     11-5199
     REX V. MARTINEZ

     DEBRA ANN LIVINGSTON, Circuit Judge, dissenting:

 1         New York’s Commissioner of Motor Vehicles, citing his sole control over the

 2   issuance of custom license plates in the State of New York, deems a proposed

 3   custom plate depicting a sun and two smiling children, and bearing the words,

 4   “Choose Life,” to be “patently offensive,” and thus prohibited under New York law.

 5   In its desire to uphold this surprising result, the majority downplays the broad

 6   discretion afforded to the Commissioner, perceives content in a regulation without

 7   it, and divines a long-standing practice from trivial and contradictory evidence. The

 8   majority effectively shields New York’s custom plate program from judicial review

 9   and does so in a manner out of line with our precedent and with similar cases from

10   around the country. Because I would find that New York State’s custom plate

11   program places no meaningful limit on the Commissioner’s discretion, thereby

12   inviting viewpoint discrimination, I respectfully dissent.

13                                            I.

14         Since 1977, New York has empowered its Commissioner of Motor Vehicles to

15   issue “special number plates” in accordance with Department of Motor Vehicle

16   regulations. See N.Y. VEH. & TRAF. LAW § 404 (“section 404”). Section 404 lodges the



                                              1
 1   decision to issue such plates solely with the Commissioner, providing that

 2   “[n]othing contained in [the statute] shall be construed to require the

 3   [C]ommissioner to issue a special number plate or plates.” Id. 404(4); see also id.

 4   404(1) (“The [C]ommissioner may issue special number plates . . . .” (emphasis

 5   added)). Beyond minimal fee requirements, the Commissioner’s discretion in

 6   issuing the plates is impacted by only one regulation, 15 N.Y.C.R.R. § 16.5, which

 7   states in relevant part that “[n]o plate shall be issued . . . which . . . is, in the

 8   discretion of the [C]ommissioner, obscene, lewd, lascivious, derogatory to a

 9   particular ethnic or other group, or patently offensive.”                   Id. §16.5(e).1    The

10   interpretation of these terms, as noted in the regulation, is entrusted to “the

11   discretion of the [C]ommissioner.” Id. Thus, by their plain terms, section 404 places

12   no limit on the Commissioner’s discretion in reviewing applications for special

13   number plates, and 15 N.Y.C.R.R. § 16.5 places at most a modest one, requiring the

     1
         15 N.Y.C.R.R. § 16.5 states in full that:

               No plate shall be issued under this Part which: (a) does not have at least one
               letter. This provision shall not apply to plates issued to public officers; (b)
               has numbers and letters, or any combination thereof, arranged in a format
               reserved for issuance to specific classes of vehicles other than passenger
               vehicles; (c) is assigned for issuance to historical motor vehicles; (d) consists
               of six numbers followed by one letter; (e) is, in the discretion of the
               commissioner, obscene, lewd, lascivious, derogatory to a particular ethnic or
               other group, or patently offensive; or (f) would lead one to believe that the
               owner of a particular vehicle is connected with or operating in an official
               capacity for a governmental organization or function.

                                                      2
 1   Commissioner to deny applications that he determines run afoul of the regulation.

 2   The Commissioner’s discretion to approve applications is unlimited beyond the

 3   scope of 15 N.Y.C.R.R. § 16.5, and his discretion to deny applications is entirely

 4   unbounded.

 5         In 1992, in a bid to generate additional revenue, the New York State

 6   legislature amended section 404 to approve the sale of “distinctive regional design

 7   plates.” N.Y. VEH. & TRAF. LAW § 404-l. Though the Department had long issued

 8   individual “vanity” plates and other plates specifically authorized by statute, the

 9   Commissioner relied on this amendment to institute the large-scale custom plate

10   program at issue here. Dubbed “Take Your Pride for a Ride,” the program

11   authorizes the issuance of custom license plate series on the application of non-profit

12   organizations that are registered in New York and fall within eight broad categories:

13   (1) Sports Teams; (2) Causes; (3) Organizations; (4) Counties and Regions of New

14   York; (5) Colleges, Fraternities, and Sororities; (6) Military and Veterans;

15   (7) Emergency Services; and (8) Professions. To apply, an organization is required

16   to submit a description of itself and its cause, a refundable deposit sufficient to

17   finance the initial manufacturing costs, a plate design, and marketing materials. No

18   statute or regulation specific to the program guides the Commissioner’s

19   implementation of the program or provides objective criteria for his review of

                                               3
 1   applications. See id. 404-l(1) (providing for issuance of “license plate[s] with a

 2   distinctive regional design approved by the [C]ommissioner”). Instead, only 15

 3   N.Y.C.R.R. § 16.5 – in relevant part, prohibiting a subset of plates deemed “obscene,

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

 5   offensive” – applies.

 6         From 1992 to 2004, when the Department suspended the program, the

 7   program issued dozens of custom plate series, spanning topics as diverse as sports,

 8   pets, recycling, Freemasonry, the legacy of Theodore Roosevelt, motorcycle and

 9   luxury car ownership, horse racing, military service, and professional memberships.

10   Notably, the Commissioner approved plates for both “Cop Shot,” an organization

11   providing monetary rewards for information concerning officers harmed in the line

12   of duty whose custom plate depicts a blood splatter, a cross-hair, and the words

13   “SUPPORT POLICE,” and the “Union Yes” campaign, with three separate pro-union

14   plates promoting the New York State AFL-CIO, New York State United Teachers

15   union, and unions generally.

16         Despite the broad array of messages approved for inclusion in the program,

17   the Commissioner thrice rejected Children First Foundation, Inc.’s (“CFF”)

18   application for a “Choose Life” plate series. CFF first applied to the program in

19   December 2001, proposing a plate with the image of two smiling children, drawn in

                                              4
 1   crayon, positioned over the phrase “Choose Life.” Though CFF complied with the

 2   program’s application requirements, the Commissioner denied its proposed plate

 3   in February 2002. The only reason provided for the denial was that the Department

 4   had rejected a similar “Choose Life” plate in 1998. After CFF requested a fuller

 5   explanation, the Department replied that the proposed plate had been deemed

 6   “patently offensive,” in contravention of 15 N.Y.C.R.R. § 16.5(e). In support of this

 7   assertion, the Department cited its purported – albeit, unwritten – practice of

 8   avoiding association with “either side” of a “political, religious[,] or social issue that

 9   has proven to be . . . contentious and divisive.”2 J.A. 409. The Department averred

10   that notwithstanding CFF’s “laudable” pro-adoption goals, CFF’s “Choose Life”

11   slogan is “more commonly associated with the abortion rights debate” than the issue

12   of adoption, triggering the ban on “patently offensive” plates. The Department also

13   cited a purported risk of “road rage” should the plates be released to the public, as

14   well as a concern that the “Choose Life” plate series “would readily be perceived as




     2
      The Department’s account of this “practice” has shifted during this litigation. While the
     Department cited only a ban on “contentious” messages in its letter to CFF, in a subsequent
     affirmation, the Deputy Commissioner and Counsel for the Department described the
     practice as only approving applications that “refrain[ed] from espousing an[y] particular
     religious, political or social position” (emphasis added). J.A. 1663.

                                                 5
 1   governmental support for one side of a controversy that has existed in this country

 2   for several decades.”3 J.A. 409.

 3         In October 2003, CFF submitted a redesigned plate for consideration. Though

 4   the plate, for the first time, promoted the website “Fund-Adoption.Org,” it retained

 5   the “Choose Life” slogan. CFF stated in its application that the slogan was necessary

 6   to appeal to pro-adoption, pro-life, and anti-death penalty advocates alike. The

 7   Commissioner again rejected the proposed plate on the basis of the alleged policy

 8   against “contentious” messages and, in an apparent effort to emphasize the finality

 9   of the denial, cited to CFF his “sole[]” “control over the design, marketing, and

10   issuance of any custom plate series,” as well as the lack of any “legal requirement”

11   obliging him to approve applications. J.A. 439. CFF submitted another redesigned

12   plate in 2004 but the Commissioner deemed CFF’s application already denied. He

13   suspended the custom plate program altogether shortly thereafter.

14         Though the Department has denied four “Choose Life” plates pursuant to its

15   alleged policy deeming so-called “contentious” license plates to be “patently


     3
       Prior to the Commissioner’s denial of CFF’s custom plate applications, the Department
     had issued several vanity plates to individuals associated with CFF and bearing messages
     such as “CHSE LFE.” In addition, at the time the Commissioner denied CFF’s third and
     final application, at least eleven other states offered custom “Choose Life” plates. See
     Choose Life America, Inc., Newsletter, http://www.choose-life.org/ newsletter.php (last
     visited April 18, 2015). In his deposition, the Commissioner admitted that he could not
     recall a single instance of road rage spurred by a custom plate.

                                                6
 1   offensive” (namely, CFF’s three submissions and the 1998 application), the

 2   Department points to only one other custom plate application barred by this

 3   asserted policy: a “Restore the Wolf” plate supporting repopulation of the Eastern

 4   timber wolf in the Adirondacks.

 5                                                II.

 6          Before addressing the constitutionality of New York’s custom plate program,

 7   it is necessary to determine the type of speech and forum at issue. I, along with the

 8   majority and nearly every circuit to consider a similar program, conclude that the

 9   speech is private and the forum nonpublic. See, e.g., Byrne v. Rutledge, 623 F.3d 46,

10   53-54 (2d Cir. 2010); Perry v. McDonald, 280 F.3d 159, 169 (2d Cir. 2001); Ariz. Life

11   Coal. Inc. v. Stanton, 515 F.3d 956, 970-71 (9th Cir. 2008); Choose Life Ill., Inc., v. White,

12   547 F.3d 853, 864-65 (7th Cir. 2008). Both the purpose of the program and the

13   speakers involved compel a finding that the custom plates communicate private

14   speech. The program permits non-profit organizations the opportunity to convert

15   license plates into “‘mobile billboard[s]’” to promote their message while raising

16   revenue for their cause. See Choose Life Ill., Inc., 547 F.3d at 862 (quoting Wooley v.

17   Maynard, 430 U.S. 705, 715 (1977)). The fact that the message is imparted on

18   government property does not override its private provenance. While a government

19   official must approve the custom plates, nonprofit organizations propose and design

                                                   7
 1   them, and vehicle owners choose to display them on their cars. See Choose Life Ill.,

 2   Inc., 547 F.3d at 863-64. Because “Take Your Pride for a Ride” therefore implicates

 3   private and not government speech, the strictures of the First Amendment apply.

 4   See Ariz. Life Coal. Inc., 515 F.3d at 963. Further, though the program permits an

 5   array of speech, both the quantity of that speech (the text that can fit on a license

 6   plate) and access to the program (with all license plate designs requiring approval

 7   by the Commissioner) are limited. Because New York did not thus intend to open

 8   its custom plate program to “general public discourse and debate,” it created a

 9   nonpublic forum, permitting more stringent regulation of speech. See Choose Life Ill.,

10   Inc., 547 F.3d at 864-65.

11         At this point in the analysis, however, the majority and I diverge. Confronted

12   with an utterly standardless regime that interprets “patently offensive” to mean

13   “contentious” – and that then deems a “Union Yes” plate benign and “Choose Life”

14   and wolf repopulation plates “especially” controversial – the majority concludes that

15   adequate standards guide the Commissioner’s discretion. Maj. Op. at 40. In light

16   of our contrary precedent and the utter malleability of the regulatory regime at

17   issue, I cannot agree.

18                                         *   *    *




                                               8
 1          The danger of content and viewpoint discrimination in violation of First

 2   Amendment rights “is at its zenith when the determination of who may speak and

 3   who may not is left to the unbridled discretion of a government official.” City of

 4   Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 763 (1988); see Roach v. Stouffer, 560

 5   F.3d 860, 869 (8th Cir. 2009) (discussing this danger in the context of a custom license

 6   plate program). Accordingly, where a licensing restriction lacks “‘narrow, objective,

 7   and definite standards to guide the licensing authority,’” it may be deemed

 8   unconstitutional on its face. Amidon v. Student Ass’n of State Univ. of N.Y., 508 F.3d

 9   94, 103 (2d Cir. 2007) (quoting Forsyth County v. Nationalist Movement, 505 U.S. 123,

10   131 (1992)). This principle protects against two relevant risks: first, self-censorship

11   by “timid speakers who are worried that officials will discriminate against their

12   unorthodox views,” and second, that lacking governing standards, a government

13   official may “suppress viewpoints in surreptitious ways that are difficult to detect.”

14   Id. at 103-04. In either scenario, the opportunity for meaningful judicial review is

15   virtually nil. Id.

16          I agree with the majority that the prohibition against unbridled discretion

17   applies to a nonpublic forum. Maj. Op. at 27. This is because “the dangers posed

18   by unbridled discretion—particularly the ability to hide unconstitutional viewpoint

19   discrimination—are just as present” in these fora. Child Evangelism Fellowship of MD,

                                                9
 1   Inc. v. Montgomery Cnty. Pub. Schs., 457 F.3d 376, 386 (4th Cir. 2006). Thus, while

 2   government officials may be accorded greater latitude in restricting access to such

 3   fora, policies that “permit[] officials to deny access for any reason, or that do[] not

 4   provide sufficient criteria to prevent viewpoint discrimination” nonetheless

 5   contravene the First Amendment. Id. at 387. The instant case illustrates the wisdom

 6   of this principle.

 7         The custom plate program here, including the relevant statute, regulation, and

 8   supposed historical practice, lack any “narrow, objective, and definite standards”

 9   to guide official discretion. See Amidon, 508 F.3d at 103. The Commissioner may

10   indiscriminately pick and choose among applicants for custom plates, despite

11   having opened the program broadly to any non-profit organization representing,

12   inter alia, a “Cause.” Because the regime at issue thus lacks criteria sufficient to

13   prevent viewpoint discrimination, the scheme is facially unconstitutional. See Lewis

14   v. Wilson, 253 F.3d 1077, 1080 (8th Cir. 2001) (striking down custom plate program

15   that permitted officials to reject applications that were “contrary to public policy”

16   because “there was nothing in the ordinance to prevent [government officials] from

17   denying . . . plate[s] because of [the applicant’s] viewpoint”). I reach this conclusion

18   for the following reasons.




                                               10
 1         First, as discussed above, the statute. Section 404 places literally no limit –

 2   objective or otherwise – on the Commissioner’s discretion in reviewing applications,

 3   save for a requirement that he collect annual fees. See N.Y. VEH. & TRAF. LAW § 404.

 4   Instead, section 404 provides only that the Commissioner “may” approve

 5   applications and expressly provides that “[n]othing contained in [section 404] shall

 6   be construed to require the [C]ommissioner to issue a special number plate or

 7   plates.”4 Id. § 404(1), (4). Thus, the statute by its plain terms rejects the notion that

 8   it may, in any way, be construed to limit the Commissioner’s unfettered discretion

 9   over the program.

10         Further, while the Commissioner contends that 15 N.Y.C.R.R. § 16.5(e) limits

11   his freewheeling discretion, the regulation in fact does nothing of the sort. As an

12   initial matter, the regulation (along with the Commissioner’s purported historical

13   practice pursuant to this regulation of denying “contentious and divisive” plates as

14   “patently offensive”) merely delineates a subset of plates that the Commissioner

15   cannot issue. Section 16.5(e) and associated practice pursuant to it offer no direction

16   whatsoever for applications deemed to fall outside the regulation’s scope. In effect,

17   then, the Commissioner has discretion to deny applications pursuant to 15

     4
      Section 404-l(1) similarly provides merely for the issuance of custom plates bearing
     designs “approved by the [C]ommissioner” without specification of any standards
     for approval. N.Y. VEH. & TRAF. LAW § 404-l(1).

                                                11
 1   N.Y.C.R.R. § 16.5(e) and his practice under that provision or for any other reason he

 2   desires. As the Commissioner himself stated in his letter to CFF, he retains “sole[ ]”

 3   “control over the . . . issuance of any custom plate series” and is under no “legal

 4   requirement” to approve any application. J.A. 439.

 5          Consideration of the license plate applications supposedly falling within the

 6   scope of 15 N.Y.C.R.R. § 16.5(e), moreover, does nothing to alleviate the infirmities

 7   of this standardless regime. Section 16.5(e) is the only legal constraint on the

 8   Commissioner’s discretion over custom plate applications relevant here, yet the

 9   regulation merely directs that the Commissioner not issue plates that are, “in [his]

10   discretion[,] . . . , obscene, lewd, lascivious, derogatory to a particular ethnic or other

11   group, or patently offensive.” 15 N.Y.C.R.R. § 16.5(e). We may assume arguendo

12   that the prohibitions on plates that are “obscene, lewd, lascivious, [and] derogatory

13   to a particular ethnic or other group” provide adequate content to guide the

14   Commissioner’s decisions, for these terms are not at issue. The term “patently

15   offensive,” however – the term that is at issue, because it is the term on which the

16   Commissioner relies in defending his decision to deny CFF’s application – is, as the

17   Supreme Court has said, inherently vague and open-ended. See Reno v. Am. Civil

18   Liberties Union, 521 U.S. 844, 873 (1997). And for this reason, the Supreme Court has




                                                 12
 1   concluded that a prohibition on “patently offensive” speech must be limited in some

 2   manner to address First Amendment concerns. See id. at 873-74.

 3          Section 16.5(e) contains no such limitation. At base, 15 N.Y.C.R.R. § 16.5(e)

 4   and its bar on “patently offensive” material is a metric for any content deemed

 5   objectionable by the Commissioner, imposing no discernible limit on his decision-

 6   making process. The regulation is therefore “too vague and pliable to effectively

 7   provide the constitutional protection of viewpoint neutrality.” See Amidon, 508 F.3d

 8   at 104; see also Ariz. Life Coal., Inc., 515 F.3d at 973 (striking down Arizona’s custom

 9   plate program and noting the “potential constitutional problems when government

10   officials are given unbridled discretion in regulating speech, even in limited public

11   fora”).5

12          Perhaps the majority is willing to go with me this far. It admits “that [the

13   statute and regulation] afford the commissioner broad discretion” and even

14   concedes that “[t]he ability of [the statute and regulation]—standing alone—to

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


     5
       Notably, two recent decisions have struck down custom plate programs for relying on
     similarly vague language. See Matwyuk v. Johnson, 22 F. Supp. 3d 812, 824 (W.D. Mich.
     2014) (striking Michigan’s custom plate program because the program’s bar against plates
     that were “offensive to good taste and decency” “lack[ed] objective criteria, and thus
     confer[red] unbounded discretion on the decisionmaker”); Montenegro v. N.H. Div’n of
     Motor Vehicles, 93 A.3d 290, 298 (N.H. 2014) (striking down vanity license plate regulation
     prohibiting plates that are “offensive to good taste” as unconstitutionally vague).

                                                 13
 1   authority is dubious.” Maj. Op. at 30. I could not agree more. If this is actually the

 2   majority’s position, then our disagreement is confined to whether or not the

 3   Commissioner’s supposed policy of denying applications on the basis of

 4   “controversial” or “inflammatory” subject matter constitutes a “well-established”

 5   and “uniformly applied” practice that has assumed the force of law and cabined his

 6   discretion.   However, the majority shifts position from page to page – thus

 7   pronouncing its disagreement with CFF’s stance that “the statute . . . do[es] not

 8   adequately bridle the Commissioner’s discretion” after itself admitting as much nine

 9   pages earlier. Maj. Op. at 39. The majority also defends the overall structure of the

10   New York regime, which limits the Commissioner’s ability to grant certain

11   applications, but permits him to deny one for any reason.6 Maj. Op. at 39-40. Most

     6
       The majority, citing the Supreme Court’s decision in Thomas v. Chicago Park District, 534
     U.S. 316 (2002), and this Court’s decision in Perry, deems the “permissive nature of the
     relevant statutory and regulatory provision (i.e., that the Commissioner ‘may’ issue custom
     plates but is never required to do so)” irrelevant. Maj. Op. at 39-40. But neither the park
     ordinance at issue in Thomas nor the Vermont vanity plate provision addressed in Perry
     permitted a government official to prohibit speech, as here, in his or her unfettered
     discretion. The ordinance in Thomas, which required individuals to obtain a permit before
     conducting large-scale events in public parks, limited the Park District’s authority to deny
     a permit to thirteen specified grounds and, as interpreted, permitted the District to waive
     inadequacies in an application only when doing so would “do no harm to the policies
     furthered by the application requirements.” 534 U.S. at 324-25. Similarly in Perry, we
     recognized that a Vermont vehicle owner at the time was entitled to a vanity plate for an
     additional fee “as long as the requested combination of letters and/or numbers [met] certain
     [specified] criteria.” 280 F.3d at 163. While a requested plate could be denied if “offensive
     or confusing to the general public,” Vermont, unlike New York, enumerated specific
     definitions of “offensive” or “confusing” – seven specific definitions, to be precise – to

                                                  14
 1   pertinent here, moreover, and despite acknowledging that “the constraints [placed]

 2   on the Commissioner” by 15 N.Y.C.R.R. § 16.5(e) are “modest” at best, the majority

 3   nonetheless concludes that these constraints “are sufficient to bridle his or her

 4   discretion and thus to pass Constitutional muster.” Maj. Op. at 39.                   Before

 5   addressing the majority’s claim that a well-established and uniformly enforced

 6   policy of denying “politically sensitive” and “emotionally charged” custom plate

 7   applications “render[s] the Commissioner’s discretion adequately bridled,” Maj. Op.

 8   at 35, then, I elaborate on my reasons for finding 15 N.Y.C.R.R. § 16.5(e) itself so

 9   wanting.

10          As I have already explained, a prohibition on “patently offensive” speech,

11   without further definition or elaboration, lacks sufficient content to satisfy First

12   Amendment concerns. Reno, 521 U.S. at 870-71. The majority argues, to the

13   contrary, that “patently offensive”is a familiar term to those in the legal profession,

14   with a readily discernable meaning. Maj. Op. at 39. To the extent this is so,

15   however, such meaning is derived from statutes and regulations that employ the

16   term to refer to certain sexual and excretory content and not to core political

17   expression such as is embodied in CFF’s proposed plate depicting smiling children




     channel its officers’ discretion. Id. at 172 n.9. Thus, neither Thomas nor Perry is apposite.

                                                  15
 1   and bearing the message, “Choose Life.”7 See, e.g., F.C.C. v. Pacifica Found., 438 U.S.

 2   726, 732 (1978). In the principal cases interpreting “patently offensive,” moreover,

 3   the phrase has been textually limited to such sexual or excretory content, with the

 4   bounds of the phrase clearly delimited by the language of the statute or regulation.

 5   See Reno, 521 U.S. at 873 (noting that the test prescribed by Miller v. California, 413

 6   U.S. 15, 24 (1973), “reduce[d] the vagueness inherent in the open-ended term

 7   ‘patently offensive’” by requiring that the material deemed “patently offensive” be

 8   “specifically defined by the applicable state law”); see also Denver Area Educ.

 9   Telecomm. Consortium v. F.C.C., 518 U.S. 727, 732-33 (1996) (upholding statute that

10   permitted cable operators to block content that they “reasonably believe[d]

11   describe[d] or depict[ed] sexual or excretory activities or organs in a patently

12   offensive manner” (internal quotation mark omitted)); see Pacifica Found., 438 U.S.

13   at 732 (permitting regulation of content that “describe[d], in terms patently offensive

14   as measured by contemporary community standards for the broadcast medium,

15   sexual or excretory activities and organs”).



     7
      It is notable – and ironic – that the majority is willing to permit the Commissioner to rely
     on a phrase typically used to prohibit only the most peripheral speech under the First
     Amendment to instead suppress core political expression. Compare F.C.C. v. Pacifica Found.,
     438 U.S. 726, 746 (1978) (deeming vulgar utterances to be of “slight social value”), with
     McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 347 (1995) (noting that advocacy of political
     beliefs is “the essence of First Amendment expression”).

                                                  16
 1         No such explicit textual limit exists here: 15 N.Y.C.R.R. § 16.5(e) applies to all

 2   “patently offensive” material, even that outside of the sexual and excretory field.

 3   Neither can the canon of noscitur a sociis limit the reach of 15 N.Y.C.R.R. § 16.5(e).

 4   Although “obscene, lewd, [and] lascivious” suggest reference to sexual content, the

 5   inclusion of the phrase “derogatory to a particular ethnic or other group” in the list

 6   destroys any commonality that the prohibitions might otherwise have shared. See

 7   Gustafson v. Alloyd Co., 513 U.S. 561, 575 (1995) (stating that, pursuant to the canon

 8   of noscitur a sociis, a word must be judged by the “company it keeps”); Harris v.

 9   Allstate Ins. Co., 309 N.Y. 72, 76 (1955)(same). I therefore see no textual way to limit

10   the regulation to this meaning. And apparently the Commissioner sees none either,

11   as he interprets “patently offensive” to cover speech regarding any “political,

12   religious[,] or social issue” that he deems “contentious and divisive.” J.A. 409.

13         The majority attempts to distinguish the Eighth Circuit’s holding in Roach v.

14   Stouffer from the instant action. Maj. Op. at 38. There, the court struck a portion of

15   Missouri’s custom plate program that permitted a legislative committee to rule on

16   applications because there were “no standards or guidelines whatsoever” to guide

17   the committee’s discretion. Roach, 560 F.3d at 869. Seizing on this language, the

18   majority insists that Roach is inapposite because 15 N.Y.C.R.R. § 16.5(e) provides

19   some limit to the Commissioner’s discretion. But the test of unbridled discretion is

                                               17
 1   not whether any limit has been placed on official discretion, but whether that limit

 2   is “adequate.” See Thomas, 534 U.S. at 323 (2002); Child Evangelism Fellowship of MD,

 3   Inc., 457 F.3d at 384. And the majority’s insistence that an adequate legal limit may

 4   be divined from the term “patently offensive” as used in 15 N.Y.C.R.R. § 16.5(e) is

 5   belied by the Supreme Court’s recognition in Reno that “patently offensive” alone

 6   lacks sufficient content to stanch First Amendment concerns.8 Reno, 521 U.S. at 870-

 7   71.

 8          That brings us to the Department’s purportedly well-established practice of

 9   declining to issue plates on “either side” of a “political, religious[,] or social issue that

10   has proven to be . . . contentious and divisive.” J.A. 409. The majority attempts to

11   distinguish Roach on this ground as well, by stating summarily that not only the

12   regulation, but “the DMV’s well-established and consistently applied policy and

13   practice provide the guidelines that were lacking [there].” Maj. Op. at 38. But this

14   argument, too, is insubstantial. At the start, any practice pursuant to 15 N.Y.C.R.R.

15   § 16.5(e) speaks only to those applications the Commissioner must deny and not to

16   his broad discretion to deny other applications for any reason whatsoever. But even

     8
       To the extent the majority is attempting to impose its own construction of “patently
     offensive” onto 15 N.Y.C.R.R. § 16-5(e) to salvage New York’s custom plate program,
     moreover, “a federal court cannot supply a binding construction of a state or local
     ordinance[;] the limiting construction . . . must come, if at all, from the [state agency] or a
     state court.” See Beal v. Stern, 184 F.3d 117, 127 n.7 (2d Cir. 1999).

                                                   18
 1   if this were not the case, a limiting practice not to be found in the text of the relevant

 2   statute or regulation may serve as a narrowing construction only when such practice

 3   is “well-understood and uniformly applied” such that it has taken on “virtually the

 4   force of a judicial construction.” City of Lakewood, 486 U.S. at 770 n.11. There is

 5   nothing in this record – nothing – beyond the Commissioner’s self-serving

 6   statements to support the conclusion that such a practice is present in this case.

 7         First, the Department itself lacks a coherent understanding of the scope of its

 8   supposed practice. While the Commissioner stated in his letter to CFF that the

 9   practice bars “contentious” speech on political, religious, and social issues, his

10   Deputy Commissioner and Counsel described the practice as banning all

11   applications that espouse a “religious, political or social position,” whether or not

12   these positions are controversial or divisive. J.A. 1663. The majority disregards the

13   Commissioner’s deputies, reassuringly (albeit unconvincingly) intoning that the

14   Commissioner’s practice under 15 N.Y.C.R.R. § 16.5(e) is “not a black box,” but is

15   robustly “transparen[t].” Maj. Op. at 36. It was wise to sweep the deputies under

16   the rug. For the deputies’ description of a supposedly well-understood practice of

17   denying applications that espouse any political or social position would doubtless

18   be a source of bemusement to many New Yorkers, particularly those lucky enough

19   to drive vehicles with custom license plates approved by the Commissioner and

                                                19
 1   espousing “political [and] social position[s]” in favor of such varied topics as

 2   recycling, horse racing, and the ideals of Martin Luther King, Jr.

 3         It is bad enough that the Commissioner and his deputies cannot consistently

 4   describe the supposedly “well-understood and uniformly applied practice,” see City

 5   of Lakewood, 486 U.S. at 770 n.11, on which they rely to lend content to the concept

 6   of “patently offensive.”      Equally damning, however, the Commissioner’s

 7   supposedly uniform practice of denying “controversial” custom plate applications

 8   pursuant to his purported “policy” is limited to the spurned “Choose Life” and

 9   “Restore the Wolf” plates. The Commissioner’s denial of two plates on two narrow

10   topics, in light of his approval of dozens of other designs and the evident

11   contradictions in the record as to just what his policy is, hardly give rise to a well-

12   established practice sufficient to provide the public with notice of the parameters of

13   the program. In fact, on this record, it appears that the Department’s only well-

14   established practice is to reject license plates bearing the phrase “Choose Life.”

15          The majority attempts to shore up the “well-established” nature of this

16   practice by pointing to the Commissioner’s denial of one vanity plate deemed

17   patently offensive, with the message “RU486.” Maj. Op. at 32. At the start, the sole

18   support for the proposition that the “RU486 ” plate was denied pursuant to this

19   particular policy comes from the Commissioner’s deposition – meaning there is no

                                               20
 1   contemporaneous documentary evidence cited to corroborate this claim. Regardless,

 2   even assuming that this denial is properly considered to stem from the alleged

 3   policy banning controversial speech, it does not affect the analysis. Given the

 4   dozens of custom plate series approved by the Commissioner and the untold

 5   number of vanity plates issued (including, tellingly, plates to individuals associated

 6   with CFF and bearing messages such as “CHSE LFE”) the denial of four sequential

 7   “Choose Life” applications, a “Restore the Wolf” plate, and one vanity plate does

 8   not a well-established practice make.

 9         Moreover, even if the alleged practice were well-established – and it is not –

10   it would still prove too vague to imbue section 404 and 15 N.Y.C.R.R. § 16.5(e) with

11   any content. For indefinite bans on “contentious” or “controversial” subject matter

12   have long been disdained by the courts. See, e.g., Ariz. Life Coal. Inc., 515 F.3d at 972

13   (“[A] ban on controversial speech may all too easily lend itself to viewpoint

14   discrimination.” (internal quotation marks and brackets omitted)); United Food &

15   Commercial Workers Union v. S.W. Ohio Reg’l Transit Auth., 163 F.3d 341, 361 (6th Cir.

16   1998) (“We believe any prohibition against ‘controversial’ advertisements

17   unquestionably allows for viewpoint discrimination.”); Planned Parenthood Ass’n v.

18   Chi. Transit Auth., 767 F.2d 1225, 1230 (7th Cir. 1985) (“We question whether a

19   regulation of speech that has as its touchstone a government official’s subjective

                                                21
 1   view that the speech is ‘controversial’ could ever pass constitutional muster.”).

 2   Plainly, such subjective limitations provide little notice to applicants of what speech

 3   may or may not be permitted, and too easily allow a ban on “contentious” material

 4   to shift into a ban on “unpopular” speech.9

 5          The Department’s own incoherent practice pursuant to its supposed policy

 6   proves the point. Cf. City of Ladue v. Gilleo, 512 U.S. 43, 52 (1994) (“Exemptions from

 7   an otherwise legitimate regulation of a medium of speech . . . may diminish the

 8   credibility of the government’s rationale for restricting speech in the first place.”);

 9   Lewis, 253 F.3d at 1080 (finding that government’s shifting rationale for rejecting

10   plate applications supported unconstitutionality of program). Despite rejecting the

11   “Choose Life” and “Restore the Wolf” plates on the ground that they were

12   “contentious and divisive,” the Commissioner had no trouble approving three

13   separate “Union Yes” plates, along with a custom plate bearing the legend “Support

     9
      An article in the record that details the Commissioner’s denial of the “Restore the Wolf”
     plate illustrates this concern. The article states that the idea for the plate originated after
     the applicants noticed other “cute” license plates around New York. Residents of the
     Adirondacks, hunters, interest groups, and local government officials, however, were
     vocally opposed to the restoration cause, with many expressing their opposition in writing
     to the Commissioner. Following the denial, the Commissioner explained only that the
     custom plate program was not intended to “be bumper stickers for causes.” J.A. 1666. Of
     course, the program was created to do precisely that: permit non-profit organizations
     representing “Causes” to “Take [their] Pride for a Ride.” But while it was within the
     Commissioner’s discretion to throw open the doors of the custom plate program to such
     applicants, the First Amendment forbids him from now indiscriminately approving and
     denying plates submitted by those who accept his invitation.

                                                   22
 1   Police” and featuring a cross-hair and blood splatter. The Commissioner argues that

 2   there is no inconsistency in these decisions, because abortion and wolf restoration

 3   are in a different class, in terms of the societal debate that they provoke. But it will

 4   no doubt come as a surprise to many that the national debate over right-to-work

 5   laws, municipal labor contracts, public school reform, and union campaign spending

 6   has fallen to the wayside – or that a license plate depicting a blood splatter and

 7   urging support for law enforcement is devoid of controversy.

 8         The Supreme Court, as City of Lakewood reminds, “has long been sensitive to

 9   the special dangers inherent in a law placing unbridled discretion directly to license

10   speech . . . in the hands of a government official.” City of Lakewood, 486 U.S. at 767-

11   68. The majority faithfully intones City of Lakewood’s words – noting that courts will

12   read a statute or regulation in light of an unstated practice only when this practice

13   is “well-understood and uniformly applied” so as to have “virtually the force of a

14   judicial construction.” Maj. Op. at 28 (quoting City of Lakewood, 486 U.S. at 770 n.11).

15   The majority faithfully recites the words, but somehow misses their meaning.

16         Thus, it argues with regard to the “Union Yes” plates that “there is no basis

17   to conclude that the Department failed to apply [its] policy against creating plates

18   that touch upon contentious political issues” when considering the pro-union

19   designs “as opposed to having applied the policy and merely reaching a different

                                               23
 1   result than it did with the ‘Choose Life’ plate.” Maj. Op. at 33. This, however, is

 2   precisely the point: that a policy that takes two issues of similar valance and rejects

 3   one while blessing the other thrice over, based on agency employees’ subjective

 4   views that one is more divisive than the other, self-evidently places no meaningful

 5   constraint on the Commissioner’s discretion. I do not need to show that the

 6   Commissioner failed to apply his supposed policy against controversial issues to the

 7   three applications for “Union Yes” plates—although, notably, there is no evidence

 8   in the record that he did. The problem is that, even applying the policy, the

 9   Commissioner was free to grant or deny those applications according to his whim.

10   The majority cautions that “[i]t is not our place to evaluate and weigh the various

11   hot button issues of our time against one another, assigning to each a specific place

12   in the landscape of public debate in this country.” Maj. Op. at 33. Indeed, it is not

13   our place – and neither should it be the Commissioner’s. The Constitution does not

14   permit it.

15          At base, the statute, regulation and practice here are so malleable as to defy

16   definition. To be clear, this is not to suggest that limits cannot be placed on the

17   content of custom license plates, as our decision in Perry makes clear.10 But the
     10
       As already noted, we determined in Perry that Vermont’s statutory ban on “offensive”
     or “confusing” plates did not grant officials unfettered discretion because the regulation
     governing the ban “limit[ed official] discretion by specifying content.” Perry, 280 F.3d at
     172. Even the most cursory examination of the Vermont regulation – which prohibited,

                                                 24
 1   Commissioner may not pick and choose what custom plates to permit, based solely

 2   on his subjective judgment regarding the degree to which any given political,

 3   religious, or social issue is “inflammatory” at any given time. For nowhere do the

 4   statute, regulation, or historical practice prohibit “inflammatory” custom plates.

 5   (And, indeed, the Commissioner approved “Choose Life”-themed vanity plates

 6   before denying CFF’s applications, only underscoring the incoherence that this

 7   regime permits.)

 8          The scheme fails to provide the “narrow, objective, and definite” restraints

 9   demanded by this Circuit’s First Amendment jurisprudence. See Amidon, 508 F.3d

10   at 103. An application for a license plate supporting the minimum wage, the flat tax,

11   or immigration reform would undoubtedly touch upon the sort of “contentious”

12   “political, religious[,] or social issue” that the Commissioner deems potentially to fall

13   within the scope of 15 N.Y.C.R.R. § 16.5(e). But it would pervert First Amendment

14   principles (and signal too forgiving an attitude on the part of a reviewing court) to

15   uphold a scheme in which the Commissioner could, in his unfettered discretion,


     inter alia, “[c]ombinations of letters, or numbers that connote, in any language”: “breast,
     genitalia, pubic area, or buttocks,” “any illicit drug, narcotic, intoxicant, or related
     paraphernalia,” “disability status,” “race,” or “political affiliation,” see id. at 172 n.9
     (quoting VT. CODE. R. 14-050-025 I.(f)), is sufficient to suggest the infirmities in New York’s
     standardless ban on “patently offensive” speech.




                                                   25
 1   deem such an application “patently offensive,” as compared to “Support Police” and

 2   “Union Yes.” So, too, for a plate depicting two children, a beaming sun, and bearing

 3   the message, “Choose Life.”

 4                                           III.

 5         Taking the Department at its word, the operation of its custom plate program

 6   looks something like this: First, the Commissioner deciphers how a proposed plate’s

 7   message will be interpreted by public. Then, he determines whether the message

 8   is sufficiently “offensive” to merit rejection. To do so, he estimates whether the

 9   message will be greeted as “contentious” by members of the public. At no point in

10   this process is the Commissioner guided by objective criteria, nor need he be. As the

11   Commissioner reminded CFF, he retains “sole[]” “control over the . . . issuance of

12   any custom plate series” and is under no “legal requirement” to approve any

13   application.


14         In sum, New York State has opened a forum for speech and permitted its

15   Commissioner unbridled discretion to censor messages therein, risking self-

16   censorship by applicants and shielding the Commissioner’s decisions from any

17   meaningful judicial review. While the legislature might permissibly limit the

18   content permitted on custom license plates, or even the Commissioner if his



                                              26
 1   authority were appropriately constrained, the Commissioner may not do so carte

 2   blanche. The current scheme, “involv[ing the] appraisal of facts, the exercise of

 3   judgment, and the formation of an opinion, by the licensing authority, [presents a]

 4   danger of censorship and of abridgment of our precious First Amendment freedoms

 5   [that] is too great to be permitted.” See Forsyth, 505 U.S. at 131 (internal quotation

 6   marks and citation omitted). Accordingly, I would affirm the district court’s

 7   judgment on the ground that New York State’s custom plate program inadequately

 8   restrains the Commissioner’s authority, and I would enjoin the Department from

 9   issuing custom plate series under the program.


10                                         *    *   *


11         I have my doubts that “a regulation of speech that has as its touchstone a

12   government official’s subjective view that the speech is ‘controversial,’” Planned

13   Parenthood Ass’n, 767 F.2d at 1230, could ever result in a practice that is consistent

14   with the First Amendment. See also Consol. Edison Co. of N.Y., Inc. v. Pub. Serv.

15   Comm’n of N.Y., 447 U.S. 530, 548 n.9 (1980) (Stevens, J., concurring) (noting that use

16   of “the ‘controversial’ nature of speech as the touchstone for its regulation threatens

17   a value at the very core of the First Amendment”). Given my conclusion that New

18   York’s custom plate program fails to pass constitutional muster on its face, however,


                                               27
 1   I need not and so do not consider this question further, nor the broader question

 2   whether the Commissioner might permissibly deny “Choose Life” plates under

 3   some different statutory or regulatory regime.


 4         The majority embraces the Commissioner’s claim that it was principally safety

 5   concerns that motivated his denial of CFF’s plate. The record contains scant (if any)

 6   evidence supporting the reasonableness of such concerns. One need cast no

 7   aspersion on the Commissioner, however, to realize that the true motivation for his

 8   decision is impossible reliably to ascertain, given his free-wheeling authority over

 9   the custom plate program. And this returns us to the basis for holding New York’s

10   program unconstitutional on its face. As the Supreme Court has said:


11         [T]he absence of express standards makes it difficult to distinguish, “as
12         applied,” between a licensor’s legitimate denial of a permit and its
13         illegitimate abuse of censorial power. Standards provide the
14         guideposts that check the licensor and allow courts quickly and easily
15         to determine whether the licensor is discriminating against disfavored
16         speech. Without these guideposts, post hoc rationalizations by the
17         licensing official and the use of shifting or illegitimate criteria are far
18         too easy, making it difficult for courts to determine in any particular
19         case whether the licensor is permitting favorable, and suppressing
20         unfavorable, expression.

21   City of Lakewood, 486 U.S. at 758. The Court in Lakewood warned that without

22   standards to limit discretion in the sensitive First Amendment context, “the

23   licensor’s action[s] [are] in large measure effectively unreviewable.” Id. at 759. That


                                               28
1   is the case here, and for this reason, I would deem New York’s custom plate regime

2   to be unconstitutional on its face.




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