By Terry Vanderheyden

NEW YORK, March 9, 2006 ( – An appeals court has dismissed Attorney General Eliot Spitzer’s second attempt to ban the phrase “Choose Life” from a pro-adoption specialty licence plate for New York State.

In a decision released Tuesday, the Second Circuit Court of Appeals dismissed Spitzer’s appeal. His first defeat occurred in January last year when a federal judge ruled that The Children First Foundation (CFF) had sufficiently alleged constitutional violations involving freedom of speech and equal protection under the law. The August 2005 trial date was postponed when the state appealed the federal court ruling to the Second Circuit Court of Appeals.

The three-judge panel favorably ruled that CFF’s complaint “specifically alleges that defendants denied the picture-plate application ‘based on their disagreement with [the] life-affirming viewpoint expressed on the plate.’ On a motion to dismiss, we must accept this allegation, and all reasonable inferences drawn from it, as true.” The appellate decision further states that “[e]ven if defendants are correct that the picture-plate program is a nonpublic forum (…) the complaint alleges that defendants engaged in viewpoint discrimination, and it is clearly established that, even in a nonpublic forum, restrictions on speech must be reasonable and viewpoint neutral.”

CFF’s Alliance Defense Fund attorneys, Jeff Shafer and Brian Raum, were particularly pleased that the decision did not grant qualified immunity to any of the defendants, including Governor George Pataki and Attorney General Eliot Spitzer, who are being sued for constitutional violations in both their individual and official capacities.

“No one is above the law,” explained Dr. Elizabeth Rex, President of The Children First Foundation. “This ruling is another great victory for freedom of speech and equal treatment under the law for all New Yorkers.”

Planned Parenthood successfully sued South Carolina to prevent drivers there from displaying Choose Life license plates last year, arguing that they found the message of the plate offensive. In March 2004, the Fourth Circuit Court of Appeals ruled that the plates violated the First Amendment because they gave a forum for pro-life advocates to present their views, but not abortion supporters. The US Supreme Court refused to entertain an appeal last January.

See related coverage:
  Abortion Politics Leads to Supreme Court Refusal to Hear Pro-Life License Plate Case


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