.- The Second Circuit Court of Appeals dismissed Attorney General Eliot Spitzer’s second attempt to ban the phrase "Choose Life" from a pro-adoption specialty plate in New York State. The decision was issued March 7.
The Children First Foundation’s Alliance Defense Fund attorneys, Jeff Shafer and Brian Raum, were pleased the decision did not grant qualified immunity to any of the defendants, including Gov. George Pataki and Spitzer, who are being sued for constitutional violations in both their individual and official capacities.
"No one is above the law," said 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."
The three-judge panel ruled that the foundation’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: "Even 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."