Children First Foundation, Inc. v. Fiala

790 F.3d 328, 2015 U.S. App. LEXIS 8485, 2015 WL 2444501

• Court: Court of Appeals for the Second Circuit
• Decided: May 22, 2015
• Docket: Docket No. 11-5199-cv
• Status: Published

Opinions

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 impermissi-bly 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-.