Northeastern Pennsylvania v. County of Lackawanna Transit

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 18-2743

____________

NORTHEASTERN PENNSYLVANIA

FREETHOUGHT SOCIETY,

Appellant

v.

COUNTY OF LACKAWANNA TRANSIT SYSTEM

____________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 3-15-cv-00833)

District Judge: Hon. Malachy E. Mannion

____________

Argued June 12, 2019

Before: HARDIMAN, PORTER, and COWEN, Circuit

Judges.

(Filed: September 17, 2019)

Molly M. Tack-Hooper [Argued]

American Civil Liberties Union of Pennsylvania

P.O. Box 60173

Philadelphia, PA 19106

Brian Hauss

American Civil Liberties Union Foundation

125 Broad Street

18th Floor

New York, NY 10004

Theresa E. Loscalzo

Stephen J. Shapiro

Schnader Harrison Segal & Lewis LLP

1600 Market Street

Suite 3600

Philadelphia, PA 19103

Rachel A.H. Horton

DLA Piper

1650 Market Street

One Liberty Place

Suite 5000

Philadelphia, PA 19103

Benjamin D. Wanger

Mullen Coughlin

1275 Drummers Lane

Suite 302

Wayne, PA 19087

Attorneys for Appellant Northeastern Pennsylvania

Freethought Society

Thomas A. Specht [Argued]

Marshall Dennehey Warner Coleman & Goggin

2

P.O. Box 3118

Scranton, PA 18505

Attorney for Appellee County of Lackawanna Transit

System

Bruce D. Brown

The Reporters Committee for Freedom of the Press

1156 15th Street, N.W.

Suite 1020

Washington, DC 20005

Attorney for Amicus Reporters Committee for Freedom

of the Press in Support of Appellant

Geoffrey Blackwell

American Atheists Legal Center

718 7th Street, N.W.

Washington, DC 20001

Attorney for Amicus Curiae American Atheists and

Center for Inquiry

____________

OPINION OF THE COURT

____________

HARDIMAN, Circuit Judge.

This appeal arises under the First Amendment to the

United States Constitution. Appellant Northeastern

Pennsylvania Freethought Society (Freethought) would like to

advertise on public buses in Lackawanna County,

3

Pennsylvania. Freethought proposed an ad displaying the word

“Atheists” along with the group’s name and website. The

County of Lackawanna Transit System (COLTS) rejected the

ad under its policy which excludes religious and atheistic

messages. Because that policy discriminates based on

viewpoint, we hold that it violates the First Amendment.

I

COLTS provides public bus service in Lackawanna

County. Because its ticket revenue is negligible, COLTS is

funded almost exclusively by the Pennsylvania Department of

Transportation, Lackawanna County, and the federal

government. COLTS leases advertising space on the inside and

outside of its buses, but the revenue that generates makes up

less than two percent of COLTS’s budget.

Freethought is an association of atheists, agnostics,

secularists, and skeptics. Its goals are to build a community for

likeminded people, to organize social and educational events,

and through these events and other activism to “promot[e]

critical thinking and uphold[] the separation of church and

state.” App. 140. Freethought advocates its view of proper

church-state separation by filing complaints and protesting

public religious displays.

In 2012, Freethought organizer and spokesman Justin

Vacula was a student at Marywood University in Scranton. One

day during his commute to campus, Vacula noticed a “God

Bless America” message on the outside of a COLTS bus. The

message—which scrolled across the bus’s digital route-

information display when enabled by the driver—was added

by the manufacturer after the terrorist attacks of September 11,

2001. Vacula complained and COLTS removed the message

4

from its software. This upset some drivers, including one who

defiantly displayed a “God Bless America” magnet on the

inside of his bus. Vacula complained again, and COLTS made

the driver remove it.

Because of these expressions of religious sentiment,

Freethought proposed to run a “response” advertisement to

“challenge a potential church/state violation and test

COLTS’[s] advertising policy.” App. 1553. The proposed ad

simply read “Atheists,” and included Freethought’s web

address, superimposed on a blue sky with clouds. Vacula said

the ad was meant to show local religious believers that there

are atheists in the community and to provide a resource for

those believers to learn about Freethought. The ad would also

tell other nonbelievers in the region that they are “not alone”

and that “a local organization for atheists exists.” App. 1553.

Freethought submitted its proposal in January 2012, but

COLTS rejected the ad. Communications director Gretchen

Wintermantel decided Freethought “wanted to advertise so that

they could spark a debate on our buses.” App. 1098. And the

word “atheists” (or, for that matter, the words “Jews” or

“Muslims”) might do just that. App. 1099. In rejecting

Freethought’s proposal, COLTS relied on a policy it had

adopted in 2011 that banned ads for tobacco products, alcohol,

firearms, and political candidates. App. 686. It also banned ads

that in COLTS’s “sole discretion” are “derogatory” to racial,

religious, and other specified groups. Id. It even prohibited ads

that are “objectionable, controversial[,] or would generally be

offensive to COLTS’[s] ridership.” Id.

Before 2011 COLTS had no policy—though it reserved

in its contracts the right to reject “objectionable or

controversial” ads. E.g., App. 340. It never exercised that right

5

until Wintermantel and her boss rejected an ad warning that

“Judgment Day” was approaching. App. 56–57, 1051. They

did so even though COLTS had routinely run religious ads in

the past with no problem. That included ads for churches, the

Office of Catholic Schools, and the evangelist Beverly

Benton—who promised a “Saturday night miracle service” at

a convention she headlined. App. 477. There is no evidence of

record that those ads or any others had elicited a passenger

complaint. Partisan political ads, gambling ads, and ads for

alcoholic beverages all ran without incident. Even an ad for a

virulently racist and anti-Semitic website was permitted

without apparent complaint. COLTS nevertheless rejected the

“Judgment Day” ad, believing its religious character could rile

up passengers.

The “Judgment Day” experience convinced

Wintermantel it was time to implement a formal policy. She

began researching other transit systems’ policies and identified

controversies in other cities kindled by inflammatory ad

campaigns. She reviewed a New York Times article about an

atheist ad campaign in Fort Worth, which had drawn competing

religious ads and a pastor-led boycott. The article also noted

that atheist bus ads and billboards had been vandalized in

Detroit, Tampa Bay, and Sacramento. In Cincinnati, the Times

reported, a landlord took an atheist ad down after receiving

threats. If all that could happen, Wintermantel thought, similar

ads could upset COLTS riders and cause disturbances on its

buses. So she drafted the 2011 policy and the COLTS board

approved it.

COLTS rejected Freethought’s first “Atheists” ad

proposal in 2012 and a similar one in 2013. These rejections

were based on the 2011 policy’s vaguest provision. COLTS had

decided, in its “sole discretion,” that the “Atheists” ad would

6

be controversial. The first rejection was by phone, but the

second came by letter which stated:

COLTS does not accept advertisements that

promote the belief that “there is no God” or

advertisements that promote the belief that

“there is a God” . . . . The existence or

nonexistence of a supreme deity is a public issue.

COLTS believes that your proposed

advertisement may offend or alienate a segment

of its ridership and thus negatively affect its

revenue. COLTS does not wish to become

embroiled in a debate over your group’s

viewpoints.

App. 701.

About a week later, COLTS enacted a new policy to

“clarify” the 2011 policy. App. 59–60. This 2013 policy is still

in effect. It announced that COLTS opened its ad space “for the

sole purpose of generating revenue for COLTS while at the

same time maintaining or increasing its ridership.” App. 687.

Besides banning many of the same ads as the 2011 policy

(including “disparaging” ads and ads for firearms, alcohol, and

tobacco), the 2013 policy featured new prohibitions on

religious and political messages. COLTS reasoned that many

have strong feelings about religion and politics, so excluding

those messages would help keep the peace. The religion

provision barred ads:

that promote the existence or non-existence of a

supreme deity, deities, being or beings; that

address, promote, criticize or attack a religion or

religions, religious beliefs or lack of religious

7

beliefs; that directly quote or cite scriptures,

religious text or texts involving religious beliefs

or lack of religious beliefs; or [that] are otherwise

religious in nature.

App. 687–88. The politics provision barred partisan and

electioneering ads, and ads that “involv[e] an issue reasonably

deemed by COLTS to be political in nature in that it directly or

indirectly implicates the action, inaction, prospective action, or

policies of a governmental entity.” App. 687.

When Freethought proposed a third “Atheists” ad,

COLTS rejected it under the 2013 policy’s religious speech

prohibition. COLTS reiterated its position that the “existence

or non-existence of a supreme deity is a public issue.” App.

704. “It is COLTS’[s] goal to provide a safe and welcoming

environment on its buses for the public at large,” the rejection

letter explained, and “[t]he acceptance of ads that promote

debate over public issues such as abortion, gun control or the

existence of God in a confined space like the inside of a bus

detracts from this goal.” Id.

Eventually, Freethought proposed an ad that dropped

the word “Atheists” and simply listed its name and web

address. Wintermantel consulted COLTS’s attorney, who

thought it was a borderline case under the 2013 policy.

“[Vacula] is being tricky,” the lawyer opined, but he conceded

the ad might not violate COLTS’s religious or political speech

prohibitions, so they needed to research the matter. App. 1528.

COLTS ultimately accepted the ad. But Freethought would still

like to run its thrice-rejected “Atheists” ad, which “more

clearly explain[s] who its members are.” Freethought Br. 19.

So it sued under 42 U.S.C. § 1983.

8

II

Freethought challenged COLTS’s 2013 policy, seeking

a declaratory judgment and a permanent injunction forbidding

COLTS from enforcing the policy. The District Court ruled for

COLTS after a one-day bench trial. The Court held COLTS’s

policy viewpoint neutral, reasoning that the religious speech

prohibition put the entire subject of religion out of bounds. It

also deemed COLTS’s ad space a limited public forum, even

though it had probably once been a designated public forum.

The Court grounded that conclusion in COLTS’s statement of

intent “not to become a public forum” and its “practice of

permitting only limited access to the advertising spaces on its

buses.” Ne. Pa. Freethought Soc’y v. Cty. of Lackawanna

Transit Sys., 327 F. Supp. 3d 767, 779–80 (M.D. Pa. 2018).

Holding Freethought’s “Atheists” ad outside the forum’s

bounds, the Court turned to whether that restriction was

reasonable.

The ad space was first opened, the Court found, to raise

revenue. With its 2013 policy, COLTS added the purpose of

“maintaining or increasing COLTS’[s] ridership.” Id. at 781.

The Court held the policy’s restrictions were reasonably

connected to those goals. First, the policy was intended to

“keep COLTS neutral on matters of public concern,” which the

Court said is “an especially strong interest supporting the

reasonableness in limiting speech.” Id. at 782. Second, the

Court held the policy was reasonably connected to rider safety,

since threats to rider safety also threaten revenue and ridership.

“Given the decrease in civil tolerance and the increase in social

unrest and violence in today’s society,” the Court explained,

allowing ads like Freethought’s might provoke “a controversial

discussion” which could “potentially lead to a dangerous

situation for both passengers and drivers.” Id. at 782–83.

9

Finally, the Court held the 2013 policy was not

unconstitutionally vague because “a person of ordinary

intelligence can generally tell what types of advertisements are

permitted or proscribed.” Id. at 784.

Freethought filed this timely appeal.

III

The District Court had jurisdiction over Freethought’s

First Amendment claim under 28 U.S.C. § 1331. We have

jurisdiction over this appeal under 28 U.S.C. § 1291. Where,

as here, “the speaker unsuccessfully claimed a violation of free

speech rights in the trial court,” Pittsburgh League of Young

Voters Educ. Fund v. Port Auth. of Allegheny Cty., 653 F.3d

290, 295 (3d Cir. 2011), we conduct an independent review of

the record. Bose Corp. v. Consumers Union of U.S., Inc., 466

U.S. 485, 499 (1984).

IV

We approach this case as a facial challenge to COLTS’s

prohibition of religious speech. The First Amendment doctrine

underlying Freethought’s challenge leads ineluctably to facial

invalidity—so we need not “pause to consider whether [the

provision] might admit some permissible applications.” Iancu

v. Brunetti, 139 S. Ct. 2294, 2302 (2019); see Citizens United

v. FEC, 558 U.S. 310, 331 (2010) (“[T]he distinction between

facial and as-applied challenges is not so well defined that it

has some automatic effect or that it must always control the

pleadings and disposition in every case involving a

constitutional challenge.”). If the religious speech prohibition

as written “‘aim[s] at the suppression of’ views,” Brunetti, 139

S. Ct. at 2302 (quoting Matal v. Tam, 137 S. Ct. 1744, 1767

10

(2017) (Kennedy, J., concurring in part and concurring in the

judgment)), it is invalid, see id. If instead it’s an impermissible

content based restriction, that too leads to facial invalidity. See

Minn. Voters All. v. Mansky, 138 S. Ct. 1876, 1885, 1888

(2018); Simon & Schuster, Inc. v. Members of New York State

Crime Victims Bd., 502 U.S. 105, 123 (1991) (holding statute

“not narrowly tailored to advance [the government’s]

objective” and so “inconsistent with the First Amendment”);

Ward v. Rock Against Racism, 491 U.S. 781, 801 (1989)

(“[T]he validity of the regulation depends on the relation it

bears to the overall problem the government seeks to correct,

not on the extent to which it furthers the government’s interests

in an individual case.”). In either case COLTS “violate[d] the

Constitution when it passed the [policy],” Diop v.

ICE/Homeland Sec., 656 F.3d 221, 232 n.10 (3d Cir. 2011).

V

Government actors like COLTS cannot restrict speech

because they “disapprov[e] of the ideas expressed.” R.A.V. v.

City of St. Paul, 505 U.S. 377, 382 (1992). Yet not every public

space is Hyde Park, so a government may sometimes impose

content or speaker limitations that protect the use of its

property. See Mansky, 138 S. Ct. at 1885. But no matter what

kind of property is at issue, viewpoint discrimination is out of

bounds.

Viewpoint discrimination is an “egregious form of

content discrimination.” Rosenberger v. Rector & Visitors of

Univ. of Va., 515 U.S. 819, 829 (1995). Rather than aiming at

an entire subject, it “targets . . . particular views taken by

speakers.” Id. And that violates the First Amendment’s most

basic promise. See Texas v. Johnson, 491 U.S. 397, 414 (1989)

(collecting cases). It empowers the censor to deprive the citizen

11

of the opportunity to persuade. So in any forum, “[t]he

government must abstain from regulating speech when the

specific motivating ideology or the opinion or perspective of

the speaker is the rationale for the restriction.” Rosenberger,

515 U.S. at 829; see Good News Club v. Milford Cent. Sch.,

533 U.S. 98, 111–12 (2001).

Distinguishing subject matter from viewpoint can be

difficult. Rosenberger, 515 U.S. at 830–31. Fortunately, “our

task here is greatly simplified by a trilogy of Supreme Court

decisions each addressing blanket bans on religious messages

and each concluding that such bans constitute impermissible

viewpoint discrimination.” Byrne v. Rutledge, 623 F.3d 46, 55

(2d Cir. 2010). Those cases—Rosenberger, Lamb’s Chapel,

and Good News Club—govern this one.

In Rosenberger, the University of Virginia withheld

subsidies from student groups whose activities “primarily

promote[d] or manifest[ed] a particular belie[f] in or about a

deity or an ultimate reality.” 515 U.S. at 825. An undergraduate

group that published Wide Awake, a “magazine of

philosophical and religious expression,” challenged that

policy. Id. at 825–26. Wide Awake was founded to “facilitate

discussion which fosters an atmosphere of sensitivity to and

tolerance of Christian viewpoints,” and “to provide a unifying

focus for Christians of multicultural backgrounds.” Id. (citation

and alterations omitted). To that end, its writers opined from a

Christian perspective on issues like racism, pregnancy, and

student stress. Id. at 826.

The Court held the University had restricted viewpoint,

not subject matter. “Religion may be a vast area of inquiry,”

the Court reasoned, “but it also provides, as it did here, a

specific premise, a perspective, a standpoint from which a

12

variety of subjects may be discussed and considered.” Id. at

831. The policy was viewpoint based because it “select[ed] for

disfavored treatment those student journalistic efforts with

religious editorial viewpoints.” Id. Student news groups could

write on racism, or stress, or pregnancy—but not if their faith

informed the message.

The Rosenberger dissent argued that the restriction was

based on subject matter, not viewpoint, because it applied to all

religions and “agnostics and atheists as well.” See

Rosenberger, 515 U.S. at 895–96 (Souter, J., dissenting).

COLTS makes a similar argument here. But as the Court

explained in Rosenberger, that argument “reflects an

insupportable assumption that all debate is bipolar and that

antireligious speech is the only response to religious speech.”

Id. at 831. Within a given subject, “[i]t is as objectionable to

exclude both a theistic and an atheistic perspective on the

debate as it is to exclude one, the other, or yet another political,

economic, or social viewpoint.” Id.; see Brunetti, 139 S. Ct. at

2299.

To reach its holding, the Rosenberger Court relied

mainly on Lamb’s Chapel. In that case, the Supreme Court

invalidated a ban on the use of public-school property for

“religious purposes” that had stymied a group’s efforts to

screen religious lectures on family issues and child rearing.

Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508

U.S. 384, 393 (1993). As in Rosenberger, it did not matter

“[t]hat all religions and all uses for religious purposes are

treated alike” because the lectures—though avowedly

religious—discussed topics the policy otherwise permitted. Id.

In short, Rosenberger “clarified the distinction between

content-based and viewpoint discrimination and adopted a

13

broad construction of the latter, providing greater protection to

private religious speech on public property.” Summum v.

Callaghan, 130 F.3d 906, 917 (10th Cir. 1997).1 The Court

provided yet more clarity in Good News Club. It granted

certiorari in that case to resolve “a conflict among the Courts

of Appeals on the question whether speech can be excluded

from a limited public forum on the basis of the religious nature

of the speech.” 533 U.S. at 105. As in Lamb’s Chapel and

Rosenberger, the Court answered “no.”

The Court held it was viewpoint discrimination to bar

the use for religious purposes of a space otherwise available

for “instruction in any branch of education, learning or the arts”

and for “social, civic and recreational meetings and

entertainment events, and other uses pertaining to the welfare

of the community.” Id. at 102. The Good News Club, which

wanted to offer after-school religious instruction, must have

equal access to a forum that allowed others to speak on morals

and character development. Id. at 108–09. If a forum is open to

1

In arguing for a narrower construction of viewpoint,

our dissenting colleague claims our holding will deter

governments from creating forums for speech. Dissenting Op.

8–9. That concern is relevant to deciding whether a

government has opened a forum (and what kind of forum). See

Arkansas Educ. Television Comm’n v. Forbes, 523 U.S. 666,

680–83 (1998). But it cannot bear on the viewpoint

discrimination analysis because courts should not nurture

forums that “silence dissent and distort the marketplace of

ideas,” Tam, 137 S. Ct. at 1766 (Kennedy, J., concurring in part

and concurring in the judgment).

14

teaching morals through Aesop’s Fables, it must be open to

religious moral instruction too. Id.

Good News Club also foreclosed the argument that a

broad prohibition on religious speech can validate religious

viewpoint discrimination. Rosenberger noted in dicta that the

university’s policy did not prohibit religion as a subject matter.

515 U.S. at 831. That comment might have been read to

suggest a broader policy could bar religious perspectives on

otherwise allowable topics—so long as the prohibition was

phrased to “exclude religion as a subject matter.” Good News

Club rejected that proposition and disclaimed any reliance on

this dictum. See 533 U.S. at 110–11. The Good News Club’s

“quintessentially religious” activities, id. at 111, could not be

excluded even though the policy broadly forbade use of the

forum “for religious purposes,” id. at 103.

Our Court reinforced Good News Club’s understanding

of Rosenberger in Child Evangelism Fellowship of New Jersey

Inc. v. Stafford Township School District, 386 F.3d 514 (3d Cir.

2004). That case involved limitations on access to facilities and

back-to-school nights. Id. at 519. Some community groups

were pre-approved for access, while others could be added at

the school district’s discretion. Id. As for the content allowed,

the policy required advance approval by the district and a nexus

to the students or school. Id. at 520. It forbade partisan and for-

profit messages as well as solicitations. Id. The district allowed

Child Evangelism to host meetings like those in Good News

Club, but denied it permission to distribute its flyers,

permission slips, and Bibles. Id. at 523. Rejecting the district’s

purportedly viewpoint neutral rationales as “either incoherent

or euphemisms for viewpoint-based religious discrimination,”

id. at 527, we underscored what was already clear after Good

News Club. Whether or not a government claims to have

15

excluded “religion as a subject or category of speech,” “if

government permits the discussion of a topic from a secular

perspective, it may not shut out speech that discusses the same

topic from a religious perspective.” Id. at 528; see Donovan ex

rel. Donovan v. Punxsutawney Area Sch. Bd., 336 F.3d 211, 226

(3d Cir. 2003).

The same is true in this case. “Whatever its stated intent,

[COLTS’s] ban on religious messages in practice operates not

to restrict speech to certain subjects but instead to distinguish

between those who seek to express secular and religious views

on the same subjects.” Byrne, 623 F.3d at 56–57; see Cornelius

v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 806

(1985).

By the terms of the 2013 policy and as shown by

COLTS’s permissive practice, the forum is open to messages

on all topics not expressly banned. As the Seventh Circuit

explained, “[t]he absence of an explicit list of permissible

subjects upon which discourse is permissible in [a] nonpublic

forum does not mean that there is no ‘otherwise includible

subject’ for discussion in the forum . . . . [such] policies

impliedly allow[] the distribution of all other written material

. . . .” Grossbaum v. Indianapolis-Marion Cty. Bldg. Auth., 63

F.3d 581, 590 (7th Cir. 1995). We thus disagree with the

dissent’s argument that the viewpoint analysis in Rosenberger,

Lamb’s Chapel, and Good News Club can be distinguished by

the fact those cases involved “prospectively defined,

permissible subject matter.” Dissenting Op. 6 (quoting

Archdiocese of Wash. v. Wash. Metro. Area Transit Auth., 897

F.3d 314, 338 (D.C. Cir. 2018) (Wilkins, J., concurring)).

As Vacula explained in 2012, the “Atheists” ad was

meant to communicate to believers and atheists alike that “a

16

local organization for atheists exists,” and to atheists in

particular that they are “not alone.” App. 1553. The ad, though

minimalistic, reasonably communicates those messages.

Nothing in the record suggests COLTS’s policy would prohibit

secular associations from advertising their organizational

philosophy or from communicating the message: “We exist,

this is who we are, consider learning about or joining us.” See

Lamb’s Chapel, 508 U.S. at 393. But atheistic and religious

associations are banned from saying the same thing because of

the character of their speech.

Similarly, a healthcare provider may tout its services—

so long as it doesn’t disclose that those services are (or once

were) part of a religious tradition. Geisinger Health System is

in; Lutheran Home Care & Hospice is out. And the Diocese of

Scranton may run an ad encouraging the public to “Consider

Adoption”—provided it doesn’t say why.

It’s true that Freethought’s “Atheists” ad relates to the

“subject” of religion writ large. But at its core, its message is

one of organizational existence, identity, and outreach. Even if

that speech “is quintessentially religious’ or ‘decidedly

religious in nature,’” Good News Club, 533 U.S. at 111, it may

still “constitute a separate viewpoint on a wide variety of

seemingly secular subject matter,” Good News/Good Sports

Club v. Sch. Dist. of City of Ladue, 28 F.3d 1501, 1507 (8th Cir.

1994). What matters for the viewpoint discrimination inquiry

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

a religious (or atheistic) viewpoint on a subject to which the

forum is otherwise open.

This point is well-illustrated by a Second Circuit case

which invalidated a Vermont law prohibiting deity names and

other religious references on license plates. Byrne v. Rutledge,

17

623 F.3d at 49–50. The motorist in Byrne wanted his plate to

say JN36TN—a reference to the oft-quoted biblical passage

John 3:16. The court explained this reference spoke to several

possible topics, all of which were open to secular speech.

Whether the plate was “intended . . . as a statement of personal

belief or philosophy or simply as a statement of self-identity as

a Christian or affiliation with the Christian church . . . . The

critical fact is that Vermont permits” the use of its forum “for

comment on all of these subjects, so long as the comment is

from a secular perspective.” Id. at 57. In the same way, COLTS

prohibits Freethought’s statement of organizational identity

just because of that statement’s atheistic character. For that

reason, we hold that the 2013 policy facially discriminates

against atheistic and religious viewpoints on all of the many

topics permitted in the forum.

We recognize that this holding diverges from a recent

decision of the United States Court of Appeals for the D.C.

Circuit, Archdiocese of Washington v. Washington

Metropolitan Area Transit Authority, 897 F.3d 314 (D.C. Cir.

2018), petition for cert. filed, No. 18-1455 (May 20, 2019). The

court there reasoned that because WMATA prohibited

messages on many subjects, it had not “invite[d] . . . debate on

religion.” Id. at 327. That narrower forum, the court held,

authorized the transit agency’s ban on “[a]dvertisements that

promote or oppose any religion, religious practice or belief”

despite the rule announced in Rosenberger, Lamb’s Chapel,

and Good News Club. Id. at 318–19. WMATA’s policy isn’t the

same as COLTS’s, see Archdiocese of Wash. v. Wash. Metro.

Area Transit Auth., 281 F. Supp. 3d 88, 96 (D.D.C. 2017), and

the facts of the cases are different. But we respectfully disagree

with our sister court.

18

The Archdiocese of Washington proposed an

evangelistic ad to run on the exterior of WMATA’s buses. The

ad depicted “a starry night and the silhouettes of three

shepherds and sheep on a hill facing a bright shining star high

in the sky, along with the words ‘Find the Perfect Gift.’”

Archdiocese of Wash., 897 F.3d at 320. It also included a web

address and social media hashtag. Id. WMATA rejected the ad

under the religious speech prohibition described above. The

D.C. Circuit held WMATA’s policy regulated content, not

viewpoint. Id. at 325. To make that determination, the court

thought it needed to conduct a forum analysis. Id. at 321–24.

Then, emphasizing the narrowness of the forum, the court held

WMATA’s policy permissibly excluded “religion as a subject

matter.” Id. at 327 (quoting Rosenberger, 515 U.S. at 831).

Finally, the court rejected the Archdiocese’s arguments that the

topics it wanted to address were open to secular speakers. Id.

at 329.

Our disagreement starts at the beginning—with the D.C.

Circuit’s choice to conduct a forum analysis before

determining whether the policy discriminated on the basis of

viewpoint. That put the cart before the horse because the type

of forum sheds no light on whether a policy or decision

discriminates against a certain viewpoint. And viewpoint

discrimination is impermissible in any forum. Mansky, 138 S.

Ct. at 1885; Tam, 137 S. Ct. at 1763 (plurality opinion); Good

News Club, 533 U.S. at 111–12; Rosenberger, 515 U.S. at 829.

Courts “need not tackle the forum-selection question” since

“[r]egardless of whether the advertising space is a public or

nonpublic forum, the [speaker] is entitled to relief” if it

establishes viewpoint discrimination. Pittsburgh League, 653

F.3d at 296; see Hedges v. Wauconda Cmty. Unit Sch. Dist. No.

118, 9 F.3d 1295, 1298 (7th Cir. 1993) (“The [F]irst

19

[A]mendment’s ban on discriminating against religious speech

does not depend on whether the school is a ‘public forum’ and,

if so, what kind . . . .”). So Lamb’s Chapel, Rosenberger, and

Good News Club cannot be distinguished by reasoning that

those forums were open to a “wide[r] range of subjects,”

Archdiocese of Wash., 897 F.3d at 327. What matters is whether

the range of subjects—narrow, wide, or in-between—includes

the one the speaker wants to address. See Air Line Pilots Ass’n,

Int’l v. Dep’t of Aviation of City of Chi., 45 F.3d 1144, 1159 (7th

Cir. 1995) (“It may be that an entire category of speech is

banned, but this hardly satisfies a viewpoint inquiry.”).

The D.C. Circuit was also concerned that “[t]he

Archdiocese’s position would eliminate the government’s

prerogative to exclude religion as a subject matter in any non-

public forum.” Id. at 325. But that “prerogative” is based on a

dictum in Rosenberger that the Supreme Court has since

disclaimed. Good News Club, 533 U.S. at 110. And it echoes

the protestations of the Rosenberger dissent, not the reasoning

of the majority. See Rosenberger, 515 U.S. at 898 (Souter, J.,

dissenting) (“If this amounts to viewpoint discrimination, the

Court has all but eviscerated the line between viewpoint and

content.”). In any case, no prerogative to ban subjects can

justify viewpoint discrimination.

Perhaps a forum could be defined so narrowly that

religious perspectives would be non-germane. But the COLTS

ad space is not such a forum. And we doubt whether a forum

like COLTS’s—defined by its exclusions and otherwise open,

rather than defined by its beneficiaries and otherwise closed—

could ever fit the bill. See Cornelius, 473 U.S. at 806 (“[A]

speaker may be excluded from a nonpublic forum if he wishes

to address a topic not encompassed within the purpose of the

forum or if he is not a member of the class of speakers for

20

whose especial benefit the forum was created,” but “the

government violates the First Amendment when it denies

access to a speaker solely to suppress the point of view he

espouses on an otherwise includible subject.” (citations

omitted)). That COLTS has tied those exclusions to speech it

considers “controversial” only compounds the problem. See

Child Evangelism, 386 F.3d at 527 (“A group is controversial

or divisive because some take issue with its viewpoint.”).

It makes sense that it would be difficult, if not

impossible, to exclude religion “as a subject matter” in a forum

open to topics susceptible to a religious perspective. After all,

a typical “subject” is not “a comprehensive body of thought”

from which “a variety of subjects may be discussed and

considered,” Rosenberger, 515 U.S. at 831. Compare Choose

Life Ill., Inc. v. White, 547 F.3d 853, 865 (7th Cir. 2008)

(finding viewpoint neutrality because the government

“excluded the entire subject of abortion from its specialty-plate

program”), with Byrne, 623 F.3d at 57 (holding blanket ban on

“religious” vanity plates cannot justify excluding religious

expression of self-identity when secular expression is

allowed). That’s why we must “broad[ly] constru[e]

[viewpoint discrimination], providing greater protection to

private religious speech on public property.” Summum, 130

F.3d at 917.

Religion is not only a subject. It’s a worldview through

which believers see countless issues. It was so for our Nation’s

founders, whose moral thesis changed the world and conceived

a new birth of freedom in the United States: “that all men are

created equal, that they are endowed by their Creator with

certain unalienable Rights, that among these are Life, Liberty

and the pursuit of Happiness.” The Declaration of

Independence para. 2 (U.S. 1776). Is there room for our

21

revolutionary creed on a COLTS bus? Apparently not. As

COLTS’s counsel admitted at oral argument, the word

“Creator” would be a problem.

Finally, to the extent the D.C. Circuit reasoned that

religious speech on a permissible topic may be censored if it is

not “primarily” about that topic, see Archdiocese of Wash., 897

F.3d at 329, we disagree with that too. As the Supreme Court

explained in Good News Club, that a message on a permitted

topic is “quintessentially religious” or “decidedly religious in

nature” does not relegate it to second-class status. See 533 U.S.

at 111.

VI

Even if COLTS’s ban on religious speech were

viewpoint neutral, it would still need to survive scrutiny as a

content based restriction. That means, at a minimum, it must

be reasonable “in the light of the purpose of the forum and all

the surrounding circumstances.” Cornelius, 473 U.S. at 809.2

2

If COLTS’s ad space were a designated public forum,

as Freethought urges, strict scrutiny would apply. We need not

decide what kind of forum the ad space is, because the religious

speech ban fails even if the space is a limited or nonpublic

forum. But we doubt COLTS has successfully closed its forum

to Freethought’s speech.

COLTS opened its ad space as a designated public

forum. From when it began selling ads until the “Judgment

Day” proposal, COLTS never rejected a single ad. It ran

22

religious, political, and commercial ads during that time. See

Christ’s Bride Ministries, Inc. v. Se. Pa. Transp. Auth., 148

F.3d 242, 250–52 (3d Cir. 1998). So its forum was open to

Freethought’s atheistic message. See id.

And while COLTS may limit or close the forum at any

time, United States v. Bjerke, 796 F.2d 643, 647 (3d Cir. 1986),

it cannot do so in an improper manner. See The Koala v.

Khosla, F.3d , 2019 WL 3311148, at *12 (9th Cir. July 24,

2019); Ridley v. Mass. Bay Transp. Auth., 390 F.3d 65, 77 (1st

Cir. 2004).

We doubt the 2013 policy closed the forum. First, its

central prohibition—on political speech—includes a tangle of

double negatives that is vague enough to ensnare nearly any

message. It bans “advertisements involving an issue

reasonably deemed by COLTS to be political in nature in that

it directly or indirectly implicates the action, inaction,

prospective action, or policies of a governmental entity.” App.

687 (emphases added). That does not provide a sufficiently

definite standard for COLTS to exercise discretion. See

Mansky, 138 S. Ct. at 1891. And second, the “expressive use

[of COLTS’s ad space] has not interfered with providing [bus

service] to the public.” Christ’s Bride, 148 F.3d at 250. That

suggests its new restrictions are not “truly part of ‘the process

of limiting a nonpublic forum to activities compatible with the

intended purpose of the property,’” United Food &

Commercial Workers Union, Local 1099 v. Sw. Ohio Reg’l

Transit Auth., 163 F.3d 341, 351–52 (6th Cir. 1998) (quoting

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

37, 49 (1983)).

23

This standard does not demand “the most reasonable or the

only reasonable limitation,” so “a finding of strict

incompatibility between the nature of the speech or the identity

of the speaker and the functioning of the nonpublic forum is

not mandated.” Cornelius, 473 U.S. at 808. Still, our review is

more exacting than the deferential rational basis standard.

NAACP v. City of Philadelphia, 834 F.3d 435, 442–43 (3d Cir.

2016). COLTS bears the burden of showing its restrictions are

reasonable. Id. at 443.

COLTS opened its advertising space to raise revenue.

The 2013 policy states COLTS will sell ads for the “sole

purpose of generating revenue for COLTS while at the same

time maintaining or increasing its ridership.” App. 687.

Freethought argues we should disregard those latter interests—

maintaining or increasing ridership—because COLTS

stipulated that they were not goals when it first opened its ad

space and when it enacted the 2011 policy. But we assess both

the speech forum and the broader government property of

which it is part. See Cornelius, 473 U.S. at 801–02. An

advertising program that deters all or many riders is

inconsistent with the purpose of a public bus. See NAACP, 834

F.3d at 445–46 (holding commonsense inferences can support

explanation of forum’s purpose). There’s no indication COLTS

wanted to transform its buses from public transit to rolling

billboards. So we assess reasonableness given both goals: ad

revenue and ridership.

Does the religious speech ban reasonably pursue those

goals? Freethought says suppressing controversial speech is

inherently illegitimate. But this confuses means and ends. A

policy that on its face singled out “controversial” or

“offensive” messages would indeed be viewpoint

discriminatory. See Brunetti, 139 S. Ct. at 2299–2300. But

24

unlike the 2011 policy, the 2013 policy does not do that. “The

First Amendment does not forbid a viewpoint-neutral

exclusion of speakers who would disrupt a nonpublic forum

and hinder its effectiveness for its intended purpose.”

Cornelius, 473 U.S. at 811; see Lehman v. City of Shaker

Heights, 418 U.S. 298, 304 (1974) (plurality opinion).

COLTS’s goal is not to squelch controversial speech for its own

sake, but to avoid disruption by excluding categories of speech

it believes likely to inflame passions.

While that may be a permissible goal sometimes, it

should be viewed with suspicion for several reasons. It

conflicts with the core purposes of the First Amendment. See,

e.g., Bd. of Regents of Univ. of Wis. Sys. v. Southworth, 529

U.S. 217, 235 (2000) (“The whole theory of viewpoint

neutrality is that minority views are treated with the same

respect as are majority views.”); Simon & Schuster, 502 U.S.

at 118; Abrams v. United States, 250 U.S. 616, 630 (1919)

(Holmes, J., dissenting) (“[W]e should be eternally vigilant

against attempts to check the expression of opinions that we

loathe and believe to be fraught with death.”). It invites a

heckler’s veto by signaling that the government will suppress

unpopular speech if the public behaves badly. See Seattle

Mideast Awareness Campaign v. King County, 781 F.3d 489,

504 (9th Cir. 2015) (Christen, J., dissenting). And it’s hard for

officials to apply these standards objectively—and harder still

for courts to assess whether they have done so. See NAACP,

834 F.3d at 446. We proceed with those cautionary principles

in mind.

COLTS argues that heated debates on its buses could

deter riders and escalate to the point of distracting the driver,

endangering passengers, and reducing revenue. But since

rational basis review doesn’t apply here, we should not conjure

25

any “conceivable state of facts,” FCC v. Beach Commc’ns,

Inc., 508 U.S. 307, 313 (1993), that could support COLTS’s

action. True, COLTS cited disruptions on other transit systems

in formulating its policy—disruptions that led to anonymous

threats against buses, as well as boycotts and vandalism. While

threats, boycotts, and vandalism could threaten ridership,

COLTS stipulated its policy “was specifically to prevent debate

inside of COLTS’[s] buses . . . and had nothing to do with

debate outside the buses.” App. 57. Yet COLTS has failed to

cite a single debate caused by an ad on one of its buses.

To be sure, a government “need not wait until havoc is

wreaked to restrict access to a nonpublic forum.” Cornelius,

473 U.S. at 810. But if it wants to censor topics it deems

“controversial,” to avoid disruption, it needs more than mere

supposition. Cf. Air Line Pilots, 45 F.3d at 1157 (“[T]here is no

evidence that a general allowance of political or public interest

advertising would otherwise undermine [the government’s]

ability to rent display cases. Only by imagining objections to

particular viewpoints can any commercial inconvenience be

conceived.”). The censorship of messages because they are

controversial is viewpoint discrimination. See Brunetti, 139 S.

Ct. at 2299–2300. It follows that when the state seeks to ban

particular topics for fear of public controversy, it must make a

showing of threatened disruption.

But the record provides ample reason to doubt COLTS’s

concerns. COLTS has never received a complaint about an ad,

even though one ad hawked “notes from the underground” and

“bulletproof commentary for enlightened minds” courtesy of a

racist and anti-Semitic blog. App. 346–49. No one complained

about the bevy of religious and political ads COLTS ran before

it enacted its policies. In fact, the only rider complaints in the

record relate to COLTS’s decision to exclude Freethought’s ad.

26

What about COLTS’s solicitude for a captive audience?

The Supreme Court has long connected reasonableness in

protecting a forum with the intrusiveness of the restricted

expressive activity. See Lehman, 418 U.S. at 304 (plurality

opinion); id. at 308 (Douglas, J., concurring in the judgment);3

Air Line Pilots, 45 F.3d at 1161–62 (Flaum, J., concurring)

(collecting cases). But COLTS’s stated interest in leaving a

captive audience in peace is undercut because much of the

relevant forum is the exterior of its buses.4 A rider may see the

3

In Lehman, the Supreme Court upheld a prohibition on

political advertisements in buses’ “car card” interior

advertising spaces. 418 U.S. at 299, 303–04 (plurality opinion).

A plurality held the prohibition was reasonable in part because

captive riders would otherwise be “subjected to the blare of

political propaganda.” Id. at 304. In his concurrence in the

judgment, Justice Douglas agreed—not because political ads

were especially objectionable, but because riders were a

captive audience. Id. at 307–08 (Douglas, J., concurring in the

judgment). Lehman predates modern public forum analysis but

has been retconned into that framework. See Int’l Soc’y for

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

Cornelius, 473 U.S. at 803–04.

4

Paradoxically, COLTS insists the forum is limited to

the exterior ad space. We define the relevant forum by the

access the speaker seeks. Cornelius, 473 U.S. at 801. But here

Freethought didn’t specify whether it sought access to the

exterior or interior space and COLTS rejected the ad out of

hand, so the parties never discussed placement. We agree with

27

ad for a few moments as the bus approaches or while boarding,

but is not subjected to it while riding the bus. Such contact is

hardly as intrusive as, say, solicitation. See Int’l Soc’y for

Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 689 (1992)

(O’Connor, J., concurring); Erznoznik v. City of Jacksonville,

422 U.S. 205, 209 n.5 (1975) (“[B]oth the plurality and

concurring opinions [in Lehman] recognized that the degree of

captivity and the resultant intrusion on privacy is significantly

greater for a passenger on a bus than for a person on the

street.”). To be sure, the captive audience concern does apply

to part of COLTS’s forum (the interior space). But Lehman is

“properly . . . viewed as [a] narrow exception[] to the general

prohibition against subject-matter distinctions.” Consol.

Edison Co. of N.Y. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 530,

539 (1980). “The plain, if at times disquieting, truth is that in

our pluralistic society, constantly proliferating new and

ingenious forms of expression, ‘we are inescapably captive

audiences for many purposes.’” Erznoznik, 422 U.S. at 210

(quoting Rowan v. U.S. Post Office Dep’t, 397 U.S. 728, 736

(1970)). And the traditional rule is that offended observers

must “avoid further bombardment of their sensibilities simply

by averting their eyes.” Lehman, 418 U.S. at 320 (Brennan, J.,

dissenting) (quoting Cohen v. California, 403 U.S. 15, 21

(1971)). For those reasons and the ones that follow, we do not

Freethought that the forum includes both spaces, which are

governed by the same policy. Cf. Christ’s Bride, 148 F.3d at

248 n.2. Since COLTS doesn’t view the two spaces as different

enough to warrant different treatment, we see no reason why it

should benefit from rejecting Freethought’s ad before the

parties ever discussed what kind of ad it would be.

28

think solicitude for a (partially) captive audience can bear the

weight of COLTS’s restrictions.

Beyond the thin support for its concerns, COLTS’s

enforcement is scattershot at best. COLTS ran an ad

encouraging parents to immunize their children—an ad it

maintains it would not run today. App. 49–50, 1141. That’s

presumably because vaccination has become a contentious

social and political issue. See Freethought, 327 F. Supp. 3d at

781 (“COLTS admittedly ran the immunization advertisement

without a clear understanding of the controversial nature of the

subject matter at the time . . . .”). How did Wintermantel learn

of this debate? Through “[f]riends with kids, and news[]

media.” App. 1141. We don’t blame Wintermantel for doing

her level best, but this episode reveals the arbitrariness in

COLTS’s approach. See Mansky, 138 S. Ct. at 1890 (“[T]hat

measure may turn in significant part on the background

knowledge and media consumption of the particular [official]

applying it.”).

It’s also unclear whether and when information about an

advertiser beyond the face of the ad is relevant. At least under

the 2011 policy, COLTS would sometimes access the

advertiser’s website before rejecting an ad. For example, it

excluded the facially permissible “Wilkes-Barre Scranton

Night Out” because its website showed the event promoted

drinking. See App. 1074–75. The same scrutiny wasn’t applied

to the racist and anti-Semitic blog—much to COLTS’s horror

when it was shown the bigoted website during this litigation.

While COLTS says that under the 2013 policy it no longer

considers anything beyond the face of an ad, there was

deposition testimony that COLTS accepted Freethought’s

fourth ad in part because the “website did not encourage

debate.” App. 1358. And when Wintermantel emailed

29

COLTS’s lawyer about the ad, she referenced Freethought’s

website and its definition of the organization. The lawyer’s

response—“[w]e have to research this,” App. 1528—also

suggested they would go beyond the face of the ad. These

inconsistencies raise the specter of arbitrary censorship. An

obscure religious reference may be allowed, while the same

message from a better-known faith tradition is excluded. Even

worse, officials may selectively decide to dig deeper when they

receive proposals from disfavored groups.

Given all that, COLTS’s reasonableness argument is

threadbare. And it reaches its breaking point when we come to

the religious speech ban. COLTS likely could exclude many

ads that might upset its riders through more targeted

prohibitions. See Archdiocese of Wash. v. Wash. Metro. Area

Transit Auth., 910 F.3d 1248, 1254 n.3 (D.C. Cir. 2018)

(Griffith, J., dissenting from denial of rehearing en banc)

(“WMATA was concerned about the public response to ads on

controversial issues, but as the Archdiocese points out,

WMATA’s policies separately address issue-oriented ads

without any need for its ban on religious speech.”); Am.

Freedom Def. Initiative v. Wash. Metro. Area Transit Auth., 901

F.3d 356, 370 (D.C. Cir. 2018) (“WMATA decided to refuse

AFDI’s advertisements only because of their political

nature.”), cert. denied, 2019 WL 400746 (U.S. June 3, 2019);

Am. Freedom Def. Initiative v. Suburban Mobility Auth. for

Reg’l Transp. (SMART), 698 F.3d 885, 894 (6th Cir. 2012)

(“Because the ban on political advertising was permissible, it

was reasonable for SMART to turn down the fatwa

advertisement as political.”).

Instead, COLTS banned all religious messages. Even if

that weren’t viewpoint discrimination, it is unreasonable to so

broadly single out for exclusion speech entitled to special

30

protection. See Ridley v. Mass. Bay Transp. Auth., 390 F.3d 65,

100 (1st Cir. 2004) (Torruella, J., concurring in part and

dissenting in part) (“Simply put, the First Amendment does not

recognize state authority to regulate religious expression

merely because it might offend other persons.”); Hedges, 9

F.3d at 1298 (“Even when the government may forbid a

category of speech outright, it may not discriminate on account

of the speaker’s viewpoint. Especially not on account of a

religious subject matter, which the free exercise clause of the

first amendment singles out for protection.” (citation omitted));

see also Murdock v. Pennsylvania, 319 U.S. 105, 109 (1943)

(religious advertising “occupies the same high estate under the

First Amendment as do worship in the churches and preaching

from the pulpits”); cf. Trinity Lutheran Church of Columbia,

Inc. v. Comer, 137 S. Ct. 2012, 2019 (2017) (“The Free

Exercise Clause ‘protect[s] religious observers against unequal

treatment’ and subjects to the strictest scrutiny laws that target

the religious for ‘special disabilities’ based on their ‘religious

status.’” (quoting Church of Lukumi Babalu Aye, Inc. v.

Hialeah, 508 U.S. 520, 533, 542 (1993))).

COLTS argues with some force that its blanket ban

serves valid interests in appearing neutral. But the “‘guarantee

of neutrality is respected, not offended’ when religious persons

benefit incidentally from ‘neutral criteria and evenhanded

policies.’” Tenafly Eruv Ass’n, Inc. v. Borough of Tenafly, 309

F.3d 144, 177 (3d Cir. 2002) (quoting Good News Club, 533

U.S. at 114). There’s nothing neutral about prohibiting all

religious speech as “disruptive.”

Moreover, under COLTS’s current approach, it must

distinguish messages that are “about” religion from those that

address a permitted topic from a religious perspective.

Assuming that distinction is viable, we question whether it is

31

reasonable to ask officials to draw it. True, reasonableness

review imposes a light burden. NAACP, 834 F.3d at 449. And

we do not suggest there is any one way that COLTS had to

pursue its interests. But COLTS bears the burden to show that

extirpating religion from its forum was reasonable. Id. at 443.

For all the reasons we have stated, we hold it has not done so.

VII

Having prevailed on the merits, Freethought must show

it is entitled to a permanent injunction as a matter of discretion.

See eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391

(2006); Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139,

157 (2010). It must show that (1) it has suffered irreparable

injury; (2) there is no adequate remedy at law; (3) the balance

of hardships tips in its favor; and (4) granting an injunction

would not be against the public interest. eBay, 547 U.S. at 391.

Each element is satisfied.

The first two elements “typically constitute two sides of

the same inquiry, for the ‘availability of adequate monetary

damages belies a claim of irreparable injury.’” TD Bank NA v.

Hill, 928 F.3d 259, 282 (3d Cir. 2019) (quoting Bennington

Foods LLC v. St. Croix Renaissance, Grp., LLP, 528 F.3d 176,

179 (3d Cir. 2008)). Freethought’s ad has already been rejected

once under the 2013 policy, which remains in effect. No

remedy at law can cure Freethought’s First Amendment injury

or give it the prospective relief it seeks. See Elrod v. Burns, 427

U.S. 347, 373 (1976) (“The loss of First Amendment freedoms,

for even minimal periods of time, unquestionably constitutes

irreparable injury.”). To receive full relief, Freethought must

be allowed to run its “Atheists” ad. Similarly, the balance of

hardships tips in Freethought’s favor. COLTS’s “need to

redraft one part of [the 2013 policy] . . . hardly compare[s] to

32

the deprivation of [Freethought] and . . . other potential

speakers’ constitutional right to engage in free speech.” Barrett

v. Walker Cty. Sch. Dist., 872 F.3d 1209, 1229–30 (11th Cir.

2017). Finally, we state the obvious by noting that the public

interest is not disserved by enforcing the First Amendment’s

core protection against viewpoint discrimination.

* * *

The 2013 policy’s ban on speech related to religion

discriminates on the basis of viewpoint. And it is not a

permissible limitation on COLTS’s forum, however that forum

is characterized. We will reverse the judgment of the District

Court and instruct it to grant declaratory relief and issue an

injunction barring enforcement of the 2013 policy’s religious

speech ban against Freethought.

33

COWEN, Circuit Judge, dissenting.

The majority concludes that COLTS’s policy

discriminates based on viewpoint and that, even if the policy

were viewpoint neutral, it fails to survive scrutiny as a

content-based restriction. However, I do not believe that the

transit system’s policy rises to the level of viewpoint

discrimination. As the D.C. Circuit has recently explained,

there is a critical difference between the prohibition of

religious (and atheistic) perspectives on otherwise permissible

subject matters—which constitutes viewpoint

discrimination—and the exclusion of religion itself as a

subject matter—which does not. This case clearly implicates

a subject-matter prohibition. Furthermore, COLTS satisfies

its burden of showing that its policy is reasonable (and I

conclude that it has closed the forum). Accordingly, I must

respectfully dissent.

I.

According to the majority, its holding that COLTS’s

2013 Policy facially discriminates against religious and

atheistic viewpoints on the various topics otherwise permitted

in the forum “diverges from a recent decision of the United

States Court of Appeals for the D.C. Circuit, Archdiocese of

Washington v. Washington Metropolitan Area Transit

Authority, 897 F.3d 314 (D.C. Cir. 2018), petition for cert.

filed, No. 18-1455 (May 20, 2019).” (Majority Opinion at

17-18.) Among other things, it asserts that the purported

“prerogative” to exclude religion as a subject matter is

premised on dictum in Rosenberger v. Rector and Visitors of

University of Virginia, 515 U.S. 819 (1995), which the

Supreme Court disclaimed in Good News Club v. Milford

Central School, 533 U.S. 98 (2001). “[T]o the extent the D.C.

Circuit reasoned that religious speech on a permissible topic

may be censored if it is not ‘primarily’ about that topic, see

Archdiocese of Wash, 897 F.3d at 329, we disagree with that

too. As the Supreme Court explained in Good News Club,

that a message on a permitted topic is ‘quintessentially

religious’ or ‘decidedly religious in nature’ does not relegate

it to second-class status. See 533 U.S. at 111.” (Id. at 21.) In

the end, the majority determines that Freethought’s “Atheists”

advertisement, although it relates to the subject matter of

religion, communicates a viewpoint on other subject matters

permitted in the forum.

To addition to disagreeing with its assessment of the

“Atheists” advertisement, I reject the majority’s reading of

the existing case law as well as (on a more fundamental level)

its understanding of the fundamental concepts of viewpoint

and subject matter. In short, like its Washington, D.C.

counterpart, COLTS “may exclude religion as a subject

matter from its advertising space.” Archdiocese of Wash.,

897 F.3d at 319.

Initially, the majority places special emphasis on the

Supreme Court’s decision in Good News Club. It, however,

has read too much into this opinion. In Rosenberger, the

Supreme Court stated that, “[b]y the very terms of the SAF

prohibition, the University does not exclude religion as a

subject matter but selects for disfavored treatment those

student journalistic efforts with religious editorial

viewpoints.” Rosenberger, 515 U.S. at 831. In Good News

Club, the Court did explain that, “[a]though in Rosenberger

there was no prohibition on religion as a subject matter, our

holding did not rely on this factor,” Good News Club, 533

2

U.S. at 110, and rejected the notion that “something that is

quintessentially religious’ or ‘decidedly religious in nature”

cannot “also be characterized properly as the teaching of

morals and character development from a particular

viewpoint,” id. at 111 (citing Good News Club v. Milford

Cent. Sch., 202 F.3d 502, 512 (2d Cir. 2000) (Jacobs, J.,

dissenting)). It did not “disclaim” the government’s

prerogative or power to ban a particular subject matter

without thereby engaging in unconstitutional viewpoint

discrimination. Nor did the Good News Club Court

specifically examine the question of how to treat speech on

the subject matter of religion that is “not ‘primarily’ about”

some other permissible topic (id. (quoting Archdiocese of

Wash., 897 F.3d at 329).) On the contrary, the Court’s

reasoning is premised on the fundamental distinction between

viewpoint and subject matter. It explained that Rosenberger

“concluded simply that the university’s denial of funding to

print Wide Awake was viewpoint discrimination, just as the

school district’s refusal to allow Lamb’s Chapel to show its

films was viewpoint discrimination.” Id. at 110 (emphasis

added) (citing Rosenberger, 515 U.S. at 831). The Supreme

Court then rejected the Second Circuit’s belief that the highly

religious aspects of the Good News Club’s teaching of morals

and character development effectively “tainted” its expression

so that it no longer constituted a viewpoint on the otherwise

permissible subject matter of moral and character education,

e.g.:

What matters for purposes of the Free Speech

Clause is that we can see no logical difference

in kind between the invocation of Christianity

by the Club and the invocation of teamwork,

loyalty, or patriotism by other associations to

3

provide a foundation for their lessons. It is

apparent that the unstated principle of the Court

of Appeals’ reasoning is its conclusion that any

time religious instruction and prayer are used to

discuss morals and character, the discussion is

simply not a “pure” discussion of those issues.

According to the Court of Appeals, reliance on

Christian principles taints moral and character

instruction in a way that other foundations for

thought or viewpoints do not. We, however,

have never reached such a conclusion. Instead,

we reaffirm our holdings in Lamb’s Chapel and

Rosenberger that speech discussing otherwise

permissible subjects cannot be excluded from a

limited public forum on the ground that the

subject is discussed from a religious viewpoint.

Thus, we conclude that Milford’s exclusion of

the Club from use of the school, pursuant to its

community use policy, constitutes

impermissible viewpoint discrimination.

Id. at 111-12 (footnote omitted); see also, e.g., Child

Evangelism Fellowship of N.J., Inc. v. Stafford Twp. Sch.

Dist., 386 F.3d 514, 528 (3d Cir. 2004) (observing that Good

News Club rejected Second Circuit’s position that something

that is quintessentially religious or decidedly religious in

nature cannot also be characterized as teaching of morals and

character from particular viewpoint and that what ultimately

mattered was lack of logical difference between invocation of

Christianity and invocation of teamwork, loyalty, or

patriotism as foundation for such teaching). The Supreme

Court then proceeded to distinguish the club’s activities from

“mere religious worship, divorced from any teaching of moral

4

values.” Good News Club, 533 U.S. at 112 n.4 (further

noting that Second Circuit never determined that activities

actually constituted religious worship and explaining that,

“[r]egardless of the label Justice Souter wishes to use [i.e., an

evangelical service of worship], what matters is the substance

of the Club’s activities, which we conclude are materially

indistinguishable from the activities in Lamb’s Chapel and

Rosenberger”).

This narrower reading of Good News Club is

consistent with basic First Amendment principles. As Judge

Wilkins succinctly put it, the “[f]orum doctrine’s boundary

between permissible subject-matter restrictions and

impermissible viewpoint discrimination is a load-bearing wall

in the First Amendment’s structure.” Archdiocese of Wash.,

897 F.3d at 339 (Wilkins, J., concurring).

Even the majority appears to recognize that there is a

well-established and fundamental distinction between subject-

matter and viewpoint restrictions. It certainly may be

difficult to distinguish subject matter from viewpoint,

especially where the subject matter at issue constitutes both a

comprehensive body of thought (i.e., a subject matter) and a

source for points of view from which to discuss a variety of

other subject matters (i.e., viewpoints). See, e.g.,

Rosenberger, 515 U.S. at 830-31. But it is well established

that “a government may sometimes impose content or speaker

limitations that protect the use of its property,” while, “no

matter what kind of property is at issue, viewpoint

discrimination is out of bounds.” (Id. at 11 (citing Minn.

Voters All. v. Mansky, 138 S. Ct. 1876, 1885 (2018)).)

Accordingly:

5

[T]he Supreme Court has repeatedly upheld and

applied the distinction between subject matter

and viewpoint. See, e.g., Mansky, 138 S. Ct. at

1885 (“[O]ur decisions have long recognized

that the government may impose some content-

based restrictions in nonpublic forum[s].”);

Reed v. Town of Gilbert, [135 S. Ct. 2218,

2230] (2015) (“Government discrimination

among viewpoints—or the regulation of speech

based on the specific motivating ideology or the

opinion or perspective of the speaker—is a

more blatant and egregious form of content

discrimination” than subject-matter restrictions

(quotation marks omitted)); Rosenberger, [515

U.S. at 830-31] (distinguishing between

restricting religious subject matter and religious

viewpoints).

Archdiocese of Wash., 897 F.3d at 338-39 (Wilkins, J.,

concurring). “[T]he speech restrictions struck down in

Lamb’s Chapel, Rosenberger, and Good News Club each

singled out religious viewpoints that otherwise fell within

prospectively defined, permissible subject matter. Stated

otherwise, those decisions involved rules that permitted

private speakers to discuss categories A, B, and C, but when a

speaker sought to discuss C from a pro-religious perspective,

they were improperly prohibited from doing so.” Id. at 338

(Wilkins, J., concurring). In contrast, WMATA barred

advertisements that promote or oppose any religion, religious

practice, or belief: “Guideline 12 is thus a categorical

subject-matter restriction by its own terms: It prohibits any

advertisement whatsoever on the subject of religious or anti-

religious advocacy, whether favoring or opposing religion in

6

general, or any particular religion, belief, or practice.”1 Id. at

337 (Wilkins, J., concurring) (citing Rosenberger, 515 U.S. at

831); see also, e.g., id. at 325 (“But far from being an

abrogation of the distinction between permissible subject

matter rules and impermissible viewpoint discrimination,

each of these cases represents an application of the Supreme

Court’s viewpoint discrimination analysis, of which

Guideline 12 does not run afoul.”); Child Evangelism

Fellowship, 386 F.3d at 528 (“Cases such as Lamb’s Chapel,

Rosenberger, and Good News Club establish that if

government permits the discussion of a topic from a secular

perspective, it may not shut out speech that discusses the

same topic from a religious perspective.”).

This distinction between viewpoint and subject matter

actually encourages the government to open (or keep open)

1

According to the majority, the D.C. Circuit’s

reasoning echoes the dissent in Rosenberger. But the

Supreme Court majority obviously did not believe it was

eviscerating the basic distinction between viewpoint and

subject matter. After all, Rosenberger explained, inter alia,

that religion—even though it may be “a comprehensive body

of thought” or “a vast area of inquiry”—“also provides, as it

did here, a specific premise, a perspective, a standpoint from

which a variety of subjects may be discussed and

considered.” Rosenberger, 515 U.S. at 831 (emphasis added).

“The prohibited perspective, not the general subject matter,

resulted in the refusal to make third-party payments for the

subjects discussed were otherwise within the approved

category of publications.” Id. Likewise, neither I nor the

D.C. Circuit take issue with Rosenberger’s recognition that

not “all debate is bipolar.” Id.

7

forums to speech that they might otherwise completely

exclude. The principle that the government may restrict

speech in a non-public forum so long as it maintains

viewpoint neutrality and acts reasonably “‘encourage[s] the

government to open its property to some expressive activity

in cases where, if faced with an all or nothing choice, it might

not open the property at all.’” Archdiocese of Wash., 897

F.3d at 324 (quoting Ark. Educ. Television Comm’n v.

Forbes, 523 U.S. 666, 680 (1998))). The government is also

required to establish prospective and categorical subject

matter regulations, thereby preserving its ability to manage

potentially sensitive non-public forums while cabining its

discretion to censor. Id. at 324-25 (further noting importance

of such constraint in context of religious speech given

constitutional commitment to religious liberty and role of

religiously motivated dissent in landmark free speech case

law); see also, e.g., id. at 337 (Wilkins, J., concurring)

(observing that requirement to set prospective and categorical

rules provides public with notice of what speech is allowed

and constrains discretion of government to pick favorites on

ad hoc basis). One basic premise of the First Amendment is

to encourage more— not less—speech. See, e.g., Citizens

United v. FEC, 558 U.S. 310, 361 (2010) (“[I]t is our law and

tradition that more speech, not less, is the governing rule.”).

Yet “[w]ithout reasonable control over the content of private

speech in nonpublic forums, government may elect to close a

forum entirely rather than deal with the administrative burden

or floodgate consequences of accepting private speech

without effective subject-matter restrictions.” Archdiocese of

Wash., 897 F.3d at 337 (Wilkins, J., concurring). In fact, the

majority suggests that COLTS would have to exclude even

more speech if it wished to adopt a constitutionally effective

subject-matter limitation.

8

Furthermore, the majority’s approach “offers no

principled reason for excepting religion from the general

proposition that governments may exclude subjects in their

non-public forums.” Id. at 325. The majority suggests that

religious advertisements are “entitled to special protection”

(id. at 30-31 (citing Ridley v. Mass. Bay Transp. Auth., 390

F.3d 65, 100 (1st Cir. 2004) (Torruella, J., concurring in part

and dissenting in part); Hedges v. Wauconda Cmty. Unit Sch.

Dist. No. 118, 9 F.3d 1295, 1298 (7th Cir. 1993); Murdock v.

Pennsylvania, 319 U.S. 105, 109 (1943); Trinity Lutheran

Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2019

(2017)))—over and above the protection accorded to “issue-

oriented” or political advertisements (id. at 29-30 (citing

Archdiocese of Wash. v. Wash. Metro. Area Transit Auth.,

910 F.3d 1248, 1254 n.3 (D.C. Cir. 2018) (Griffith, J.,

dissenting from denial of rehearing en banc); Am. Freedom

Def. Initiative v. Wash. Metro. Area Transit Auth., 901 F.3d

356, 370 (D.C. Cir. 2018), cert. denied, 139 S. Ct. 2665

(2019); Am. Freedom Def. Initiative v. Suburban Mobility

Auth. for Reg’l Transp., 698 F.3d 885, 894 (6th Cir. 2012))).

Like the D.C. Circuit, I agree that the protection of religious

expression is of critical importance. See, e.g., id. at 324-25.

Yet the same thing could be said about political speech. Like

religion, politics “also provides . . . a specific premise, a

perspective, a standpoint from which a variety of subjects

may be discussed and considered,’” Rosenberger, 515 U.S. at

825. “If there is any fixed star in our constitutional

constellation, it is that no official, high or petty, can prescribe

what shall be orthodox in politics, nationalism, religion, or

other matters of opinion.” W. Va. Bd. of Educ. v. Barnette,

319 U.S. 624, 642 (1943) (emphasis added); see also, e.g.,

Archdiocese of Wash., 897 F.3d at 339 (Wilkins, J.,

9

concurring) (“After all, political speech has frequently been

designated as the most highly protected form of First

Amendment expression.” (citing Pursuing America’s

Greatness v. FEC, 831 F.3d 500, 508 (D.C. Cir. 2016)). Bans

on political speech in non-public forums have been upheld,

and a more expansive approach to viewpoint discrimination

may force the complete closure of non-public forums to all

private speech. See, e.g., Archdiocese of Wash., 897 F.3d at

325 (“Although religious speech might be an exception either

because it is highly valuable or because it receives specific

protection in the First Amendment, the same can be said of

political speech on which the Supreme Court has upheld bans

against constitutional challenges. See, e.g., Ark. Educ.

Television Comm’n, [523 U.S. at 669]; [Cornelius v. NAACP

Legal Def. & Educ. Fund, Inc., 473 U.S. 788 (1985)]. The

Archdiocese’s position could have sweeping implications for

what speech a government may be compelled to allow once it

allows any at all, even forcing a choice between opening non-

public forums to almost any private speech or none, which the

Supreme Court acknowledged in Arkansas Educational

Television Commission, [523 U.S. at 680], was not merely

hypothetical.”).

The majority calls into question D.C. Circuit’s

indication that speech on an impermissible subject matter

may be barred if it does not also “primarily” relate to a

permissible subject matter. In addition to reading too much

into the Supreme Court’s Good News Club opinion, the

majority overlooks the D.C. Circuit’s reference to whether the

advertisement is “recognizably” about a permissible topic.

Id. at 329. Judge Wilkins also aptly observes that “such

alleged ‘viewpoint’ discrimination could always be reverse-

engineered by comparing a prohibited statement with any

10

permitted statement—real or hypothetical—and finding some

kind of subject-matter commonality between the two.” Id. at

338 (Wilkins, J., concurring). Such an expansive

understanding (especially because it must logically extend to

other subject matters like politics) would effectively make it

impossible to establish any content requirements for non-

public forums or otherwise cause governmental entities to

close their forums to yet more and more topics for

expression.2

Applying the D.C. Circuit’s approach, I see no

meaningful difference between the advertisements and

policies at issue in the WMATA proceeding and in this case.

Accordingly, the District Court did not err by rejecting

Freethought’s claim of viewpoint discrimination.

2

I further note that Freethought’s briefing in this case

does not really take issue with the D.C. Circuit’s “subject

matter” approach—and instead endeavors to distinguish

COLTS’s policy from the policy adopted by the WMATA.

(See, e.g., Appellant’s Brief at 29-30 (“COLTS’ ‘religious’

provision goes far beyond prohibiting advertisements on the

topics of religion or atheism. It also prohibits advertisements

on any topic that contains any reference to the existence of

religion or atheism. Cf., Archdiocese of Wash. v. Wash.

Metro. Area Transit Auth., 877 F.3d 1066, 1067 (D.C. Cir.

2017) [(denying motion for injunction pending appeal)]

(‘WMATA does not exclude religious speakers from

advertising when their proposed messages comport with the

allowed categories of speech.’).” (citations omitted)).)

11

Initially, both the “religion” provisions as well as the

respective forums are very similar.3 Like other public transit

agencies around the country, both COLTS and WMATA

(which previously had maintained designated public forums

on their advertising space) have attempted to address (or to

prevent in the future) problems arising from various

inflammatory advertisements (see, e.g., id. at 6

(“[Wintermantel] began researching other transit systems’

policies and identified controversies in other cities kindled by

inflammatory ad campaigns.”)). See, e.g., id. at 319

(“Beginning in 2010, WMATA began to reconsider its

3

The majority takes issue with the D.C. Circuit’s

“choice to conduct a forum analysis before determining

whether the policy discriminated on the basis of viewpoint.”

(Majority Opinion at 19.) I completely agree that viewpoint

discrimination is not permitted in any forum. But this does

not mean that the nature and scope of the forum is irrelevant

to the determination of whether there is viewpoint

discrimination. Even the majority considers whether the

range of subject matters permitted in the forum at issue

includes a topic the speaker wants to address. Furthermore,

“[a]lthough observing that ‘Lamb’s Chapel, Rosenberger, and

Good News Club, read together, draw into question whether a

blanket ban such as Vermont’s on all religious messages in a

forum that has otherwise been broadly opened to expression

on a wide variety of subjects can neatly be classified as purely

a “subject matter” restriction for purposes of First

Amendment analysis,’ the [Second Circuit] declined to

‘address bans on religious speech in forums limited to

discussion of certain, designated topics.’” Archdiocese of

Wash., 897 F.3d at 327 (quoting Byrne v. Rutledge, 623 F.3d

46, 58-59 (2d Cir. 2010)).

12

approach as a result of near-monthly complaints from its

employees, riders, elected officials, and community and

business leaders about its advertisements. . . . The Metro

Transit Police Department and the United States Department

of Homeland Security ‘feared that certain ads would, due to

world events, incite individuals to violence on the system and

harm WMATA employees and customers.’ . . . . Additionally,

a survey showed that ‘98% of the public was familiar with the

types of ads found on buses, in trains, and in stations,’ that

‘58% opposed issue-oriented ads,’ and that ‘46% were

extremely opposed to . . . issue-oriented ads.’” (citations

omitted)). Accordingly, the 2013 COLTS Policy prohibits

the following advertisements:

 for tobacco or alcohol or for businesses that

primarily traffic in such goods;

 that promotes the use of firearms or firearm-

related products or for businesses that primarily

traffic in such goods;

 that are obscene, pornographic, or promotes or

depict sexually-oriented goods or services or for

businesses that primarily traffic in such goods

or services or that appeal to prurient interests;

 that promotes violence or sexual conduct;

 that are deemed defamatory, illegal, fraudulent,

misleading or false;

 that proposes a transaction or activity that is

prohibited by federal, state or local law;

 that exploit the likeness, picture, image or name

of any person, and/or trademark, trade name,

copyrighted materials or other intellectual

property of a third party, without adequate proof

of express written authorization to do so;

13

 that contain, employ or imply profane or vulgar

words;

 that demean or disparage a person, group of

persons, business or group of businesses;

 that, if permitted, could reasonably subject

COLTS to civil or criminal liability;

 that are political in nature or contain political

messages, including advertisements involving

political figures or candidates for public offices,

advertisements involving political parties or

political affiliations, and/or advertisements

involving an issue reasonably deemed by

COLTS to be political in nature in that it

directly or indirectly implicates the action,

inaction, prospective action, or policies of a

governmental entity.

 that promote the existence or non-existence of a

supreme deity, deities, being or beings; that

address, promote, criticize or attack a religion

or religions, religious beliefs or lack of religious

beliefs; that directly quote or cite scriptures,

religious text or texts involving religious beliefs

or lack of religious beliefs; or are otherwise

religious in nature.

(JA687-JA688.) “WMATA adopted Guidelines Governing

Commercial Advertising, employing broad subject-matter

prohibitions in order to maintain viewpoint neutrality and

avoid ad hoc prohibitions about which ads are benign and

which are not.” Archdiocese of Wash., 897 F.3d at 318-19.

Like COLTS’s ban on advertisements that promote, criticize,

or attack a religion, religions, religious beliefs, or the lack of

religious beliefs, “Guideline 12 states: ‘Advertisements that

14

promote or oppose any religion, religious practice or belief

are prohibited.’” Id. The WMATA Guidelines also included

the following prohibitions:

9. Advertisements intended to influence

members of the public regarding an issue on

which there are varying opinions are prohibited.

10. Advertisements of tobacco products are

prohibited . . . .

11. Advertisements that support or oppose any

political party or candidate are prohibited.

13. Advertisements that support or oppose an

industry position or industry goal without any

direct commercial benefit to the advertiser are

prohibited.

14. Advertisements that are intended to

influence public policy are prohibited.

Archdiocese of Wash. v. Wash. Metro. Area. Transit Auth.,

281 F. Supp. 3d 88, 96 (D.D.C. 2017) (Guideline 12 omitted)

(citation omitted).

The WMATA’s Guidelines—and consequently

COLTS’s equivalent standards—are unlike the policies at

issue in Lamb’s Chapel, Rosenberger, and Good News Club.

“To the extent those cases can be read to blur the line

between religion-as-subject-matter and a religious viewpoint,

the Supreme Court’s analysis emphasizes the breadth of the

forums involved: the “broad range” of activities in service of

15

“educational purpose” contemplated in Rosenberger, [515

U.S. at 824], and the capacious range of ‘social, civic, and

recreational meetings and entertainments, and other uses

pertaining to the welfare of the community’ that might have

been permitted in [Lamb’s Chapel v. Center Moriches Union

Free School Dist., 508 U.S. 384, 386 (1993)], and Good

News Club, [533 U.S. at 102].” Archdiocese of Wash., 897

F.3d at 327. “By contrast, [WMATA’s forum as well as

COLTS’s forum—consisting of advertising space—are] not

so broad, much less inviting through [their] advertisements

public debate on religion.” Id.

The Archdiocese of Washington’s proposed

“evangelistic ad” depicted “‘a starry night and the silhouettes

of three shepherds and sheep on a hill facing a bright shining

star high in the sky, along with the words “Find the Perfect

Gift”’” (and included a web address and social media

hashtag). (Majority Opinion at 18 (quoting Archdiocese of

Wash., 897 F.3d at 320).) The D.C. Circuit persuasively

rejected the Archdiocese’s argument that its advertisement

addressed permissible topics like charitable giving (as well as

an amici’s assertion that its advertisement exhorting viewers

to visit the Franciscan Monastery of the Holy Land in

America expressed its religious viewpoint on places to visit):

These contentions are unpersuasive because the

subjects on which the Archdiocese and the

Monastery claim they wish to speak through

advertisements on WMATA buses are either not

subjects within the forum or are not subjects on

which they have shown they could not speak

under Guideline 12.

16

The Archdiocese’s “Find the Perfect

Gift” ad is not primarily or recognizably about

charitable giving, as it is not primarily or

recognizably about opening hours or places to

visit. Like the Monastery’s ad, the

Archdiocese’s ad is a religious ad, an

exhortation, repeatedly acknowledged by the

Archdiocese to be part of its evangelization

effort to attend mass at Catholic churches in

connection with Advent. The imagery of the

Archdiocese’s “Find the Perfect Gift” ad is

evocative not of the desirability of charitable

giving, but rather the saving grace of Christ,

which is not a subject included in the WMATA

forum. Had the Archdiocese wished to submit

an ad encouraging charitable giving, nothing in

the record suggests it could not do so.

WMATA accepted the ad of the Salvation

Army, a religious organization whose ad

exhorted giving to charity but contained only

non-religious imagery. WMATA

acknowledged in the district court, and again in

this court that it would not reject as running

afoul of Guideline 12 an ad from the

Archdiocese that read “[P]lease [G]ive to

Catholic Charities.”

Id. at 329 (further rejecting Archdiocese’s theory that

commercial advertising promoting Christmastime sales

expressed view on how to celebrate Christmas); see also, e.g.,

id. at 330 (“The Archdiocese’s suggestion that WMATA has

been inconsistent because it accepted an ad from a yoga

studio containing the slogan ‘Muscle + Mantra,’ ignores that

17

ad is not recognizably religious as the Archdiocese’s ad

plainly is, by its own characterization.”).

Freethought’s proposed advertisement says in big print

“Atheists,” and provides the name of the organization and a

website. In fact, it goes to the very heart of the subject matter

of religion—the existence or non-existence of a deity. The

2013 Policy expressly bars advertising “that promote the

existence or non-existence of a supreme deity, deities, beings

or beings” (JA687), and COLTS stipulated at trial that it

rejected the proposed advertisement because “the proposed

advertisement addressed the non-existence of a deity” (JA61;

see also, e.g., JA701 (letter rejecting earlier proposed

“Atheists” advertisement because “COLTS does not accept

advertisements that promote the belief that ‘there is no God’

or advertisements that promote the belief that ‘there is a

God’”). Freethought engages in debates over the existence or

non-existence of God. “A typical consequence of the

appearance of Freethought at an event is the discussion of

whether or not God exists.” Ne. Pa. Freethought Soc’y v.

Cty. of Lackawanna Transit Sys., 327 F. Supp. 3d 767, 771

(M.D. Pa. 2018). In turn, the proposed advertisement does

not reference, to give just a couple of examples, either

instruction in morals and character or the desirability of

charitable giving from an atheistic point of view.

Accordingly, I believe that—just like the Archdiocese of

Washington’s “Find the Perfect Gift” submission—

Freethought’s advertisement clearly implicates the prohibited

subject matter of religion.

II.

18

The majority concludes that, even if COLTS’s

religious speech ban were viewpoint neutral and COLTS’s

advertising space were now a limited or non-public forum,4 it

4

Unlike the majority, I believe that COLTS effectively

closed the forum at issue here. While COLTS had previously

opened its advertising space as a designated public forum, it

“may limit or close the forum at any time” (Majority Opinion

at 22 n.2 (citing United States v. Bjerke, 796 F.2d 643, 647

(3d Cir. 1986))). See, e.g., Archdiocese of Wash., 897 F.3d at

323 (“Having plainly evinced its intent in 2015 to close

WMATA’s advertising space to certain subjects, the Board of

Directors converted that space into a non-public forum in the

manner contemplated by the Supreme Court.” (citing

Cornelius, 473 U.S. at 803-04)); Ridley, 390 F.3d at 77 (“The

government is free to change the nature of any nontraditional

forum as it wishes. Thus, even if MBTA’s previous intent

was to maintain a designated public forum, it would be free to

decide in good faith to close the forum at any time. There is

no evidence that the 2003 changes were adopted as a mere

pretext to reject plaintiff’s advertisements.” (citing Cornelius,

473 U.S. at 802)). Even setting aside the purportedly

deficient language identified by the majority, the 2013 Policy

sets forth a number of categorical subject-matter limitations,

excluding, among other topics, advertisements on the topic of

religion as well as political advertising (i.e., advertisements

“that are political in nature or contain political messages,

including advertisements involving political figures or

candidates for public offices, [and/or] advertisements

involving political parties or political affiliations” (JA687)).

As I explain in more detail in my reasonableness analysis,

COLTS properly sought to address issues affecting transit

agencies throughout the country, including threats, boycotts,

19

does not survive scrutiny as a content-based restriction. I do

not agree.

The reasonableness standard is more exacting than the

rational basis inquiry, and the government bears the burden of

proof. See, e.g., NAACP v. City of Philadelphia, 834 F.3d

435, 441-45 (3d Cir. 2016). Nevertheless, “[r]easonableness

is a relatively low bar.” Id. at 443. “Unlike with strict

scrutiny, this review does not require narrow tailoring or the

absence of less restrictive alternatives. Indeed, the

‘Government’s decision to restrict access . . . need only be

reasonable; it need not be the most reasonable or the only

reasonable limitation.’” Id. at 441 (quoting Cornelius, 473

U.S. at 808). COLTS has a two-step burden to meet: (1)

“The evidence or commonsense inferences must allow us to

grasp the purpose to which [COLTS] has devoted the forum;”

and (2) “the evidence or commonsense inferences also must

provide a way of tying the limitation on speech to the forum’s

purpose.” Id. at 445 (quoting Greer v. Spock, 424 U.S. 828,

836 (1976)); see also, e.g., Mansky, 138 S. Ct. at 1888

(“Although there is no requirement of narrow tailoring in a

nonpublic forum, the State must be able to articulate some

sensible basis for distinguishing what may come in from what

must stay out.” (citing Cornelius, 473 U.S. at 808-09)).

Significantly, the majority appears to agree that

COLTS satisfies the first step, identifying raising revenue and

maintaining or increasing ridership as purposes of the forum.

It properly rejects Freethought’s assertion that the ridership

interest should be disregarded “because COLTS stipulated

that they were not goals when it first opened its ad space and

and vandalism.

20

when it enacted the 2011 policy.” (Majority Opinion at 23-

24.) “But we assess both the speech forum and the broader

government property of which it is part. See Cornelius, 473

U.S. at 801-02. An advertising program that deters all or

many riders is inconsistent with the purpose of a public bus.

See NAACP, 834 F.3d at 445-46 (holding commonsense

inferences can support explanation of forum’s purpose).” (Id.

at 24.)

Having satisfied the initial step of the reasonableness

inquiry, COLTS must establish—with either record evidence

or common sense—an adequate connection between the

forum’s purposes and the speech limitation. I believe that it

does.

“[T]he record demonstrates that the advertising policy,

at its core, was enacted to avoid controversy on the buses for

the safety and comfort of passengers. This, in turn, was to

maintain ridership and, as a result, revenue.” Ne. Pa.

Freethought Soc’y, 327 F. Supp. 3d at 775 n.5. As the

majority acknowledges, the government may exclude speech

“because its controversial nature adversely impacts the

forum’s other purposes” (even though this sort of exclusion

must be treated with a degree of skepticism). United Food &

Commercial Workers Union, Local 1099 v. Sw. Ohio Reg’l

Transit Auth., 163 F.3d 341, 356 (6th Cir. 1998) (“We note,

however, that the Supreme Court has suggested that

excluding speech because its controversial nature adversely

impacts the forum’s other purposes constitutes a reasonable

restriction on access to a nonpublic forum.” (citing Cornelius,

473 U.S. at 811)); see also, e.g., NAACP, 834 F.3d at 446

(“We note at the outset that, although the City is permitted

under the right circumstances to dedicate a limited public or

21

nonpublic forum to controversy avoidance, this objective is

nebulous and not susceptible to objective verification. As a

result, Supreme Court guidance cautions against readily

drawing inferences, in the absence of evidence, that

controversy avoidance renders the ban constitutional.” (citing

Cornelius, 473 U.S. at 812; Metromedia, Inc. v. City of San

Diego, 453 U.S. 490, 510 (1981) (plurality opinion)).

COLTS reasonably asserts that heated debates on its

buses could deter riders, distract the drivers, endanger

passengers, and reduce revenue. “COLTS cited disruptions

on other transit systems in formulating its policy—disruptions

that led to anonymous threats against buses, as well as

boycotts and vandalism.” (Id. at 25.) It is certainly

reasonable to infer that these problems could spread onto the

buses themselves—and that such disturbances could then cost

the transit system both riders and money. A government

“need not wait until havoc is wreaked to restrict access to a

nonpublic forum.” Cornelius, 473 U.S. at 810 (citing Perry

Educ. Ass’n v. Perry Local Educators’ Ass’n, 37, 52 n.12

(1983)).

In Lehman, “Justice Douglas provided the fifth vote

for the outcome in a concurring opinion that focused heavily

on the issue of captive audiences.” NAACP, 834 F.3d at 448

n.6 (citing Lehman v. City of Shaker Heights, 418 U.S. 298,

308 (1974) (Douglas, J., concurring in judgment)). At least

part of COLTS’s forum clearly implicates Justice Douglas’s

concern. (See, e.g., id. at 28 (“To be sure, the captive

audience concern does apply to part of COLTS’s forum (the

interior space).”).) “In asking us to force the system to accept

[its] message as a vindication of [its] constitutional rights,

[Freethought] overlooks the constitutional rights of the

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commuters. While [Freethought] clearly has a right to

express [its] views to those who wish to listen, [it] has no

right to force [its] message upon an audience incapable of

declining to receive it.” Lehman, 418 U.S. at 307 (Douglas,

J., concurring in judgment) (further noting that public transit

is practical necessity for many people).

The majority also admits that “COLTS argues with

some force that its blanket ban [on religious speech] serves

valid interests in appearing neutral.” (Id. at 31.) We have

recognized that “[t]he desire to avoid potentially disruptive

controversy and maintain the appearance of neutrality is

sufficient justification for excluding speakers from a [limited

forum].” Student Coalition for Peace v. Lower Merion Sch.

Dist. Bd. of Sch. Directors,. 776 F.2d 431, 437 (3d Cir. 1985)

(citing Lehman, 418 U.S. at 304). As the Ninth Circuit

explained in a decision upholding a transit system’s ban on

non-commercial bus advertising, “[t]he city’s interests in

protecting revenue and maintaining neutrality on political and

religious issues are especially strong.” Children of the

Rosary v. City of Phoenix, 154 F.3d 972, 979 (9th Cir. 1998).

“[I]n fact, Mr. Vacula testified that he wants the government

to remain neutral on matters of religion,” Ne. Pa. Freethought

Soc’y, 327 F. Supp. 3d at 782.

In conclusion, “reasonableness review imposes a light

burden” (id. (citing NAACP, 834 F.3d at 449)), and I believe

that COLTS meets this burden. At some points, the majority

seems to hold the transit agency to a higher burden, indicating

inter alia that it could exclude many controversial

advertisements through more targeted restrictions. See, e.g.,

NAACP, 834 F.3d at 441 (pointing out that reasonableness

review does not require narrow tailoring or absence of less

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restrictive alternatives). In any event, our sister circuits have

upheld similar speech restrictions in the public transit context.

See, e.g., Archdiocese of Wash., 897 F.3d at 329-31; Am.

Freedom Def. Initiative. 698 F.3d at 892-95; Ridley, 390 F.3d

at 93; Children of the Rosary, 154 F.3d at 978-79. In

Archdiocese of Washington, the D.C. Circuit persuasively

explained why the WMATA’s decision to ban advertisements

on the subject matter of religion was reasonable. “In 2015,

WMATA decided to avoid the divisiveness caused by certain

advertisements and specifically to avoid the inflamed

passions surrounding religion.” Archdiocese of Wash., 897

F.3d at 330. While WMATA actually received complaints

regarding prior controversial advertisements, COLTS

reasonably relied on reports of problems plaguing other

transit agencies (including WMATA) throughout the country

concerning controversial advertisements, such as

advertisements regarding the non-existence of God. Like

WMATA, “[COLTS’s] closure of its forum is reasonable in

light of its core purpose and experience.”5 Id.

III.

5

I also agree with the District Court that “COLTS

revised their 2011 Policy and, in the 2013 Policy, took away

COLTS’ unfettered discretion to refuse advertisements.” Ne.

Pa. Freethought Soc’y, 327 F. Supp. 3d at 784; see also, e.g.,

Archdiocese of Wash., 897 F.3d at 330 (upholding

WMATA’s policy because it articulated sensible basis for

distinguishing prohibited and permissible speech).

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For the foregoing reasons, I would affirm the final

judgment entered by the District Court in favor of COLTS

and against Freethought.

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