Bench Memos

Law & the Courts

Robe Rage Causes Judicial Crash-and-Burn?

In a remarkable decision last Friday, a divided panel of the Second Circuit ruled that the First Amendment allows New York’s Department of Motor Vehicles to exclude an adoption organization’s proposed “Choose Life” plate from its “custom” license plate program pursuant to—get this—the DMV’s statutory authority to reject license plates that are “patently offensive.” Judge Rosemary S. Pooler wrote the majority opinion and was joined by Judge Peter W. Hall. Judge Debra Ann Livingston penned a strong dissent. (One oddity: The case is identified as Rex v. Martinez on the Second Circuit’s list of recent decisions. While that same case name appears on the top of the first page of the opinion, the caption of the ruling identifies the case as Children First Foundation, Inc. v. Fiala.)

New York law gives the DMV discretion not to issue a plate that is “obscene, lewd, lascivious, derogatory to a particular ethnic or other group, or patently offensive.” By the panel majority’s account, the DMV somehow construed “patently offensive” to include plates “advocating politically sensitive and emotionally charged issues” and was concerned that such plates might lead to incidents of “road rage.”

The panel majority purports to explore whether, consistent with what the First Amendment would require, the DMV’s reading was “well-established” and “uniformly applied.” But it comes up with only one other custom plate (“Restore the Wolf”) and one vanity plate (“RU486”) that were ever (supposedly) denied on the basis of political sensitivity. Worse, it can’t explain how the DMV, under that reading, could have approved three separate “Union Yes” custom plates. Instead, Judge Pooler degenerates into gobbledygook:

With respect to the decision to issue a “Union Yes” plate, while the myriad issues pertaining to organized labor in the United States are social and political in nature, there is no basis to conclude that the Department failed to apply the policy against creating plates that touch upon contentious political issues as opposed to having applied the policy and merely reaching a different result than it did with the “Choose Life” plate. It is not our place to evaluate and weigh the various hot button issues of our time against one another, assigning to each a specific place in the landscape of public debate in this country.

So much for determining whether the reading was in fact well-established and uniformly applied. As Livingston puts it in her dissent, “it appears that the [DMV’s] only well-established practice is to reject license plates bearing the phrase ‘Choose Life.’”

If the early reaction is any indication, there may be an across-the-board consensus that the Second Circuit majority got it wrong. On the Volokh Conspiracy, Eugene Volokh opines that the Livingston dissent “expresses the better view” and that the en banc Second Circuit or the Supreme Court should reverse the ruling. At the same time, Slate’s Mark Joseph Stern condemns the ruling as “[i]nane” and “illogical.”

One clue makes me wonder whether Pooler drove her ruling over the edge in a barely concealed fit of “robe rage.” Specifically, I was struck by her curious substitution of the bracketed material in this sentence:

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.

I have verified what I suspected: that even in quoting from the Children First Foundation’s own statement in the record, Pooler couldn’t refrain from replacing “pro-life” (a term that many abortion supporters find objectionable) with “[anti-abortion].” (I will note that she elsewhere does retain “pro-life” in passages she quotes, and she even twice uses the term on her own, so the bracketed substitution might well be a vestige of an early draft.)

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