speech. 13

By letter dated June 10, 2002, the Department’s Deputy Commissioner and 14

Counsel Jill Dunn responded to CFF’s letters. Dunn cited 15 N.Y.C.R.R. § 16.5(e), 15

which states that “no plate shall be issued under this part which is, in the 16

discretion of the commissioner, obscene, lewd, lascivious, derogatory to a 17

particular ethnic or other group, or patently offensive.” J.A. 440. Dunn explained, 187 “despite [CFF’s] laudable goals and purposes, the message chosen to convey 1

them, as indicated in the application, is subject to varying interpretations at best, 2

and may even be misleading.” App’x at 441. Dunn also stated that the 3

Department believed “the phrase ‘Choose Life’ is more commonly associated 4

with the abortion rights debate than it is with the promotion and funding of 5

adoption,” and thus the issuance of such a plate “would readily be perceived as 6

governmental support for one side of a controversy that has existed in this 7

country for several decades.” App’x at 441. 8

Dunn raised a public safety concern, citing “the violence which has erupted 9

outside medical facilities in New York and elsewhere,” and concluding, “a 10

significant segment of the population [would find] such plates to be patently 11

offensive.” App’x at 441. Dunn also stated that the Department’s decision was 12

“intended to preserve viewpoint neutrality by insuring [ sic ] that plates issued by 13

the State do not present or support either side of this issue, or any other political, 14

religious, or social issue that has proven to be so contentious and divisive.” App’x 15

at 441 (emphasis in the original). Dunn noted that while the Department “cannot 16

control the placement of bumper stickers,” it “will not place an instrumentality 17

on public roadways which may engender violent discourse among drivers,” and 188 that such actions would be counter to the DMV’s “very mission [] to promote 1

traffic safety for the protection of the general public.” App’x at 441. In closing, 2

Dunn explained that the Department would give “all due consideration” to “an 3

application to display a message that is both directly related to [CFF’s] own 4

mission and unrelated to the controversial issues” cited therein. App’x at 441. 5

In October 2003, CFF submitted a redesigned plate for the Department’s 6

consideration. CFF shrank the words “Choose Life” and shifted them from the 7

tagline position at the bottom of the plate to a less prominent position underneath 8

the logo. The new tagline read “FUND

‐ ADOPTION.ORG.” App’x at 314. CFF 9

stated that the new tagline better reflected its purpose, but that a “Support 10

Adoption” or “Choose Adoption” plate would not sell as well as a plate 11

containing the words “Choose Life,” which it maintained must remain on the 12

plate for marketing purposes. App’x at 308. CFF explained that “’Choose Life’ 13

appeals to a much wider audience that encompasses not only pro

‐ adoption, but 14

also [anti

‐ abortion] and anti

‐ death penalty supporters as well.” App’x at 329. 15

Commissioner Martinez rejected the revised application in a letter dated 16

March 31, 2004. He explained that CFF’s revisions failed to address the 17

fundamental concerns that led the DMV to deny CFF’s prior application. 189 Martinez conveyed his belief that in its second application, CFF had 1

“acknowledge[d] that the phrase ‘Choose Life’ rather than ‘Choose Adoption’ or 2

‘Support Adoption’ is more appealing to your organization specifically because it 3

appeals to pro

‐ life and anti

‐ death penalty supporters,” and further stated: 4

I have little choice but to interpret this as an 5

acknowledgment that the proposed plate design is, in 6

fact, intended to draw attention to the very political, 7

social and religious issues that were addressed in 8

Deputy Commissioner Dunn’s June 2002 letter. Based 9

on the acts of violence and death that have surrounded 10

the abortion debate, I simply will not voluntarily put an 11

instrumentality on our public roadways that will incite 12

the type of anger and outrage as we have seen outside 13

abortion clinics in New York State and elsewhere. 14

15

App’x at 438. Martinez also suggested that CFF petition the Legislature to 16

approve its custom plate. 17

Instead of petitioning the Legislature, however, CFF submitted a third 18

application in July 2004 after unsuccessfully urging then

‐ Governor Pataki to 19

direct the Department to issue the Choose Life plate. The third design included 20

“Choose Life” and the logo, but proposed a tagline of 21

“SafeHavens

‐ Adoption.org” or “NYChoose

‐ Life.org.” App’x at 461, 463. In 22

August 2004, Commissioner Martinez suspended the custom plate program in 2310 order to review and update “the criteria and standards for considering 1

applications” for new custom plates “through the formal regulatory process.” 2

App’x at 478. Dunn notified CFF of the moratorium and stated in a letter that 3

despite CFF’s third application, the original decision remained unchanged, and 4

that “there is no application currently pending which is ripe for consideration.” 5

App’x at 478. The moratorium on new custom plate applications still stands, but 6

the DMV continues to issue custom plates that were approved prior to the 7

moratorium. 8

II. Procedural Background 9

In August 2004, CFF commenced the present action against the 10

Department, 1 pursuant to 42 U.S.C. ' 1983, seeking declaratory and injunctive 11

relief as well as monetary damages. CFF alleged that the DMV’s denial of its 12

custom plate applications violated its free speech rights under the First 13

Amendment. CFF also alleged due process and equal protection violations under 14

the Fourteenth Amendment. 15

1 Although the current DMV Commissioner, Barbara J. Fiala, is the named appellant, we refer to

the DMV as the Defendant

‐ Appellant, both for ease of reference and because Fiala is only named

in her official capacity.11 The parties filed cross motions for summary judgment. In its decision on 1

those motions, the district court first concluded: (1) that the speech at issue is 2

private, as opposed to government, speech; and (2) that the custom plates 3

constituted a nonpublic forum. The court granted CFF’s motion on three separate 4

grounds: (1) the Commissioner’s alleged “exclusion of the entire subject of 5

abortion from the forum is not permissible content

‐ based discrimination but is 6

discrimination based on viewpoint;” (2) the “denial of CFF’s plate application 7

was unreasonable” based on “the purpose of New York’s custom plate forum,” 8

which is to disseminate a variety of private affiliations; and (3) the DMV’s 9

regulations and practices granted the Commissioner “unbridled discretion” to 10

approve or deny applications for custom plates. Children First Found., Inc. v. 11

Martinez

, 829 F. Supp. 2d 47 (N.D.N.Y. 2011). Because CFF prevailed on its First 12

Amendment claims, the district court did not address its due process and equal 13

protection claims. The court ordered the Commissioner to approve CFF’s custom 14

plate application, but stayed execution of the judgment until resolution of the 15

anticipated appeal. 16

The Department appealed, challenging all of the district court’s adverse 17

conclusions pertaining to CFF’s First Amendment claims. 1812 DISCUSSION 1

“We review de novo a district court’s grant of summary judgment.” Byrne v. 2

Rutledge

, 623 F.3d 46, 52 (2d Cir. 2010). We “will affirm only if, construing the 3

evidence in the light most favorable to the nonmoving party, ‘there is no genuine 4

dispute as to any material fact and the movant is entitled to judgment as a matter 5

of law.’” State Emp. Bargaining Agent Coal. v. Rowland

, 718 F.3d 126, 132 (2d Cir. 6

2013) (quoting Fed. R. Civ. P. 56(a)). When faced with cross motions for 7

summary judgment we “evaluate each party’s motion on its own merits, taking 8

care in each instance to draw all reasonable inferences against the party whose 9

motion is under consideration.” Byrne

, 623 F.3d at 53 (internal quotation marks 10

omitted). 11

The primary issues before us are: (1) whether the DMV’s custom license 12

plate program is facially invalid as a prior restraint on speech because it does not 13

sufficiently constrain the Commissioner’s ability to exercise unbridled discretion; 14

and (2) if the program is facially valid, whether the DMV violated CFF’s First 15

Amendment rights when it rejected CFF’s custom plate applications. In order to 16

reach these issues, first we must determine whether the messages on the custom 1713 plates constitute government or private speech. We must then determine what 1

type of forum the custom plate program created. 2

I. First Amendment Claims 3

A. Government Speech or Private Speech 4

“The Free Speech Clause restricts government regulation of private speech; 5

it does not regulate government speech.” Pleasant Grove City, Utah v. Summum

, 555 6

U.S. 460, 467 (2009). The threshold question presented for our review is thus 7

“whether the messages on specialty license plates are government speech, private 8

speech, or a combination of the two.” Choose Life Ill., Inc. v. White

, 547 F.3d 853, 860 9

(7th Cir. 2008). If we conclude that those messages are anything but private 10

speech, our First Amendment analysis ends, “because there has been no First 11

Amendment violation—in fact, the First Amendment would not even apply.” 12

Texas Div., Sons of Confederate Veterans, Inc. v. Vandergriff

, 759 F.3d 388, 393 (5th Cir. 13

2014) cert. granted sub nom. Walker v. Texas Div., Sons of Confederate Veterans, Inc.

, 14

135 S. Ct. 752 (2014). 15

The Supreme Court has not yet articulated a test to distinguish government 16

speech from private speech, although the issue is currently pending before the 17

Court. See id. Nor has our Court constructed such a test, but we do have the 1814 benefit of persuasive authority from our sister circuits to guide our inquiry. We 1

find the Fifth Circuit’s analysis in Vandergriff –a case that also pertains to specialty 2

license plates—to be particularly helpful, and its test formulation convincing. 3

The Vandergriff court looked to the two Supreme Court cases that are most on 4

point, Johanns v. Livestock Marketing Ass’n

, 544 U.S. 550 (2005), and Summum

, 555 5

U.S. at 467

 68, and concluded: “Considering the emphasis on context and the 6

public’s perception of the speaker’s identity in Summum

, we think the proper 7

inquiry here is ‘whether a reasonable and fully informed observer would 8

understand the expression to be government speech, as distinct from private 9

speech the government chooses to oblige.’” Vandergriff

, 759 F.3d at 394 (quoting 10

Summum

, 555 U.S. at 487). This is apt distillation of the Supreme Court’s 11

jurisprudence on this question. 12

Applying this test to the specialty license plates at issue here, we have little 13

difficulty concluding that such an observer would know that motorists 14

affirmatively request specialty plates and choose to display those plates on their 15

vehicles, which constitute private property. See Wooley v. Maynard

, 430 U.S. 705, 16

713 (1977) (characterizing cars as “private property”). The connection between the 17

message displayed by the specialty plate and the driver who selects and displays 1815 it is far stronger than the connection between the message and the Department’s 1

stamp of approval. We thus join the Fourth, Fifth, Seventh, Eighth, and Ninth 2

Circuits, which have held that messages on specialty license plates are private 3

speech. See Vandergriff

, 759 F.3d at 396 (5th Cir. 2014) (holding “that specialty 4

license plates are private speech”); Roach v. Stouffer

, 560 F.3d 860, 867 (8th Cir. 5

2009) (concluding that specialty plates are private speech); Choose Life

, 547 F.3d at 6

863 (7th Cir. 2008) (“Messages on specialty license plates cannot be characterized 7

as the government’s speech.”); Ariz. Life Coal., Inc. v. Stanton

, 515 F.3d 956, 968 (9th 8

Cir. 2008) (“Messages on specialty license plates in Arizona are private speech); 9

Sons of Confederate Veterans, Inc. v. Comm’n of Virginia Dep’t of Motor Vehicles

, 288 10

F.3d 610, 621 (4th Cir. 2002) (messages on Virginia specialty license plates are 11

private speech); but see Am. Civil Liberties Union of Tenn. v. Bredesen

, 441 F.3d 370, 12

376 (6 th Cir. 2006) (“Choose Life” message on Tennessee specialty license plate is 13

government speech). 14

Our conclusion is consistent with our opinions in Perry v. McDonald

, 280 15

F.3d 159 (2d Cir. 2001) and Byrne v. Rutledge

, 623 F.3d 46 (2d Cir. 2010). In those 16

cases, the court did not address whether the messages on vanity plates 17

constituted government speech or private speech but instead proceeded directly 1816 to the forum analysis. Since a forum analysis is only undertaken once speech is 1

deemed to be private, however, see Summum

, 555 U.S. at 469 (stating that 2

government speech is not restricted by the Free Speech Clause), these cases are 3

reasonably to be interpreted as implying that the messages on specialty plates 4

constitute private speech. 5

We conclude that custom license plates display private speech, and that 6

the messages they convey are thus subject to First Amendment protection. 7

Accordingly, we proceed to determine the type of forum the Department 8

established through its custom license plate program. 9

B. Forum Analysis 10

Even though the writing on license plates constitutes private speech, the 11

plates themselves remain government property, and “[i]t is well established that 12

the government need not permit all forms of speech on property that it owns and 13

controls.” Perry

, 280 F.3d at 166. Because “’the government is permitted to 14

exercise control over the public’s use of government

‐ owned property for 15

expressive purposes, and the degree of control permitted depends upon the 16

nature of the property and the speech restrictions imposed thereon,’” we must 17

first consider the nature of the government property, or forum, at issue. Zalaski v. 1817 City of Bridgeport Police Dep’t

, 613 F.3d 336, 341 (2d Cir. 2010) (quoting Hotel 1

Employees & Rest. Employees Union, Local 100 v. City of New York Dep’t of Parks & 2

Recreation

, 311 F.3d 534, 544 (2d Cir. 2002)). 3

In reviewing an alleged unconstitutional restriction on speech, we have 4

recognized that “[t]he level of scrutiny applied

. . . depends upon the nature of 5

the forum in which the speech occurs.” R.O. ex rel. Ochshorn v. Ithaca City Sch. 6

Dist.

, 645 F.3d 533, 539 (2d Cir. 2011). We have traditionally recognized three 7

categories of government property: (1) the traditional public forum; (2) the 8

designated public forum; and (3) the nonpublic forum. Byrne

, 623 F.3d at 53 9

(citing Perez v. Hoblock

, 368 F.3d 166, 172

‐ 73 (2d Cir. 2004)). More recently, we 10

recognized a fourth category: the limited public forum, which is “a subset of the 11

designated public forum.” Hotel Employees

, 311 F.3d at 545. 12

A traditional public forum is government property that “by long tradition 13

or by government fiat

. . . ha[s] been devoted to assembly and debate,” such as a 14

public street or square. Perry Educ. Ass’n v. Perry Local Educators’ Ass’n

, 460 U.S. 37, 15

45 (1983). Restrictions on speech in a public forum are subject to strict scrutiny, 16

and thus will be upheld only when the restriction is both “necessary to serve a 1718 compelling state interest,” and “narrowly drawn to achieve that interest.” 1

Cornelius v. NAACP Legal Def. & Educ. Fund, Inc.

, 473 U.S. 788, 800 (1985). 2

A designated public forum is created when the government “intentionally 3

open[s] a nontraditional forum for public discourse.” Cornelius

, 473 U.S. at 802. 4

“Although a state is not required to indefinitely retain the open character of the 5

facility, as long as it does so it is bound by the same standards as apply in a 6

traditional public forum.” Perry Educ. Ass ʹ n

, 460 U.S. at 46. Thus, restrictions on 7

speech in designated public forums must also survive strict scrutiny. Cornelius

, 8

473 U.S. at 800. 9

The government creates a limited public forum when it “opens a 10

non

‐ public forum but limits the expressive activity to certain kinds of speakers or 11

to the discussion of certain subjects.” R.O. ex rel. Ochshorn

, 645 F.3d at 539 12

(internal quotation marks and emphasis omitted). In a limited public forum, 13

“strict scrutiny is accorded only to restrictions on speech that falls within the 14

designated category for which the forum has been opened.” Hotel Employees

, 311 15

F.3d at 545. Restrictions that fall outside of that category “need only be viewpoint 16

neutral and reasonable.” Id. at 546. Finally, a nonpublic forum is government 17

“property that is not traditionally open to the public and that the government 1819 has not opened for expressive activity by members of the public.” Byrne

, 623 F.3d 1

at 53. A restriction on speech in a nonpublic forum must only be reasonable and 2

viewpoint

‐ neutral. Our forum determination thus hinges “on the government’s 3

intended purpose for the property.” N.Y. Magazine v. Metro. Transp. Auth.

, 136 4

F.3d 123, 129 (2d Cir. 1998). 5

The district court identified New York’s custom plates as either a limited 6

public forum or a nonpublic forum but did not decide between the two because, 7

in either situation, the applicable test would require the program to be reasonable 8

and viewpoint neutral. On appeal, the DMV argues that the custom license plates 9

constitute a nonpublic forum. CFF counters that the plates constitute a designated 10

public forum, or a limited public forum in which strict scrutiny should be applied 11

in this instance. CFF argues in the alternative that the DMV’s denial of its 12

application was neither reasonable nor viewpoint neutral. 13

This court has twice found government

‐ issued specialty license plates to 14

be a nonpublic forum—albeit the plates in those instances were vanity license 15

plates, as opposed to custom license plates. See Byrne

, 623 F.3d at 53

 54; Perry

, 16

280 F.3d at 167. In Perry

, the state of Vermont revoked an individual vanity plate 17

that read “SHTHPNS,” an abbreviation for “Shit Happens.” Perry

, 280 F.3d at 1820 163, 167. The Perry court concluded that the Vermont’s vanity plates created a 1

nonpublic forum and provided several factors that informed our decision. For 2

one, the regulations regarding vanity plates were so restrictive that the 3

constrained speech was not indicative of a designated forum. Id. at 167

 68. The 4

court also considered that the stated purpose of issuing license plates was vehicle 5

identification rather than public discourse. Id. at 167. The court further noted that 6

the program was designed to raise revenue, so that the minimal allowance of 7

speech did not demonstrate the government’s intention to create a designated 8

forum. Id

. The fact that the general public did not have unrestricted access to the 9

plates further evinced the lack of government intent to create a public forum. Id. 10

at 168. Finally, the court considered the nature of license plates as being a 11

restricted forum for open discourse. Id. at 168

 69. 12

Similarly, in Byrne

, the State of Vermont denied the plaintiff’s request for a 13

vanity plate that read “JN36TN” in reference to “the often

‐ quoted Biblical verse, 14

John 3:16, ʺ because of a state law banning “all vanity plate combinations that 15

‘refer, in any language, to a

. . . religion’ or ‘deity.’” Byrne

, 623 F.3d at 49 (quoting 16

Vt. Stat. Ann. Tit. 23, § 304(d)(1), (3)(A)). Applying the same line of reasoning as 1721 Perry

, this court again concluded that motor vehicle license plates constitute a 1

nonpublic forum. Id. at 54. 2

By way of comparison, in New York Magazine v. Metropolitan Transit 3

Authority

, this court held that “the advertising space on the outside of MTA 4

buses is a designated public forum, because the MTA accepts both political and 5

commercial advertising.” N.Y. Magazine

, 136 F.3d at 130. The court determined 6

that New York City’s intent was to invite discourse in a designated forum, 7

because the City allowed advertisements containing “political speech” and 8

“clashes of opinion and controversy” on MTA buses. Id

. 9

Turning to the forum in this case, we conclude that there is no material 10

difference between Vermont’s vanity plate program and New York’s custom 11

plate program—or between the nature of custom and vanity plates 12

generally—that permits us to diverge from Perry and Byrne

. The DMV has not 13

given the general public open access to the custom plate program. See Perry Educ. 14

Ass’n

, 460 U.S. at 47 (stating that a designated public forum exists where 15

government permits “indiscriminate use by the general public”). Quite the 16

contrary: the DMV maintains discretion to limit speech on custom license plates 17

through the application process. Cf. Perry

, 280 F.3d at 168 (stating that “the 1822 general public does not have unimpeded access to Vermont license plates” and 1

that the requirement for obtaining permission was evidence that Vermont did 2

not intend to create a public forum). 3

Furthermore, New York established this forum not to create discourse, but 4

to raise revenue. Unlike the advertising scheme in New York Magazine

, New 5

York’s custom license plate program does not invite “clashes of opinion and 6

controversy.” 136 F.3d at 130. Instead, the DMV did precisely the opposite by 7

consistently excluding controversial political speech from the custom plate 8

program. The DMV regulated speech on custom plates in order to advance the 9

Department’s overarching mission of public safety. These actions indicate that 10

the forum was intended to allow for limited speech in order to raise money, not 11

to invite debate. 12

Finally, as this court and others have held, the very nature of license plates 13

precludes us from concluding that the program creates a public forum of any 14

stripe. See Perry

, 280 F.3d at 168 (“The very character of license plates [] suggests 15

that they are not a designated public forum.”). As the Seventh Circuit has noted, 16

“[l]icense plates are not by nature compatible with anything more than an 17

extremely limited amount of expressive activity.” Choose Life Ill., 547 F.3d at 865. 1823 By their very nature, license plates are not designed for open discourse or the 1

open exchange of ideas but rather to identify vehicles, facilitate traffic safety, and 2

in the case of specialty plates, to raise revenue. 3

Against the backdrop of Perry and Byrne

, we readily conclude that New 4

York’s custom license plate program created a nonpublic forum, and thus, that 5

the Department’s rejection of CFF’s proposed plate must only be reasonable and 6

viewpoint neutral. 7

We next turn to CFF’s facial and as

‐ applied First Amendment challenges. 8

We begin with the facial challenge, because if New York’s custom license plate 9

regime is facially invalid, there will be no reason to reach the as

‐ applied 10

challenge, whereas the opposite is not true. 2 11

2 The Supreme Court has held that when it comes to freedom of expression, a regulation

“may be subject to facial review and invalidation, even though its application in the case under

consideration may be constitutionally unobjectionable.” Forsyth County, Ga. v. Nationalist

Movement

, 505 U.S. 123, 129 (1992). “This exception from general standing rules is based on an

appreciation that the very existence of some broadly written laws has the potential to chill the

expressive activity of others not before the court.” Id. As a result, “the Court has permitted a

party to challenge an ordinance

. . . in cases where every application creates an impermissible

risk of suppression of ideas, such as an ordinance that delegates overly broad discretion to the

decisionmaker.” Id. at 129

‐ 30. We believe that a facial challenge based on the unbridled

discretion doctrine unquestionably falls into this category. Moreover, because the harm that the

doctrine combats is the inability of as

‐ applied challenges effectively to detect and remedy

potential acts of unconstitutional viewpoint discrimination, see infra Section C, it makes little

sense to tackle an as

‐ applied challenge prior to testing for unbridled discretion. See e.g.

, Matwyuk

v. Johnson

, 22 F. Supp. 3d 812 (W.D. Mich. 2014) (resolving a facial challenge claiming unbridled24 C. Facial Challenge and Unbridled Discretion. 1

CFF argues that the Department’s custom plate program violates the First 2

Amendment because it affords the Commissioner unbridled discretion with 3

respect to which applications to approve and which to reject. Our dissenting 4

colleague agrees, but we do not. 5

As the Supreme Court explained, “in the area of free expression a licensing 6

statute placing unbridled discretion in the hands of a government official or 7

agency constitutes a prior restraint and may result in censorship.” City of 8

Lakewood v. Plain Dealer Publ’g Co.

, 486 U.S. 750, 757 (1988). Unbridled discretion 9

is inconsistent with the First Amendment because “it allows officials to suppress 10

viewpoints in surreptitious ways that are difficult to detect.” Amidon v. Student 11

Ass’n of State Univ. of N.Y. at Albany

, 508 F.3d 94, 103 (2d Cir. 2007). In order to 12

survive a First Amendment challenge based on a claim of unbridled discretion, a 13

regime that subjects speech to a prior restraint, such as New York’s custom plate 14

program, “must, as a prophylactic matter, contain ‘narrow, objective, and 15

definite standards to guide the licensing authority.’” Id. (quoting Forsyth Cnty., 16

Ga. v. Nationalist Movement

, 505 U.S. 123, 131 (1992)). 17

discretion before resolving an as applied challenge).25 Before proceeding further, we note that throughout the lifespan of this 1

case, CFF’s unbridled discretion argument has taken a back seat to its as

‐ applied 2

challenge. Perhaps as a result, neither the parties nor the district court have 3

clearly isolated it as a separate, facial challenge to a prior restraint, nor analyzed 4

it in that context. The distinction is significant, however, and we take this 5

opportunity to frame the issue more clearly and completely. 6

The unbridled discretion doctrine is inextricably linked to its function as a 7

facial challenge because the “risks to free expression” that it is designed to 8

prevent “can be effectively alleviated only through a facial challenge.” Lakewood

, 9

486 U.S. at 757. The first of two such risks is the potential for self

‐ censorship that 10

arises where “the mere existence of the licensor’s unfettered discretion [is] 11

coupled with the power of prior restraint.” Id. “Self

‐ censorship is immune to an 12

‘as applied’ challenge, for it derives from the individual’s own action, not an 13

abuse of government power.” Id. Thus, “only a facial challenge can effectively 14

test” for the standards required to limit the administrator’s discretion. Id. at 758. 15

The second risk that the doctrine combats is “the difficulty of effectively 16

detecting, reviewing, and correcting content

‐ based censorship ‘as applied’ 17

without standards by which to measure the licensor’s action.” Id. at 759; see also 1826 Griffin v. Sec’y of Veterans Affairs

, 288 F.3d 1309, 1320 (Fed. Cir. 2002) (“[T]he 1

absence of express standards

. . . makes it difficult to prove illicit discrimination 2

in an as

‐ applied challenge. Given the burden of challenging the licensor’s actions 3

case

‐ by

‐ case, these barriers to as

‐ applied challenges may render the licensor’s 4

decisions unreviewable unless facial challenges are allowed.”). We therefore 5

clarify that, consistent with every prior application of the unbridled discretion 6

doctrine of which we are aware, CFF’s challenge to New York’s custom license 7

plate program is properly construed as a facial challenge to a prior restraint. See, 8

e.g.

, Lakewood

, 486 U.S. 750; Forsyth, 505 U.S. 123; Byrne

, 623 F.3d 46; Roach

, 560 9

F.3d 860; Preminger v. Sec’y of Veterans Affairs

, 517 F.3d 1299 (Fed. Cir. 2008); 10

Amidon

, 508 F.3d 94; Griffin

, 288 F.3d 1309; Perry

, 280 F.3d 159. 11

A plaintiff raising a facial challenge shoulders a “heavy burden.” Amidon

, 12

508 F.3d at 98 (citing Nat’l Endowment for the Arts v. Finley

, 524 U.S. 569, 580 13

(1998)). “Facial invalidation is, manifestly, strong medicine, that [is to be 14

employed] sparingly and only as a last resort.” Finley

, 524 U.S. at 580 (internal 15

quotation omitted). To prevail, a plaintiff “‘must demonstrate a substantial risk’ 16

that application of the challenged practice or provision will lead to a First 17

Amendment violation.” Amidon

, 508 F.3d at 98 (quoting Finley

, 524 U.S. at 580); 1827 see also Griffin

, 288 F.3d at 1321 (“[I]n order to consider his facial challenge, 1

[plaintiff] must still show a realistic possibility that application of [the regulation 2

that he challenges] will suppress a substantial amount of constitutionally 3

protected speech.”). 4

As a threshold issue, we must determine whether the unbridled discretion 5

doctrine applies in the context of nonpublic forums. Although the Supreme 6

Court offers no explicit guidance on this subject, it is plain that the answer is 7

“yes.” The dangers posed by unbridled discretion are as present in nonpublic 8

forums as they are in the traditional public forums, where the doctrine has most 9

commonly been deployed. Child Evangelism Fellowship of MD, Inc. v. Montgomery 10

Cnty. Pub. Sch.

, 457 F.3d 376, 386

 87 (4th Cir. 2006). Furthermore, we see no 11

reason why a doctrine that is designed largely to target “undetectable viewpoint 12

discrimination,” Amidon

, 508 F.3d at 103, should not apply in nonpublic forums, 13

where restrictions must be viewpoint neutral. In Perry

, our Court implicitly 14

reached such a conclusion by applying the unbridled discretion doctrine to 15

Vermont’s vanity plate program, which it had previously deemed a nonpublic 16

forum. 280 F.3d at 169

 73. 1728 We thus join our sister circuits that have, over time, been coalescing 1

around the conclusion that the unbridled discretion doctrine applies in the 2

context of nonpublic forums. See Kaahumanu v. Hawaii

, 682 F.3d 789, 806 (9th Cir. 3

2012); Child Evangelism Fellowship of S.C. v. Anderson Sch. Dist. Five

, 470 F.3d 1062, 4

1069 (4th Cir. 2006); Griffin

, 288 F.3d at 1197

 1200; Southworth v. Bd. of Regents of 5

Univ. of Wis. Sys.

, 307 F.3d 566, 579 (7th Cir. 2002); Sentinel Communications Co. v. 6

Watts

, 936 F.2d 1189 (11th Cir. 1991). 7

To avoid an official exercising unbridled discretion in the context of a prior 8

restraint there must be “adequate standards to guide the official’s decision.” Field 9

Day

, LLC v. Cnty. of Suffolk

, 463 F.3d 167, 176 (2d Cir. 2006) (quoting Thomas v. 10

Chicago Park Dist

., 534 U.S. 316, 323 (2002)). We do not, however, require “perfect 11

clarity and precise guidance” from such standards. Ward v. Rock Against Racism

, 12

491 U.S. 781, 794 (1989); see also Field Day

, 463 F.3d at 179. Additionally, “when a 13

state law has been authoritatively construed so as to render it constitutional, or a 14

well

‐ understood and uniformly applied practice has developed that has virtually 15

the force of a judicial construction, the state law is read in light of those limits. 16

That rule applies even if the face of the statute might not otherwise suggest the 17

limits imposed.” Lakewood

, 486 U.S. at 770 n.11 (citing Poulos v. New Hampshire

, 1829 345 U.S. 395 (1953)). We “presume any narrowing construction or practice to 1

which the law is fairly susceptible.” Id. (citing Erznoznik v. City of Jacksonville

, 422 2

U.S. 205 (1975)); see also Ward v. Rock Against Racism

, 491 U.S. 781, 795

B 96 3

(“Administrative interpretation and implementation of a regulation are, of 4

course, highly relevant to our analysis, for in evaluating a facial challenge to a 5

state law, a federal court must consider any limiting construction that a[n] 6

enforcement agency has proffered.” (internal quotation marks and alterations 7

omitted)). Finally, when, as in this instance, a nonpublic forum is involved, 8

“greater latitude ought to be accorded to government officials,” as “[s]electivity 9

and discretion are some of the defining characteristics of the nonpublic forum.” 10

Griffin

, 288 F.3d at 1323. “[T]he fact that discretionary access is a defining 11

characteristic of the nonpublic forum should suggest that more official discretion 12

is permissible in a nonpublic forum than would be acceptable in a public forum.” 13

Id. at 1324. We now turn to the challenge before us. 14

New York’s custom plate program was established under the authority 15

vested in the DMV Commissioner by N.Y. Veh. & Traf. Law § 404, which 16

empowers—but expressly does not require—the Commissioner to issue specialty 17

plates in accordance with regulations the Commissioner promulgates. Pursuant 1830 to § 404, the DMV promulgated 15 N.Y.C.R.R. § 16.5(e), which states that no plate 1

shall be issued that “is, in the discretion of the commissioner, obscene, lewd, 2

lascivious, derogatory to a particular ethnic or other group, or patently 3

offensive.” We agree with CFF and our dissenting colleague that these two 4

provisions afford the commissioner broad discretion. Commissioner Martinez 5

even admitted as much. The ability of these two provisions—standing alone—to 6

provide an adequate safeguard against the Commissioner’s exercise of unbridled 7

authority is dubious. Our universe, however, is not so narrowly drawn. We must 8

also look to any pertinent agency policies and practices, written or unwritten, as 9

long as they are well

‐ established and “uniformly enforced.” See Griffin

, 288 F.3d 10

at 1326 (presuming any “narrowing construction or practice to which the 11

[program] is fairly susceptible”); Lakewood

, 486 U.S. at 770 n.11 (citing Erznoznik

, 12

422 U.S. 205). 13

In a 1998 letter denying a different party’s application for a “Choose Life” 14

custom plate, the Commissioner at the time, Richard Jackson, provided the 15

following explanation: 16

It is the State of New York’s policy not to promote or 17

display politically sensitive messages on our license 18

plates. You may have heard and read a great deal lately 1931 about the subject of “road rage.” Increasingly, even 1

simple gestures and small discourtesies on highways 2

have led to serious incidents between drivers and even 3

fatal accidents and criminal charges. 4

5

Our concern is that a plate advocating politically 6

sensitive and emotionally charged issues may lead to 7

further incidence of aggressive driving or worse. 8

Therefore, we have no plans to offer any plate which 9

has the possibility of compromising the safety of 10

anyone driving on New York highways. 11

12

App’x at 406. Jackson testified in this case that he indeed adhered to the policy 13

that anything advocating either side of a political position would be rejected. 14

Throughout the period of correspondence between DMV officials and CFF’s 15

attorney, which began four years after the DMV denied the identical but 16

unrelated application for a “Choose Life” plate, the DMV maintained its position 17

that it would not issue the plate due to a concern over violent reactions, and that 18

it would not issue a plate supporting either side of this issue “or any other 19

political, religious or social issue that has proven to be so contentious and 20

divisive.” App’x at 409; see also App’x at 438

 39. Commissioner Martinez and 21

other DMV officials involved in the custom plate program also testified that 22

pursuant to the Department’s policy, custom plates espousing a particular 2332 political position were not approved due to concerns over road rage. We 1

conclude, therefore, that this policy was sufficiently “well established.” 2

Our inquiry does not end there, however, because in order to pass 3

constitutional muster the Department’s policy must also be “uniformly applied.” 4

The Department evaluated numerous applications, for both custom and vanity 5

plates, and had previously denied plate requests on the basis of its policy. For 6

example, the DMV denied an application for a “Restore the Wolf” custom license 7

plate at a time when the topic was the subject of heated debate in the 8

Adirondacks. Speaking to the media, a DMV spokesman stated that this was “the 9

first time a group has requested a specialty plate focusing on a political issue.” 10

App’x at 1664. In that instance, “the State found the proposed plate could be 11

interpreted as a governmental endorsement for one side of a highly

‐ charged 12

controversy surrounding the reintroduction of this animal to upstate New York,” 13

and based its denial on that real concern. App’x at 1664

 65. Similarly, the DMV 14

denied a request for a vanity plate reading “RU486,” a reference to the 15

“morning

‐ after pill,” in order to avoid the appearance of government 16

endorsement of a pro

‐ choice stance in the abortion debate. App’x at 1458

 59. The 1733 Department also applied this policy when it denied the 1998 application for the 1

“Choose Life” custom plate. 2

CFF focuses not on the instances when plate proposals were rejected but 3

rather on instances when the DMV approved certain plates, which CFF claims 4

espouse messages on similarly controversial political topics. Specifically, CFF 5

points to plates that read “Cop Shot,” and “Union Yes.” 12 But the issue of 6

bringing to justice individuals who have attacked police officers cannot 7

reasonably compare—either by its very nature or by the level of contentiousness 8

that surrounds it—to the issue of abortion. With respect to the decision to issue a 9

“Union Yes” plate, while the myriad issues pertaining to organized labor in the 10

United States are social and political in nature, there is no basis to conclude that 11

the Department failed to apply the policy against creating plates that touch upon 12

contentious political issues as opposed to having applied the policy and merely 13

reaching a different result than it did with the “Choose Life” plate. It is not our 14

12 CFF also argues that there is no clear distinction between the “Choose Life” plate and a

“War on Terror Veteran” plate to justify the DMV’s rejection of the former and acceptance of the

latter. Such a comparison fails, however, since the “War on Terror Veteran” plate was created

through a legislative action, and not through the DMV’s custom plate program. See N.Y. Veh. &

Traf. Law ' 404

‐ w.34 place to evaluate and weigh the various hot button issues of our time against one 1

another, assigning to each a specific place in the landscape of public debate in 2

this country. The DMV’s policy does require interpretation and line drawing as 3

to which subjects to exclude entirely, but that does not undermine the policy’s 4

potency as a safeguard against the Commissioner’s exercise of unbridled 5

discretion. Put another way, some discretion—particularly in a nonpublic forum, 6

where “[s]electivity and discretion are some of the defining characteristics” of the 7

forum, Griffin

, 288 F.3d at 1323—does not constitute unbridled discretion. After 8

all, “perfect clarity and precise guidance” are not required. Amidon

, 508 F.3d at 9

103 (citation omitted); see also Ward

, 491 U.S. at 794 (“While these standards are 10

undoubtedly flexible, and the officials implementing them will exercise 11

considerable discretion, perfect clarity and precise guidance have never been 12

required even of regulations that restrict expressive activity.”); Thomas

, 534 U.S. 13

at 325 (concluding that the potential abuse of a waiver program “must be dealt 14

with if and when a pattern of unlawful favoritism appears, rather than by 15

insisting upon a degree of rigidity that is found in few legal arrangements”). The 16

commissioner’s approval of the “Union Yes” plate does not indicate inconsistent 17

application of the DMV’s policy. 1835 Finally, we are not troubled by the scant number of times the DMV 1

rejected a custom plate application based on its policy of avoiding contentious 2

political issues altogether, nor do we believe that a larger sample size is required 3

for us to determine that the policy was both well

‐ established and consistently 4

applied. Indeed, the dearth of rejections is far more consistent with a regime that, 5

on the whole, promotes rather than constricts free speech, as opposed to a regime 6

that poses the type of “substantial risk” of impermissibly curtailing free speech 7

for which facial invalidation is reserved. See Amidon

, 508 F.3d at 98. 8

We conclude that the DMV’s policy of excluding completely controversial 9

political and social issues—regardless of the particular viewpoint 10

espoused—from the nonpublic forum of custom license plates, based on 11

concerns pertaining to potential violence and the perception of state 12

endorsement of the message, is sufficiently well

‐ established and has been 13

uniformly enforced so as to render the Commissioner’s discretion adequately 14

bridled. 15

We are convinced not only by the policy itself but also by the procedures 16

by which the DMV effectuates that policy. In determining what is “politically 17

sensitive” and “emotionally charged,” the Department’s established practice calls 1836 for the Commissioner to confer with the “Executive Deputy Commissioner, the 1

Deputy Commissioner and members of [the] legal staff.” App’x at 1457

 59. 2

Although this is a facial challenge and is thus “not dependent on the facts 3

surrounding any particular permit decision,” Forsyth

, 505 U.S. at 133 n.10, we 4

find the procedures used by the DMV after it had engaged in internal 5

deliberations to be particularly revealing. Specifically, the DMV explained its 6

decision in detail, and it suggested changes that CFF could make to its proposed 7

plate design which would allow the plate to be approved. In Forsyth

, the 8

Supreme Court concluded that a county administrator had unbridled discretion 9

based in part on the facts that the administrator was not required to “provide 10

any explanation for his decision” and his decisions were “unreviewable.” 505 11

U.S. at 133. The DMV’s process is not a black box. We construe this level of 12

transparency and communication with the applicant as a narrowing construction 13

and part of the overall custom plate program. 14

To grasp the significance of the DMV’s “rejection process,” we return to 15

the rationales underlying the unbridled discretion doctrine and the reasons why 16

the Supreme Court determined that the First Amendment requires recognition of 17

this particular brand of facial challenge. The “identifiable risks to free 1837 expression” posed by unbridled discretion are two

‐ fold: (1) “the mere existence 1

of the licensor’s unfettered discretion, coupled with the power of prior restraint, 2

intimidates parties into censoring their own speech, even if the discretion and 3

power are never actually abused,” and, as relevant to the DMV’s rejection 4

process, (2) without sufficient “guideposts that check the licensor

. . . post hoc 5

rationalizations by the licensing official and the use of shifting or illegitimate 6

criteria are far too easy, making it difficult for courts to determine in any 7

particular case whether the licensor is permitting favorable, and suppressing 8

unfavorable, expression.” Lakewood

, 486 U.S. at 757

 58. By expressly identifying 9

the element of the proposed plate upon which the rejection is based—and 10

suggesting concrete changes that CFF may make in order for the plate to be 11

approved—the Department has isolated the variable upon which its decision was 12

based. Once again, Griffin is on point and persuasive. There the court concluded 13

that any potential constitutional violation posed by the contested regulation was 14

more appropriately addressed through as

‐ applied challenges in part “because 15

the Lakewood rationales for facial invalidation [were] weak in the context of this 16

challenge.” 288 F.3d at 1327

 28. Moreover, the threat of self

‐ censorship here is 17

mitigated by a rejection process that permits reapplication, not to mention the 1838 fact that individuals are still permitted to express their beliefs in other, very 1

similar means to which the State’s program does not apply (e.g., bumper 2

stickers). See Perry

, 280 F.3d at 169 (“Vermont’s policy does not prevent Perry 3

from communicating any particular message on her automobile. For instance, 4

Perry may display a bumper sticker bearing the letters SHTHPNS if she so 5

desires.”). 6

CFF’s reliance on Roach v. Stouffer

, 560 F.3d 860 (8th Cir. 2009) is misplaced. 7

There, the Eighth Circuit found that a Missouri law vested unbridled discretion 8

in state officials where the law authorizing the “Joint Committee” to approve 9

plates only provided that “the committee shall approve [the plate] by unanimous 10

vote,” without any further guidelines. Id. at 869

 70. The Eight Circuit cautioned 11

that “‘[a] law or policy permitting communication in a certain manner for some 12

but not for others raises the specter of content and viewpoint censorship.’” Roach

, 13

560 F.3d at 869 (alteration omitted) (quoting Lakewood

, 486 U.S. at 763). Because 14

the regulation at issue in Roach provided “no standards or guidelines whatsoever 15

to limit the unbridled discretion of the Joint Committee,” and “[c]onsequently 16

the Joint Committee can deny an application for a specialty plate based solely on 17

the organization’s viewpoint,” id. at 869

 70, the Eighth Circuit concluded that the 1839 regulation ran afoul of the First Amendment. Here, by contrast, the regulation 1

itself and the DMV’s well

‐ established and consistently applied policy and 2

practice provide the guidelines that were lacking in Roach. 3

Relying on Beal v. Stern

, 184 F.3d 117, 126 n.6 (2d Cir. 1999), CFF argues 4

that the existence of the statute is insufficient because the standards set forth are 5

vague and thus do not adequately bridle the Commissioner’s discretion. We 6

disagree. Although the regulation prohibiting license plates that are “obscene, 7

lewd, lascivious, derogatory to a particular ethnic or other group, or patently 8

offensive” may require some parsing, these are words that judges, and members 9

of the legal profession in general, interpret and apply frequently. In Perry

, for 10

example, this Court was able to determine that the word “shit” was “offensive.” 11

Perry, 280 F.3d at 169. Again, in a nonpublic forum analysis, the fact that the 12

Commissioner may exercise some discretion is not fatal to the statutory scheme. 13

Thus, while the constraints on the Commissioner may be modest, they are 14

sufficient to bridle the Commissioner’s discretion and thus to pass Constitutional 15

muster. 16

Finally, any suggestion that the custom plate regime is impermissible 17

because it is framed in terms of when the Commissioner may not exercise 1840 discretion, as opposed to when the Commissioner may exercise that discretion, 1

see Dissent at 12

‐ 13, is unavailing. In Perry

, we upheld Vermont’s custom plate 2

regime, which included a regulation that limited discretion by prohibiting, not 3

permitting, certain content. Perry

, 280 F.3d at 172 n.9 (citing VT. CODE R. 4

14

‐ 050

‐ 025). We see no reason why an administrator’s discretion must be bridled 5

by mechanisms that provide a floor, rather than serve as a ceiling—particularly 6

so in the context of nonpublic forums, where the government administrator may 7

be afforded “greater latitude,” Griffin

, 288 F.3d at 1323. The closely related 8

argument on the permissive nature of the relevant statutory and regulatory 9

provision ( i.e.

, that the Commissioner “may” issue custom plates but is never 10

required to do so) similarly unavailing. See Thomas

, 534 U.S. at 325 (concluding 11

that “[o]n balance

. . . the permissive nature” of [a similar] ordinance framed 12

similarly to the relevant provisions in this case “furthers, rather than constricts, 13

free speech”). 14

In sum, 15 N.Y.C.R.R. § 16.5(e), coupled with the Department’s 15

well

‐ established and consistently applied policy and practice, leads us to 16

conclude that objective criteria do indeed limit the exercise of the 17

Commissioner’s discretion. CFF, having availed itself of the opportunity to 1841 challenge facially the custom plate program under the unbridled discretion 1

doctrine, must “also bear the ‘heavy burden’ imposed on those seeking to 2

invalidate a law on its face,” Griffin

, 288 F.3d at 1328. See also Finley

, 524 U.S. at 3

580; Amidon

, 508 F.3d at 98. We conclude that CFF has failed to “‘demonstrate a 4

substantial risk’ that application of the challenged practice or provision will lead 5

to a First Amendment violation,” Amidon

, 508 F.3d at 98 (quoting Finley

, 524 U.S. 6

at 580). We thus sustain the program on its face and turn to CFF’s as

‐ applied 7

challenge. 8

D. As

‐ Applied Challenge 9

In a nonpublic forum, the government enjoys great “latitude in restricting 10

speech,” and “may limit access or content ‘based on subject matter and speaker 11

identity so long as the distinctions drawn are reasonable in light of the purpose 12

served by the forum and are viewpoint neutral.’” Byrne

, 623 F.3d at 54 (quoting 13

Cornelius

, 473 U.S. at 806). Here, the district court held that the DMV’s denial of 14

the “Choose Life” custom plate was both “viewpoint discriminat[ion]” and 15

“unreasonable.” Children First Found.

, 829 F. Supp. 2d at 59

 63. We disagree with 16

both conclusions. 17

1842 1. Viewpoint Neutrality 1

Two principles guide our evaluation of viewpoint neutrality within the 2

context of a nonpublic forum. “First, the government may permissibly restrict 3

content by prohibiting any speech on a given topic or subject matter,” as long as 4

the restriction encompasses the entirety of the discrete subject. Byrne

, 623 F.3d at 5

54

 55 (emphasis in original); see also Perry

, 280 F.3d at 170 (“[T]he government 6

may reasonably restrict expressive activity in a nonpublic forum on the basis of 7

content, but not on the basis of the speaker’s viewpoint.”). Second, if “the 8

government has permitted some comment on a particular subject matter or topic, 9

it may not then ‘regulate speech in ways that favor some viewpoints or ideas at 10

the expense of others.’” Byrne

, 623 F.3d at 55 (emphasis in original) (quoting 11

Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist.

, 508 U.S. 384, 394 (1993)). 12

Accordingly, the state must be careful to excise the entire matter from the forum, 13

or else it will violate the First Amendment by “den[ying] access to a speaker 14

solely to suppress the point of view he espouses on an otherwise includible 15

subject.” Cornelius v. NAACP Leg. Def. Fund

, 473 U.S. 788, 806 (1985). 16

Several of our sister circuits have grappled with the question of whether 17

excluding speech touching on the issue of abortion constitutes viewpoint 1843 discrimination. The Fourth Circuit dealt with this issue in Planned Parenthood of 1

South Carolina Inc. v. Rose

, 361 F.3d 786, 794

 95 (4th Cir. 2004). There, South 2

Carolina authorized the issuance of a “Choose Life” plate but rejected a plate 3

espousing a pro

‐ choice message. The Fourth Circuit concluded South Carolina 4

engaged in viewpoint discrimination: 5

In the license plate forum, South Carolina has 6

authorized the expression of only one position in the 7

abortion debate, thereby promoting the expression of 8

one viewpoint (pro

‐ life) while preventing the 9

expression of the other viewpoint (pro

‐ choice). By 10

granting access to the license plate forum only to those 11

who share its viewpoint, South Carolina has provided 12

pro

‐ life supporters with an instrument for expressing 13

their position and has distorted the specialty license 14

plate forum in favor of one message, the pro

‐ life 15

message. In short, as the district court correctly 16

determined, the Act was adopted because of the State ʹ s 17

agreement with the pro

‐ life message. South Carolina 18

has therefore discriminated based on viewpoint. 19

20

Id. at 795 (citations omitted). 21

In Choose Life Illinois

, the Seventh Circuit considered Illinois’ refusal to 22

issue a “Choose Life” plate based on the State’s explanation that it “has excluded 23

the entire subject of abortion from its specialty

‐ plate program; it has authorized 24

neither a pro

‐ life plate nor a pro

‐ choice plate.” 547 F.3d at 855 (emphasis in 2544 original). The court concluded that exclusion was a permissible “content

‐ based 1

but viewpoint

‐ neutral restriction,” reasoning that: 2

Illinois has not favored one viewpoint over another on 3

the subject of abortion or prohibited the display of a 4

viewpoint

‐ specific symbol. Instead, the State has 5

restricted access to the specialty

‐ plate forum on the 6

basis of the content of the proposed plate

C saying, in 7

effect, “no abortion

‐ related specialty plates, period.” 8

This is a permissible content

‐ based restriction on access 9

to the specialty

‐ plate forum, not an impermissible act of 10

discrimination based on viewpoint. 11

12

Id. at 865 (citations omitted and emphasis in original). We cited Choose Life Illinois 13

with approval in Byrne. See 623 F.3d at 54

 55. 14

Presented with a similar case in Arizona Life Coalition Inc. v. Stanton

, 515 15

F.3d at 971

 73 (9th Cir. 2008), the Ninth Circuit reached the opposite conclusion 16

from the Seventh Circuit’s Choose Life Illinois decision. There, Arizona’s License 17

Plate Commission rejected a “Choose Life” plate based on “concerns over 18

whether the general public would believe Arizona had endorsed the message of 19

Choose Life” and on “concerns over whether groups with differing viewpoints 20

would file applications. Id. at 961. The Ninth Circuit concluded this constituted 21

viewpoint discrimination rather than a permissible subject matter limitation, 22

relying heavily on the Supreme Court’s decision in Rosenberger v. Rector and 2345 Visitors of University of Virginia

, 515 U.S. 819 (1995), while acknowledging that 1

“‘[t]he line between an acceptable subject matter limitation and unconstitutional 2

viewpoint discrimination is not a bright one.’” Stanton

, 515 F.3d at 972 (quoting 3

Cogswell v. City of Seattle

, 347 F.3d 809, 815 (9th Cir. 2003)). In Rosenberger

, the 4

Court grappled with the constitutionality of the University of Virginia’s ban on 5

student activity funding being allocated to support “religious activity,” which 6

was defined as any activity that “primarily promotes or manifests a particular 7

belie[f] in or about a deity or an ultimate reality.” 515 U.S. at 825. Categorizing 8

the prohibition as discrimination “against an entire class of viewpoints,” the 9

majority criticized the dissent’s conclusion that no viewpoint discrimination was 10

afoot as reflecting the “insupportable assumption that all debate is bipolar and 11

that antireligious speech is the only response to religious speech.” Id. at 831. 12

We agree with the Ninth Circuit that the line between content

‐ based 13

prohibition and viewpoint

‐ based discrimination can often be hazy. We are, 14

however, hesitant to extend Rosenberger ’s holding too far beyond the realm of 15

religious speech, lest the category of impermissible viewpoint

‐ based exclusions 16

erode—and possibly subsume—the category of content

‐ based exclusions that 17

would be otherwise permissible in the context of nonpublic forums. The issue of 1846 abortion is complex and multi

‐ faceted, to be sure, but a comparison to religion in 1

this context is too attenuated for the rationale underlying the Rosenberger Court’s 2

holding. The debate regarding abortion is more “bipolar” than that regarding 3

religion, and pro

‐ life and pro

‐ choice speech are much more easily characterized 4

as the predominant response to each other. See id. Unlike religion, a person’s 5

stance on abortion does not provide “a specific premise, [ ] perspective, [or] 6

standpoint from which a variety of subjects may be discussed and considered,” 7

and unlike in Rosenberger

, New York’s custom plate regime does not target a 8

“prohibited perspective,” but rather the general subject matter of abortion. Id. We 9

therefore join the Seventh Circuit, and depart from the Ninth Circuit, in 10

concluding that the Department’s rejection of CFF’s proposed custom license 11

plate is a permissible content

‐ based restriction imposed in a nonpublic forum, 12

rather than “an impermissible act of discrimination based on viewpoint.” Choose 13

Life Ill.

, 547 F.3d at 865. 14

This conclusion is consistent with this Court’s precedent in Byrne

, where 15

we favorably cited Choose Life Illinois, noting that “the government may 16

permissibly restrict content by prohibiting any speech on a given topic or subject 17

matter.” Byrne, 623 F.3d at 54

 55 (citing, inter alia

, Choose Life Ill.

, 547 F.3d at 865 1847 (the “state may properly exclude[ ] the entire subject of abortion from its 1

specialty

‐ plate program” (emphasis in original and internal quotation marks 2

omitted))). Here, New York employed an approach similar to that of Illinois: as 3

the DMV explained, its “decision is not based on the content of the proposed 4

speech, but instead is intended to preserve viewpoint neutrality by insuring that 5

plates issued by the State do not present or support either side.” App’x at 441 6

(emphasis in original). 7

Unlike South Carolina in Rose

, New York opted not to open up a forum for 8

debate of the subject of abortion. See also Sons of Confederate Veterans, 288 F.3d at 9

622

 23 (finding viewpoint discrimination where legislation specifically 10

prohibited one group’s logo). Whereas South Carolina impermissibly limited the 11

forum to one viewpoint, see Rose

, 361 F.3d at 793

 98, New York did just the 12

opposite. Here, the DMV rejected both pro

‐ choice (“RU486 ʺ ) and pro

‐ life 13

(“Choose Life”) license plates. The DMV cited the same policy when it denied a 14

“Choose Life” custom plate application in 1998 as it did when it later repeatedly 15

denied CFF’s application, thus evincing a standard practice of excluding custom 16

plates pertaining to the subject of abortion for safety reasons. The DMV’s denial 17

of CFF’s proposed “Choose Life” custom plate therefore constitutes the 1848 application of a permissible subject

‐ matter based restriction imposed in a 1

nonpublic forum and does not constitute viewpoint discrimination. 2

2. Reasonableness 3

The reasonableness of a restriction “turns on the ‘purpose of the forum and 4

all the surrounding circumstances,’ and to survive First Amendment scrutiny the 5

restriction ‘need not be the most reasonable or the only reasonable limitation’ 6

imaginable,” it must only be reasonable. Byrne

, 623 F.3d at 59 (citation omitted) 7

(quoting Cornelius

, 473 U.S. at 808

‐ 09). As long as the rationale is “consistent with 8

a legitimate government interest,” the restriction will not run afoul of the First 9

Amendment. Id. at 59

‐ 60. 10

The DMV asserts that its restriction in this case serves two interests: (1) to 11

limit the potential for violence on the State’s roads ( i.e.

, road rage); and (2) to 12

avoid the perception that the State endorses one side of a contentious political 13

issue. Both interests are manifestly legitimate, and we discuss the reasonableness 14

of the DMV’s actions to further each interest in turn. 15

Excluding a highly charged topic—one which in our nation’s recent 16

history has driven people to violent behavior, including bombings and 17

murder—from an environment set aside for the use of countless multi

‐ ton 1849 vehicles traveling at high rates of speed where thousands of deaths occur each 1

year, is consistent with the government’s interest in safety. CFF’s contention that 2

“Choose Life” plates have been available for purchase in other states for twelve 3

years with no definitive proof of ill effects, does not render unreasonable New 4

York’s decision. At the time CFF sought approval for the plates, the abortion 5

debate was particularly volatile, and the DMV was aware of violent protests and 6

bombings at abortion clinics. Given the “purpose of the forum and all the 7

surrounding circumstances,” Byrne

, 623 F.3d at 59 (internal quotation omitted), 8

and contrary to the dissent’s implication, we see no reason why the DMV, 9

serving the legitimate interest of highway safety, must demonstrate that “Choose 10

Life” plates have already incited roadway violence. 11

Pointing to several other custom plates that were approved and that it 12

claims pertain to comparably controversial issues, CFF argues that the rejection 13

of its proposed plate was unreasonable because the Department was not 14

consistent in banning “controversial” expressions, which “unquestionably 15

allow[ed] for viewpoint discrimination.” Appellee’s Br. 18. That argument does 16

not hold water. As Deputy Commissioner Dunn testified, the subject of abortion: 1750 [is] so incredibly divisive across the country, that [it] is 1

not similarly situated to an organization seeking a 2

“Union Yes” plate.

. . . [F]or a government agency to 3

issue a “Union Yes” plate is not going to invoke the 4

violence or outrage that would be provoked if a 5

government agency were to issue

. . . a license plate [on 6

this] highly divisive issue. 7

8

App’x at 1364. Although reasonable minds may differ when weighing and 9

comparing the controversial nature of the various political issues of our day, it is 10

undisputed that abortion is among the most hotly and passionately contested. 11

We cannot conclude that the DMV acted unreasonably when it decided that 12

abortion was unique among the issues that CFF claims to be “similarly situated.” 13

App’x at 441. 14

We turn now to the State’s interest in avoiding the perception that it 15

supports one side of a controversial subject (i.e., maintaining viewpoint 16

neutrality). In Perry

, we held that Vermont had a legitimate interest in rejecting 17

plaintiff’s request for a “SHTHPNS” vanity plate because the government was 18

attempting to avoid being associated with “offensive” words like “shit.” Perry

, 19

280 F.3d at 169 (“The state has a legitimate interest in not communicating the 20

message that it approves of the public display of offensive scatological terms on 21

state license plates.”). As Commissioner Jackson stated when he rejected a plate 2251 supporting restoration of the grey wolf in the Adirondacks, “[l]icense plates were 1

not meant to be bumper stickers for causes” with the government’s imprimatur 2

attached. App’x at 1666. The DMV advised CFF that if the organization found a 3

way to display a message that “is both directly related to its own mission [i.e., 4

adoption] and unrelated to the controversial issue[]” of abortion, it would 5

reconsider the application. App’x at 410. CFF declined to make the change from 6

“Choose Life” to “Choose Adoption” in all three of its applications. The DMV 7

acted reasonably in rejecting an application advocating one side of a 8

controversial topic that it did not want to be perceived as endorsing, while 9

providing CFF a reasonable alternative that would still communicate the 10

message CFF purports to advance. 11

Moreover, individuals retain the ability to speak on the topic of abortion 12

regardless of the DMV’s denial. See Perry

, 280 F.3d at 169

 70. For example, 13

people may display a “Choose Life” bumper sticker—or even cover every 14

available square inch of their vehicle with such stickers. That message will 15

resonate just as loudly as if the vehicle displayed a “Choose Life” license plate. It 16

will merely do so without the perception of State endorsement. 1752 In sum, we will not disturb the Department’s decision to reject a “Choose 1

Life” custom plate, which was made pursuant to a subject matter

‐ based, but 2

viewpoint neutral policy, to exclude the entire subject of abortion from the 3

nonpublic forum of State

‐ issued license plates. The decision was consistent with 4

the State’s legitimate interests in keeping its roadways safe and avoiding the 5

appearance of State endorsement. CFF’s as

‐ applied challenge fails. 6

II. Due Process & Equal Protection Claims 7

CFF also claims that New York’s custom plate regime violated its 8

Fourteenth Amendment rights under the Equal Protection and Due Process 9

Clauses. The district court did not reach these arguments, which we now reject. 10

CFF claims that its Fourteenth Amendment rights were violated because the 11

DMV’s decision to allow some groups to voice their opinions, while not 12

affording CFF the same opportunity, constitutes “invidious discrimination” 13

forbidden under the Equal Protection Clause. Appellee Br. 56

 60. Likewise, it 14

claims that the exercise of the Commissioner’s discretion amounted to 15

discriminatory exclusion under the Due Process Clause. These conclusory 16

statements do nothing to identify a constitutional harm. See D’Elia v. N.Y., New 17

Haven & Hartford R.R.

, 338 F.2d 701, 702 (2d Cir. 1964). They simply amount to 1853 the First Amendment arguments that we have rejected, reframed in terms of 1

equal protection and due process violations. CFF’s claim “fares no better in [this] 2

garb.” Perry Educ. Ass’n

, 460 U.S. at 54. The First Amendment provides the 3

“explicit textual source of constitutional protection” here, rather than some 4

generalized constitutional theory of equal protection or substantive due process. 5

Catletti ex rel. estate of Catletti v. Rampe

, 334 F.3d 225, 229 (2d Cir. 2003) (quoting 6

Cnty. of Sacramento v. Lewis

, 523 U.S. 833, 842 (1998)). The First Amendment is 7

thus the appropriate yardstick by which to measure the constitutionality of the 8

DMV’s custom license plate program. Accord Graham v. Connor

, 490 U.S. 386, 395 9

(1989) (stating that where the Fourth Amendment was the “explicit textual 10

source of constitutional protection,” as opposed to a more generalized notion of 11

due process, that Amendment must guide the Court’s analysis). 12

CONCLUSION 13

We conclude that New York’s custom license plate program, either on its 14

face or as applied in this case, does not violate the First Amendment. We 15

therefore REVERSE the district court’s judgment, and REMAND this case to that 16

court to enter judgment in favor of defendant

‐ appellant. 1754 The mandate in this case will be held pending the Supreme Court ʹ s 1

decision in Walker v. Texas Div., Sons of Confederate Veterans, Inc

., 135 S. Ct. 2

752 (U.S. Dec 05, 2014). Should any party believe there is a need for the district 3

court to exercise jurisdiction prior to the Supreme Court ʹ s decision, it may file a 4

motion seeking issuance of the mandate in whole or in part. Although any 5

petition for rehearing should be filed in the normal course pursuant to Federal 6

Rule of Appellate Procedure Rule 40, this Court will not reconsider its opinion 7

until after the Supreme Court ʹ s decision in Walker

. The parties will have until 8

fourteen days following the date the Supreme Court ʹ s decision is filed to file 9

supplemental petitions for rehearing in light of Walker. 10