Tuesday, June 2, 2015

The Second Circuit Has a Low Opinion of Pro-Choice New Yorkers

Last week, a federal appellate court ruled that New York could ban Choose Life license plates because they are "patently offensive"—a legal term usually reserved for hard-core pornography. The ruling was met with instant derision from grassroots pro-lifers and legal scholars alike.

At the time, SPL simply condemned the decision with a tweet, which was widely retweeted and even made it onto Twitchy:
Now that I have had time to dig a little deeper into the news, I've decided it merits a full blog post. It's even worse than I thought initially—and the people who should be most offended are pro-choice New Yorkers!

UCLA law professor Eugene Volokh wrote up the decision in the Washington Post. (You should read the whole thing.) He begins with the obvious point that it's a First Amendment violation. But then he explains the Second Circuit's reasoning, if you want to call it that, and it is truly incredible. The logic of the opinion requires the assumption that pro-choice New Yorkers are so violent, pro-lifers have to be censored for their own safety:
[I]t’s reasonable for the government to exclude such messages, because of the risk that they might lead to “road rage” attacks against drivers by other drivers who are angered by the license plate ...
[But] the DMV had allowed a “Union Yes” plate and a plate showing cross-hairs, blood spatter, and “Support Police” (a fund-raiser for “‘Cop Shot,’ an organization providing monetary rewards for information concerning officers harmed in the line of duty”) ...
I acknowledge that pro-lifers have been victims of politically motivated violence at the hands of abortion supporters. But just as I believe that the entire pro-life movement should not be judged by the actions of a few violent outliers, I believe the same courtesy should be extended to our loyal opposition. The Second Circuit is completely off base.

And that Cop Shot plate? It's not at all obvious that it's a fundraiser for fallen officers. It looks incredibly creepy, particularly in the context of highly publicized police misconduct in New York, including the choking death of Eric Garner last year. Apparently the Second Circuit believes that pro-choice New Yorkers will get worked up to the point of violence over someone asking people to choose life, but will react to the issues raised by the Cop Shot plate with a shrug. That's a pretty horrible assessment of the people of New York.

In any event, censorship cannot be legally justified by concerns about violence. We call that a hecker's veto. The people of New York, pro-life and not, deserve better.

Fortunately, the Second Circuit's error may be fixed quickly. Another license plate case is already pending before the Supreme Court, and while it doesn't involve a Choose Life plate, the legal issues so similar that the Supreme Court's decision will likely be dispositive for Choose Life plates as well. We will keep you posted.

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