Christ's Bride v. SEPTA

Opinions of the United

1998 Decisions States Court of Appeals

for the Third Circuit

6-25-1998

Christ's Bride v. SEPTA

Precedential or Non-Precedential:

Docket 96-1829

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Recommended Citation

"Christ's Bride v. SEPTA" (1998). 1998 Decisions. Paper 145.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/145

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Filed June 25, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 96-1829

CHRIST'S BRIDE MINISTRIES, INC.,

Appellant

v.

SOUTHEASTERN PENNSYLVANIA TRANSPORTATION

AUTHORITY; TRANSPORTATION DISPLAY'S INC.

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action No. 96-cv-03631)

Argued May 21, 1997

Before: GREENBERG, ROTH and WEIS, Circuit Judges

(Opinion Filed June 25, 1998)

Mathew D. Staver, Esq.

Frederick H. Nelson, Esq. (Argued)

Nicole Arfaras Kerr, Esq.

Liberty Counsel

1900 Summit Tower Boulevard

Suite 560

Orlando, FL 32810

James T. Owens, Esq.

25 South Church Street

Westchester, PA 19382-3220

Attorneys for Appellant

William H. Roberts, Esq. (Argued)

Jordana Cooper, Esq.

Daniel H. Wheeler, Esq.

Blank, Rome, Comisky & McCauley

1200 Four Penn Center Plaza

Philadelphia, PA 19103

Seth Kreimer, Esq.

3400 Chestnut Street

Philadelphia, PA 19104

David Rudovsky, Esq.

Kairys & Rudovsky

924 Cherry Street

Fifth Floor

Philadelphia, PA 19107

Attorneys for Appellees

Tina Kowalsky Haut, Esq.

275 Madison Avenue

New York, NY 10016

Attorney for Appellee

Transportation Display's Inc.

C. Neil Peterson, Esq.

1234 Market Street

Philadelphia, PA 19107

Attorney for Appellee Southeastern

Pennsylvania Transportation

Authority

OPINION OF THE COURT

ROTH, Circuit Judge:

Southeastern Pennsylvania Transportation Authority

(SEPTA) refused to display an advertisement stating that

"Women Who Choose Abortion Suffer More & Deadlier

Breast Cancer." We must decide in this appeal whether, in

doing so, SEPTA, a regional transportation authority,

violated the First Amendment rights of the advertiser,

Christ's Bride Ministries, Inc. (CBM). The district court

2

found, after conducting a bench trial, that the First

Amendment was not violated because the advertising space

at issue did not constitute a public forum and because

SEPTA acted reasonably in removing the posters. We do not

agree with either conclusion. In light of the other

advertisements, including those relating to abortion, which

SEPTA had previously permitted to run on its property, and

in light of SEPTA's own purposes in using and leasing the

space, we have determined that SEPTA intended to create

a designated public forum. We find that SEPTA's action in

removing the posters does not survive the strict scrutiny

applied to speech within the parameters of a designated

public forum; nor does it pass the reasonableness test

applied where property of a governmental agency has not

been designated a public forum.

I. Background

SEPTA is an "agency and instrumentality" of the

Commonwealth of Pennsylvania, 74 Pa. Cons. Stat. Ann.

S 1502. It operates buses, subways, and regional rail lines

in and around the City of Philadelphia. SEPTA contracts

with a licensee, Transportation Display's Inc. (TDI), for the

construction and sale of advertising space in its stations

and in and on its vehicles. TDI and SEPTA are the

defendants in this case.

The plaintiff, CBM, began a public service campaign in

1995 to inform the public of what it believes to be the

increased risk of breast cancer for women who have had

abortions. As part of this campaign, CBM sought to display

posters in train and subway stations and on buses and at

bus stops in major urban areas, including Baltimore,

Washington, and Philadelphia.

CBM contacted SEPTA in late November 1995 about

placing posters in the Philadelphia area transit system.

SEPTA referred CBM to TDI. Bradley Thomas, president of

CBM, subsequently spoke with Robert R. Meara, Vice

President and Regional Manager at TDI. In December 1995,

Thomas sent a draft poster to TDI for review by Meara and

SEPTA. The poster stated "Women Who Choose Abortion

Suffer More & Deadlier Breast Cancer." The district court

described the poster as "graphically designed with bold

3

white lettering on a background of black and bright red,

except that the word `deadlier' was written in red." The

poster also included a 1-800 number for information which

connected callers not with CBM but with an organization

called the American Rights Coalition (ARC).

SEPTA requested that the poster better identify the

sponsor, CBM. CBM complied and added a description of

CBM: "Christ's Bride Ministries, Inc. is a charitable,

religious, educational, non-profit 501(c)(3) organization.

CBM, P.O. Box 22 Merrifield, VA 22116. (703) 598-2226."

SEPTA then approved the posters for display.

On January 15, 1996, the posters went up. TDI put two

of them next to overhead clocks in Suburban Station in

Philadelphia, and 24 others in subway and railroad stations

in Philadelphia and its suburbs. SEPTA immediately began

receiving what it described as "numerous" complaints about

the poster, which included "rider protest" and"criticism" by

"women's health organizations" and "local government

officials." Shortly thereafter, Robert Meara told CBM that

SEPTA wanted CBM to identify itself more prominently on

the posters. CBM accordingly added decals to the signs that

identified and described CBM with larger and bolder type.

After the posters were installed, TDI faxed to CBM a

contract, which Thomas signed and returned to TDI, also

via fax. The contract was signed by Robert Meara of TDI

and dated January 22, 1996. The contract provided that

46<!DAG> x 60<!DAG> posters would be displayed at 24 locations in rail

stations for one year. The contract also stated that during

that year two 21<!DAG> x 62<!DAG> signs would be displayed on clocks

at Suburban Station. The monthly charge for the signs on

the clocks was $642.60, while the monthly charge for the

24 other posters was $2400. There were "terms and

conditions" on the back of the contract, including one that

stated "if the Transportation Facility concerned should

deem such advertising objectionable for any reason, TDI

shall have the right to terminate the contract and

discontinue the service without notice."

In early February, SEPTA received a copy of a letter

written by Dr. Philip Lee, Assistant Secretary of Health in

the United States Department of Health and Human

4

Services. The letter was not addressed to anyone in SEPTA,

but instead to Lawrence Reuter, General Manager of the

Washington Metropolitan Area Transit Authority, where

CBM's posters were also displayed. Dr. Lee wrote to Reuter

that

It has recently come to my attention that the Metro

Transit System has posted more than 1,100 free public

service ads from the Christ's Bride Ministries. The ad

states: "Women who choose abortion suffer more &

deadlier breast cancer. Information: 1-800-634-2224."

This ad is unfortunately misleading, unduly alarming,

and does not accurately reflect the weight of the

scientific literature.

Dr. Lee went on to state that in his opinion the studies

showing a link between breast cancer and abortion suffered

from methodological weaknesses, that there was no

consensus on the purported relationship between breast

cancer and abortion, and that Dr. Lee knew of no evidence

supporting the claim that abortion causes "deadlier" breast

cancer. Dr. Lee also complained that callers to the 1-800

number were referred to an article in the Journal of the

National Cancer Institute, describing a study that suggested

a positive correlation between induced abortions and breast

cancer. Dr. Lee noted that although the article did appear

in the Journal, the Journal also published an editorial

stating that the results were not "conclusive." Finally, Dr.

Lee expressed concern that callers to the 1-800 number

were being asked to participate in a survey and that callers

could become confused and think that the National Cancer

Institute supported the survey, which it did not.

Based on Dr. Lee's letter, SEPTA removed the posters on

February 16, 1996. According to the testimony of Mr.

Gambaccini, SEPTA's General Manager, the "heart" of the

decision to remove them was the questions about their

accuracy. The 1-800 number concerns were an "ancillary"

consideration. It is uncontested that no one at SEPTA or

TDI conducted any other inquiry into the accuracy of the

message on the poster, or contacted CBM for information

that would support the claim made by the ad, or informed

CBM of SEPTA's objections to the ad before removing the

posters.

5

On March 13, 1996, nearly a month later, Meara of TDI

wrote to Thomas of CBM, explaining that the posters had

been removed on February 16. Meara stated in his letter

that the decision had been made by SEPTA as a result of "a

letter from the U.S. Department of Health and Human

Services in which it concluded that the ad was

`unfortunately misleading, unduly alarming and does not

accurately reflect the weight of the scientific literature'." TDI

included a check to CBM for $3,042.60 for the "unused

portion" of the contract. CBM had paid a total of $6,086 for

two months of advertising.

CBM filed suit on May 10, 1996, naming SEPTA and TDI

as defendants. The complaint alleged violations of CBM's

rights under the First and Fourteenth Amendments and

also alleged breach of contract. CBM sought compensatory

damages and declaratory and injunctive relief pursuant to

42 U.S.C. SS 1983, 1985(c) and 1986.1 The United States

District Court for the Eastern District of Pennsylvania

conducted a three-day bench trial in June 1996. The court

heard testimony about SEPTA's and TDI's policies and

practices regarding advertising space on SEPTA property,

as well as testimony from experts about the alleged link

between breast cancer and induced abortions.

During the trial, three experts testified that the existing

studies and research do not support the existence of a

cause and effect relationship between abortion and breast

cancer. These experts did, however, acknowledge that some

studies show a weak "association" between induced

abortions and breast cancer. One of SEPTA's experts

_________________________________________________________________

1. CBM has not appealed the district court's rejections of its claims

under 42 U.S.C. SS 1985 and 1986. CBM has, however, objected to the

district court's denial of its breach of contract claim. It argues that it

only received one page of the two page contract and that there was no

"meeting of the minds" as to the terms of the contract between it and

TDI. The complaint does not make this allegation, however. CBM also

attached both pages of the contract to the complaint and relied on

language from the allegedly missing second page in the complaint itself.

CBM also argues that the contract is "unconscionable," although the

complaint makes no such allegations. We reject these claims as being

without merit.

6

testified that the better studies have not been consistent

and that some studies show no link at all.

CBM's expert, on the other hand, testified that he had

analyzed 23 epidemiological studies, 12 of which, in his

opinion, showed a statistically significant increase in breast

cancer among women who had undergone induced

abortions. He argued that this risk could not be accounted

for by the presence of other variables, such as age or

family. The increased risk, CBM's expert noted, was greater

than the relative risk associated with oral contraceptives.

Because manufacturers of contraceptives alert the public as

to the possible link between their product and breast

cancer, it should not be "unduly alarming" for CBM to

report a slightly greater risk purportedly associated with

induced abortions.

The district court issued an opinion on August 16, 1996,

holding for the defendants on all counts. The court

reasoned that public transit stations do not constitute

traditional public fora and that SEPTA and TDI had not

created a public forum because they maintained control

over the use of the advertising space. The court also found

that Dr. Lee's letter was a "reasonable" basis on which to

remove the advertisement. The court commented that

"ultimately a consensus may develop" as to the link

between breast cancer and abortion but "at this time we do

not know." The court did not decide whether either SEPTA's

or CBM's experts were "right."

CBM timely appealed to this Court. We have jurisdiction

under 28 U.S.C. S 1291.

II. Standard of Review

In evaluating the claim that CBM's First Amendment

rights have been violated, we have a "constitutional duty to

conduct an independent examination of the record as a

whole, without deference to the trial court." Hurley v. Irish-

American Gay Group of Boston, 115 S.Ct. 2338, 2344

(1995). This independent duty does not extend to the

district court's rulings on matters of credibility, to which we

continue to defer, id. (citing Harte-Hanks Communications,

Inc. v. Connaughton, 491 U.S. 657, 688 (1989)), but it does

require us draw our own inferences from the factual

7

evidence presented. United States v. Antar, 38 F.3d 1348,

1357 (3d Cir. 1994); Swineford v. Snyder Co. Pa., 15 F.3d

1258, 1165 (3d Cir. 1994).

III. State Action and Commercial Speech

Turning to the substantive issues, we readily dispose of

two initial matters. First, the United States Constitution

guarantees freedom of expression only against infringement

by the state, not by private actors. Hurley v. Irish-American

Gay Group of Boston, 115 S.Ct. 2338, 2344 (1995). In this

case, however, the parties agree that SEPTA is a state

actor, as is its licensee, TDI, and that their actions are

constrained by the First and Fourteenth Amendments.

Second, the posters come within the ambit of speech fully

protected by the First Amendment. The defendants argue

that because callers to the 1-800 number listed on the

poster may receive information advertising the services of

medical malpractice attorneys, CBM's message is thereby

transformed into "commercial speech," and should receive

substantially less constitutional protection. See Bolger v.

Youngs Drug Prods. Corp., 463 U.S. 60, 66-67 (1983). But

the speech at issue does not advertise goods or services,

nor does it refer to a specific product or service. The 1-800

number listed on the poster does not even connect callers

to CBM. Any economic motive of CBM for posting the

advertisement is very attenuated at best. See U.S.

Healthcare v. Blue Cross of Gr. Philadelphia, 898 F.2d 914,

932-933 (3d Cir. 1990). The speech involved is accordingly

not "commercial," at least in the sense that it is afforded

less protection under the First Amendment.

IV. Public Forum

The government may, as a general rule, limit speech that

takes place on its own property without running afoul of

the First Amendment. Lamb's Chapel v. Center Moriches

Union Free School Dist., 508 U.S. 384, 390 (1993); Perry

Educ. Ass'n. v. Perry Local Educators' Ass'n, 460 U.S. 37,

46 (1983). Where, however, the property in question is

either a traditional public forum or a forum designated as

public by the government, the government's ability to limit

speech is impinged upon by the First Amendment. Perry,

460 U.S. at 45-46. In either a traditional or a designated

8

public forum, the government's content-based restrictions

on private speech must survive strict scrutiny to pass

constitutional muster. Id.; International Society for Krishna

Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992). The

government has, however, a far broader license to curtail

speech if the forum has not been opened to the type of

expression in question. In such a case, the government's

restrictions need only be viewpoint neutral and"reasonable

in light of the purpose served by the forum." Rosenberger v.

Rector and Visitors of the Univ. of Va., 115 S.Ct. 2510,

2516-2517 (1995) (quoting Cornelius v. NAACP Legal

Defense and Educ. Fund, Inc., 473 U.S. 788, 806 (1985));

Kreimer v. Bureau of Police for the Town of Morristown, 958

F.2d 1242, 1262 (3d Cir. 1992).

In order to decide whether a public forum is involved

here, we must first determine the nature of the property

and the extent of its use for speech. The Supreme Court

wrestled with a similar question in Cornelius v. NAACP

Legal Defense and Educ. Fund, Inc., 473 U.S. 788 (1985),

when it considered whether legal defense funds could be

excluded from a charity drive among federal employees. The

government argued in Cornelius that the"federal

workplace" was the relevant forum. The plaintiffs on the

other hand maintained that the forum consisted only of the

charity drive itself. Id. at 800. The Court defined the forum

in terms of the access sought by the plaintiff. It accordingly

rejected the view that the entire workplace was the proper

forum, because the plaintiffs sought only to join the charity

drive, not to engage in actual, face-to-face solicitation in the

workplace. Id. at 801. The Court went on to conclude that

the charity drive itself did not constitute a public forum

and that the restrictions on participation were reasonable.

In this case, the district court variously defined the forum

at issue as "the stations in a public transit system," a

"public transportation system," and "SEPTA's subway and

rail stations and their advertising space." Applying the

reasoning of Cornelius, we look to the access sought by

CBM. CBM did not seek to leaflet, demonstrate, or solicit in

the rail and subway stations as a whole. Instead, it sought

access only to the advertising space leased out by SEPTA,

through TDI. The contract between the parties

9

contemplated advertising with posters in the stations and

next to the clocks at Suburban Station in Philadelphia. We

conclude, therefore, that the forum at issue is SEPTA's

advertising space. See, Airline Pilots Assoc. v. Dept. of

Aviation of the City of Chicago, 45 F.3d 1144, 1151 (7th Cir.

1995) (holding that display diorama in airport, not entire

concourse, constituted relevant forum); Lebron v. Nat'l. R.R.

Passenger Corp., 69 F.3d 650, 655-656 (holding that one

billboard was the relevant forum, not the entire Penn

Station); New York Magazine v. Metropolitan Transp. Auth.,

136 F.3d 123, 130 (2d Cir. 1998) (holding that because

MTA allowed both commercial and political speech, the

outside of MTA buses is a designated public forum).2

Our next step is to decide whether SEPTA's advertising

space is a public forum. It clearly does not constitute a

"traditional" public forum, archetypal examples of which

include streets and parks. These areas have been"held in

the public trust," Lee, 505 U.S. at 680, and dedicated to

expressive activity for "time out of mind." Id. (quoting

Hauge Committee for Industrial Organization, 307 U.S. 496,

515 (1939)). We agree with the district court that the

advertising space in the stations is not a traditional public

forum. We do not understand CBM to argue otherwise.

More difficult is the question whether SEPTA has created

a designated public forum by "expressly" dedicating its

advertising space to "speech activity." U.S. v. Kokinda, 497

U.S. 720, 726-727 (1990) (plurality opinion). A designated

_________________________________________________________________

2. The parties have not argued that the relevant forum is actually just

advertising space in the stations, to the exclusion of space leased on and

inside SEPTA vehicles. Because SEPTA stated that it used different

standards in evaluating advertisements that appeared as wrap-around

bus ads, one could conclude that these types of ads are a separate

forum. See Lebron, 69 F.3d at 655 (one billboard, not all of the

billboards

in Penn Station, constituted the relevant forum because the billboard

was unique and the speaker sought access only to that specific

billboard), but see Lebron, 69 F.3d at 661 (Newman, C.J. dissenting)

(arguing that "public forum analysis cannot be so particularized as to

focus on one of several billboards on government property"). Whether we

consider the limitations on wrap-around bus ads as creating a separate

forum, or merely a particular limitation within the larger forum of

SEPTA's advertising space, our disposition of the case remains the same.

10

public forum is created because the government so intends.

Inaction does not make such a forum; neither does the

allowance of "limited discourse." Cornelius, 473 U.S. at 802.

We accordingly look to the authority's intent with regard to

the forum in question and ask whether SEPTA clearly and

deliberately opened its advertising space to the public.

Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260, 269-

270 (1988); Perry, 460 U.S. at 37. To gauge SEPTA's intent,

we examine its policies and practices in using the space

and also the nature of the property and its compatibility

with expressive activity. Gregoire v. Centennial School

District, 907 F.2d 1366, 1371 (3d Cir. 1990) (citing

Cornelius, 473 U.S. at 802); Brody v. Sugzdinis, 957 F.2d

1108, 1117 (3d Cir. 1992). Restrictions on the use of the

forum, however, do not necessarily mean that SEPTA has

not created a public forum. They may demonstrate instead

that SEPTA intended to create a limited public forum, open

only to certain kinds of expression. See, e.g., Kreimer, 958

F.2d at 1261 (public library constituted a limited public

forum for "reading, writing and quiet contemplation," but

not for "oral and interactive" First Amendment activities);

Rosenberger v. Rector and Visitors of the Univ. of Va., 115

S.Ct. 2510, 2517 (1995) (student activities fund, available

to student groups meeting certain criteria, constituted

limited public forum).

A. SEPTA's policies

We will look first at the purpose for which SEPTA uses

the space in question. The main function of the advertising

space at issue is to earn a profit for SEPTA. Although

SEPTA generates approximately 99.5% of its revenues

through the operation of the public transit system, it does

derive about one half of one percent of its operating budget

from the leasing of advertising space in its stations and in

and on its vehicles. The contract between TDI and SEPTA

states that "it is understood that it is Licensee's obligations

[sic] under the terms of this contract to produce revenues

. . .."3

_________________________________________________________________

3. That the generation of income is a goal of the advertising space is

also

reflected in the manner in which SEPTA is paid by TDI under the

11

The record shows that TDI and SEPTA also had a

secondary goal in using the space: promoting "awareness"

of social issues and "providing a catalyst for change." These

objectives are stated in the "TDI Cares" brochure. The "TDI

Cares" program, in which SEPTA participates, seeks to

" `give back' to the communities which[TDI] serve[s] in

many ways . . .." In this program TDI picks an issue of

public concern and then pays for the materials and labor

involved in creating the advertisements. The purpose of the

program, in TDI's words, is to assail TDI markets with

"images, both poignant and creative, which are designed to

elevate awareness and provide a catalyst for change." This

page of the brochure is headed "consciousness" and states

that the program tries to "focus consciousness on an issue

of pressing human concern." The testimony at trial was

that SEPTA participated in TDI's annual campaign by

donating unsold advertising space. SEPTA and TDI "jointly

agree" on what initiatives will run in the Philadelphia area,

but it is not clear from the record which ads ran on SEPTA

property under this program.4

SEPTA argues that where the government runs a

commercial operation, a "bright-line rule" directs that no

public forum has been created. For this proposition, SEPTA

_________________________________________________________________

contract. TDI guarantees a minimum annual payment to SEPTA, one

twelfth of which is due at the beginning of each month, but SEPTA

receives fifty-five percent of all net sales in any given month if that

amount is greater than one twelfth of the guaranteed annual payment.

In the first agreement year, the guaranteed annual payment was

$2,000,000. This rose to $2,950,000 for the fifth and final agreement

year.

4. SEPTA contends that we should not consider the TDI Cares brochure

because it is hearsay. The brochure was, however, admitted into

evidence without objection by SEPTA. Moreover, it was offered not for the

truth of the matter asserted but for the fact that the assertions were

made -- which is not hearsay. In addition, the brochure plays little role

in our decision. There is no evidence on the record of which ads actually

ran in the campaigns described in the brochure or of how much

advertising space SEPTA and/or TDI actually donated to those

campaigns. Considered with the other evidence in the record, the

brochure demonstrates, however, that the forum in question is suitable

for speech concerning social problems and issues.

12

cites International Society for Krishna Consciousness, Inc. v.

Lee, 505 U.S. 672 (1992). In Lee, the Court considered

restrictions on solicitation and leafleting in airport

terminals. The Court began by noting that the government

owned and operated the airport terminals and that:

Where the government is acting as a proprietor,

managing its internal operations, rather than acting as

a lawmaker with the power to regulate or license, its

actions will not be subjected to the heightened review

to which its actions as a lawmaker may be subject.

505 U.S. at 678 (quoting United States v. Kokinda, 497 U.S.

720, 725 (1990) (plurality opinion) (citing Cafeteria &

Restaurant Workers v. McElroy, 367 U.S. 866, 896 (1961))).

In Lee, the Court went on, however, to apply the factors

identified in Cornelius to determine whether the airport

terminals were public fora. The Court reasoned that the

city's purpose in operating the airport was to generate a

profit by serving the air-traveling public. The goal of the

terminal was "the facilitation of passenger air travel" and

not "the promotion of expression." 505 U.S. at 682. The

Court distinguished the restricted access in air terminals

from other "transportation nodes," such as rail and bus

stations. Id. at 681.

We do not read Lee, as SEPTA suggests, to mean that

every time the government runs a commercial enterprise it

has, by definition, decided not to create an open forum. To

the contrary, it is the commercial and restricted nature of

an airport concourse which suggested that the government

did not intend the concourse to be primarily a forum for

expression. See also Cornelius, 473 U.S. at 799-800.

Here, we have determined that the forum is not the

SEPTA stations, but only the advertising space within the

stations. We need not concern ourselves with solicitation or

leafletting of the public within the stations but only with

the use of the ad space itself. The nature of this forum is

partly commercial, consistent with the goal of SEPTA to

earn a profit on its advertising space and with CBM's offer

to pay the commercial rate to lease that space. See Airline

Pilots Assoc. v. Dept. of Aviation of the City of Chicago, 45

F.3d 1144, 1157 (7th Cir. 1995); Stewart v. District of

13

Columbia Armory Bd., 863 F.2d 1013, 1019 (D.C. Cir.

1988). However, SEPTA has also used the advertising space

to generate a profit through expressive activity. This

expressive use has not interfered with providing rail

transportation facilities to the public. Thus, the nature of

the forum suggests, but by no means establishes, see

Lehman v. City of Shaker Heights, 418 U.S. 298, 304

(1974), that the government has dedicated the space to

expression in the form of paid advertisements. See

Southeastern Promotions, Limited v. Conrad, 420 U.S. 546,

555 (1975) (holding municipal theaters were "public forums

designed for and dedicated to expressive activities").

With these goals in mind, we next consider SEPTA's

written policy governing permissible advertising. The

contract between TDI and SEPTA provides that "it is

SEPTA's strong preference that [TDI] concentrate on

securing advertising other than that which is tobacco and

alcohol related." The contract directs that TDI use its "best

efforts" to fill the space with other advertisements.

Recognizing that TDI's responsibility under the contract is

to "produce revenues," the contract permits the combined

sale of alcohol and tobacco advertising of up to twenty

percent of the annual dollar value of the advertising. TDI

also, however, has an obligation to "pursue qualified public

health groups, as identified by SEPTA" and to make

advertising space available to them "on a one to one ratio

to the tobacco and alcohol related advertising at that time,

subject to space availability." In addition, the contract

reserves for SEPTA the right to reject advertisements that it

does not like:

All advertising displays at any time inserted or placed

by the Licensee in any display devices in any vehicle

and /or locations shall be of an appropriate character

and quality, and the appearance of all displays shall be

acceptable to SEPTA. No libelous, slanderous, or

obscene advertising maybe accepted by the Licensee for

display in the Authority's transit and railroad vehicles

and facilities. All advertising determined by the[sic]

SEPTA, in its sole discretion, as objectionable within

the meaning of this subsection must not be utilized on

any SEPTA vehicle or facility. SEPTA shall have the

14

right to immediately remove any advertising material

which has already been applied, in the event that the

[sic] SEPTA deems material objectionable for any

reason, at the expense of the Licensee.

SEPTA argues that because it retained the right in its

sole discretion to reject or to remove any advertisement that

it deems objectionable, it did not create a public forum of

any sort. The authority's own statement of its intent,

however, does not resolve the public forum question.

Gregoire v. Centennial School District, 907 F.2d 1366, 1374

(3d Cir. 1990) (reasoning that "intent, as evidenced by a

government's statements, is a factor to be considered," but

that "the forum inquiry does not end with the government's

statement of intent"); see also Air Line Pilots Association,

Int'l. v. Dept. of Aviation, 45 F.3d 1144, 1153-1154 (7th Cir.

1995); Stewart v. Dist. of Columbia Armory Bd., 863 F.2d

1013, 1016-1017, 1020 (D.C.Cir. 1988).

Furthermore, the fact that SEPTA has reserved for itself

the right to reject ads for any reason at all does not signify,

in and of itself alone, that no public forum has been

created. See Gregoire, 907 F.2d at 1375. In Gregoire, we

warned that "standards for inclusion and exclusion" in a

limited public forum "must be unambiguous and definite" if

the "concept of a designated open forum is to retain any

vitality whatever." 907 F. 2d at 1375. We do not hold that

the government could never, pursuant to an open-ended

policy of excluding speech as it sees fit, effectively close the

forum to certain speech (or maintain an entirely closed

forum) through a consistent practice of so doing. But the

fact that the government has reserved the right to control

speech without any particular standards or goals, and

without reference to the purpose of the forum, does not

necessarily mean that it has not created a public forum. If

anything, we must scrutinize more closely the speech that

the government bans under such a protean standard. See

Gregoire, 907 F.2d at 1375; id. at 1386 (Stapleton, J.,

dissenting); Denver Area Educational Telecommunications

Consortium v. FCC, 116 S.Ct. 2374, 2414-2415 (1996)

(Kennedy, J., concurring in part and dissenting in part);

Lebron, 69 F.3d at 661-662 (Newman, C.J., dissenting).

15

SEPTA's purpose in operating the forum and its written

policies governing access provide no conclusive answer as

to whether the forum is intended to be closed or open. The

goal of generating income by leasing ad space suggests that

the forum may be open to those who pay the requisite fee.

SEPTA has specified a few areas in which it will not freely

accept advertising: alcohol and tobacco advertising beyond

a specified limit and ads deemed libelous or obscene. These

restrictions do not apply to the CBM posters. Beyond these

limitations, there are no specific restrictions on the type of

advertising that SEPTA will accept. In effect, SEPTA's

reservation of the right to reject any ad for any reason does

not conclusively show that it intended to keep the forum

closed.

We turn now to SEPTA's past practice in using the

advertising space, and the suitability of the forum to the

speech in question.

B. SEPTA's Past Practice and the Suitability of th e

Forum for CBM's Ad

SEPTA has accepted a broad range of advertisements for

display. These include religious messages, such as"Follow

this bus to FREEDOM, Christian Bible Fellowship Church;"

an ad criticizing a political candidate; and explicitly worded

advertisements such as "Safe Sex Isn't" and an

advertisement reminding viewers that "Virginity-It's cool to

keep" and "Don't give it up to shut `em up." Indeed, many

ads address topics concerning sex, family planning, and

related topics. Other examples include a controversial ad

campaign on AIDS education and awareness, posters

stating "The Face of Adoption" "Consider Adoption" and

"Every child deserves a family," and another ad reading

"Pregnant? Scared? Confused? A.R.C. Can Help Call 1-800-

884-4004 or (215-844-1082.)"

On the topic of abortion, SEPTA has accepted two ads.

One read "Choice Hotline, For Answers to Your Questions

About: Birth Control * Pregnancy * Prenatal Care * Abortion

* Adoption * HIV/AIDS * Sexually Transmitted Diseases

(STDs) Abortion - Making A Decision, Call State Health Line

1-800-692-7254 For Free Booklet on Fetal Development,

16

Fetus is Latin for Little one - A Little Human is a Baby,

Confidential * Free." The other one addressed the health

benefits of legalizing abortion: "When Abortion Was Illegal,

Women Died. My Mother Was One of Them. Keep Abortion

Legal and Safe. Support the Clara Bell Duvall Education

Fund. 471-9110."

From the broad range of ads submitted, SEPTA has

requested modification of only three. One was the large

wrap-around bus ad for Haynes hosiery, which would have

covered the entire bus with the picture of a "scantily clad"

woman; it was too "risque." The same ad was accepted as

a smaller "poster" ad on the sides of buses. SEPTA also

asked for modification of an ad depicting a gun with a

condom stretched over it. The text of the ad, "Safe Sex

Isn't," ultimately ran without the graphics. SEPTA also

requested that an advertisement for a personal injury law

firm delete references to rail accidents.

We conclude then, based on SEPTA's written policies,

which specifically provide for the exclusion of only a very

narrow category of ads, based on SEPTA's goals of

generating revenues through the sale of ad space, and

based on SEPTA's practice of permitting virtually unlimited

access to the forum, that SEPTA created a designated

public forum. Moreover, it created a forum that is suitable

for the speech in question, i.e., posters which presented

messages concerning abortion and health issues. CBM paid

for advertising space which had previously been used for

ads on those topics. We need not define the precise

boundaries of the forum, particularly concerning visual

images that could be considered explicit. The topic of

abortion and its health effects were, however,

"encompassed within the purpose of the forum." Cornelius,

473 U.S. at 806.

SEPTA argues, however, and the district court concluded,

that the instances in which SEPTA requested modification

of ads demonstrate that SEPTA maintained "tight control"

over the forum. This reasoning is consistent with a number

of cases, holding that generally when permission is

necessary before ads are posted, the government has not

created a public forum. See Perry, 460 U.S. at 47. In this

case, however, at least 99% of all ads are posted without

17

objection by SEPTA. As we note above, SEPTA has

exercised control over only three ads, two of which had

graphics to which SEPTA objected, and one of which

solicited personal injury cases that could be directed

against SEPTA. In one case, the concern with the graphics

was unique to the wrap-around type bus ad -- concerns

not implicated here. In all three cases, after negotiation

with the sponsor, the ads were permitted to run with some

modification.

Because of SEPTA's policy in accepting ads, including

two on the specific topic in question, the argument that

SEPTA has "tight control" over the forum may apply to ads

which are similar to the ones for which SEPTA has required

modification. That does not mean, however, that such

control applies to subject matter over which SEPTA has

never before exercised any restrictions. Because the forum

may be limited in one way does not foreclose its status as

a public forum with respect to other categories of speech. If

it did, there would have been no limited public forum in

Widmar, 454 U.S. at 267, or in Rosenberger, 115 S.Ct. at

2510. Both cases involved designated fora which excluded

non-student groups. Nor would there have been a limited

public forum in Kreimer, where the library constituted a

public forum although it was open only to certain kinds

expression.5

_________________________________________________________________

5. In Denver Area Educational Telecommunications Consortium v. FCC,

116 S.Ct. 2374, 2388 (1996) (plurality opinion), the Court was troubled

by how to characterize the government's decision to limit a forum to

exclude certain speech. Does strict scrutiny apply, Justice Breyer asked

for the plurality, if the government "builds a band shell in the park and

dedicates it solely to classical music (but not to jazz)?" Justice Kennedy

responded that the correct analogy to the cable system at issue was "the

Government's creation of a band shell in which all types of music might

be performed except rap music," and went on to say that "the provisions

here are content-based discriminations in the strong sense of

suppressing a certain form of expression that the Government dislikes,

or otherwise wishes to exclude on account of its effects, and there is no

justification for anything by strict scrutiny here." 116 S.Ct. at 2374

(Justice Kennedy, concurring and dissenting). In this case, the past

practice of permitting much speech, particularly that on the topic of

abortion, makes Justice Kennedy's analogy apt.

18

But we reiterate that the government's exercise of some

restrictions on speech does not foreclose a public forum.

We do not hold that merely because the government may

have had a past practice of permitting some expressive

activity, it has created a public forum. Standing alone, a

past practice of permitting some expressive activities or

"limited discourse" does not mandate that the government

intended the forum as public. Cornelius, 473 U.S. at 802;

Kokinda, 497 U.S. at 720; Perry, 460 U.S. at 47.6 We must

look at the past practice in conjunction with the purpose of

the forum. In Cornelius, although the government permitted

speech in the forum, the "extensive" criteria for admission

to the forum and the government's purpose in creating the

forum demonstrated that the government intended the

forum to be closed. 473 U.S. at 804-805; see also, Kokinda,

497 U.S. at 730; Perry, 460 U.S. at 47-48. Here, on the

other hand, the purpose of the forum does not suggest that

it is closed, and the breadth of permitted speech points in

the opposite direction.

Moreover, there is no evidence that SEPTA rejected the ad

pursuant to a new or previously existing policy to close the

forum to debatable or misleading speech generally, or

_________________________________________________________________

Our consideration of the similarity of the speech in question to speech

permitted in the past is related to a determination of whether the

limitation constitutes viewpoint discrimination, although here we make

that inquiry only in conjunction with the other factors in the public

forum analysis. We do not reach the viewpoint discrimination issue in

this case. Even if we concluded that no viewpoint discrimination took

place, however, this would not make the past use of the space irrelevant

in determining whether the forum is public. How the forum has been

used in the past is a core component of the public forum inquiry. See,

e.g., Cornelius at 803-805; see also Denver Area Consortium, 116 S.Ct.

at 2415 (Kennedy, J. concurring and dissenting) ("It contravenes the

First Amendment to give Government a general license to single out

some categories of speech for lesser protection so long as it stops short

of viewpoint discrimination.").

6. In Kokinda, only four Justices concluded that no public forum had

been created. Four Justices reached exactly the opposite exclusion -- a

limited public forum had been created -- based in large part on the past

practice of permitting speech in the forum. Kokinda, 497 U.S. at 750.

19

closed it to such speech on any particular topic of health.

To the contrary, SEPTA simply argues that the forum was

closed, and will be closed, to any speech that SEPTA wishes

to exclude for any reason. In other words, SEPTA does not

argue that the forum is closed to this particular type of

speech because SEPTA views it differently from the speech

it has permitted in the past. Instead, SEPTA claims the

forum is closed to all speech, and that short of viewpoint

discrimination, SEPTA can make any content-based

restrictions it chooses. SEPTA's prior acceptance of a broad

range of advertisements cuts particularly strongly against

this claim. Cf. Gregoire, 907 F.2d at 1373. As Justice

Kennedy reasoned in Denver Area Consortium,"[t]he power

to limit or redefine forums for a legitimate purpose [citation

omitted] does not allow the government to exclude certain

speech or speakers from them for any reason at all." 116

S.Ct. at 2414 (Kennedy, J.) (concurring and dissenting).

The Seventh Circuit has also concluded, in a case similar

to this one, that a transportation authority created a

limited public forum. Planned Parenthood Ass'n v. Chicago

Transit Auth., 767 F.2d 1225 (7th Cir. 1985). In Planned

Parenthood, the Chicago Transit Authority ("CTA") refused

to lease advertising space to Planned Parenthood for display

of "abortion-related" advertisements. Although CTA had

rejected an anti-Vietnam war ad (later displayed as part of

a settlement agreement), and an "Impeach Nixon" placard

(later displayed pursuant to court order), CTA had accepted

an anti-war ad depicting "large bombs falling on a child

releasing a dove with an olive branch in its beak." 767 F.2d

at 1230. The court concluded that CTA had created a

limited public forum, reasoning that "CTA maintains no

system of control over the advertisements that it accepts ...

other than the general contractual directive .... to refuse

vulgar, immoral, or disreputable advertising" and that CTA

"has allowed its advertising space to be used for a wide

variety of commercial, public-service, public-issue, and

political ads." Id. at 1232-1233. Noting as well that CTA

had no policy pursuant to which the ad was excluded, the

court concluded that the transportation authority had

created a public forum. We are confronted with a similar

factual situation in this case, and we reach the same

conclusion.

20

In arguing to the contrary, SEPTA relies primarily on

Cornelius v. NAACP Legal Defense and Education Fund , 473

U.S. 788,902 (1985) and Student Coalition for Peace v.

Lower Merion School, 776 F.2d 431, 436 (3d Cir. 1985). In

Cornelius, however, the government had a "consistent

policy," spanning more than two decades, of limiting the

charity drive to organizations that provided "direct health

and welfare services to individuals . . .."7 473 U.S. at 793.

The purpose of the charity drive, moreover, was to limit the

disruptive effects of individual charity drives throughout the

year, by "lessening the amount of expressive activity

occurring on public property." Id. at 805. Here, there is no

comparable "policy and practice" demonstrating that the

government intended that the forum be closed to the

speech at issue in this case. Indeed, the record points

exactly the other way. In its efforts to generate advertising

revenues, SEPTA permitted abortion-related and other

controversial advertisements concerning sexuality.

In Student Coalition for Peace v. Lower Merion School, 776

F.2d 431, 436 (3d Cir. 1985), we considered the refusal of

a school board to permit a "Peace Fair" on the school's

athletic field or inside the boys' gymnasium. A student

organization, not sponsored by the school, which advocated

a bilateral nuclear freeze, sought to conduct the fair at the

school. The school had permitted use of the athleticfield for

a Special Olympics, for a Memorial Day service, for a "Bike

Hike," and for jogging, picnics, and similar activities. 776

F.2d at 434. The board rejected the request pursuant to an

unwritten, but long-standing policy of reserving the athletic

field for "athletic and governmental purposes." The board

noted that use of the gym could cause damage to thefloor,

and offered the use of the auditorium, which the group

_________________________________________________________________

7. This policy was in effect from 1963 until 1982. Cornelius, 473 U.S. at

792. During 1982 and 1983, some legal defense funds participated in

the charity drive under court order. An Executive Order issued in 1983

limited participation to "voluntary, charitable, health and welfare

agencies that provide or support direct health and welfare services to

individuals or their families," excluding "[a]gencies that seek to

influence

the outcomes of elections or the determination of public policy through

political activity or advocacy, lobbying, or litigation on behalf of

parties

other than themselves." 473 U.S. at 795.

21

rejected. We concluded, because permission to use the

facilities in question was not granted "as a matter of

course" and because the nature of the property suggested

the facilities did not have as their primary purpose

expressive activities, that the government had not created a

limited public forum. Id. at 436-437. The property at issue

here, on the other hand, has been dedicated to expressive

activity of exactly the sort in which petitioners seek to

engage. Moreover, as to the subject of abortion specifically,

and family planning issues generally, permission to post

advertisements has been granted as a "matter of course."

There is no policy, written or unwritten, pursuant to which

CBM's ads were removed.

Lehman v. City of Shaker Heights, 418 U.S. 298 (1974) is

similarly inapposite. In Lehman, the Court considered a

ban on political advertising in the city's transit vehicles. A

candidate for city council challenged the city's rejection of

his ad pursuant to the city's policy, which had been in

effect for 25 years. The card space, the Court reasoned, was

a "commercial venture," and the city was free to limit the

space to enhance commercial revenues, and to protect

riders from the "blare of political propaganda." Id. at 303-

304. As we have made clear, however, SEPTA has no long-

standing practice of prohibiting ads like CBM's; nor does it

have any policy pursuant to which the ads were removed.

SEPTA's past practice is, instead, to include such ads.

Because we find that SEPTA has created a designated

public forum, content-based restrictions on speech that

come within the forum must pass strict scrutiny to comport

with the First Amendment. Perry, 460 U.S. at 46. As the

Supreme Court explained in Police Dept. of the City of

Chicago v. Mosley, 408 U.S. at 92, 95, "above all else, the

First Amendment means that government has no power to

restrict expression because of its message, its ideas, its

subject matter, or its content." Thus the government "may

not grant the use of a forum to people whose views it finds

acceptable, but deny use to those wishing to express less

favored or more controversial views. And it may not select

which issues are worth discussing or debating in public

facilities." Id. at 96. The prohibited expression in this case,

CBM's ad, falls within the scope of the forum created by

22

SEPTA. Thus, SEPTA's restriction is subject to heightened

review.

SEPTA has not argued that its actions survive strict

scrutiny. Accordingly, we conclude that CBM's First

Amendment rights were violated when SEPTA removed

CBM's ads.

V. Reasonableness of SEPTA's Restrictions

Even if the speech in question had fallen outside the

limited public forum created by SEPTA, we would

nonetheless conclude that SEPTA's removal of the posters

violated the First Amendment because the removal was not

"reasonable." When reviewing a governmental agency's

limitation of speech on government property that has not

been designated a public forum, the "reasonableness" of

action limiting speech is gauged with reference to the

nature of the forum itself. As the Supreme Court explained:

Consideration of a forum's special attributes is relevant

to the constitutionality of a regulation since the

significance of the governmental interest must be

assessed in light of the characteristic nature and

function of the particular forum involved.

United States v. Kokinda, 497 U.S. 720, 732 (1990)

(plurality opinion) (quoting Heffron v. International Society

for Krishna Consciousness, 452 U.S. 640 (1981); see also,

Perry, 460 U.S. at 49. The Kokinda plurality went on to

hold that a ban on solicitation on postal premises was

reasonable, in part because the "purpose of the forum" was

"to accomplish the most efficient and effective postal

delivery system." Id. at 732. Solicitation, the postal service

had decided, was "inherently disruptive" of its business. Id.

Other cases also make clear that the reasonableness of

the government's restriction on speech depends on the

nature and purpose of the property from which it is barred.

In Kreimer, for example, we considered whether regulations

governing the behavior of library patrons were reasonable

by evaluating to what extent the regulations were

consistent with, or promoted, the purposes to which the

library had been dedicated. 958 F.2d at 1262. Rules

limiting disruptive behavior were deemed reasonable

23

because they constituted "perhaps the clearest and most

direct way to achieve maximum library use." Id; see also,

Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 270, 273

(1988) (content-based restrictions on speech in school

newspaper constitutional "so long as [they] are reasonably

related to legitimate pedagogical concerns"); Cornelius v.

NAACP Legal Defense and Educ. Fund, Inc., 473 U.S. 788,

806 (1985) (distinctions in non-public forum based on

"subject matter and speaker identity" are constitutional as

long they are "reasonable in light of purpose served by the

forum and are viewpoint neutral"); Lee v. Intern. Soc. for

Krishna Consciousness, Inc., 505 U.S. 672, 685 (1992)

(O'Connor, J., concurring) (reasonableness inquiry is

"whether [the restrictions on solicitation and on distribution

of literature] are reasonably related to maintaining the

multipurpose environment that the Port Authority has

created.").

Similarly, in Lehman v. City of Shaker Heights, 418 U.S.

298, 303 (1974), the Court considered whether the city's

refusal to accept political advertising on its rapid transit

vehicles violated the First Amendment. The Court reasoned

that

Revenue earned from long-term commercial advertising

could be jeopardized by a requirement that short-term

candidacy or issue-oriented advertisements be

displayed on car cards. Users would be subjected to

the blare of political propaganda. There could be

lurking doubts about political favoritism, and sticky

administrative problems might arise in parceling out

limited space to eager politicians. In these

circumstances, the managerial system to limit car card

space to innocuous and less controversial advertising

does not rise to the dignity of a First Amendment

violation.

418 U.S. at 304 (plurality opinion). The Court thus

reasoned that, in order to maximize commercial revenue

and eliminate concerns about political favoritism, the city

could restrict the car card space to exclude political

advertisement.

In this case, the district court concluded that SEPTA

acted reasonably in relying on Dr. Lee's letter to remove the

24

CBM posters. However, CBM paid the commercial rate for

the advertising space, just like any other advertiser, and

submitted an advertisement on abortion and women's

health, topics that were already the subject of other

permitted advertisements. The subject of the speech, and

the manner in which it was presented, were compatible

with the purposes of the forum.

The plurality opinion in Kokinda warned against

accepting the argument that simply because the

government permitted other potentially disruptive speech

on postal property, it had to permit solicitation as well. The

Court reasoned that "whether or not the Service permits

other forms of speech, which may or may not be disruptive,

it is not unreasonable to prohibit solicitation on the ground

that it is unquestionably a particular form of speech that is

disruptive of business." 497 U.S. at 733.8 See also Greer v.

Spock, 424 U.S. 831, 838 n.10 (1976). In this case,

however, unlike Kokinda and Lehman, the government has

offered no basis on which to conclude that the speech in

question would interfere with the accepted purposes of the

advertising space. See Lee v. Intern. Soc. for Krishna

Consciousness, Inc., 505 U.S. 672, 691 (1992) (O'Connor, J.

concurring) ("because I cannot see how peaceful

pamphletting is incompatible with the multipurpose

environment of the Port Authority airports, I cannot accept

that a total ban on that activity is reasonable without an

explanation as to why such a restriction `preserves the

property' for the several uses to which it has been put.

[citation to Perry]"); Airline Pilots Assoc. v. Dept. of Aviation,

45 F.3d 1144, 1161 (7th Cir. 1995) (Flaum, J. Concurring)

("...when the government decides who may speak based on

substantive criteria, it acts as a censor. The government

should not normally take on the role of deciding who may

speak on what matters, regardless of what capacity in

which it acts").

_________________________________________________________________

8. Although the four Justice plurality concluded that the restriction was

reasonable, three dissenting Justices concluded that even if the forum

was nonpublic, the restrictions were not reasonable, in large part

because the post office permitted other disruptive speech. This

"inconsistent treatment," in the eyes of the dissent, "renders the

prohibition on solicitation unreasonable." Kokinda, 497 U.S. 760-761

(Brennan, J. dissenting).

25

SEPTA argued before the district court that Gambaccini

had testified that SEPTA "closed the debate to a situation in

which there are ads or debated and dubious statements of

medical fact."9 Consistent with this statement, SEPTA could

have argued that based on Dr. Lee's letter, it viewed CBM's

ad as "debated and dubious," and accordingly excluded it.

A prohibition on "debated and dubious ads," put in place

before, or because of the concerns about CBM's ad, might

qualify as reasonable. We note, however, that SEPTA does

not have a policy of protecting riders from "debated and

dubious" speech generally, nor does SEPTA link this

purported policy to its use of the forum.

In any event, we need not reach that question.

Gambaccini did not testify to such a policy, implemented

either before or after the removal of CBM's ad. Instead,

when questioned if he would post an ad saying "women

who choose abortion live longer and have less breast

cancer," he answered "[N]ot unless there was some credible

evidence to support it." (Appendix at 354-355). This is a

different standard -- a debatable advertisement may well be

supported by credible evidence. And if this standard

controlled, SEPTA was unreasonable because it failed to

give CBM an opportunity to produce such evidence.

Moreover, Gambaccini did not explain whether this

standard applied generally, or just to ads on the topic of

abortion and cancer. Nor did he explain SEPTA's grounds

for adopting it. SEPTA has left us to guess why, in terms of

the purpose of the forum, it excluded CBM's ad, and why,

and to what extent, other ads will also be excluded. This

makes it difficult to evaluate the extent of the governmental

interest in excluding the speech from SEPTA's property.

Finally, as we have noted, SEPTA never asked CBM--

the sponsor of the ad -- to defend its accuracy, to explain

the basis for the ad, or to clarify it. Instead, SEPTA removed

the ad without contacting CBM -- even though CBM had

modified the poster in response to SEPTA's previous

requests.

_________________________________________________________________

9. SEPTA argued before us that it "determined not to devote its

advertising areas to alarming allegations regarding cancer and abortion,

given the controverted nature of the public health claim as described in

the HHS letter."

26

We conclude, therefore, that under the facts presented

SEPTA's actions were not reasonable. SEPTA acted as a

censor, limiting speech because it found it to be

"misleading." SEPTA argues that it cannot investigate the

accuracy of medical claims in ads. For that reason, it relied

on Dr. Lee's letter. We do not hold that SEPTA must hire its

own cadre of experts to evaluate medical claims made in

ads. It was SEPTA, however, which accepted advertising on

a permitted topic, and then decided that CBM's ad was

unacceptably misleading. Having decided to exclude the

posters on this basis, SEPTA did not act reasonably when

it failed to ask CBM to clarify the basis on which the claim

was made. This is all the more true where SEPTA has failed

to explain how its content-based distinctions are related to

preserving the advertising space for its intended use, and

where SEPTA has in place no policy, old or new, written or

unwritten, governing the display of ads making contested

claims.

VI. Conclusion

For the reasons set forth above, we will reverse district

court's order granting judgment to SEPTA, and we will

remand this case for further proceedings consistent with

this opinion.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

27