Opinion

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

_____________________________________

MEGAN THOMAS LAW, PLLC,

Plaintiff,

-v- 5:25-CV-01114 (AJB/ML)

SYRACUSE REGIONAL AIRPORT

AUTHORITY, JASON MEHL, and JASON

TERRERI

Defendants.

_____________________________________

APPEARANCES: OF COUNSEL:

MEGAN THOMAS LAW, PLLC MEGAN KATHERINE THOMAS, ESQ.

Attorneys for Plaintiff

HANCOCK ESTABROOK, LLP LINDSEY H. HAZELTON, ESQ.

Attorneys for Defendants JOHN T. MCCANN, ESQ.

KAPLAN KIRSCH LLP STEVEN L. OSIT, ESQ.

Attorneys for Defendants SUBASH S. IYER, ESQ.

Hon. Anthony Brindisi, U.S. District Judge:

DECISION & ORDER

I. INTRODUCTION

This matter is before the Court on plaintiff’s motion for preliminary injunction (Dkt. No.

8) and defendants’ motion to dismiss (Dkt. No. 25). For the reasons below, plaintiff’s motion

will be GRANTED, and defendants’ motion will be DENIED.

II. BACKGROUND

Plaintiff Megan Thomas Law, PLLC (“Thomas” or the “Firm”) is an employment law

firm. Compl., Dkt. No. 1 at 2. It represents workers facing discrimination and sexual

harassment. Id. Defendant Syracuse Regional Airport Authority (“SRAA”) is a public benefit

corporation that operates the Syracuse Hancock International Airport; defendant Jason Terreri is

the SRAA’s Chief Executive Officer, and defendant Jason Mehl is its Chief Commercial Officer

(collectively, the “Authority”).1 Defs.’ Resp. to Mot. for Prelim. Inj., Dkt. No. 20 at 8; Mehl

Decl., Dkt. No. 20-2 ¶ 1; Dkt. No. 20 at 5; Defs.’ Mot. to Dismiss, Dkt. No. 25-1 at 5. The

Authority earns money by selling space for advertisements. Dkt. No. 1 at 8; Dkt. No. 20 at 5.

In late June 2025, Thomas emailed the Authority, expressing interest in advertising at the

airport. Dkt. No. 1 at 14; Dkt. No. 20 at 7; see Compl., Ex. A, Dkt. No. 1-1 at 1 (“I run an

employment law firm geared towards employees facing a multitude of issues in the workplace,

including discrimination and harassment. I am interested in putting up a billboard at the airport.

Could you please give me a call to discuss?”).

1 The Court refers to defendants SRAA, Mehl, and Terreri collectively as “the Authority,” following

defendants’ convention in their filings. See, e.g., Defs.’ Resp. to Mot. for Prelim. Inj., Dkt. No. 20 at 5. Where

necessary to refer only to the Syracuse Regional Airport Authority, the Court uses the term “SRAA.”

In mid-July, following a tour of the space, the parties contracted to display an

advertisement of the Firm’s for six months, to begin August 1, 2025. See Dkt. No. 1 at 11-13;

Compl., Ex. C, Advertising Agreement, Dkt. No. 1-3.

Advertisers are to follow the Authority’s ad policy. At the outset of this dispute, that

policy was brief: It prohibited ads that were “inappropriate, immoral, offensive, or

objectionable” and those with “political [or] religious messages.” Defs.’ Resp. to Mot. for

Prelim. Inj., Ex. B, Dkt. No. 20-15 at 4 (2023 advertising policy).

The Authority claims plaintiff's proposed ad, shown below, broke these rules.

When HR called it : { =

“HARMLESS ea

FLIRTING...” EXHIBITA \- ¢

Sexual Harassment Discrimination Retaliation a ye

No Fear, No Shame, Just Justice (1a □□□ poe

Dkt. No. | at 2.

According to the Authority, “[t]he majority of the Firm’s ad was acceptable[.]” Dkt. No.

20-2 § 13. “[W]e had no concerns with listing the legal services that the Firm provides,

including for sexual harassment and no objection to the proposed ad’s other content, including

the tag line ‘No Fear, No Shame, Just Justice,’ or any of the Firm’s web-based content . . . linked

through display of a QR code.” /d. “Specifically problematic was its tag line—‘When HR

called it harmless flirting ... We call it EXHIBIT A.’ and the potential for disruption presented

by this type of accusatory and inaccurate statement.” Dkt. No. 20-2 § 12.

Hence, the Authority refused to display the ad. Plaintiff says the ad did not violate any

policy; rather, the Authority’s contrary assertions were, and continue to be, simply cover for

unconstitutional censorship.

As a result, plaintiff filed this action on August 15, 2025, alleging breach of contract and,

in six counts, violations of the First, Fifth, and Fourteenth Amendments, pursuant to

42 U.S.C. § 1983. Dkt. No. 1.2 On August 29, plaintiff moved for a preliminary injunction.

Dkt. No. 8.

Two weeks later, on September 12, the Authority changed its ad policy. Defs.’ Resp. to

Mot. for Prelim. Inj., Ex. C, Dkt. No. 20-16 at 2 (2025 advertising policy). It now lists fourteen

types of prohibited content. Id. at 5–6. These include, for example, ads for tobacco and

marijuana, ads with profanity, and ads that “disparage[]” or are “false, misleading, or deceptive.”

Id. at 6.

On September 16, the Authority sent the Firm a letter. See Defs.’ Resp. to Mot. for

Prelim. Inj., Ex. E, Dkt. No. 20-18. It had reconsidered the Firm’s ad and rejected it once more:

The Authority has determined that it must reject the proposed advertising

copy as Prohibited Advertising Content under the Policy because the tag

2 Count I alleges violation of the First Amendment on the theory that the Authority operates a ‘designated

public forum’ and has unconstitutionally discriminated against plaintiff because of the ad’s content. Dkt. No. 1 at

19–21. Alternatively, under Count I, plaintiff alleges that the Authority operates a ‘limited’ or ‘nonpublic’ forum,

and that it has unconstitutionally discriminated against plaintiff based on viewpoint. Id. Count II makes the same

allegations; however, it is repackaged as a First Amendment retaliation claim. Id. at 21–23.

In Count III, the Firm asserts a First and Fourteenth Amendment claim for ‘gender discrimination.’ Id.

23–25. Count IV asserts a Fourteenth Amendment equal protection claim; Count V, a substantive due process

violation under both the Fifth and Fourteenth Amendment. Id. at 25–32. But see Scott v. Romano, 2025 WL

3455771, at *2 (W.D.N.Y. Nov. 26, 2025) (“It is well-established that ‘the Fifth Amendment applies to and restricts

only the Federal Government.’”) (quoting Griffin v. City of New York, 880 F. Supp. 2d 384, 404 (E.D.N.Y. 2012)).

Count VI submits municipal liability as an independent claim for relief. Dkt. No. 1 at 32–34. But see

Jeffery v. City of New York, 113 F.4th 176, 187 n.14 (2d Cir. 2024) (“There is no ‘stand-alone cause of action’ for

‘municipal liability.’”), cert. denied sub nom. Jeffery v. City of New York, New York, 145 S. Ct. 1174, 221 L. Ed. 2d

253 (2025).

Plaintiff’s final claim, Count VII, asserts breach of contract. Dkt. No. 1 at 34–35.

line – “When HR called it Harmless Flirting …We Called it Exhibit A” (the

“Tag Line”) – reasonably “disparages, demeans, ridicules, is abusive or

hostile to, or reflects negatively on the character, integrity, or standing (or

could reasonably be interpreted as such) of any individual, group, entity,

business/profession, religion, organization, or governmental entity,

including advertising that portrays such individuals, entities, or groups as

inferior, evil, unlawful, objectionable, or contemptible.” In addition and

alternatively, the Tag Line “is false, misleading, or deceptive” Prohibited

Advertising Content per the Policy as it references/implies the applicability

of an incorrect, misleading and/or specious legal standard.

Id. at 2.

Less than a week after changing the ad policy, the Authority filed its response to the

Firm’s motion for injunctive relief; and, on October 2, it filed a motion to dismiss under

Rule12(b)(1) and 12(b)(6). Dkt. No. 20; Dkt. No. 25. Both motions are fully briefed.

III. STANDARDS OF REVIEW

A. Preliminary Injunction Standard

A preliminary injunction “is an extraordinary and drastic remedy, one that should not be

granted unless the movant, by a clear showing, carries the burden of persuasion.” State Farm

Mut. Auto. Ins. Co. v. Tri-Borough NY Med. Prac. P.C., 120 F.4th 59, 79 (2d Cir. 2024) (internal

citations omitted). “To obtain a preliminary injunction, a party must show ‘(1) irreparable harm;

(2) either a likelihood of success on the merits or both serious questions on the merits and a

balance of hardships decidedly favoring the moving party; and (3) that a preliminary injunction

is in the public interest.’” St. Joseph’s Hosp. Health Ctr. v. Am. Anesthesiology of Syracuse,

P.C., 131 F.4th 102, 106 (2d Cir. 2025) (quoting N. Am. Soccer League, LLC v. U.S. Soccer

Fed’n, Inc., 883 F.3d 32, 37 (2d Cir. 2018)).

“[A]s a general matter, there is a presumption of irreparable harm when there is an

alleged deprivation of constitutional rights.” Matthews v. Barq, 2019 WL 1025828, at *14

(N.D.N.Y. Mar. 4, 2019) (McAvoy, J.) (quoting V.W. by & through Williams v. Conway, 236 F.

Supp. 3d 554, 588 (N.D.N.Y. 2017)). However, “the favorable presumption of irreparable harm

arises only after a plaintiff has shown a likelihood of success on the merits of the constitutional

claim.” Brock v. City of New York, 2022 WL 479256, at *4 (S.D.N.Y. Jan. 28, 2022) (citing

Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996)).

“In other words, ‘because the violation of a constitutional right is the irreparable harm

asserted here, the two prongs of the preliminary injunction threshold merge into one: in order to

show irreparable injury, plaintiff must show a likelihood of success on the merits.’” A.H. by &

through Hester v. French, 511 F. Supp. 3d 482, 497 (D. Vt. 2021) (quoting Turley v. Giuliani, 86

F. Supp. 2d 291, 295 (S.D.N.Y. 2000)); see also A.H. by & through Hester v. French, 985 F.3d

165, 176 (2d Cir. 2021) (“In cases alleging constitutional injury, a strong showing of a

constitutional deprivation that results in noncompensable damages ordinarily warrants a finding

of irreparable harm.”).

“The Second Circuit has concluded that, where a plaintiff alleges constitutional

violations, the balance of hardships tips decidedly in the plaintiff’s favor despite arguments that

granting a preliminary injunction would cause financial or administrative burdens on the

Government.” Deide v. Day, 676 F. Supp. 3d 196, 232–33 (S.D.N.Y. 2023); see also

Millennium Pipeline Co., L.L.C. v. Seggos, 288 F. Supp. 3d 530, 545 (N.D.N.Y. 2017)

(D’Agostino, J.) (The government is “in no way harmed by issuance of a preliminary injunction

which prevents the state from enforcing restrictions likely to be found unconstitutional.”).

Furthermore, “[i]t is always in the public interest to protect First Amendment liberties.”

Robar v. Vill. of Potsdam Bd. of Trs., 490 F. Supp. 3d 546, 574 (N.D.N.Y. 2020) (Kahn, J.)

(collecting cases). Ergo, here, the “[l]ikelihood of success on the merits is . . . ‘the dominant, if

not the dispositive, factor.’” A.H. by & through Hester, 985 F.3d at 176 (quoting New York

Progress & Prot. PAC v. Walsh, 733 F.3d 483, 488 (2d Cir. 2013)).

B. Merits of Constitutional Claims

1. First Amendment Principles

“The first issue to be addressed in any challenge to the constitutional validity of a rule

under the First Amendment is whether a First Amendment right exists, for if it does not, we need

go no further.” Potanovic v. Town of Stony Point, 651 F. Supp. 3d 677, 682 (S.D.N.Y. 2023),

aff’d, 2024 WL 3159221 (2d Cir. June 25, 2024). “Thus, ‘[i]n evaluating § 1983 claims for First

Amendment violations, courts first inquire whether the activity in question is protected . . . under

the First Amendment.” Potanovic, 651 F. Supp. 3d at 682 (quoting Hershey v. Goldstein, 938 F.

Supp. 2d 491, 505 (S.D.N.Y. 2013)).

Plaintiff’s ad plainly qualifies as protected speech. “Lawyer advertising is commercial

speech that is protected by the First Amendment.” Hayes v. Zakia, 2002 WL 31207463, at *3

(W.D.N.Y. Sept. 17, 2002) (citing Fla. Bar v. Went For It, Inc., 515 U.S. 618, 623 (1995)); see

also Eastchester Tobacco & Vape Inc. v. Town of Eastchester, 618 F. Supp. 3d 155, 162

(S.D.N.Y. 2022) (“Commercial speech, such as advertising, is . . . protected by the First

Amendment, and government regulations of commercial speech are subject to heightened

scrutiny.”) (citing Zauderer v. Off. of Disciplinary Couns., 471 U.S. 626, 637–38 (1985)).

“To determine whether the First Amendment protects particular speech”—in this

instance, plaintiff’s ad—the Court “must first ‘examine the nature of the forum in which the

speaker’s speech is restricted.’” Young Am.’s Found. v. Stenger, 2021 WL 3738005, at *10

(N.D.N.Y. Aug. 24, 2021) (quoting Huminski v. Corsones, 396 F.3d 53, 89 (2d Cir. 2005)).

“The Court must then assess whether the justifications for exclusion from the relevant forum

satisfy the requisite standard.” Young America’s Foundation, 2021 WL 3738005, at *10 (citing

Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797 (1985)).

2. Forum Analysis

“Although the First Amendment extends its protection to certain forms of speech or

expressive activity, ‘[e]ven protected speech is not equally permissible in all places and at all

times.’” Caractor v. City of New York Dep’t of Homeless Servs., 2013 WL 2922436, at *5

(S.D.N.Y. June 14, 2013) (quoting Cornelius, 473 U.S. at 799). “As a general matter, the

government is permitted to exercise control over the public’s use of government-owned property

for expressive purposes, and the degree of control permitted depends upon the nature of the

property and the speech restrictions imposed thereon.” Mallett v. Town of Huntington, 799 F.

Supp. 3d 117, 125 (E.D.N.Y. 2025) (quoting Hotel Emps. & Rest. Emps. Union, Loc. 100 v. City

of N.Y. Dep’t of Parks & Rec., 311 F.3d 534, 544 (2d Cir. 2002)).

Such restrictions “are analyzed under a ‘forum-based’ approach that divides government

property into three principal categories—the traditional public forum, the designated public

forum, and the nonpublic forum, along with a subset of the designated public forum, referred to

as the limited public forum.” Johnson v. Perry, 859 F.3d 156, 171 (2d Cir. 2017) (cleaned up).

Traditional public fora, “such as . . . sidewalks and public ways[,] ‘are areas that have

historically been open to the public for speech activities.’” Vitagliano v. Cnty. of Westchester,

71 F.4th 130, 137 (2d Cir. 2023) (quoting McCullen v. Coakley, 573 U.S. 464, 476 (2014)).

Designated public fora are places “that, although not traditionally open for public

assembly and debate, the government has taken affirmative steps to open for general public

discourse.” Chinese Am. Citizens All. Greater New York v. New York City Dep’t of Educ., 2025

WL 2753551, at *16 (S.D.N.Y. Sept. 29, 2025) (quoting Johnson, 859 F.3d at 172).

“Nonpublic fora are neither traditionally open to public expression nor designated for

such expression by the State.” Women for Am. First v. de Blasio, 520 F. Supp. 3d 532, 547

(S.D.N.Y. 2021), aff’d sub nom. Women for Am. First v. Adams, 2022 WL 1714896 (2d Cir. May

27, 2022) (internal citations omitted). “Examples of nonpublic fora include airport terminals,

government-owned professional sports stadiums, military bases and restricted access military

stores, and jailhouse grounds.” Wandering Dago Inc. v. New York State Off. of Gen. Servs., 992

F. Supp. 2d 102, 117 (N.D.N.Y. 2014) (D’Agostino, J.) (citing Hotel Emps. & Rest. Emps.

Union, 311 F.3d at 546 ).

Limited public fora are those that the government has “limited to use by certain groups or

dedicated solely to the discussion of certain subjects.” Vidal v. Elster, 602 U.S. 286, 309 (2024)

(quoting Pleasant Grove City v. Summum, 555 U.S. 460, 470 (2009)). These are “often analyzed

as a subset of the designated public forum and as a nonpublic forum opened up for specific

purposes.” Endemann v. City of Oneida, New York, 2020 WL 1674255, at *5 (N.D.N.Y. Apr. 6,

2020) (D’Agostino, J). “Common examples of limited public fora include state university

meeting facilities opened for student groups, open school board meetings, city-leased theaters,

and subway platforms opened to charitable solicitations.” Wandering Dago Inc., 992 F. Supp.

2d at 117 (internal citations and alterations omitted).

“In a traditional or designated public forum, content-based regulations are presumptively

invalid.” Am. Freedom Def. Initiative v. Metro. Transp. Auth., 880 F. Supp. 2d 456, 474

(S.D.N.Y. 2012) (internal citations omitted). “In these fora, content-based restrictions will be

upheld only if they are necessary to serve a compelling state interest and are narrowly drawn to

achieve that end.” Thomas v. Town of Hempstead, 2021 WL 2291838, at *8 (E.D.N.Y. June 4,

2021) (quoting Peck ex rel. v. Baldwinsville Cent. Sch. Dist., 426 F.3d 617, 625–26 (2d Cir.

2005)).

However, in a limited public forum or nonpublic forum, “regulations governing the

content of speech are allowed, so long as they are reasonable and viewpoint-neutral.” Johnson,

859 F.3d at 172 (internal citations omitted); see Am. Freedom Def. Initiative, 880 F. Supp. 2d at

470 n.6.

“[F]orum analysis is not completed merely by identifying the government property at

issue.” Cornelius, 473 U.S. at 801. “Rather, in defining the forum we . . . focus[] on the access

sought by the speaker.” Id. Because plaintiff “sought access to the advertising space and not to

the airport as a whole, the advertising space is the proper focus of forum analysis.” Air Line

Pilots Ass’n, Int’l v. Dep’t of Aviation of City of Chicago, 45 F.3d 1144, 1152 (7th Cir. 1995);

see, e.g., New York Magazine v. Metro. Transp. Auth., 136 F.3d 123, 130 (2d Cir. 1998) (finding

relevant forum to be advertising space on exterior of MTA buses); Amalgamated Transit Union

Loc. 1015 v. Spokane Transit Auth., 929 F.3d 643, 651 (9th Cir. 2019) (conducting forum

analysis of transit authority’s advertising program); U.S. Sw. Afr./Namibia Trade & Cultural

Council v. United States, 708 F.2d 760, 765 (D.C. Cir. 1983) (“[T]he

commercial advertising displays . . . constitute a separate forum for expression from the

remainder of the [airport] terminal.”).

When determining the type of forum at issue, we “look[] to the government’s intent for

the forum, as evidenced by the ‘policy and practice of the government.’” Reyes v. City of N.Y.,

2023 WL 7212192, at *8 (S.D.N.Y. Nov. 2, 2023) (quoting Cornelius, 473 U.S. at 802). Courts

have “also examined the nature of the property and its compatibility with expressive activity to

discern the government’s intent.” Cornelius, 473 U.S. at 802. Some circuits, for instance, “have

deemed public transit advertising facilities nonpublic fora where the transit authority’s policy

limits advertising facilities to commercial speech, and/or the authority had consistently rejected

non-commercial submissions that addressed political or civic issues.” Am. Freedom Def.

Initiative v. Mass. Bay Transp. Auth., 781 F.3d 571, 590 (1st Cir. 2015) (Stahl, J., concurring in

part).

“By contrast, other circuits have considered controversial advertisements in the context of

public transportation systems and rightly concluded that when public transit facilities open

themselves up to a variety of non-commercial speech, those facilities become designated public

fora for members of the public to opine, discuss, and comment upon the civic and political issues

of the day.” Id. at 590–91; see also Am. Freedom Def. Initiative v. King Cnty., Wash., 577 U.S.

1202 (2016) (Thomas, J., dissenting from denial of certiorari) (“[M]any transit authorities

have . . . opened their advertising spaces to a wide array of political speech, and courts of appeals

are divided on what type of forum this creates. Transit authorities in Chicago, Detroit, New

York City, and Washington, D.C., are bound by rulings that classify their ad spaces as designated

public forums and, thus, prohibit content-based restrictions on advertising. Transit authorities in

Boston . . . and . . . Seattle . . . are similarly open to political speech, yet can freely restrict speech

based on its content. Whether public transit advertising spaces are designated or limited public

forums determines what speech millions of Americans will—or will not—encounter during their

commutes.”).

In this instance, as in most, “[i]t is clear that the forum analysis that the Court must

undertake is . . . fact intensive.” Wandering Dago Inc., 992 F. Supp. 2d at 123 (citing Zalaski v.

City of Bridgeport Police Dep’t, 613 F.3d 336, 343 (2d Cir. 2010)); see Zalaski, 613 F.3d at 343

(expressing “serious concerns about the forum analysis . . . conducted by the district court[,]

[e]specially in light of the sparse record”). At this juncture, the Court believes it is premature to

classify the forum.

Nevertheless, concluding the forum designation now is unnecessary. Even under the

standards applicable to a nonpublic forum, plaintiff has sufficiently established a likelihood of

success on the merits.

IV. DISCUSSION

The Court will first consider the 2025 policy, revised while plaintiff’s motion for

preliminary injunction was pending, because it lends itself more readily to legal analysis and is

now in effect. It will then consider the 2023 policy, which governed during most of the relevant

events. Finally, it will consider the Authority’s argument that the revision moots plaintiff’s

request for injunctive relief.

For purposes of resolving this motion, the Court assumes the Authority’s advertising

program is a nonpublic forum. Consequently, the Authority’s rejection must be “reasonable in

light of the purpose served by the forum and . . . viewpoint neutral.’” Byrne v. Rutledge, 623

F.3d 46, 54 (2d Cir. 2010) (quoting Cornelius, 473 U.S. at 806).

A. Current Advertising Policy

The Authority’s renewed rejection purportedly rested on two standards of the revised

policy that the ad violates: disparagement and falsity. See Dkt. No. 20-18 at 2.

1. Falsity Clause

The revised policy’s falsity clause states that the Authority will reject any ad that is:

9. False, Misleading, or Deceptive. Advertising that is false,

misleading, or deceptive.

Dkt. No. 20-16 at 6 (2025 advertising policy).

The clause appears constitutional on its face. See Am. Freedom Def. Initiative v. King

Cnty., 796 F.3d 1165, 1171 (9th Cir. 2015) (“[M]etro’s rejection of the ad on the ground of

falsity likely was reasonable and viewpoint neutral.”); but see id. at 1171–72 (“[W]e emphasize

the limited nature of our holding, which applies only to objectively and demonstrably false

statements where the circumstances of the case do not give rise to an inference of

unreasonableness or viewpoint-based discrimination.”); id. at 1172 (“In that regard, we note that

a hypothetical rejection of an ad for a trivial inaccuracy might give rise to an inference that the

rejection was, in fact, unreasonable or viewpoint-based.”).

However, the problem lies in how the clause applies here. The Authority argues that

plaintiff’s ad—more precisely, the tagline ‘When HR called it Harmless Flirting . . . We called it

Exhibit A’ (see Dkt. No. 1 at 2)—violates the falsity provision: “[T]he Tag Line ‘is false,

misleading, or deceptive’ Prohibited Advertising Content per the Policy as it references/implies

the applicability of an incorrect, misleading and/or specious legal standard.” See Dkt. No. 20-18

at 2. According to the Authority, “[t]he proposed slogan falsely implies that conduct considered

to be ‘harmless flirting’ is necessarily actionable harassment.” Dkt. No. 20 at 24 n.9.

That is nonsense.

The tagline does not claim, suggest, or “falsely impl[y]” any such position—at least, no

more than Chick-fil-A’s Authority-approved tagline “falsely implies” that chicken dinners will

always make a person happy, or that cows can speak, see Dkt. No. 20-3 at 25 (“Chikin 4 Din

Makez U Grin”), Clarkson University’s claims that space travel is impossible, see id. at 31 (“The

sky’s the limit”), or Syracuse University’s advocates for the battering of North Carolinians, see

Dkt. No. 20-5 at 6 (“Take Down the Tar Heels”).

At most, plaintiff’s tagline suggests there are situations where conduct labeled “harmless

flirting” could be, or might have been, actionable harassment. No reasonable person could

believe plaintiff is saying use of the term “harmless flirting” automatically grants any plaintiff a

valid legal claim.

The Authority’s application of the falsity clause to plaintiff was plainly unreasonable.

2. Disparagement Clause

Because the Authority also rejected the ad under the revised policy on the grounds of

disparagement, the Court next turns to that provision:

6. Disparagement. Advertising that disparages, demeans, ridicules,

is abusive or hostile to, or reflects negatively on the character,

integrity, or standing (or could reasonably be interpreted as such) of

any individual, group, entity, business/profession, religion,

organization, or governmental entity, including advertising that

portrays such individuals, entities, or groups as inferior, evil,

unlawful, objectionable or contemptible.

Dkt. No. 20-16 at 6.

In Matal v. Tam, the Supreme Court considered a federal statute that barred registration

of trademarks “which may disparage . . . persons, living or dead, institutions, beliefs, or national

symbols, or bring them into contempt, or disrepute.” 582 U.S. 218, 227 (2017). The Court held

the provision unconstitutional, explaining it violated the Free Speech Clause, as “[s]peech may

not be banned on the ground that it expresses ideas that offend.” Id. at 223 (Alito, J., majority

op.)

Finding Matal compelling, courts have since applied its reasoning to transit authorities

that prohibit ads under similar restrictions. See Am. Freedom Def. Initiative v. Suburban

Mobility Auth. for Reg’l Transp., 978 F.3d 481, 498 (6th Cir. 2020) (“SMART alternatively

rejected AFDI’s fatwa ad under a restriction prohibiting ads that could hold a group of people up

to ‘scorn or ridicule.’ Matal shows that this rationale has a free-speech problem of its own: It

discriminates on the basis of viewpoint.”) (citing Justice Alito’s plurality opinion, 137 S. Ct.

1744, 1763, and Justice Kennedy’s concurrence in part and in judgment, id. at 1766); Am.

Freedom Def. Initiative v. King Cnty., 904 F.3d 1126, 1131 (9th Cir. 2018) (“Applying the

Supreme Court’s decision in Matal, we conclude that [the public transit authority’s]

disparagement standard discriminates, on its face, on the basis of viewpoint.”); P.E.T.A., Inc. v.

Shore Transit, 580 F. Supp. 3d 183, 196–97 (D. Md. 2022) (“Here, the prohibition on

advertisements that are ‘controversial, offensive, objectionable or in poor taste’ is likewise

viewpoint discriminatory[;] [t]hese terms seem to prohibit the same thing: advertisements that

Defendants find offensive in some way.”); Cf. Wandering Dago, Inc. v. Destito, 879 F.3d 20, 32

(2d Cir. 2018) (“Wherever one might draw the line between expressions of ‘viewpoint’ and other

categories of speech content in a different context, Matal is clear that ‘[g]iving offense is a

viewpoint’[—]at least when giving ‘offense’ to an audience is the sole effect that the government

is targeting.”) (quoting Justice Alito’s plurality opinion, 137 S. Ct. at 1763, and citing Justice

Kennedy’s concurrence in part and in judgment, id. at 1766).

Similarly, the Authority’s disparagement clause “discriminates, on its face, on the basis

of viewpoint.” See American Freedom Defense Initiative, 904 F.3d at 1133.

The instant case justifies Matal’s uncompromising rule. In the best of situations, a

government actor can clearly explain why it believes speech it seeks to restrict to be disparaging.

See Matal, 582 U.S. at 223 (USPTO denied “dance-rock band’s application for . . . trademark . . .

of the band’s name, ‘The Slants[,]’ [as] ‘Slants’ is a derogatory term for persons of Asian

descent”); Wandering Dago, 879 F.3d 20 at 24 (state officials denied operator’s application to

food service program because brand used language widely seen as an ethnic slur).

That is not true here. Instead, the Authority repeatedly throws around the label

“disparaging,” yet says little about why, how, or of whom.

Plaintiff asserts that the Authority gave it several incongruent bases for rejection: The ad

“may ‘intimidate’ or ‘threaten’ men,” “sexual harassment is a sensitive topic,” it “denigrates HR

departments,” “local politicians . . . might not like the [a]d,” and so on. See Dkt. No. 20 at 21–22

(internal citations omitted). The Authority, seeming to concede the veracity of plaintiff’s

representations, asserts that “these statements address[] the same core point: [the ad]

contained . . . disparaging language that would risk alienating some segment of the traveling

public and other Airport users.” Id. at 22 (emphasis in original).

“If there is a bedrock principle underlying the First Amendment, it is that the government

may not prohibit the expression of an idea simply because society finds the idea itself offensive

or disagreeable.” Matal, 582 U.S. at 244 (quoting Texas v. Johnson, 491 U.S. 397, 414 (1989)

and collecting cases). This holds when the government mirrors a majoritarian view. It is firmer

still when the government appoints itself society’s conscience, and that conscience is nothing but

the censoring officials’ own.

“To be sure, the clause evenhandedly prohibits disparagement of all groups[:] It applies

equally to marks”—or, in this case, advertisements—“that damn Democrats and Republicans,

capitalists and socialists, and those arrayed on both sides of every possible issue[.]” Matal, 582

U.S. at 243 (Alito, J., plurality op.). “But in the sense relevant here, that is viewpoint

discrimination: Giving offense is a viewpoint.” Id.

It is clear to the Court that the disparagement clause is facially invalid; thus, it “cannot

serve as a constitutionally valid basis for [the] rejecti[on]” of the Firm’s ad.3 See Am. Freedom

Def. Initiative, 904 F.3d at 1133.

3 The Court acknowledges that at least one lower court has questioned the applicability of Matal to

circumstances beyond trademark registration.

For example, in Moms for Liberty - Brevard Cnty., FL v. Brevard Pub. Schs. (“MFL”) a district court

considered whether a board policy that allowed an official to “interrupt, warn, or terminate a participant’s statement

when the statement is too lengthy, personally directed, abusive, obscene, or irrelevant” and “request any individual

to leave [a] meeting when that person does not observe reasonable decorum” violated the First Amendment. 582 F.

Supp. 3d 1214, 1217–18 (M.D. Fla. 2022), aff’d, 2022 WL 17091924 (11th Cir. Nov. 21, 2022).

After holding that “prohibiting abusive and obscene comments is not based on content or viewpoint, but

rather is critical to prevent disruption, preserve ‘reasonable decorum,’ and facilitate an orderly meeting[,]” id. at

1219, the MFL court appraised Matal:

Plaintiffs’ argument to the contrary barely warrants mention, as it is based on wholly inapposite and

unpersuasive out-of-Circuit cases that directly conflict with binding and persuasive Eleventh Circuit

authority. (See Doc. 3, pp. 14–15; Doc. 18); Ison v. Madison Local Sch. Dist. Bd. of Educ., 3 F.4th

887 (6th Cir. 2021); Marshall v. Amuso, No. 21-4336, 571 F. Supp. 3d 412 (E.D. Pa. Nov. 17, 2021).

Both of Plaintiffs’ cited cases held that policies restricting abusive and personally directed speech

were viewpoint-discriminatory, relying on Matal v. Tam, ––– U.S. ––––, 137 S. Ct. 1744, 198

L.Ed.2d 366 (2017). See Ison, 3 F.4th at 893–94; Marshall, 571 F.Supp.3d at 420–26. But these

cases fundamentally misapprehend Matal. Both holdings rely on this quote: “Giving offense is a

viewpoint.” 137 S. Ct. at 1763 (Alito, J., plurality op.); see Ison, 3 F.4th at 894; Marshall, 571 F.

Supp. 3d at 420–21. But that quotation comes from Part III.B. of the plurality opinion, not the

opinion of the Court (a fact that Ison simply gets wrong when noting “all justices agreed that the

‘anti-disparagement’ clause discriminated based on viewpoint because ‘[g]iving offense is a

viewpoint,’ ” see 3 F.4th at 894), so it is not binding. The full Court held only that a provision in the

Lanham Act preventing private disparaging speech in the registration of trademarks was

unconstitutional. See Matal, 137 S. Ct. at 1757–61 (Alito, J., majority op.). So the Court’s opinion

in Matal has no bearing on this case, which is about public speech in a limited public forum in a

completely different context; as such, Plaintiffs’ cases’ reliance on Matal is misplaced.

Moms for Liberty, 582 F. Supp. 3d at 1220 n.8.

On this point of contention, the Ninth Circuit offers helpful clarification:

[Matal] held unanimously that the disparagement clause is facially invalid under the Free Speech

Clause of the First Amendment. Two four-Justice opinions characterized some of the sub-issues

differently. But all eight Justices (Justice Gorsuch was recused) held that offensive speech is, itself,

a viewpoint and that the government engages in viewpoint discrimination when it suppresses speech

on the ground that the speech offends. See, e.g., id. at 1751 (plurality) (“[T]his provision violates

the Free Speech Clause of the First Amendment. It offends a bedrock First Amendment principle:

Speech may not be banned on the ground that it expresses ideas that offend.”); id. at 1763 (plurality)

(“Giving offense is a viewpoint.”); id. at 1766 (Kennedy, J., concurring) (“Within that category [of

persons and other things described in the statute], an applicant may register a positive or benign

mark but not a derogatory one. The law thus reflects the Government's disapproval of a subset of

messages it finds offensive. This is the essence of viewpoint discrimination.”).

In sum, the Authority gave two reasons under the revised policy for the ad’s rejection:

disparagement and falsity. Neither holds water. On these bases, the refusal to display the ad

under the revised policy is viewpoint-based and unreasonable.4

B. Prior Advertising Policy

The same conclusion applies, even if the former 2023 policy governed.5

The Court notes briefly that the Authority never identifies which provision(s) of that

scanty policy plaintiff allegedly violated. Instead, when invoked, the Authority only gestures

broadly at it. See, e.g., Pl.’s Mot. for Prelim. Inj., Ex. G, Terreri Rejection Letter, Dkt. No. 8-8 at

1. (“The Advertising Policy prohibits ‘material which the SRAA deems inappropriate, immoral,

offensive, or objectionable’ and bars ‘[p]olitical and religious messages.’ While the Authority

remains willing to work with your law firm in good faith to identify an appropriate advertisement

for your firm’s services, we cannot accept the advertisement copy for display in its current form.

There are two independent aspects of your proposed copy that risk interfering with the efficient

operation of the terminal[:] First[,] language suggesting that any group should face liability and

be subject to lawsuit risks creating an atmosphere in which passengers and tenants do not feel

Am. Freedom Def. Initiative, 904 F.3d at 1131.

This Court agrees that the plurality opinion is not binding. But it finds the reasoning in Matal, and its use

in similar cases, highly persuasive, if not compelling. Whatever the MFL court believed about Matal’s relevance

under the facts of that case, this Court sees “[n]o material textual difference distinguishes [the Authority’s]

disparagement clause from the trademark provision at issue in Matal.” Am. Freedom Def. Initiative, 904 F.3d at

1131.

4 “Because the restriction is viewpoint discriminatory, [the Court] need not decide whether it is

unreasonable in light of the purposes served by the forum.” American Freedom Defense Initiative, 904 F.3d at 1133

n.3 (quoting Good News Club v. Milford Cent. Sch., 533 U.S. 98, 107 (2001)).

5 See Dkt. No. 20-15 (“Advertisements shall not contain material which the SRAA deems inappropriate,

immoral, offensive, or objectionable. Political and religious messages are not allowed. Advertiser/Agency warrants

that the advertisement does not contain any material that shall infringe or violate any copyright, trademark or any

other personal or proprietary right of any person/entity or render the SRAA liable to any claims or proceedings

whatsoever. The advertisement must comply with all federal, state, and local laws and regulations. The SRAA has

the right to deny signage for any reason.”).

welcome[;] [s]econd[,] using language commonly connected with sensitive topics such as sexual

harassment risks creating an atmosphere in which a broad range of passengers, both adults and

children, are exposed to highly charged topics when proceeding through the Airport, thereby

undermining the principal commercial purposes of airports[.]”).

Nevertheless, none of the provisions that might justify refusing the ad is constitutional.

The former advertising policy barred content the Authority deemed “inappropriate,” “offensive,”

or “objectionable”—restrictions that are, as discussed above, unconstitutional considering Matal.

The Authority’s ban on “immoral” content fares no better. In Iancu v. Brunetti, 588 U.S. 388

(2019), the Supreme Court invalidated a federal statute barring registration of “immoral [or]

scandalous” trademarks because it disfavored certain ideas in violation of the First Amendment.

See Iancu, 588 U.S. at 392–99; see also e.g., P.E.T.A., Inc., 580 F. Supp. 3d at 196 (“Applying

Matal and Iancu, courts have struck down public transit system policies that drew similar

morality-based distinctions.”). And at no point has the Authority claimed that plaintiff’s ad was

“political” or “religious.” No reasonable reading could place it in the religious category. As for

the political category, even had the Authority argued plaintiff’s ad was political, the prior

policy’s ban on “political messages”—a term neither the policy nor the Authority defines or

explains—appears wholly incapable of reasoned application. See Minnesota Voters All. v.

Mansky, 585 U.S. 1, 16–23 (2018).

All of this is aside from the litany of dubious rationales and post hoc justifications offered

by the Authority, some so questionable that one wonders how seriously it expects plaintiff or the

Court to take them. Compare Dkt. No. 8-8 at 2 (“Second, irrespective of the viewpoint you are

expressing, using language commonly connected with sensitive topics such as sexual harassment

risks creating an atmosphere in which a broad range of passengers . . . are exposed to highly

charged topics when proceeding through the Airport, thereby undermining the principal

commercial purposes of airports—processing and serving air travelers efficiently, and providing

them a rapid, convenient, pleasant experience.”), with id. (“As we have noted repeatedly, the

Authority has no concerns with listing the legal services that your firm provides, including for

sexual harassment[.]”); see also e.g., Dkt. No. 20 at 19 (“Indeed, the only ‘viewpoint’ that could

possibly be expressed by the tag line . . . is that HR departments are inherently protective of

sexual harassers or that bosses are inherently ‘creepy.’”) (emphasis added).

It is evident that the Authority’s refusal to display the ad under the 2023 policy was also

viewpoint-based and unreasonable.

C. Mootness

While the preliminary injunction motion was pending before the Court, the Authority

revised its policy—and, in doing, it says, negated any reason to grant injunctive relief, as the

rejection plaintiff complains of was made purportedly under the prior 2023 policy. See Dkt. No.

20 at 23–24.

“Of course, a plaintiff’s claims will not be found moot where the defendant’s

amendments are merely superficial or the law, after amendment, suffers from similar infirmities

as it did at the outset.” Am. Freedom Def. Initiative v. Metro. Transp. Auth., 109 F. Supp. 3d

626, 631 (S.D.N.Y. 2015), aff’d, 815 F.3d 105 (2d Cir. 2016) (quoting Lamar Advert. of Penn.,

LLC v. Town of Orchard Park, New York, 356 F.3d 365, 378 (2d Cir. 2004)). “[D]efendants bear

a ‘heavy burden’ in showing that the plaintiff[’s] claims for injunctive relief have become moot.”

American Freedom Defense Initiative, 109 F. Supp. 3d at 629 (citing Friends of the Earth, Inc. v.

Laidlaw Env’t. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)). “The voluntary cessation of

allegedly illegal conduct usually will render a case moot if the defendant[s] can demonstrate that

(1) there is no reasonable expectation that the alleged violation will recur and (2) interim relief or

events have completely and irrevocably eradicated the effects of the alleged violation.”

American Freedom Defense Initiative, 109 F. Supp. 3d at 630 (quoting Granite State Outdoor

Advert., Inc. v. Town of Orange, 303 F.3d 450, 451 (2d Cir. 2002)).

The Authority’s rejection under the revised 2025 policy, it believes, “sufficiently alters”

the circumstances of this case to warrant denial of injunctive relief. Id. at 23. Yet, it also insists,

“[t]o be clear, the Authority’s rejection of the Firm’s proposed advertising has always been based

on the disparaging nature of its tag line[.]” Id. at 24. To boot, the Authority stresses that—from

get-go—it has found the tag line’s “inaccurate statement” to be “[s]pecifically problematic[.]”

Dkt. No. 20-2 ¶ 12; see also Dkt. No. 20 at 5 (“Fearing that this sort of advertising copy could

undermine the Authority’s advertising program[,] the Authority offered to display . . . any

number of alternative tag lines . . . that conveyed a similar message in a . . . less misleading and

disparaging manner. Rather than work with the Authority, however, the Firm filed this

lawsuit.”). Still, seemingly in the same breath, the Authority treats the tagline’s “incorrect or

misleading” nature as a new rejection rationale—so new, apparently, that plaintiff’s complaint

must be amended to address it. See Defs.’ Resp. to Mot. for Prelim. Inj., Dkt. No. 20 at 24 n.9

(“While the Firm might seek to amend its complaint to challenge the Authority’s more recent

rejection of the advertisement as incorrect or misleading, see Mehl Decl. Ex. E, the Authority

notes that this, too, is a reasonable basis to reject the advertisement.”).

The Authority’s position stated baldly: heads we win, tails, plaintiff loses.

Certainly, the Authority is entitled to revise its policy. But the suspect timing and the fact

that its renewed rejection rests on the same grounds under both policies only underscore that the

request for injunctive relief is not moot. Compare Sw. Airlines Pilots’ Ass’n v. City of Chicago,

186 F. Supp. 3d 836, 840–41 (N.D. Ill. 2016) (“Recognizing that it could not change its policy in

relation to just that one ad, the [airport], correctly and professionally, chose to explore other

policies in other cities that had been approved by Courts and regrouped to draft such a policy.”);

id. at 841 (“The [airport] was entitled to change how it sought to use its advertising space and

there is nothing in the record indicating this change was contrived to provide a post hoc rationale

for an existing advertisement.”) with Defs.’ Resp. to Mot. for Prelim. Inj., Dkt. No. 20 at 8 (“The

Authority’s experience with the Firm revealed a need to provide prospective advertisers with

additional guidance regarding advertising content that would be acceptable to the Authority.

Accordingly, the Authority adopted a revised Advertising Policy[.]”).

The Authority’s refusal to display the ad was viewpoint-based and unreasonable.

Plaintiff has established a substantial likelihood of success on the merits.

D. Appropriate Relief

Having established that plaintiff is entitled to relief at the preliminary injunction stage,

the Court must next determine what relief is appropriate. In its motion for preliminary

injunction, plaintiff asks the Court to post its ad immediately pursuant to the terms of the parties’

agreement. Dkt. No. 8-14 at 7.

Undoubtedly, this is an option. It may even be the most appropriate one. Another,

though, might be to allow the Authority a chance to revise its policy again, excise the

constitutional infirmities identified by this opinion (and any others it might discover), and

reconsider plaintiff’s ad with a fresh perspective. And, of course, there may well be other

legitimate outcomes that remedy the violations here.

The Court acknowledges that the parties have already addressed the issue in their briefs,

but only to a minor extent, and in largely binary terms: whether relief was warranted, not what

form it should take. Nonetheless, now that the Court has deemed injunctive relief appropriate, it

will give the parties an opportunity to address this issue more fully before specifying what

preliminary injunctive relief it will order. The parties are directed to submit to the Court their

positions, along with appropriate authority, on the proper relief in the present situation. The

parties are also to state what further proceedings are anticipated regarding any remaining issues,

whether by way of discovery, motion practice, or trial.

E. Motion to Dismiss

For the reasons discussed above, the Court finds the Authority’s jurisdictional arguments

without merit. Insofar as the Authority’s motion to dismiss (Dkt. No. 25) is brought pursuant to

Rule 12(b)(1), it is denied.

Further, the Court has deemed that plaintiff's First Amendment claim is not only

plausible, but likely to succeed. As for the infirmities of the remaining claims raised by the

Authority’s motion to dismiss pursuant to Rule 12(b)(6) that are left unaddressed in this opinion,

the Court will determine whether such issues remain to be adjudicated after it reviews the

parties’ forthcoming supplemental briefs. Accordingly, the Court denies the Authority’s motion

to dismiss (Dkt. No. 25) without prejudice to renewal at a later stage of litigation.

IV. CONCLUSION

For the reasons above, plaintiffs motion for preliminary injunction (Dkt. No. 8) is

GRANTED, and the Authority’s motion to dismiss (Dkt. No. 25) is DENIED. Plaintiff shall

file its brief on remedy and further proceedings on or before January 23, 2026. The Authority

shall file its response brief within fourteen days of the service of plaintiff's brief. The parties’

briefs shall not exceed ten pages, exclusive of attachments.

SO ORDERED. . □ 6

Dated: January 15, 2026 □

Utica, New York Anthony J. Brindisj

33 U.S. District a