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Free Speech Triumphs in Transit Advertisements

Northeastern Pennsylvania Freethought Society v. County of Lackawanna Transit System, 938 F.3d 424 (3d Cir. Sept. 17, 2019) (United States Court of Appeals for the Third Circuit held that County transit system’s rejection of atheist group’s proposed bus advertisement constituted viewpoint discrimination in violation of the First Amendment).

 

Background

This case arose from a county transit system’s refusal to display on its buses an advertisement proposed by a local atheist group.  The County of Lackawanna Transit System (“COLTS”) operates public bus services in Lackawanna County, Pennsylvania.  To marginally bolster its revenue, COLTS leases advertising space on the inside and outside of its buses.

The Northeastern Pennsylvania Freethought Society (“Freethought”) sought to place an ad for its organization on the exterior of COLTS buses.  Freethought is an association of atheists, agnostics, secularists, and skeptics, whose goal is to promote critical thinking and the separation of church and state.  After a Freethought leader saw the message “God Bless America” on a COLTS bus, the organization planned to place an ad promoting their organization on buses in response.  The ad was to simply contain the word “Atheists” superimposed on a blue sky with clouds, along with Freethought’s web address.

Freethought’s proposal for the “Atheists” ad was rejected by COLTS, based on COLTS’s 2011 policy which banned ads that were “objectionable, controversial, or would generally be offensive to COLTS’s ridership.”  In response to Freethought’s proposal, COLTS updated its advertising policy in 2013 to ban all religious or political advertisements.  When Freethought proposed the “Atheists” ad again, COLTS rejected it based on this new policy, and wrote that the ad could detract from COLTS’s “goal of providing a safe and welcoming environment on its buses for the public at large.”

With assistance from the ACLU, Freethought filed a lawsuit challenging COLTS’s 2013 policy and seeking a permanent injunction forbidding COLTS from enforcing the policy.  The District Court ruled in favor of COLTS and upheld the policy.  The Court held that the policy was viewpoint neutral because it banned the entire topic of religion.  The Court also held that the policy kept COLTS neutral on matters of public concern, and was reasonably connected to rider safety.  Freethought appealed the decision to the United States Court of Appeals for the Third Circuit.

Discussion

The Third Circuit reversed the District Court’s opinion and ruled in favor of Freethought.  The Court characterized COLTS’s advertising policy as viewpoint discrimination, because it did not just seek to restrict speech to certain subjects.  Instead, the policy differentiated between those who sought to express secular views and religious views on the same subject. 

According to Freethought’s leaders, the “Atheists” ad was simply meant to communicate to believers and atheists alike that a local organization for atheists existed.  According to the Court, nothing suggested that “COLTS’s policy would prohibit secular associations from advertising their organizational philosophy or from communicating the message ‘We exist’…”. The policy improperly banned religious and atheistic associations, however, from advertising that they exist.

The Court further reasoned that even if COLTS’s ban on religious speech were viewpoint neutral, it would still need to survive scrutiny as a content based restriction.  The stated goals of COLTS’s 2013 advertising policy were to generate revenue for the transit system while maintaining or increasing ridership.  COLTS argued that religious ads could lead to heated debate between passengers on buses, thereby distracting bus drivers and endangering riders.  However, COLTS had never received a complaint about an ad.  Further, the ads would not have a major impact on passengers because the majority of ads were on the exterior of buses.  The Court found that ads would not intrude on riders’ experiences because riders would only see the ads for a few moments as the bus approached or while boarding, and were not subject to them while riding the bus.

In banning all religious ads, COLTS attempted to serve valid interests and appear neutral.  The Court held, however, that broadly singling out for exclusion all religious speech – which is entitled to special protection under the First Amendment – was unreasonable.  Therefore, in addition to being viewpoint discrimination, the policy also served as a content based restriction on speech in violation of the First Amendment.

Practical Advice

Throughout its reasoning, the Court relied on several prior opinions regarding viewpoint discrimination of speech in the public education or school setting.  e.g. Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995); Child Evangelism Fellowship of New Jersey Inc., v. Stafford Township School District, 386 F.3d 514 (3d Cir. 2004).  Public administrators – including those in our public school systems – should use extreme caution to formulate policies and procedures that are viewpoint neutral and not a restriction on speech.  

As part of fundraising efforts, student organizations regularly seek sponsorships and sell advertisements in event programs.  Schools should be prepared to address concerns regarding ads and should consult with legal counsel before banning ads which appear to have a religious, political, or controversial message.

For additional information contact Katherine Janocsko.

January 06, 2020

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