Young Israel of Tampa Inc v. Hillsborough Area Regional Transit Authority

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

YOUNG ISRAEL OF TAMPA, INC.,

Plaintiff,

v. Case No. 8:21-cv-294-VMC-CPT

HILLSBOROUGH AREA REGIONAL

TRANSIT AUTHORITY,

Defendant.

______________________________/

ORDER

This matter comes before the Court upon consideration of

the Motion for Summary Judgment filed on October 4, 2021, by

Plaintiff Young Israel of Tampa, Inc. (“Young Israel”) and

the Amended Motion for Summary Judgment filed on October 8,

2021, by Defendant Hillsborough Area Regional Transit

Authority (“HART”). (Doc. ## 60, 63). Both parties filed a

response and a reply. (Doc. ## 64, 67-69). For the reasons

that follow, the Court grants Young Israel’s Motion and denies

HART’s Motion.

I. Background

A. HART and HART’s Advertising Policy

HART was created under Florida law and provides public

transit in Hillsborough County, the City of Tampa, Florida,

and the City of Temple Terrace, Florida. (Doc. # 1-1 at 6-

8). HART’s Policy Manual contains an advertising policy (the

“Policy”). (Id. at 142-48). The current, applicable version

of the Policy went into effect on December 2, 2013. (Id. at

148). The Policy provides in relevant part:

(1) Policy Statement

HART is engaged in commerce as a provider of

public transportation services and the

advertising space located on its public

information pieces, buses, stops or other HART

property constitutes a part of this commercial

venture and is not intended to be and shall

not be considered a public forum. The

advertising accepted is intended to be

strictly commercial in nature as further

defined herein with limited Governmental

Entity Public Service Announcements, as that

term is defined below, including but not

limited to HART’s own such announcements.

HART’s objective in selling advertising on or

in its vehicles or property is to maximize

advertising revenues to supplement unfunded

operating costs, while maximizing transit

services revenue by attracting, maintaining,

and increasing ridership. Maintaining a safe,

welcoming environment for all HART passengers

is part of HART’s primary mission and is

essential to maximizing revenues to accomplish

that mission. The advertising revenues are

secondary to HART’s primary mission. HART

intends to maximize advertising revenue by

establishing a favorable environment to

attract a lucrative mix of commercial

advertisers. The goal is to maintain the value

of HART advertising space by keeping it in

good condition and non-controversial at the

same time, endeavoring to ensure that the

advertisement is not offensive to HART

customers and the community.

(2) Advertising Program and Administration

HART shall select an “Advertising Contractor”

responsible for the administration of the HART

advertising program consistent with HART’s

adopted policies and guidelines and its

agreement with HART. HART shall designate an

employee as its “Contract Administrator” to be

the primary contact with the Advertising

Contractor. The Advertising Contractor shall

be the recipient of all advertising requests

and shall be the one who initially addresses

the application of HART guidelines thereto.

Any question or disagreement in that regard

shall be referred to the Contract

Administrator for resolution. The Contract

Administrator shall determine whether the

advertisement in question is consistent with

these policies and guidelines. . . . If a

dispute remains unresolved, appeal may be made

to the CEO or Chief Operating Officer of HART

or his/her designee for final resolution.

. . .

(4) Prohibitions

The following types of advertising are

prohibited in and on all vehicles and/or

property:

(a) Except as provided with regard to the

Tampa Historic Streetcar, advertising of

tobacco, alcohol, or related products or

activities;

(b) Advertising containing profane language,

obscene materials or images of nudity,

similar adult themes, activities or

products, including, but not limited to,

pornography and any message offense to

the community standards applicable to

same;

(c) Advertising containing discriminatory

materials and/or messages;

(d) Advertisements for firearms or that

contain an image or description of

graphic violence . . .

(e) Advertisements that primarily promote a

religious faith or religious

organization;

(f) Partisan political advertisements which

advocate any political party, or advocate

and/or promote any candidate or issue

upon which the electorate is scheduled to

vote . . .;

(g) Advertisements that promote or have any

material contained in it, that promotes,

encourages or appears to promote or

encourage, unlawful or illegal behavior

or activities;

(h) Advertisements that promote a commercial

transaction that has any material

contained in it that is false,

misleading, or deceptive;

(i) Advertisements, or any material

contained therein that promotes or

encourages or appears to promote or

encourage the use or possession of

unlawful or illegal goods or services;

and

(j) Advertisements or any material contained

therein that is libelous or an

infringement of copyright, or is

otherwise unlawful or illegal or likely

to subject HART to litigation.

(Id. at 142-46 (emphasis added)).

The Policy also contains certain written “guidelines,”

including a definition of “commercial advertisement” as “an

advertisement dealing with commercial speech which is an

expression that proposes a commercial transaction related

solely to an economic interest of the speaker and his or her

audience, but which is intended to influence consumers in

their commercial decisions and usually involves advertising

products or services for sale.” (Id. at 144).

The current Policy has its genesis in an earlier

controversy. In early 2013, HART rejected the “#MyJihad”

advertisement submitted by the Council on American-Islamic

Relations (“CAIR”). (Doc. # 63 at ¶ 2; Doc. # 67 at ¶ 2).

Believing that the advertisement primarily promoted the

Islamic religion, HART’s Board of Directors (the “Board”)

rejected the advertisement at an August 5, 2013, meeting.

(Doc. # 63 at ¶ 3; Doc. # 67 at ¶ 3).

According to the declaration of a HART representative,

“[a]t the August [2013] Board meeting, HART’s Board realized

it needed to amend its Advertising Policy to close its forum

to commercial advertising to avoid situations like it was

facing with CAIR.” (Doc. # 57-1 at ¶ 7). Young Israel points

out that HART’s policy at that time already limited the forum

to “strictly commercial” advertisements and also prohibited

advertisements “that primarily promote a religious faith or

religious organization.” (Doc. # 67-2; Doc. # 60-43).

CAIR appealed the denial of its advertisement and made

a presentation to the Board in September 2013. (Doc. # 63 at

¶ 8; Doc. # 67 at ¶ 8). At the conclusion of that meeting,

the Board agreed to run a modified CAIR advertisement, which

did not contain the “#MyJihad” language and instead read:

“CAIR Florida, Embracing Diversity at Work, Defending Civil

Rights in the Community.” (Doc. # 57-1 at ¶ 9; Doc. # 57-4).

Shortly after the modified CAIR ads ran, the American

Freedom Defense Initiative (“AFDI”) sought to run

advertisements that, as HART describes it, were “counter” to

the CAIR ads. (Doc. # 57-1 at ¶ 11). AFDI submitted eight

proposed advertisements. (Doc. # 57-6). One of the

advertisements referenced “honor killings” and asked: “Is

your family threatening you? Is your life in danger? We can

help: go to FightforFreedom.us.” (Id. at 1). Other ads quoted

government officials to claim that “CAIR ‘has ties to

terrorism’” and “give[s] aid to international terrorist

groups.” (Id. at 4, 5). Others contained quotes from

individuals allegedly defrauded, misled, or deceived by CAIR,

along with the website “TruthAboutCAIR.com.” (Id. at 2, 3,

7). HART refused to run AFDI’s advertisements, and AFDI

threatened to sue HART. (Doc. # 57-1 at ¶ 13).

Following the CAIR advertisement controversies and the

August 2013 Board meeting, HART amended its advertising

policy. (Doc. # 63 at ¶ 14; Doc. # 67 at ¶ 14). In December

2013, HART adopted the Advertising Policy currently in

effect. (Doc. # 57-1 at ¶ 16).

According to HART, its refusal to accept primarily

religious advertisements “is supported by HART’s interests in

ensuring safe and reliable transportation services and

operating in a manner that maintains demand of its service .

. . without alienating any riders, potential riders,

employees, or advertisers. HART’s policy is intended to

maintain a safe environment on its vehicles without

unnecessary controversy, risks of violence, or risks of

vandalism while maintaining employee morale.” (Doc. # 60-18

at 6). As HART’s corporate representative explained,

religious ads could be deemed controversial or “create a bad

experience for our customers” “if somebody didn’t agree with

it and . . . they’re upset about it.” (Doc. # 60-8 at 80:11-

20).

This prohibition on primarily religious advertisements

applies without distinction between exterior spaces, such as

bus exteriors or shelters, and bus interiors. (Doc. # 60-8 at

78:22-25). According to HART, “[a]pplication of HART’s

advertising guidelines are fact specific and analysis of a

permissible ad, once brought to the CEO (or her designee), is

done on a fact-specific basis, with assistance from counsel,

if necessary.” (Doc. # 60-18 at 6).

Laurie Gage, an employee of Vector Media (HART’s

designated Advertising Contractor), is the first line of

review under HART’s Policy. (Doc. # 60-6 at 10, 13, 15-16).

Gage testified that, outside of HART’s written Advertising

Policy, there are no guidance documents, advisory opinions,

or other material available to help her implement or interpret

the Policy. (Id. at 14). She has never received any training

on how to apply the Policy. (Id. at 14-15). She also testified

that if there was ever any question or concern about whether

an advertisement was allowable under the Policy, she would

forward the issue to HART. (Id. at 13, 80).

Tyler Rowland, HART’s manager of communications and

creative services, and who was deposed in his capacity as

HART’s corporate representative, stated that one of his

responsibilities is reviewing submitted advertisements. (Doc.

# 60-8 at 13). Rowland also testified that HART does not

provide any guidance documents, advisory opinions, or other

material to help interpret the Policy, and there is no

training provided on the Policy. (Id. at 15). Rowland

testified that, when determining whether an ad was “primarily

promoting” a religious faith or organization, he would make

that determination on a case-by-case basis, depending on the

ad’s “design and . . . messaging.” (Id. at 34-35).

HART admits that it does not know “what would

specifically upset customers on religious ads” and it also

admits that it has no record of disruptions, vandalism, or

threats of violence attributable to any advertisement. (Doc.

# 60 at ¶ 13; Doc. # 64 at ¶ 13).

B. Young Israel and the “Chanukah on Ice”

Advertisement

Young Israel is an Orthodox Jewish synagogue in Tampa,

Florida, led by Rabbi Uriel Rivkin. (Doc. # 60 at ¶ 1; Doc.

# 64 at ¶ 1). The synagogue has hundreds of attendees,

conducts charitable endeavors, and reaches the community via

publicly advertised celebrations of Jewish holidays like

Passover and Chanukah. (Id.). For more than 14 years, Young

Israel has hosted the Chanukah celebration “Chanukah on Ice.”

(Doc. # 60 at ¶ 2; Doc. # 64 at ¶ 2). Chanukah is a Jewish

festival commemorating a miracle in which the oil in the holy

temple, meant to last only one day, instead lasted for eight.

(Doc. # 60-4 at 15:23-16:9).

According to Rabbi Rivkin, Chanukah on Ice is a “very

big event” with “at least 200 people” typically in attendance.

(Doc. # 60-4 at 17, 28; Doc. # 60-2 at 3).1 Rabbi Rivkin

stated that the Chanukah on Ice event was part of the

synagogue’s outreach to the community and “offers a crucial

opportunity to foster Jewish identity during a season many

associate with Christmas.” (Doc. # 60-2 at 2-3).

The event begins with an hour of ice skating with Jewish

music playing and Jewish food available. (Doc. # 60 at ¶ 3;

Doc. # 64 at ¶ 3; Doc. # 60-4 at 28:11-23, 29:24-30:3). Next,

Rabbi Rivkin lights a large ice menorah and offers blessings.

(Doc. # 60 at ¶ 3; Doc. # 64 at ¶ 3; Doc. # 60-4 at 30:4-16).

Attendees sing Jewish songs, and Rabbi Rivkin speaks about

the Chanukah miracle. (Id.). Rabbi Rivkin testified that, in

his opinion, the menorah is a Jewish religious symbol

celebrating Chanukah. (Doc. # 60-4 at 18:25-19:3).

Rabbi Rivkin usually begins planning Chanukah on Ice in

September by booking a rink. (Doc. # 60-4 at 54:18-55:8). In

1 HART takes issue with most of the exhibits attached to Young

Israel’s summary judgment Motion because they were submitted

as attachments to a lawyer’s affidavit. (Doc. # 64 at 2-7).

HART misunderstands the Court’s requirements in this respect.

While lawyers may not submit affidavits as proof of

substantive facts, counsel’s affidavit here was submitted

solely as the vehicle by which other, admissible evidence was

submitted. Thus, the Court will consider the documents

submitted by Young Israel. Furthermore, while HART also

objects to “rank hearsay documents,” it does not identify

which documents it means or why those documents are hearsay.

2019, Young Israel hosted Chanukah on Ice at the AdventHealth

Center Ice Rink, which is near the synagogue, on one HART bus

line, and near another. (Doc. # 60-2 at 3). Young Israel has

historically promoted the event through advertising in Jewish

press publications and on Facebook. (Doc. # 60-4 at 32:24-

33:7). For 14 years, Young Israel has utilized essentially

the same print ad, which features a menorah and a dreidel.

(Doc. # 60-4 at 104:3-9). Rabbi Rivkin testified that the

dreidel is a Jewish cultural symbol. (Id. at 106:15-107:17).

On October 30, 2020, Young Israel sent HART its proposed

Chanukah on Ice advertisement “to run in the HART transit

system in late November through December.” (Doc. # 1-2 at 2).

The advertisement included the details of the Chanukah on Ice

event and contained images of a menorah, a dreidel, and ice

skaters. (Id. at 3). It stated that the event would

“feature[e] lighting of a sculpted Grand Ice Menorah and ice

skating to Jewish music around the flaming menorah.” (Id.).

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On November 2, 2020, Gage, an employee with Vector Media,

rejected the ad, writing: “Thank you for writing,

unfortunately we cannot assist. HART does not allow religious

affiliation advertising, as well as banning adult, alcohol,

12

tobacco, and political ads. Thank you again for your

interest.” (Doc. # 1-3).

Young Israel expressed its “disappoint[ment]” with the

decision and thereafter contacted the agency’s interim CEO to

initiate an appeal of the decision. (Doc. # 1-4; Doc. # 1-

6). At that point, HART’s interim CEO, legal counsel, and

communications manager met and concluded that, “based off .

. . legal counsel’s knowledge of what the menorah meant,” the

ad was primarily focused on a “religion-based icon” and

therefore violated HART’s advertising policy. (Doc. # 60-8 at

67:9-13, 70:5-12, 88:6-15). HART’s corporate representative

testified that while he “assume[d]” that the word Chanukah

was a religious term, if the focus of the advertisement

“stay[ed] towards the ice skating and the event and the

celebration, then we can . . . work within those parameters

and still not be violating our [P]olicy.” (Doc. # 60-8 at

74:18-75:3).

Accordingly, on December 8, 2020, Rowland, in his role

as HART’s communications manager, emailed Rabbi Rivkin with

“suggested edits” to the print advertisement, including

removing the picture of the menorah and all uses of the word

“menorah.” (Doc. # 1-7). Rabbi Rivkin testified that he found

it “offensive” that HART would seek to take out all references

to the menorah. (Doc. # 60-4 at 131:4-16, 131:1-5). He told

HART that the proposed changes were “not possible to make”

because the lighting of the menorah “is a central aspect of

the Orthodox Jewish celebration of Chanukah,” and he asked

HART to run the ad as originally submitted. (Doc. # 1-8). On

December 15, 2020, HART formally refused to run the Chanukah

on Ice advertisement. (Doc. # 1-9). HART’s interim CEO said

that this decision was “consistent with prior determinations

involving similar advertisement requests under this policy.”

(Id.).

C. Procedural History

Young Israel initiated this case on February 5, 2021,

asserting multiple claims of First Amendment free speech and

freedom of religion violations, as well as violations of its

Fourteenth Amendment equal protection and due process rights.

(Doc. # 1). HART filed its answer on March 2, 2021. (Doc. #

17). The case proceeded through discovery. The parties now

both move for summary judgment. (Doc. ## 60, 63). The Motions

are fully briefed and ripe for review.

II. Legal Standard

Summary judgment is appropriate “if the movant shows

that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a). A factual dispute alone is not enough to

defeat a properly pled motion for summary judgment; only the

existence of a genuine issue of material fact will preclude

a grant of summary judgment. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247-48 (1986).

An issue is genuine if the evidence is such that a

reasonable jury could return a verdict for the non-moving

party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742

(11th Cir. 1996)(citing Hairston v. Gainesville Sun Publ’g

Co., 9 F.3d 913, 918 (11th Cir. 1993)). A fact is material if

it may affect the outcome of the suit under the governing

law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.

1997). The moving party bears the initial burden of showing

the court, by reference to materials on file, that there are

no genuine issues of material fact that should be decided at

trial. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260

(11th Cir. 2004)(citing Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986)). “When a moving party has discharged its

burden, the non-moving party must then ‘go beyond the

pleadings,’ and by its own affidavits, or by ‘depositions,

answers to interrogatories, and admissions on file,’

designate specific facts showing that there is a genuine issue

for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,

593-94 (11th Cir. 1995)(quoting Celotex, 477 U.S. at 324).

If there is a conflict between the parties’ allegations

or evidence, the non-moving party’s evidence is presumed to

be true and all reasonable inferences must be drawn in the

non-moving party’s favor. Shotz v. City of Plantation, 344

F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact finder

evaluating the evidence could draw more than one inference

from the facts, and if that inference introduces a genuine

issue of material fact, the court should not grant summary

judgment. Samples ex rel. Samples v. City of Atlanta, 846

F.2d 1328, 1330 (11th Cir. 1988). But, if the non-movant’s

response consists of nothing “more than a repetition of his

conclusional allegations,” summary judgment is not only

proper, but required. Morris v. Ross, 663 F.2d 1032, 1034

(11th Cir. 1981).

Finally, the filing of cross-motions for summary

judgment does not give rise to any presumption that no genuine

issues of material fact exist. Rather, “[c]ross-motions must

be considered separately, as each movant bears the burden of

establishing that no genuine issue of material fact exists

and that it is entitled to judgment as a matter of law.” Shaw

Constructors v. ICF Kaiser Eng’rs, Inc., 395 F.3d 533, 538–

39 (5th Cir. 2004); see also United States v. Oakley, 744

F.2d 1553, 1555 (11th Cir. 1984)(“Cross-motions for summary

judgment will not, in themselves, warrant the court in

granting summary judgment unless one of the parties is

entitled to judgment as a matter of law on facts that are not

genuinely disputed . . . .” (quotation omitted)).

III. Analysis

Young Israel argues that HART’s Advertising Policy is

facially unconstitutional in four respects. First, it argues

that the Policy violates the First Amendment’s Free Speech

Clause because it discriminates based on viewpoint,

specifically a religious viewpoint. (Doc. # 60 at 1, 12-16).

Second, even if the Policy is viewpoint-neutral, Young Israel

argues that it violates the Free Speech Clause because it is

an unreasonable restriction based on content. (Id. at 1-2,

18-20). Third, Young Israel contends that the Policy is also

unconstitutional because it is standardless and arbitrary.

(Id. at 2, 20-23). Finally, according to Young Israel, the

Policy violates the Free Exercise Clause because it singles

out religion for disfavored treatment. (Id. at 2, 23-25).

For its part, HART argues that it is entitled to summary

judgment on all of Young Israel’s claims because HART’s

property is a non-public forum. (Doc. # 63 at 12-16).

Furthermore, it contends that non-public forums may

reasonably restrict speech, and that HART’s Policy is

reasonable. (Id. at 16-21). Finally, HART claims that it has

not arbitrarily or inconsistently applied its Policy. (Id. at

21-24).

A. Viewpoint Discrimination

“The First Amendment prohibits the political restriction

of speech in simple but definite terms: ‘Congress shall make

no law . . . abridging the freedom of speech.’ Those same

terms, and their guarantee of free speech, now apply to states

and municipalities as well as to the federal government.”

Otto v. City of Boca Raton, 981 F.3d 854, 860-61 (11th Cir.

2020) (quoting U.S. Const. amend. I). As the Supreme Court

has explained:

When the government targets not subject matter, but

particular views taken by speakers on a subject,

the violation of the First Amendment is all the

more blatant. Viewpoint discrimination is thus an

egregious form of content discrimination. The

government must abstain from regulating speech when

the specific motivating ideology or the opinion or

perspective of the speaker is the rationale for the

restriction.

Rosenberger v. Rector & Visitors of the Univ. of Va., 515

U.S. 818, 829 (1995) (internal citations omitted).

The parties dispute whether this Court must make a

threshold determination of into which government forum HART’s

ad space falls.2 For reasons more fully described below, the

Court finds a recent decision from the Third Circuit Court of

Appeals to be persuasive, and that case held that “no matter

what kind of property is at issue, viewpoint discrimination

is out of bounds.” Ne. Pa. Freethought Soc’y v. Cty. of

Lackawanna Transit Sys., 938 F.3d 424, 432 (3d Cir. 2019).

Additionally, “even in a non-public forum,” as HART claims

its property to be, “the law is clearly established that the

state cannot engage in viewpoint discrimination — that is,

the government cannot discriminate in access to the forum on

the basis of the government’s opposition to the speaker’s

viewpoint.” Cook v. Gwinnett Cty. Sch. Dist., 414 F.3d 1313,

1321 (11th Cir. 2005).

2 As HART notes, caselaw has identified various types of

government forums. See United States v. Kokinda, 497 U.S.

720, 726–27 (1990) (explaining the “tripartite framework” for

analyzing First Amendment interests with respect to

government property and the various levels of scrutiny

afforded to each forum (citing Perry Educ. Ass’n v. Perry

Local Educators’ Ass’n, 460 U.S. 37, 45-46 (1983)); see also

Barrett v. Walker Cty. Sch. Dist., 872 F.3d 1209, 1224-25

(11th Cir. 2017) (identifying four categories of government

fora – the traditional public forum, the designated public

forum, the limited public forum, and the nonpublic forum –

and explaining that, in earlier Supreme Court precedent, “the

term ‘nonpublic forum’ was synonymous with ‘limited public

forum’”). HART claims that its property qualifies as a

nonpublic forum.

The Supreme Court has published a trilogy of cases

explaining the law on viewpoint discrimination with respect

to religion. In the first,

[A] school district had opened school facilities

for use after school hours by community groups for

a wide variety of social, civic, and recreational

purposes. The district, however, had enacted a

formal policy against opening facilities to groups

for religious purposes. Invoking its policy, the

district rejected a request from a group desiring

to show a film series addressing various child-

rearing questions from a “Christian perspective.”

. . . [The Supreme Court’s] conclusion was

unanimous: “It discriminates on the basis of

viewpoint to permit school property to be used for

the presentation of all views about family issues

and childrearing except those dealing with the

subject matter from a religious standpoint.”

Rosenberger, 515 U.S. at 830 (citing Lamb’s Chapel v. Ctr.

Moriches Union Free Sch. Dist., 508 U.S. 384, 386-90 (1993)).

The Supreme Court revisited this subject just two years

after Lamb’s Chapel with its decision in Rosenberger. The

issue in that case was a university’s decision to withhold

funding from a student publication that published articles

with a religious perspective. Rosenberger, 515 U.S. at 823-

27. In that case, the University, as HART does here, insisted

that its stated guidelines “draw lines based on content, not

viewpoint” because it equally denied funding to any

“religious activity,” which was defined in the relevant

guidelines as any activity that “primarily promotes or

manifests a particular belie[f] in or about a deity or an

ultimate reality.” Id. at 825, 830. This argument gained

traction with the four-justice dissent. Justice Souter wrote

that:

If the Guidelines were written or applied so as to

limit only such Christian advocacy and no other

evangelical efforts that might compete with it, the

discrimination would be based on viewpoint. But

that is not what the regulation authorizes; it

applies to Muslim and Jewish and Buddhist advocacy

as well as to Christian. And since it limits funding

to activities promoting or manifesting a particular

belief not only “in” but “about” a deity or ultimate

reality, it applies to agnostics and atheists as

well as it does to deists and theists. . . . [The

University] simply [denies] funding for hortatory

speech that ‘primarily promotes or manifests’ any

view on the merits of religion; they deny funding

on the entire subject of religious apologetics. .

. . If this amounts to viewpoint discrimination,

the Court has all but eviscerated the line between

viewpoint and content.

Id. at 895-98 (Souter, J., dissenting).

The five-justice majority, however, rejected this

argument because it “reflects an insupportable assumption

that all debate is bipolar and that antireligious speech is

the only response to religious speech.” Further, “[t]he

dissent’s declaration that debate is not skewed so long as

multiple voices are silenced is simply wrong; the debate is

skewed in multiple ways.” Id. at 831-32.

While acknowledging that the distinction between

viewpoint and content in the context of religion “is not a

precise one,” the majority concluded that viewpoint

discrimination was the proper way to interpret the

University’s objections to the student publication. The Court

determined that the “prohibited [religious] perspective, not

the general subject matter, resulted in the refusal to make

third-party payments, for the subjects discussed [in the

publication] were otherwise within the approved category of

publications.” Id. at 831.

In the years that followed Rosenberger’s release, a

circuit split developed on the question of “whether speech

can be excluded from a limited public forum on the basis of

the religious nature of the speech.” Good News Club v. Milford

Cent. Sch., 533 U.S. 98, 105-06 (2001). In Good News Club, a

local private Christian organization for children sought

permission to hold the group’s weekly afterschool meetings in

a school cafeteria. Id. at 103. However, the school’s

community use policy, which prohibited use “by any individual

or organization for religious purposes,” foreclosed the

group’s request. Id.

Relying heavily on its prior precedents in Lamb’s Chapel

and Rosenberger, the Court held that the exclusion

constituted impermissible viewpoint discrimination. Id. at

107. The Court explained that the school’s policy allowed

groups that would promote the moral and character development

of children, but it excluded the Club’s activities because

they were religious in nature. Id. at 108. In other words,

using Aesop’s Fables to teach children moral values or

allowing the Boy Scouts to meet to develop a child’s character

was permissible, but allowing a Christian group to do the

same was not allowed. This was impermissible viewpoint

discrimination. Id. at 108-09. The Court in Good News Club

therefore “reaffirm[ed]” its prior holdings and held that

“speech discussing otherwise permissible subjects cannot be

excluded from a limited public forum on the ground that the

subject is discussed from a religious viewpoint.” Id. at 112.

Here, HART seeks to avoid the implication of this Supreme

Court precedent by pointing out that those decisions all

involved schools, not public transit. As the parties note in

their briefing, two Circuit Courts of Appeal have addressed

this Supreme Court trilogy in the context of advertisements

on public transit and have reached opposite conclusions.

In 2018, the D.C. Circuit addressed a policy enacted by

the transit authority that provides service to the

Washington, D.C. metro area (“WMATA”) – which policy banned

“issue-oriented ads, including political, religious, and

advocacy ads.” Archdiocese of Wash. v. Wash. Metro. Area

Transit Auth., 897 F.3d 314, 318 (D.C. Cir. 2018). There, the

D.C. Circuit considered an advertisement submitted by a

Catholic archdiocese that depicted a starry night and the

silhouettes of three shepherds and sheep on a hill facing a

bright shining star high in the sky, along with the words

“Find the Perfect Gift.” Id. at 467. The Court upheld the

policy because it regulated subject matter, not viewpoint.

Id. at 325; see also Rosenberger, 515 U.S. at 829-30

(observing a difference between “content discrimination,

which may be permissible if it preserves the purposes of that

limited forum, and, on the other hand, viewpoint

discrimination, which is presumed impermissible when directed

against speech otherwise within the forum’s limitations”).

Conversely, in 2019, the Third Circuit (in a 2-1

opinion), determined that the County of Lackawanna Transit

System, which operates the bus transit service in Scranton,

Pennsylvania, ran afoul of the First Amendment when it enacted

a policy with prohibitions on religious messages. Ne. Pa.

Freethought Soc’y v. Cty. of Lackawanna Transit Sys., 938

F.3d 424, 432 (3d Cir. 2019). In Freethought, the plaintiff

group (an “association of atheists, agnostics, secularists,

and skeptics”) proposed an ad displaying the word “Atheists”

along with the group’s name and website on public transit run

by the defendant. Id. at 428. The Third Circuit in that case

expressly rejected the reasoning set forth by its sister court

in Archdiocese of Washington. Id. at 436-37.3

The Court has carefully read and considered each of these

Circuit cases, which are persuasive but not binding upon it.

The Eleventh Circuit has not yet published a decision on this

topic. In this Court’s view, the Third Circuit’s approach

better conforms to the prevailing Supreme Court caselaw on

the issue of religious viewpoint discrimination.4

3 For a more fulsome description of the facts and holdings in

Archdiocese of Washington and Freethought and the resulting

Circuit split, readers may refer to the following law review

article. Jonathan P. Rava, Note, Religious Advertisements

Sparking Debates on Buses: A Circuit Court Split on Viewpoint

Versus Content-Based Discrimination, 21 Rutgers J. L. &

Religion 502 (2021).

4 The Court makes this determination on the basis of

controlling and published Supreme Court precedents. Still,

the Court notes a statement made by Justice Gorsuch, joined

by Justice Thomas, that accompanied the Supreme Court’s

denial of certiorari in the Archdiocese of Washington case.

That statement made clear that at least a faction of the Court

favored the Third Circuit’s analysis and, had the Court taken

up the case, “a reversal would be warranted for reasons

admirably explained by Judge Griffith in his dissent below

and by Judge Hardiman in [Freethought].” Archdiocese of Wash.

v. Wash. Metro. Area Transit Auth., 140 S. Ct. 1198, 1199

(2020) (denying certiorari). As Justice Gorsuch explains it,

“[n]o one disputes that, if Macy’s had sought to place the

same advertisement along with its own website address,

Here, HART’s Advertising Policy constitutes viewpoint

discrimination. The record demonstrates that HART allowed

advertisements for a secular holiday event with ice skating

and seasonal food (Doc. # 60-21), but it disallowed an ice-

skating event with seasonal food that was in celebration of

Chanukah. Thus, HART’s ban on advertisements that “primarily

promote a religious faith or religious organization” targets

the “specific motivating ideology or the opinion or

perspective of the speaker.” See Rosenberger, 515 U.S. at

829.

The distinction is drawn even more clearly in this case,

where HART expressly suggested edits to the print ad that

removed all references to and images of the menorah, which

both parties agree is considered a Jewish religious symbol.

(Doc. # 60-4 at 18:25-19:3; Doc. # 60-8 at 70:5-12). So HART

impliedly would have allowed an advertisement of the exact

same event if presented with secular symbols or emphasizing

[WMATA] would have accepted the business gladly. . . . That

is viewpoint discrimination by a governmental entity and a

violation of the First Amendment.” (Id.). Pointing to the

Court’s precedents in Lamb’s Chapel, Rosenberger, and Good

News Club, Justice Gorsuch wrote that “this Court has already

rejected no-religious-speech policies materially identical to

WMATA’s on no fewer than three occasions[.] . . . What WMATA

did here is no different.”). (Id.).

a secular viewpoint, but it was not allowed if presented with

religious symbols or emphasizing a religious viewpoint. The

Court therefore sees no difference between these facts and

those in Good News Club, where a school could invite children

to learn “morals and character” in the Boy Scouts, or in some

other non-religious fashion, but not in a Bible club. See 533

U.S. at 108.

What’s more, as the Third Circuit explained in

Freethought, the advertisement there related to the subject

of religion “writ large.” 938 F.3d at 435. “But at its core,

its message is one of organizational existence, identity, and

outreach. . . . What matters for the viewpoint discrimination

inquiry isn’t how religious a message is, but whether it

communicates a religious (or atheistic) viewpoint on a

subject to which the forum is otherwise open.” Id.

Here, Rabbi Rivkin stated that the synagogue’s Chanukah

on Ice event was a means of outreach to the community and an

expression of Jewish identity. (Doc. # 60-2 at 2-3). HART

disallowed this statement of organizational existence,

identity, and outreach, and yet it allowed outreach messages

from Alcoholics Anonymous (“Is Alcohol a Problem? Call

Alcoholics Anonymous”), the Ronald McDonald House Charities

(“Joy Is One of the Best Gifts You Can Give”), and Florida

Healthy Transitions (“We’re here to help. You are not

alone.”). (Doc. # 60-23; Doc. # 60-24; Doc. # 60-40).

HART argues that because its Policy contains a ban on

any advertisements that “primarily promote a religious faith

or religious organization,” it is a permissible subject-

matter based restriction. See (Doc. # 64 at 15 (“HART’s policy

makes a subject-matter based restriction, not a viewpoint

restriction.”)). HART also argues that the Supreme Court

trilogy of Lamb’s Chapel, Rosenberger, and Good News Club is

distinguishable because in those cases the religious group

sought to address a subject otherwise permitted under the

rule or policy and was silenced from expressing their views

on that topic through a religious lens. (Doc. # 64 at 15-16).

They argue that, here, HART’s Policy is limited to “commercial

endeavors,” and it “prohibits all content-based

advertisements that would promote a religion or religious

viewpoint.” (Id. at 16-18). Thus, the Policy “lawfully

prohibits the entire subject matter of religion since it only

allows commercial advertisements.” (Id. at 18).

But this argument has been repeatedly rejected by the

Supreme Court. See Byrne v. Rutledge, 623 F.3d 46, 58 (2d

Cir. 2010) (“[The government] contends that because the law

bans ‘all speech on’ religion ‘whether positive, negative, or

neutral’ it is, ‘by definition viewpoint-neutral.’ In the

context of restrictions on all religious speech, this

argument has been expressly considered – and rejected – by

the Supreme Court.”).

The Court agrees with Young Israel that this argument

was precisely the one made by Justice Souter in his dissent

in Rosenberger and was explicitly rejected by the majority

opinion. Even before Rosenberger, the Court in Lamb’s Chapel

wrote that:

The Court of Appeals thought that the application

of [the district policy] in this case was viewpoint

neutral because it had been, and would be, applied

in the same way to all uses of school property for

religious purposes. That all religions and all uses

for religious purposes are treated alike under [the

policy], however, does not answer the critical

question whether it discriminates on the basis of

viewpoint to permit school property to be used for

the presentation of all views about family issues

and child rearing except those dealing with the

subject matter from a religious standpoint.

Lamb’s Chapel, 508 U.S. at 392-93. And in Good News Club, the

Court explicitly wrote that: “Although in Rosenberger there

was no prohibition on religion as a subject matter, our

holding did not rely on this factor. Instead, we concluded

simply that the university’s denial of funding to print [the

religious student publication] was viewpoint discrimination,

just as the school district’s refusal to allow Lamb’s Chapel

to show its films was viewpoint discrimination.” Good News

Club, 533 U.S. at 110; see also Freethought, 938 F.3d at 434

(explaining that Good News Club “foreclosed the argument that

a broad prohibition on religious speech can validate

religious viewpoint discrimination”).

In sum, HART’s Advertising Policy, both on its face and

in its application to this Plaintiff, is a denial of Young

Israel’s right to free speech under the First Amendment. See

Otto, 981 F.3d at 864 (while not adopting a per se rule,

noting that “there is an argument that [viewpoint

discriminatory] regulations are unconstitutional per se”);

see also Rosenberger, 515 U.S. at 837 (writing that

“[d]iscrimination against speech because of its message is

presumed to be unconstitutional” and, once determining that

the University’s guidelines were viewpoint discriminatory,

therefore holding them unconstitutional); Good News Club, 533

U.S. at 107-08 (invalidating the applicable policy as

viewpoint discriminatory and not even reaching the issue of

whether it was unreasonable in light of the purposes served

by the forum).

B. Reasonableness

Even if HART’s Advertising Policy were viewpoint

neutral, it would still need to be reasonable in light of the

purposes of the forum.5 Freethought, 938 F.3d at 437; see also

Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S.

788, 806 (1985) (“[A]ccess to a nonpublic forum can be based

upon subject matter and speaker identity so long as the

distinctions drawn are reasonable in light of the purpose

served by the forum and are viewpoint neutral.”).

When it comes to reasonableness, the Supreme Court has

recently held that the government “must be able to articulate

some sensible basis for distinguishing what may come in from

what must stay out.” Minn. Voters All. v. Mansky, 138 S. Ct.

1876, 1888 (2018). In other words, there must be “objective,

workable standards” guiding the regulation’s enforcement. Id.

at 1891. Young Israel argues that HART lacks such workable

standards in enforcing the Policy. (Doc. # 60 at 20-23). The

Court agrees.

The Eleventh Circuit recently described the Mansky

decision in this way:

The Supreme Court has made it clear that even in a

nonpublic forum the government must avoid the

haphazard and arbitrary enforcement of speech

restrictions in order for them to be upheld as

reasonable. Thus, for example,

in Minnesota Voters Alliance v. Mansky, the

5 The parties appear to agree for purposes of this argument

that HART property is either a nonpublic forum or a limited

public forum. Both are subject to the same restrictions and

level of scrutiny.

Supreme Court invalidated a state law prohibiting

voters from wearing certain kinds of expressive

clothing and accessories inside the polling place.

The Minnesota law at issue prohibited voters from

wearing any “political badge, political button, or

other political insignia.” The Court determined

that the polling place was a nonpublic forum, that

the law did not facially discriminate on the basis

of viewpoint, and that it was reasonable for the

State to determine that “some forms of advocacy

should be excluded from the polling place, to set

it aside as ‘an island of calm in which voters can

peacefully contemplate their choices.’” But the

Court determined that the law still failed the

reasonableness test because the ban on “political”

apparel was too indeterminate and haphazardly

applied.

Cambridge Christian Sch., Inc. v. Fla. High Sch. Athletic

Ass’n, Inc., 942 F.3d 1215, 1243 (11th Cir. 2019) (citations

omitted) (holding that plaintiff school plausibly alleged

that the speech restriction imposed – a ban on prayer over

the loudspeaker at a high school football game – was applied

arbitrarily and haphazardly in violation of Mansky).

There is no controlling Eleventh Circuit opinion

interpreting Mansky in the context of a rapid transit service.

Again, the Court looks to persuasive guidance from outside

this Circuit. This time it turns to a case originating from

the Sixth Circuit Court of Appeals, in which the Court applied

Mansky’s standard to strike down a transit system’s

prohibition on “political” speech. Am. Freedom Def.

Initiative v. Suburban Mobility Auth. for Reg’l Transp.

(“SMART”), 978 F.3d 481, 498 (6th Cir. 2020).

To begin, the Court agrees with the Sixth Circuit that

HART’s prohibition on certain types of advertisements serves

“permissible” ends. HART aims to maintain a “safe, welcoming

environment” for its passengers without alienating any

riders, potential riders, employees, or advertisers. (Doc. #

1-1 at 142; Doc. # 60-18 at 6). See SMART, 978 F.3d at 494

(finding it permissible that the SMART transit system sought

to minimize the chances of abuse, appearance of favoritism,

and risk of imposing upon a captive audience). Nevertheless,

HART must adopt “objective, workable standards” to achieve

its permissible ends. See Mansky, 138 S. Ct. at 1891.

But HART’s Policy fails to do so for similar reasons

articulated by the Court in SMART. First, the word “religious”

is unadorned and unexplained in the Policy. This word, like

the word “political,” has a range of meanings and can be

interpreted differently by different people. See SMART, 978

F.3d at 494.

And HART admits that, outside of the Policy itself, there

is no additional written guidance or training given by HART

on how to interpret the Policy. (Doc. # 64 at ¶ 18). As in

SMART, this lack of guidance “has caused inconsistency in how

[HART] agents define it.” 978 F.3d at 495.

For example, Rowland testified that whether an ad

contains religious symbols would be based on the background

knowledge and professional experience of the HART employee

applying it. (Doc. # 60-8 at 72:9-12). So, Rowland testified

that Macy’s would be allowed to run a “holiday-based ad” with

the slogan “Perfect Gift Sale” that included certain

percentages off items, but if a church ran an ad with the

slogan “Find the Perfect Gift” that was meant to promote the

church, that “would fall into the primarily promoting a

religious organization” prohibition. (Id. at 38-42). Rowland

struggled to describe why these two hypothetical

advertisements might be treated differently, saying at

various times that it would depend on the advertisement’s

“call to action,” whether the advertising client is “known”

to the HART employee based on their professional experience,

or whether the HART employee perceives the ad’s design to

focus on religious symbols. (Id. at 39-42, 77-78).

Similarly, when presented with the same hypothetical

Macy’s ad, Laurie Gage, the employee of HART’s advertising

contractor and the first line of review for submitted

advertisements, stated that “the Young Israel ad clearly had

[a] lot of religious wording and imagery, whereas this has

Christmas gifts. This is neutral.” (Doc. # 60-6 at 24:12-14).

In a similar vein, Gage testified that she would forward to

HART an advertisement containing Easter eggs because it was

“possible” that there is a secular component to Easter. (Id.

at 80:7-25 (specifically, when asked whether there’s a

“secular half of Easter,” Gage responded that “[a]nything is

possible”)). If, however, an advertisement said “Easter,”

that would “maybe” necessitate a conversation with the

advertiser and Gage would forward the ad to HART officials.

(Id. at 81:3-8). But for the Young Israel ad, Gage

acknowledged that she denied the request out of hand, without

ever sending it along to HART. (Id. at 81:19-22).

Nor is there any clarity on how an advertisement could

“primarily,” as opposed to incidentally, or in some other

way, “promote a religious faith or religious organization.”

HART’s corporate representative conceded that, when

determining whether an ad was “primarily promoting” a

religious faith or organization, he would make that

determination on a case-by-case basis, depending on the ad’s

“design and . . . messaging.” (Doc. # 60-8 at 34:18-35:2; see

also Id. at 47:1-8, 43:20-44:5 (stating that if the advertiser

is not a religious organization, then religious symbols might

just be artwork and the determination of how to tell the

difference between the two is “subjective” and subject to his

“professional experience”).

Like the SMART court, the undersigned will now “[t]urn

to process. How should officials decide if an ad is [primarily

promoting a religious faith or religious organization]?

Should they limit themselves to the ad’s four corners? Or

should they consider related content like information on

websites?” SMART, 978 F.3d at 495. Like the Sixth Circuit,

there is no official guidance to answer these questions and

the Court again sees inconsistencies.

For example, while HART now claims that it does not

review an organization’s website to determine whether an ad

violates the Policy, it has repeatedly done so in the past,

and its contractor testified that she sometimes looked at

clients’ websites “[i]f time permitted and [she] was curious

enough.” (Doc. # 60-8 at 93:17-19; Doc. # 60-6 at 73:13-18;

Doc. # 60-28; Doc. # 60-39). HART also conceded that

“different people in the same roles [could] have different

methodologies” for reviewing submitted advertisements’

compliance with the Policy. (Doc. # 60-8 at 96:18-20).

Young Israel also proffered evidence6 that HART had

previously rejected an advertisement from St. Joseph’s

Hospital based on information on the hospital’s website that

it was “[f]ounded as a mission by the Franciscan Sisters of

Allegany,” but would accept the ad if the client used the

name of its parent company, Baycare. (Doc. # 60-38). HART,

however, ran ads from St. Leo University with no such

changes.7 (Doc. # 60-37). HART explains that it permitted

these ads because St. Leo is an “institution of higher

learning, not a religious organization.” (Doc. # 60-18 at 3).

What if, for example, a private Catholic girls’ school or a

preschool affiliated with a church or synagogue wished to

advertise on HART? Would it matter if the organization was

“primarily” a school or “primarily” a religious organization?

Who would make that decision? And what would be their

6 The Court is aware that HART objects to this evidence and

others like it, claiming that it is outside the record. The

Court notes, however, that these documents, such as internal

HART emails, contain HART Bates stamps and were, presumably,

produced by HART in discovery. See Commercial Data Servers,

Inc. v. Int’l Bus. Mach. Corp., 262 F. Supp. 2d 50, 58

(S.D.N.Y. 2003) (“It is disingenuous and wasteful for [CDS]

to object that its own documents are not authenticated”).

7 According to its website, St. Leo University is “the oldest

Catholic institution of higher education in Florida” and was

“established in 1889 by the Order of Saint Benedict of

Florida.” See St. Leo University, About Us,

https://www.saintleo.edu/about (last visited Jan. 15, 2022).

criteria? Would it matter if the school’s advertisement

contained religious symbols or phrases? If so, which

religious symbols or phrases qualify? Without workable,

objective standards, the Court does not know the answer to

these questions and neither does HART.

In sum, the record evidence establishes that HART’s

application and enforcement of the Policy is inconsistent and

haphazard. See Cambridge, 942 F.3d at 1243-44 (“Permitting

certain speech on Monday, Tuesday, Wednesday, and Thursday

and barring precisely the same message on Friday without any

credible explanation of what may have changed is the essence

of arbitrary, capricious, and haphazard — and therefore

unreasonable — decisionmaking.”); see also Mansky, 138 S.

Ct. at 1891 (“A shirt simply displaying the text of the

Second Amendment? Prohibited. But a shirt with the text of

the First Amendment? It would be allowed.”). Under Mansky,

this violates the First Amendment. As the Sixth Circuit

explained:

Up to now, SMART has not written down “objective,

workable standards” to define the word “political”

and guide officials on the steps to take when

deciding if specific ads qualify. Officials thus

have had to apply the ban on the fly on a “case-

by-case basis.” But [under Mansky] the subjective

enforcement of an “indeterminate prohibition”

increases the “opportunity for abuse” in its

application. The First Amendment favors rules over

standards because the former make an

administrator’s job largely ministerial whereas the

latter leave room for the administrator to rely on

“impermissible factors.” . . . As in Mansky, we do

not question that SMART seeks to act in an

“evenhanded manner,” but it has yet to create the

workable standards that it needs for “reasoned

application” of its ban.

SMART, 978 F.3d at 497. The same is true here.

IV. Conclusion

All counts in Young Israel’s complaint center on the

constitutionality of HART’s Advertising Policy. See (Doc. #

1). Having found that summary judgment can be properly granted

in Young Israel’s favor because the Policy is viewpoint

discriminatory and unreasonable, and therefore in violation

of the Free Speech Clause, the Court declines to address

arguments in Young Israel’s Motion for Summary Judgment

relating to the Free Exercise, Equal Protection, or Due

Process Clauses.

Finally, the Court is aware that Young Israel has

requested both declaratory relief and a permanent injunction.

See (Doc. # 1). The parties are directed to confer and, by

February 10, 2022, submit proposed joint language for the

declaratory judgment and permanent injunction for the Court’s

consideration. The parties may submit this with their joint

final pretrial statement or as a separate document.

Accordingly, it is

ORDERED, ADJUDGED, and DECREED:

(1) Plaintiff Young Israel of Tampa, Inc.’s Motion for

Summary Judgment (Doc. # 60) is GRANTED.

(2) Defendant HART’s Amended Motion for Summary Judgment

(Doc. # 63) is DENIED.

DONE and ORDERED in Chambers in Tampa, Florida, this

20th day of January, 2022.

VIRGINIA M. HERNANDEZ*COVINGTON

UNITED STATES DISTRICT JUDGE

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