The Second Circuit U.S. Court of Appeals ruled that New York could ban “Choose Life” license plates on the premise that the plates could inspire road rage. The 3-member panel overturned a lower court decision in deciding that the intent of the law was to protect the public not to violate free speech rights. “We conclude that the DMV’s policy of excluding completely controversial political and social issues – regardless of the particular viewpoint espoused – from the nonpublic forum of custom license plates, based on concerns pertaining to potential violence and the perception of state endorsement of the message, is sufficiently well-established and has been uniformly enforced so as to render the Commissioner’s discretion adequately bridled,” wrote the judge in her majority opinion. (Courthouse News Service, May 22, 2015, by Adam Klasfeld)
Eugene Volokh of the Volokh Conspiracy, The Washington Post, May 22, 2015, argued that the decision was off-base, that the plates were a nonpublic forum rather than government speech. It is difficult to maintain that other approved messages on plates such as “Support Police” with a cross-hair and blood splatter are not controversial and absent of strong reactions.