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

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-11787

____________________

YOUNG ISRAEL OF TAMPA, INC.,

Plaintiff-Appellee,

versus

HILLSBOROUGH AREA REGIONAL TRANSIT AUTHORITY,

Defendant-Appellant,

ADELEE LE GRAND, et al.,

Defendants.

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2 Opinion of the Court 22-11787

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 8:21-cv-00294-VMC-CPT

____________________

Before JORDAN, NEWSOM, Circuit Judges, and GRIMBERG, * District

Judge.

JORDAN, Circuit Judge:

The Hillsborough Area Regional Transit Authority has a

policy which prohibits placing, on its vehicles and property, adver-

tisements that “primarily promote a religious faith or religious or-

ganization.” Young Israel of Tampa, Inc., an Orthodox Jewish syn-

agogue, sued HART in federal court, alleging that its rejection of a

proposed Chanukah on Ice advertisement was unconstitutional.

The district court granted summary judgment in favor of

Young Israel on two grounds. First, HART’s policy violated the

Free Speech Clause of the First Amendment because it discrimi-

nated on the basis of viewpoint. Second, even if HART’s policy

was viewpoint neutral, it was unreasonable because it lacked ob-

jective and workable standards and its application and enforcement

were inconsistent and haphazard.

* The Honorable Steven D. Grimberg, United States District Judge for the

Northern District of Georgia, sitting by designation.

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22-11787 Opinion of the Court 3

Based on these rulings, the district court permanently en-

joined HART from rejecting any advertisement on the ground that

it primarily promotes a religious faith or religious organization.

The injunction covered not only HART’s current policy, but also

any future policies.

In its appeal, HART asks us to overturn the district court’s

summary judgment order and hold that its policy prohibiting ad-

vertisements that primarily promote a religious faith or religious

organization is a permissible content (i.e., subject-matter) regula-

tion of a nonpublic forum, and does not constitute improper view-

point discrimination. We decline to answer this question of first

impression—which has generated a small circuit split—because we

affirm the district court’s alternative ruling that HART’s policy,

even if viewpoint neutral, is unreasonable due to a lack of objective

and workable standards.

I

At summary judgment, we review the record in the light

most favorable to HART, and draw all reasonable inferences in its

favor. See Carrizosa v. Chiquita Brands Int’l, Inc., 47 F.4th 1278, 1328

(11th Cir. 2022). Having said that, the relevant facts in this case are

largely undisputed.

A

HART, a public transit agency, provides mass transportation

in the City of Tampa and Hillsborough County. For a fee, it places

advertisements on its vehicles and property. In 2013, HART

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4 Opinion of the Court 22-11787

adopted a policy prohibiting advertisements that “primarily pro-

mote a religious faith or religious organization.” The policy does

not define the word “religious” or the term “primarily promote.” 1

HART refuses to accept primarily religious advertisements

because of its “interests in ensuring safe and reliable transportation

services and operating in a manner that maintains demand of its

service to multi-cultural, multi-ethnic, and religiously diverse rid-

ership, without alienating any riders, potential riders, employees,

or advertisers.” HART’s policy is “intended to maintain a safe en-

vironment on its vehicles without unnecessary controversy, risks

of violence, or risks of vandalism while maintaining employee mo-

rale.” According to HART, religious advertisements could “be

deemed either controversial” or “create a bad experience for [its]

customers,” particularly “if somebody didn’t agree with [it] and . .

. they’re upset about it.” HART, however, admits that it does not

know “what would specifically upset customers on religious ads,”

and concedes that it has no record of disruptions, vandalism, or

threats of violence attributable to any advertisement. 2

1 The policy contains other content-based prohibitions, including bans on par-

tisan political advertisements and advertisements containing profanity, dis-

criminatory messages, or depicting violence. Those aspects of the policy are

not at issue here.

2 The record does reference at least one instance of some limited complaints

in 2013 when HART was considering running advertisements from the Coun-

cil on American-Islamic Relations Florida deemed the #MyJihad campaign

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Pursuant to its policy, HART has selected a contractor to

conduct an initial review of proposed advertisements. The con-

tractor is “responsible for the administration of the HART adver-

tising program consistent with HART’s adopted policies and guide-

lines.” If a dispute remains unresolved after the contractor has de-

termined that an advertisement is inconsistent with the advertising

policy, then an “appeal may be made to the CEO or [COO] of

HART or his/her designee for final resolution.” The “[a]pplication

of HART’s advertising guidelines are fact specific and analysis of a

permissible ad[vertisement], once brought to the CEO (or her de-

signee), is done on a fact-specific basis, with assistance from coun-

sel, when necessary.”

Significantly, HART acknowledges that “there is no specific

training or written guidance to interpret its . . . policy.” Laurie

Gage, an employee of HART’s advertising contractor, testified

that, outside of HART’s written policy itself, there are no guidance

documents, advisory opinions, or other materials available to help

her implement or interpret the policy. Ms. Gage has never re-

ceived any training on how to apply the policy, and she explained

that if there was ever any question or concern about whether an

advertisement was permissible under the policy, she would for-

ward the issue to HART.

and the CAIR-FL Diversity campaign. HART concedes that these limited com-

plaints did not amount to disruptions, incidents of vandalism, or threats of vi-

olence.

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Tyler Rowland, HART’s communication and creative ser-

vices manager and corporate representative, is responsible for re-

viewing proposed advertisements. Like Ms. Gage, he testified that

HART does not provide any guidance documents, advisory opin-

ions, or other materials to help interpret or apply the policy. He

also confirmed that HART does not provide training on the policy.

When determining whether an advertisement “primarily pro-

mot[es]” a religious faith or organization, he acts on a case-by-case

basis, depending on the advertisement’s “design and . . . messag-

ing.”

HART concedes that its policy allows “different people in

the same roles [to] have different methodologies.” Although

HART says that it is “not part of [its] practice” to review organiza-

tional websites to determine if an advertisement is primarily reli-

gious, Ms. Gage testified that she might review a religious organi-

zation’s website to determine if an advertisement is primarily reli-

gious depending on “[w]hat was going on with [her] day.” She ex-

plained that the application of the policy varies based on her under-

standing of the symbolism in an advertisement as religious. For in-

stance, an advertisement featuring an image of Jesus Christ would

result in her asking the organization whether it wanted to “pursue”

the matter further, because she knows that “Jesus Christ is associ-

ated with religion.” But if she “didn’t know that,” “then [she] prob-

ably wouldn’t have a conversation, and [she] would just submit

[the matter] to HART.”

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B

For more than 14 years, Young Israel has hosted a Chanukah

on Ice celebration, which it has historically promoted through ad-

vertising in Jewish media and on Facebook. Young Israel’s Chanu-

kah on Ice event begins with an hour of ice skating with Jewish

music playing and Jewish food available. Then the rabbi lights a

large ice menorah and offers blessings. Attendees sing Jewish songs

and the rabbi speaks about the Chanukah miracle—oil in the holy

temple, which was meant to last only one day, lasted eight days.

Chanukah on Ice is a “very big event” with “at least 200 people”

typically in attendance. The event is part of the synagogue’s out-

reach to the community and “offers a crucial opportunity to foster

Jewish identity during a season many associate with Christmas.”

In October of 2020, Young Israel sent HART a proposed ad-

vertisement for its Chanukah on Ice event at the Advent Health

Center Ice Rink, which is near the synagogue on a HART bus line.

The advertisement included—in addition to time, place, and con-

tact information—images of a menorah, a dreidel, and skaters, and

stated that the event would “featur[e] lighting of a sculpted Grand

Ice Menorah and ice skating to Jewish music around the flaming

menorah.” For the reader’s benefit, we reproduce the advertise-

ment here.

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Young Israel wanted the advertisement to run in the HART transit

system from late November through December.

Ms. Gage rejected Young Israel’s advertisement because

“HART does not allow religious affiliation advertising[.]” Young

Israel appealed, and HART’s CEO, communications manager, and

legal counsel met to discuss the rejection of the Chanukah on Ice

advertisement. They collectively concluded that, “[b]ased off . . .

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

tisement primarily focused on a “religious-based icon.” As a result,

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Young Israel’s advertisement violated HART’s prohibition on reli-

gious advertisements.

Mr. Rowland then sent an email to Young Israel with “sug-

gested edits.” Those edits consisted of removing the image of the

3

menorah and all uses of the word “menorah.”

Young Israel replied that HART’s proposed changes were

both “offensive and not possible to make” because “the lighting of

the menorah is a central aspect of the Orthodox Jewish celebration

of Chanukah.” Young Israel requested that HART approve its

“ad[vertisement] as originally designed.” But the following day,

HART formally refused to run the Chanukah on Ice advertisement.

HART said that its decision was “consistent with prior determina-

tions involving similar advertisement requests under th[e] policy.”

C

Young Israel responded to HART’s rejection of its advertise-

ment with a federal lawsuit. Its complaint asserted claims for vio-

lations of the Free Speech and Free Exercise Clauses of the First

Amendment, as well as claims for violations of the Due Process and

Equal Protection Clauses of the Fourteenth Amendment. Follow-

ing discovery, both parties moved for summary judgment.

Young Israel argued that it was entitled to summary judg-

ment because HART’s policy violated the First Amendment’s Free

Speech Clause in several ways. First, it discriminated on the basis

3 Mr. Rowland testified that if HART had known more about Judaism, it would

have proposed eliminating the dreidel as well.

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10 Opinion of the Court 22-11787

of viewpoint. Second, even if it was viewpoint-neutral, the policy

constituted an unreasonable content-based restriction. Third, it

was standardless and arbitrary. Young Israel also asserted that

HART’s policy violated the First Amendment’s Free Exercise

clause because it singled out religion for disfavored treatment.

HART, on the other hand, maintained that summary judg-

ment should be granted in its favor on all of Young Israel’s claims.

With respect to the claims based on the Free Speech Clause, HART

made several arguments. First, its property and vehicles were non-

public forums where speech could be reasonably restricted. Sec-

ond, its policy was a reasonable content-based restriction. Third,

its policy had not been arbitrarily or inconsistently applied.

The district court granted summary judgment in favor of

Young Israel. It held that HART’s advertising policy violated the

Free Speech Clause of the First Amendment, and found it unneces-

sary to address Young Israel’s other claims. See Young Israel of

Tampa, Inc. v. Hillsborough Area Regional Transit Auth., 582 F. Supp.

3d 1159 (M.D. Fla. 2022).

In the district court’s view, the policy discriminated on the

basis of viewpoint because HART allowed advertisements for a

secular holiday event with ice skating and seasonal food, but disal-

lowed an ice skating event with seasonal food that was in celebra-

tion of Chanukah. HART’s prohibition on advertisements that

“primarily promote a religious faith or organization” targeted the

“specific motivating ideology or the opinion or perspective of the

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22-11787 Opinion of the Court 11

speaker” because HART “expressly suggested edits to [Young Is-

rael’s] ad[vertisement] that removed all references to and images

of the menorah, which both parties agree[d] is considered a Jewish

religious symbol.” Id. at 1171. Those proposed edits suggested to

the district court that HART “impliedly would have allowed an ad-

vertisement of the exact same event if presented with secular sym-

bols or emphasizing a secular viewpoint, but it was not allowed if

presented with religious symbols or emphasizing a religious view-

point.” Id. (emphasis in original).

In reaching its conclusion that HART’s advertising policy

discriminated on the basis of viewpoint, the district court relied on

a trilogy of cases from the Supreme Court addressing viewpoint

discrimination with respect to religion. See id. at 1170–71 (citing

Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384,

386–90 (1993); Rosenberger v. Rector & Visitors of the Univ. of Va., 515

U.S. 819, 829 (1995); and Good News Club v. Milford Cent. Sch., 533

U.S. 98, 105–06 (2001)). The district court also discussed the con-

flicting opinions of the D.C. and Third Circuits applying the trilogy

of Supreme Court cases in the context of restrictions on religious

advertisements in public transit. See 582 F. Supp. 3d at 1170–72. 4

4 Compare Archdiocese of Wash. v. Wash. Metro. Area Transit Auth., 897 F.3d 314,

321–29 (D.C. Cir. 2018) (upholding a public transit authority policy banning

issue-oriented advertisements—including political, religious, and advocacy ad-

vertisements—against a challenge by a Catholic archdiocese because the pol-

icy regulated content, not viewpoint), with Ne. Pa. Freethought Soc’y v. Cty. of

Lackawanna Transit Sys., 938 F.3d 424, 432–37 (3d Cir. 2019) (reversing a judg-

ment in favor of a public transit system that had enacted a policy prohibiting

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The district court acknowledged that the parties disagreed

about whether it had to make a threshold forum analysis determi-

nation for the advertising space on HART’s vehicles and property.

But it was persuaded by the Third Circuit’s analysis that “‘no mat-

ter what kind of property is at issue, viewpoint discrimination is

out of bounds.’” Id. at 1168 (quoting Freethought, 938 F.3d at 432).

The district court also concluded that the Third Circuit’s approach

“better conforms to the prevailing Supreme Court caselaw on the

issue of religious viewpoint discrimination.” Id. at 1170. The dis-

trict court explained that Young Israel’s Chanukah on Ice event was

“a means of outreach to the community and an expression of Jew-

ish identity.” Id. at 1171. According to the district court, although

HART “disallowed this statement of organizational existence, iden-

tity, and outreach,” it “allowed outreach messages from Alcoholics

Anonymous (“Is Alcohol a Problem? Call Alcoholics Anony-

mous.”), the Ronald McDonald House Charities (“Joy Is One of the

Best Gifts You Can Give.”), and Florida Healthy Transitions

(“We’re here to help. You are not alone.”).” Id. Thus, the district

court concluded that HART’s advertising policy, both on its face

and as applied, violated Young Israel’s right to free speech under

the First Amendment. See id. at 1172.

Applying Minnesota Voters Alliance v. Mansky, 138 S. Ct. 1876

(2018), the district court alternatively held that even if HART’s ad-

religious messages because it constituted viewpoint discrimination in viola-

tion of the First Amendment).

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vertising policy was “viewpoint neutral,” it was unreasonable be-

cause it lacked workable norms. See 582 F. Supp. 3d at 1173. As-

suming that the prohibition on certain types of religious advertise-

ments served permissible ends, HART’s policy lacked objective,

workable standards. For example, the word “religious” was “una-

dorned and unexplained” in the policy and is a word that has a

“range of meanings and can be interpreted differently by different

people.” Id. The district court noted HART’s admission that, other

than the policy itself, “there [wa]s no additional written guidance

or training . . . on how to interpret” the policy. See id. The district

court also observed that HART conceded that “different people in

the same roles [could] have different methodologies for reviewing

submitted advertisements’ compliance” with the policy. See id. at

1174 (internal quotation marks omitted) (alteration in the original).

In the district court’s view, the summary judgment record estab-

lished that HART’s application and enforcement of its policy vio-

lated the First Amendment because it was “inconsistent and hap-

hazard.” Id. at 1175.

D

After entry of the summary judgment order, the parties sub-

mitted a proposed declaratory judgment and permanent injunction

as required by the district court. See D.E. 74. Young Israel and

HART agreed on the proposed language of the permanent injunc-

tion except with respect to the breadth of the injunction.

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The injunction language submitted by the parties, with

Young Israel’s requested additional language in bold, was as fol-

lows:

The Court therefore GRANTS Young Israel’s request

for a permanent injunction. HART, its agents and em-

ployees, and all those acting in concert with any of

them, are ENJOINED, on a permanent basis, from re-

jecting any advertisement on the ground that the ad-

vertisement primarily promotes a religious faith or re-

ligious organization or employs religious language,

imagery, or symbols, whether under Section 4(e) of

its Advertising Policy effective as of December 2,

2013, or otherwise.

Id. at 7–8 (emphasis added). Essentially, Young Israel requested the

additional language because it did not want the injunction limited

to HART’s current policy. HART, on the other hand, wanted the

injunction to apply only to the current policy.

After supplemental briefing and oral argument, the district

court resolved the dispute in Young Israel’s favor. The district

court enjoined HART “from rejecting any advertisement on the

ground that the advertisement primarily promotes a religious faith

or religious organization, whether under Section 4(e) of its Adver-

tising Policy effective as of December 2, 2013, or in any future adver-

tising policy that HART might adopt and implement.” D.E. 86 at 1–2

(emphasis added). According to the district court, its chosen lan-

guage was “tailored to fit the violation because it pertains directly

to the language of the Advertising Policy, which was the focus of

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[its] . . . summary judgment order” and it “takes into account the

possibility of future HART advertising policies.” Id. at 2.

After the district court entered its final judgment and perma-

nent injunction, HART appealed. We set the case for oral argu-

ment.

II

The district court’s grant of summary judgment in favor of

Young Israel is subject to de novo review. See Williams v. Radford,

64 F.4th 1185, 1188 (11th Cir. 2023). The same plenary standard

applies to the constitutionality of HART’s policy. See Benning v.

Comm’r, Georgia Dep’t of Corr., 71 F.4th 1324, 1328 (11th Cir. 2023).

III

HART seeks reversal on three grounds. First, it argues that

the district court erred in following the Third Circuit’s approach in

Freethought, 938 F.3d at 432–37, and in concluding that its policy

constituted impermissible viewpoint discrimination. Second, it as-

serts that its policy is reasonable under the Supreme Court’s deci-

sion in Mansky. Third, relying on the Fourth Circuit’s decision in

White Coat Waste Project v. Greater Richmond Transit Co., 35 F.4th

179 (4th Cir. 2022), it contends that the permanent injunction con-

stitutes an abuse of discretion because it applies to any future pol-

icy that might restrict advertising on religious faith or religious or-

ganization grounds.

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A

The First Amendment prohibits Congress from enacting any

law “abridging the freedom of speech.” See U.S. CONST. amend. I.

It applies to the states (and their political subdivisions) through the

Due Process Clause of the Fourteenth Amendment. See Edwards v.

South Carolina, 372 U.S. 229, 235 (1963) (“It has long been estab-

lished that [ ] First Amendment freedoms are protected by the

Fourteenth Amendment from invasion by the states.”).

HART says that this case “presents an interesting question

on balancing the competing interests of the First Amendment

against [its] right to regulate the content of its advertising in a non-

public forum.” Appellant’s Br. at 8. It urges us to follow the D.C.

and Fourth Circuits, both of which consider the type of forum at

issue before addressing the nature of the restriction, see, e.g.,

WAMATA, 897 F.3d at 321–29, and to reject the approach of the

Third Circuit in Freethought, 938 F.3d at 432–36, which examines

the question of viewpoint discrimination without first performing

a forum analysis. Although it takes a different position on the mer-

its, Young Israel also asks us to weigh in on this First Amendment

question and hold that HART’s policy discriminates on the basis of

viewpoint. See Appellee’s Br. at 23; Audio of Oral Arg. at 32:38.

We have not been asked to apply the Supreme Court’s tril-

ogy—Lamb’s Chapel, Rosenberger, and Good News—to a government

prohibition on advertisements that “primarily promote a religious

faith or religious organization.” But in a 2019 case involving a First

Amendment challenge to a state prohibition on prayers at high

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school football games, we stated that “[t]he first critical step in the

analysis is to discern the nature of the forum at issue.” Cambridge

Christian Sch., Inc. v. Fla. High Sch. Athl. Ass’n, Inc., 942 F.3d 1215,

1236 (11th Cir. 2019). If we addressed the forum/viewpoint dis-

crimination issue here—as the parties urge us to do—we would

have to consider not only the impact of our decision in Cambridge

Christian but also the different approaches taken by the D.C. and

Fourth Circuits on the one hand and by the Third Circuit on the

other. Compare, e.g., WMATA, 897 F.3d at 321–29, and White Coat,

35 F.4th at 196–98, with Freethought, 938 F.3d at 432–36.

To borrow language from a Supreme Court case, “we resist

the pulls to decide the constitutional issues involved [here] on a

broader basis than the record before us imperatively requires.”

Street v. New York, 394 U.S. 576, 581 (1969). The district court ruled

in the alternative that, even if HART’s advertising policy was view-

point neutral, it was constitutionally unreasonable because it

lacked objective and workable standards. As explained below, we

agree with the district court on this point, and that provides a suf-

ficient basis on which to affirm its judgment. See Harbourside Place,

LLC v. Town of Jupiter, Fla., 958 F.3d 1308, 1322 (11th Cir. 2020)

(“[T]his is a good opportunity for us to practice judicial minimal-

ism, and decide no more than what is necessary to resolve [the]

appeal.”).

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B

Though the analysis would not change one way or another,

we’ll assume, without deciding, that the HART vehicles and prop-

erty at issue here are nonpublic forums as opposed to limited public

forums. Even so, when the government restricts speech in nonpub-

lic forums, it “must avoid the haphazard and arbitrary enforcement

of speech restrictions in order for them to be upheld as reasonable.”

Cambridge Christian, 942 F.3d at 1243. Although a restriction need

not be narrowly tailored, the government must offer a “sensible

basis for distinguishing what may come in from what must stay

out.” Mansky, 138 S. Ct. at 1882.

In Mansky, the Supreme Court addressed a First Amend-

ment challenge to a Minnesota law banning voters from wearing

political apparel at polling places. See id. at 1883. The Court treated

polling places as nonpublic forums, and concluded that Minnesota

had pursued permissible ends because it could reasonably seek to

reinforce the solemnity of voting. See id. at 1887–88.

The Supreme Court then turned to whether Minnesota had

“draw[n] a reasonable line.” Id. at 1888. The Court held that Min-

nesota had not used reasonable means to implement its ends be-

cause the ban on political apparel was not “capable of reasoned ap-

plication.” Id. at 1892. Due to the ambiguity of the word “politi-

cal”—despite a list of examples Minnesota had provided—the

Court ruled that the ban on political apparel could not be objec-

tively applied. Indeed, the ban gave election judges at each polling

place too much discretion to decide what qualified as “political.”

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Id. at 1891. According to the Court, that discretion had to be

“guided by objective, workable standards.” Id. The Court held

that the ban violated the First Amendment, explaining that the

states “must employ a more discernible approach than the one

Minnesota offered [there].” Id.

We have not yet had an occasion to apply Mansky in the con-

text of advertising in a public transportation setting. We have held,

however, that a Christian school plausibly alleged that a state ban

on prayer over a loudspeaker at a high school football game was

applied arbitrarily and haphazardly in violation of Mansky. See Cam-

bridge Christian, 942 F.3d at 1243–44. Based on the allegations in

the complaint, the state’s decision to prohibit the prayer appeared

arbitrary, capricious, and haphazard because the prohibition was

enforced inconsistently—on at least four other occasions prayers

during football games had been allowed. See id. at 1246. We ex-

plained that “[p]ermitting certain speech on Monday, Tuesday,

Wednesday, and Thursday, and barring precisely the same mes-

sage on Friday without any credible explanation of what may have

changed is the essence of arbitrary, capricious, and haphazard—

and therefore unreasonable—decisionmaking.” Id. at 1244.

Several of our sister circuits have applied Mansky in the pub-

lic transportation/advertising context. Although their cases in-

volved restrictions on political rather than religious advertise-

ments, the decisions are consistent with our ruling in Cambridge

Christian. See White Coat, 35 F.4th at 199–201 (transit company’s

ban on “political” advertisements failed under Mansky because

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20 Opinion of the Court 22-11787

there was no formal definition of “political” and “no written guide-

lines clarifying how the standard is to be applied”); Am. Freedom Def.

Initiative v. Suburban Mobility Auth. for Reg’l Trans., 978 F.3d 481,

493–98 (6th Cir. 2020) (similar holding); Ctr. for Investigative Report-

ing v. Se. Pennsylvania Transp. Auth., 975 F.3d 300, 315–17 (3d Cir.

2020) (applying Mansky to invalidate a policy prohibiting advertise-

ments which were “political” or which expressed an “opinion, po-

sition, or viewpoint on matters of public debate about economic,

political, religious, historical or social issues”).

The district court here correctly applied Mansky. It properly

concluded that HART’s advertising policy is unreasonable because

it fails to define key terms, lacks any official guidance, and vests too

much discretion in those charged with its application.

HART’s policy prohibits “[a]dvertisements that primarily

promote a religious faith or religious organization,” but does not

define what is a “religious faith” or “religious organization.” D.E.

1-1 at 146. Although the policy defines certain terms, including

“commercial advertisement,” “governmental entity public service

announcements,” and “governmental entity,” id. at 144–145, “the

word ‘religious’ is unadorned and unexplained[.]” Young Israel, 582

F. Supp. 3d at 1173.

The word “religious” here, like the word “political” in Man-

sky, has a range of meanings. “Religious,” for example, is defined

as “[h]aving or showing belief in and reverence for God or a deity,”

as well as “[o]f, concerned with, or teaching religion.” The Amer-

ican Heritage Dictionary of the English Language 1474 (4th ed.

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22-11787 Opinion of the Court 21

2009). See also id. (defining “religion” as a “[b]elief in and reverence

for a supernatural power or powers as creator and governor of the

universe”). Although the word “religious” is used as an adjective in

the policy to modify “faith” and “organization,” the lack of any def-

inition whatsoever is constitutionally problematic.

In addition, the term “primarily promote” is also left unde-

fined in the policy. Although the word “primarily” may not gener-

ally be difficult to understand on its own, see In re Stewart, 175 F.3d

796, 808 (10th Cir. 1999) (defining the word as meaning “for the

most part” or “more than fifty percent”), here it modifies the word

“promote” for purposes of a “religious faith” or “religious organi-

zation.” Does “primarily promote” equate to proselytization? If it

can be something less, how much less? We are left to guess. As

the Supreme Court said when faced with similarly expansive lan-

guage, we simply do not know the reach, or limits, of the term

“primarily promote” in this context. See Rosenberger, 515 U.S. at 836

(“The prohibition on funding on behalf of publications that ‘pri-

marily promot[e] or manifes[t] a particular belie[f] in or about a de-

ity or an ultimate reality,’ in its ordinary and commonsense mean-

ing, has a vast potential reach.”).

Given the inherent ambiguity of the word “religious,” the

uncertainty and potential breadth of the term “primarily promote,”

and the lack of any definitions, we agree with the district court that

the policy fails to provide any objective or workable standards.

The policy therefore fails under Mansky. See Am. Freedom Def. Initi-

ative, 978 F.3d at 494 (“SMART cannot rely on its Advertising

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22 Opinion of the Court 22-11787

Guidelines’ unadorned use of the word ‘political’ to create worka-

ble standards by itself. The word has a range of meanings.”). Cf.

WMATA, 897 F.3d at 340 (Wilkins, J., concurring) (“Guideline 12 is

. . . readily distinguishable from the [law] struck down in Mansky.

WMATA’s prohibition on advertisements that ‘promote or oppose

any religion, religious practice or belief,’ is narrower and more pre-

cise than simply a general ban on ‘religious’ or ‘political’ speech.”).

HART’s policy is also completely devoid of “any official

guidance to create workable standards.” Am. Freedom Def. Initiative,

978 F.3d at 495. As the district court aptly noted, “HART admits

that, outside of the [p]olicy itself, there is no additional written

guidance or training given by HART on how to interpret the [p]ol-

icy.” Young Israel, 582 F. Supp. 3d at 1173.

This lack of guidance, as the district court explained, has

caused inconsistency in how HART’s agents and employees define

and interpret the policy. For example, Ms. Gage testified that she

would forward to HART for approval an advertisement containing

Easter eggs because it was “possible” that there is a secular compo-

nent to Easter. See D.E. 60-6 at 80. But, according to Ms. Gage, if

an advertisement said “Easter,” that would “maybe” necessitate a

conversation with the advertiser. See id. at 81.

As a result, the policy vests too much unchecked discretion

in HART’s agents and employees. Indeed, HART concedes that

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

ologies” for reviewing submitted advertisements’ compliance with

the policy. See D.E. 60-8 at 96. Such ad hoc decision-making is far

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22-11787 Opinion of the Court 23

from the “objective, workable standards” that must guide the dis-

cretion of those who enforce HART’s policy. See Mansky, 138 S.

Ct. at 1891.

Take Mr. Rowland’s view on how the policy operates. For

Mr. Rowland, an advertisement promoting the reading of the Bible

would be prohibited, while an advertisement touting the Book of

Mormon would be fine because he does not know what that is and

to him it would be “an ad about selling a book.” D.E. 60-8 at 33.

The Book of Mormon is, of course, a volume of sacred scripture

for members of the Church of Jesus Christ of Latter-Day Saints.

And one would think that it would (and should) be treated like the

Bible under Mr. Rowland’s view, but that does not seem to be the

case. To make matters more difficult for someone like Mr. Row-

land, The Book of Mormon is also the name of a musical parody which

premiered on Broadway in 2011. See Trey Parker, Matt Stone, and

Robert Lopez, The Book of Mormon (2011). If The Book of Mormon

had a two-week run in Tampa, it is unclear to us whether HART

would run or prohibit an advertisement promoting the musical.

That is a big problem under Mansky.

The concern about inconsistent application of the policy is

not conjectural. As the district court explained, see Young Israel, 582

F. Supp. 3d at 1175, HART rejected an advertisement from St. Jo-

seph’s Hospital based on information that the Hospital was

“[f]ounded as a mission by the Franciscan Sisters of Allegany,” but

said it would accept the advertisement if the Hospital used the

name of its parent company, Baycare. See D.E. 60-38. Yet HART

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24 Opinion of the Court 22-11787

ran advertisements from St. Leo University—the oldest Catholic

institution of higher education in Florida (established in 1889 by the

Order of Saint Benedict of Florida)—without any changes because

St. Leo is an “institution of higher learning, not a religious organi-

zation.” D.E. 60-18; D.E. 60-37. By that logic, why wasn’t St. Jo-

seph’s Hospital considered a medical institution rather than a reli-

gious organization?

HART’s erratic application of its policy mirrors the prob-

lems identified by the Supreme Court in Mansky, 138 S. Ct. at 1891,

and demonstrates that it is not capable of reasoned application.

HART’s reference to some undefined abstract guidance that might

have been (but was not) provided is insufficient to establish reason-

ableness. “We cannot infer the reasonableness of a regulation from

a vacant record.” Cambridge Christian, 942 F.3d at 1246 (internal

quotation marks and citation omitted).

In sum, HART has failed to define the word “religious” and

the term “primarily promote,” has not provided guidance that sets

out “objective, workable standards” for its agents and employees,

and has vested too much discretion in those who apply the policy.

These deficiencies are fatal. See Mansky, 138 S. Ct. at 1891. Assum-

ing without deciding that a prohibition on certain types of religious

advertisements may serve permissible ends, HART has failed to

create the necessary standards for “reasoned application” of its pol-

icy. See id. at 1891–92.

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22-11787 Opinion of the Court 25

C

HART concedes that its advertisement policy is not reason-

able as applied to Young Israel, but maintains that it is reasonable

on its face. See Appellant’s Br. at 31 n.1. HART argues that its pol-

icy is “capable of reasonable application” and “[w]ith well-defined

guidance on exactly ‘what can come in the forum and what must

stay out’ [the] policy is certainly capable of reasonable application.”

Appellant’s Reply Br. at 15–16. HART thus contends that the dis-

trict court erred in ruling that its policy was unconstitutional on its

face under Mansky.

At one level, we understand where HART is coming from.

After all, the Supreme Court has sometimes said that a successful

facial challenge requires a showing that the law in question is un-

constitutional in all of its applications. See, e.g., United States v. Sa-

lerno, 481 U.S. 739, 745 (1987). And it has stated that a “plaintiff

who engages in some conduct that is clearly proscribed cannot

complain of the vagueness of the law as applied to the conduct of

others.” Holder v. Humanitarian Law Project, 561 U.S. 1, 18–19 (2010)

(internal quotation marks and citation omitted). See also Village of

Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 497

(1982) (‘To succeed [on a facial vagueness challenge] the complain-

ant must demonstrate that the law is impermissibly vague in all of

its applications.”).

In terms of Mansky reasonableness we can imagine a reli-

gious advertisement which clearly falls within the ban in HART’s

policy—think of an advertisement for a well-known faith which

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26 Opinion of the Court 22-11787

singularly declares that it is the only true religion and urges readers

to become believers (“___ism is the only way to salvation, so come

worship at ______ and convert now before it is too late”). Such an

advertisement would “primarily promote” a “religious faith” and

would not be vague as applied. 5

The problem for HART is that in its more recent cases the

Supreme Court has cut back on the broad statement in Salerno, at

least when vagueness is the constitutional vice. See, e.g., Sessions v.

Dimaya, 138 S. Ct. 1204, 1212, 1218–23 (2018) (civil immigration

statute providing for removal); Johnson v. United States, 576 U.S. 591,

602–03 (2015) (criminal sentencing statute). At the end of the day,

we are not persuaded by HART’s argument that the policy is un-

constitutional only as applied to Young Israel.

First, the reasonableness holding in Mansky concerned the

facial validity of the Minnesota statute, as the as-applied claim in

the case was not before the Supreme Court. See Mansky, 138 S. Ct.

at 1885 (“MVA, Cilek, and Jeffers . . . petitioned for review of their

facial First Amendment claim only.”). No wonder, then, that our

sister circuits treat Mansky reasonableness challenges as facial. See

Ostrewich v. Tatum, 72 F.4th 94, 105–06 (5th Cir. 2023); White Coat,

5 We mean only that this hypothetical advertisement would be prohibited by

HART’s policy. We express no view on whether such a prohibition would be

constitutional.

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22-11787 Opinion of the Court 27

35 F.4th at 204; Zukerman v. U.S. Postal Serv., 961 F.3d 431, 436 (D.C.

Cir. 2020). We do the same here. 6

Second, as a logical matter, a law (or, as here, a policy) found

to be constitutionally unreasonable under Mansky due to lack of

standards and guidance is by definition facially invalid. See Kolender

v. Lawson, 461 U.S. 352, 361 (1983) (“We conclude [that the statute]

is unconstitutionally vague on its face because it encourages arbi-

trary enforcement by failing to describe with sufficient particularity

what a suspect must do in order to satisfy the statute.”); City of

Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 757 (1988) (the First

Amendment problem of placing “unbridled discretion” in the

hands of government officials “can be effectively alleviated only

through a facial challenge”). Our “conclusion that [HART’s] policy

is incapable of reasoned application does not depend on [Young Is-

rael’s] identity or the advertisement it wished to run; it depends on

the vagueness and imprecision of [HART’s] policy in a vacuum, so

the policy is facially unconstitutional.” White Coat, 35 F.4th at 204.

IV

The distinction between facial and as-applied challenges,

though sometimes difficult to discern, generally “goes to the

breadth of the remedy.” Citizens Utd. v. Fed. Election Comm’n, 558

6 Some have suggested that the “animating logic” of Mansky comes from a line

of vagueness cases concerned with “arbitrary enforcement,” even though the

Supreme Court did not mention the vagueness doctrine by name. See Note,

The Supreme Court 2017 Term—Minnesota Voters Alliance v. Mansky, 132 Harv. L.

Rev. 337, 344–46 (2018).

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28 Opinion of the Court 22-11787

U.S. 310, 331 (2010). So we turn to the scope of the permanent

injunction.

To obtain a permanent injunction, a plaintiff must show (1)

that he has suffered an irreparable injury; (2) that his remedies at

law are inadequate; (3) that the balance of hardships weighs in his

favor; and (4) that a permanent injunction would not disserve the

public interest. See eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388,

391 (2006). The district court here did not err in issuing a perma-

nent injunction. See Six Star Holdings, LLC v. City of Milwaukee, 821

F.3d 795, 803 (7th Cir. 2016) (“[A] facial challenge usually invites

prospective relief, such as an injunction[.]”). Indeed, no one dis-

putes that a permanent injunction was appropriate. The parties’

disagreement is about whether the injunction should be limited to

HART’s current policy (HART’s position) or should encompass any

future policies prohibiting advertisements that “primarily promote

a religious faith or religious organization” (Young Israel’s position).

Given its ruling that the policy constituted impermissible

viewpoint discrimination, we can see why the district court crafted

the permanent injunction the way that it did. But our affirmance

on Mansky reasonableness grounds—the district court’s alternative

and more narrow ruling—changes the calculus for the breadth of

the injunction.

A permanent injunction “must be tailored to fit the nature

and extent of the established [constitutional] violation.” Gibson v.

Firestone, 741 F.2d 1268, 1273 (11th Cir. 1984). In other words, the

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22-11787 Opinion of the Court 29

injunction “must be no broader than necessary to remedy the con-

stitutional violation.” Newman v. Ala., 683 F.2d 1312, 1319 (11th Cir.

1982). See also Richard H. Fallon, Jr., Fact and Fiction About Facial

Challenges, 99 Cal. L. Rev. 915, 923 n.31 (2011) (“When a court pro-

nounces a statute facially invalid, the force of its holding inheres

entirely in the doctrines of claim preclusion, issue preclusion, and

precedent as well as in the scope of any injunction that the court

issues to enforce its judgment.”).

We have declined to address whether HART’s policy consti-

tutes impermissible viewpoint discrimination, and have held only

that the policy is unreasonable under Mansky. Our ruling “means

that there is no circumstance in which this particular ban on [reli-

gious] advertising could ever be lawful,” White Coat, 35 F.4th at 204,

but it does not constitute a holding that any future variation of the

policy—no matter how phrased and regardless of how words and

terms might be defined and what guidance might be provided—

would necessarily be unconstitutional. See Ctr. for Investigative Re-

porting, 975 F.3d at 317–18 (holding that certain provisions of a pub-

lic transportation authority’s advertising standards were unreason-

able under Mansky and instructing the district court to issue an in-

junction “barring enforcement” of the challenged provisions of the

“current” advertising standards).

Given our more narrow resolution of the case, the perma-

nent injunction needs to be revised to apply only to HART’s cur-

rent policy. As we have done in similar cases, we will remand the

case to the district court for that purpose. See Barrett v. Walker Cnty.

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30 Opinion of the Court 22-11787

Sch. Dist., 872 F.3d 1209, 1230 (11th Cir. 2017) (“The district court

did not abuse its discretion in granting a permanent injunction. But

because we affirm the district court’s entry of summary judgment

with respect to only the facial unbridled discretion claim, the dis-

trict court must alter the scope of the injunction on remand so that

the injunction remedies only the harm created by the unconstitu-

tional grant of unbridled discretion that we have previously dis-

cussed.”). See also Wollschlaeger v. Governor, Fla., 848 F.3d 1293, 1319

(11th Cir. 2017) (en banc) (“The record-keeping, inquiry, and anti-

harassment provisions of FOPA violate the First Amendment, but

the anti-discrimination provision, as construed, does not. The dis-

trict court’s judgment is affirmed in part and reversed in part, and

the case is remanded so that the judgment and permanent injunc-

tion can be amended in accordance with this opinion.”).

V

We affirm the district court’s order granting summary judg-

ment in favor of Young Israel on the ground that HART’s advertis-

ing policy was unreasonable under Mansky. We remand the case

to the district court to limit the scope of its permanent injunction

to HART’s current policy.

AFFIRMED AS TO THE GRANT OF SUMMARY JUDGMENT AND

REMANDED FOR PURPOSES OF REVISING THE PERMANENT

INJUNCTION.

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1 Newsom, J., Concurring 22-11787

NEWSOM, Circuit Judge, Concurring:

This is an easy case. Lurking just beneath the surface,

though, is an almost unfathomable mystery that underlies—but if

taken seriously, would seem to undermine—existing First Amend-

ment doctrine as applied to regulations of “religious” speech:

What, exactly, is religion?

I

First, though, the easy part: HART’s policy, which prohibits

advertisements that “primarily promote a religious faith or organi-

zation,” violates the Free Speech Clause for at least two independ-

ent reasons. First, as the majority holds, the policy “fails to define”

or provide any “official guidance” regarding key terms—most no-

tably, “religious”—and thus “vests too much discretion in those

charged with its application.” Maj. Op. at 20. Accordingly, the pol-

icy violates the settled rule that speech restrictions—even those op-

erative in non-public and limited public fora—must be “capable of

reasoned application” and “guided by objective, workable stand-

ards.” Minnesota Voters All. v. Mansky, 138 S. Ct. 1876, 1891–92

(2018).

Second, and separately, HART’s policy is self-evidently—in

fact, bunglingly—viewpoint-discriminatory. By its plain terms, the

policy doesn’t just prohibit speech “about” religion, it singles out

speech that “promotes” religion. And to be clear, the lopsidedness

of the policy’s religious-speech restriction isn’t just patent, it’s con-

spicuous: Other provisions of HART’s advertising policy, for exam-

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2 Newsom, J., Concurring 22-11787

ple, neutrally prohibit advertising “containing profane language, ob-

scene materials or images of nudity,” Hillsborough Transit Author-

ity Policy Manual § 810.10(4)(b), Doc. 1-1 at 145 (emphasis added),

or advertising that “contain[s] discriminatory materials and/or mes-

sages,” id. § 810.10(4)(c) (emphasis added). Whatever the constitu-

tionality of those provisions, a speech restriction that prohibits only

the “promot[ion]” of a religious faith or organization constitutes

viewpoint discrimination, plain and simple.

II

Now for the hard part. Underlying both issues that I’ve

flagged is a question that, I fear, neither policymakers nor judges

are particularly well-equipped to answer: What is religion? Let me

explain.

A

Consider first what I’ll call the “Mansky issue”: As already

explained, today’s majority correctly holds that HART’s policy vio-

lates the First Amendment because it fails to define or explain the

phrase “religious faith or organization” or otherwise guide officials’

discretion in applying it. See Maj. Op. at 18–24. And again, I agree.

It seems to me, though, that an even more fundamental problem

looms. I’m not sure that any religious-speech restriction could sur-

vive a reasonableness inquiry under Mansky—because I’m not sure

that any policymaker could define or identify “religious” speech us-

ing “objective, workable standards.” 138 S. Ct. at 1891.

The majority opinion says that the word “religious” has a

“range of meanings.” Maj. Op. at 20. That’s true, but colossally

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21-12106 Newsom, J., Concurring 3

understated. Closer to the mark, I think, is the majority opinion’s

recognition that the term “religious” is “inherent[ly] ambigu[ous].”

Id. at 21. Pretty much any criterion one can imagine will exclude

faith or thought systems that most have traditionally regarded as

religious. Consider, for instance, one definition of “religious” that

the majority opinion posits: “‘[h]aving or showing belief in and rev-

erence for God or a deity.’” Id. at 20–21 (quoting The American

Heritage Dictionary of the English Language 1474 (4th ed. 2006)).

That, as I understand things, would eliminate many Buddhists and

Jains, among others. Or another: “‘[b]elief in and reverence for a

supernatural power or powers as creator and governor of the uni-

verse.’” Id. at 21 (quoting the same source’s definition of “reli-

gion”). Again, I could be wrong, but I think many Deists and Uni-

tarian Universalists would resist that explanation. And so it goes

with other defining characteristics one might propose. Belief in the

afterlife? I’m pretty sure that would knock out some Taoists, and

presumably others, as well. Existence of a sacred text? My research

suggests that at least in Japan, Shintoism has no official scripture.

Existence of an organized “church” with a hierarchical structure?

Neither Hindus nor many indigenous sects have one. Adherence

to ritual? Quakers don’t. Existence of sacraments or creeds? Many

evangelical Christians resist them. A focus on evangelization or

proselytizing? So far as I understand, Jews typically don’t actively

seek to convert non-believers.

Relatedly, what truly distinguishes “religious” speech from

speech pertaining to other life-ordering perspectives? Where does

the “religious” leave off and, say, the philosophical pick up? Is

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4 Newsom, J., Concurring 22-11787

Randian Objectivism “religious”? See Albert Ellis, Is Objectivism a

Religion? (1968). My gut says no, but why? How about “Social

Justice Fundamentalism”? See Tim Urban, What’s Our Problem?: A

Self-Help Book for Societies (2023). Same instinct, same caveat. Sci-

entology? TM? Humanism? Transhumanism? You get the picture.

Bottom line: No matter how hard they try—no matter how

many definitions they supply, and no matter how much guidance

they provide—I’m doubtful that policymakers can define “reli-

gious” speech in a sufficiently principled and comprehensive way

to satisfy Mansky. “What is religion?” just isn’t a question that they

are particularly well-suited to answer. 1 Cf. Kondrat’yev v. City of Pen-

sacola, 949 F.3d 1319, 1336 (11th Cir. 2020) (Newsom, J., concurring)

(“[C]an it really be that I—as a judge trained in the law rather than,

say, neurology, philosophy, or theology, am charged with distin-

guishing between ‘psychological’ injury, on the one hand, and ‘met-

aphysical’ and ‘spiritual’ injury, on the other?”).

1 Notably, this is the very inquiry that free-exercise jurisprudence eschews. See

Watts v. Florida Int’l Univ., 495 F.3d 1289, 1296–97 (11th Cir. 2007) (“We need

not delve far into philosophy, however, because the Supreme Court has at

least twice instructed us not to engage in any ‘objective’ test of whether a par-

ticular belief is a religious one.”) (citing Thomas v. Review Bd. of the Ind. Emp.

Sec. Div., 450 U.S. 707 (1981), and United States v. Seeger, 380 U.S. 163 (1965));

see also Employment Div., Dep’t of Hum. Res. of Oregon v. Smith, 494 U.S. 872, 887

(1990) (quoting Hernandez v. C.I.R., 490 U.S. 680, 699 (1989) (“[I]t is not within

the judicial ken to question the centrality of particular beliefs or practices to a

faith, or the validity of particular litigants’ interpretations of those creeds.”).

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21-12106 Newsom, J., Concurring 5

B

Separately, the parties here vigorously dispute whether

transit advertising policies that (like HART’s) restrict “religious”

speech regulate on the basis of content or viewpoint. See Br. of Ap-

pellant at 29–31; Br. of Appellee at 23–27. And it’s understandable

why that’s such a flashpoint: The categorization matters given the

standards that apply to speech in the various First Amendment

“fora.” Reasonable content-based distinctions are permissible, for

instance, in both limited public and non-public fora. See Cornelius

v. NAACP Legal Def. and Educ. Fund, Inc., 473 U.S. 788, 806 (1985)

(non-public fora); Keister v. Bell, 29 F.4th 1239, 1252 (11th Cir. 2022)

(limited public fora). But “‘viewpoint discrimination’ is forbidden”

no matter the forum classification. Matal v. Tam, 582 U.S. 218, 243

(2017); see also Cook v. Gwinnett Cnty. Sch. Dist., 414 F.3d 1313, 1321

(11th Cir. 2005) (observing that “even in a non-public forum,” the

law is “clearly established that the state cannot engage in viewpoint

discrimination”).

For its part, Young Israel insists that HART’s policy consti-

tutes impermissible viewpoint discrimination—and not just be-

cause (as already explained) it targets speech that “promotes” reli-

gion, but rather, and more broadly, because any restriction on reli-

gious speech is, ipso facto, viewpoint-discriminatory. See Br. of Ap-

pellee at 23 et seq. And under existing free-speech precedent, I think

Young Israel may well be right about that. It points to what it calls

a “trilogy” of Supreme Court decisions that invalidated educa-

tional institutions’ policies that specifically forbade the use of

school facilities or resources for “religious” purposes. See Lamb’s

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6 Newsom, J., Concurring 22-11787

Chapel v. Center of Moriches Union Free Sch. Dist., 508 U.S. 384, 387

(1993); Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S.

819, 831–32 (1995); Good News Club v. Milford Cent. Sch., 533 U.S. 98,

109, 120 (2001). Young Israel particularly emphasizes the following

passage from the opinion in Rosenberger, zeroing in on the last sen-

tence:

It is, in a sense, something of an understatement to

speak of religious thought and discussion as just a

viewpoint, as distinct from a comprehensive body of

thought. The nature of our origins and destiny and

their dependence upon the existence of a divine being

have been subjects of philosophic inquiry throughout

human history. We conclude, nonetheless, that here

. . . viewpoint discrimination is the proper way to in-

terpret the University’s objections to [a student-run

religious magazine]. By the very terms of [its] prohi-

bition, the University does not exclude religion as a

subject matter but selects for disfavored treatment

those student journalistic efforts with religious edito-

rial viewpoints. Religion may be a vast area of inquiry,

but it also provides . . . a specific premise, a perspective, a

standpoint from which a variety of subjects may be dis-

cussed and considered.

515 U.S. at 831 (emphasis added).

That passage, Young Israel says—and, again, especially the

concluding sentence—indicates the Supreme Court’s verdict that

“religion” is a distinct viewpoint and, it follows, that any restriction

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21-12106 Newsom, J., Concurring 7

on “religious” speech constitutes impermissible viewpoint discrim-

ination.

I tend to think that Young Israel has correctly read Rosen-

berger, and the “trilogy” more generally. Although the Rosenberger

Court nodded at the possibility that religion might be a general

“subject matter,” it certainly seemed to land on a narrower, more

specific view. And Good News Club, decided several years later, like-

wise described religion as “the viewpoint from which ideas are con-

veyed.” 533 U.S. at 112 n.4 (emphasis added). Notably, others have

since interpreted the trilogy the same way, including in cases re-

markably similar to this one. See, e.g., Northeastern Pennsylvania

Freethought Soc’y v. County of Lackawanna Transit Sys., 938 F.3d 424,

437 (3d Cir. 2019) (invalidating a transit-system policy prohibiting

“religious” ads and emphasizing that “[r]eligion is not only a sub-

ject” but “a worldview through which believers see countless is-

sues”). 2

2 In Archdiocese of Wash. v. Washington Metro. Area Transit Auth., the D.C. Circuit

read the trilogy differently and held that a similar restriction on “religious” ads

regulated only content, not viewpoint. See 897 F.3d 314 (D.C. Cir. 2018). The

Supreme Court’s denial of certiorari drew a sharp dissent. See Archdiocese of

Wash. v. Washington Metro. Area Transit Auth., 140 S. Ct. 1198, 1199 (2020) (Gor-

such, J., dissenting from the denial of certiorari) (“[WMATA’s religious speech

ban] is viewpoint discrimination by a governmental entity and a violation of

the First Amendment. In fact, this Court has already rejected no-religious-

speech policies materially identical to WMATA’s on no fewer than three occa-

sions over the last three decades.” (citing Good News Club, 533 U.S. at 98; Ros-

enberger, 515 U.S. at 819; Lamb’s Chapel, 508 U.S. at 384)).

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8 Newsom, J., Concurring 22-11787

The upshot, it seems to me, is that the Supreme Court has

effectively merged content and viewpoint—at least for purposes of

religious speech. Religion, the Court appears to have said, is both

(and simultaneously) a general, content-based category and a more

particular viewpoint. And the result of that move, I think, is to

render any formulation of a religious-speech restriction—whether

blanket or promotion-only—an exercise in unlawful viewpoint dis-

crimination.

I understand the impulse—the “distinction” between con-

tent and viewpoint, after all, “is not a precise one.” Rosenberger, 515

U.S. at 831. I’m skeptical, though, for two reasons. For starters, it’s

inconsistent with how the Supreme Court has treated other forms

of core First Amendment expression. Most notably, perhaps, the

Court has assiduously enforced the content-viewpoint distinction

with respect to political speech, despite the fact that it “occupies

the highest, most protected position” in the First Amendment hi-

erarchy. R.A.V. v. City of St. Paul, 505 U.S. 377, 422 (1992) (Stevens,

J., concurring); see also, e.g., Meyer v. Grant, 486 U.S. 414, 420, 426

(1988) (observing that “[c]ore political speech” is where “First

Amendment protection is ‘at its zenith’”). The Court has held, for

instance, that laws regulating political content are permissible in

non-public fora, while those regulating on the basis of political

viewpoint aren’t. See, e.g., Mansky, 138 S. Ct. at 1885–86; Greer v.

Spock, 424 U.S. 828, 831, 837–39 (1976). In fact—and somewhat

closer to home—the Court has specifically held that local transit

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21-12106 Newsom, J., Concurring 9

authorities can prohibit general “paid political advertising” in pub-

lic streetcars without violating the Free Speech Clause. See Lehman

v. City of Shaker Heights, 418 U.S. 298, 299, 304 (1974) (plurality).

More fundamentally, I’ll confess that I’m just not sure that

it’s accurate to characterize religion as “a specific premise, a per-

spective, a standpoint.” Rosenberger, 515 U.S. at 831. Perhaps it’s

just that I’m not sure what that means. Is the suggestion that there

is a single all-encompassing religious “premise, perspective, [or]

standpoint”? Or is “religion,” in the way the Supreme Court is us-

ing the term, a general umbrella-like descriptor that houses multi-

ple sect-specific viewpoints? Or maybe the Court means to say that

a “religious” viewpoint can just be defined on a case-by-case basis

in contrast to some “secular” comparator? Any of these, I think, is

a fair reading of Rosenberger, but all, I fear, entail complications.

The religion-as-a-single-overarching-viewpoint reading may

be intuitive—we figure we know a “religious” viewpoint when we

see one—but I think it masks important nuance and complexity.

Can we really say, for instance, that there’s a single “religious” per-

spective about anything? The death penalty? Climate change? The

good life more generally? I’m doubtful.

What about the notion that “religion” is a category that

comprises various “religious” viewpoints? Maybe, but doesn’t that

just land us right back where we started? What qualifies a particu-

lar viewpoint as sufficiently “religious” that it’s entitled to protec-

tion as “religious speech” under the trilogy—supreme beings, af-

terlives, creeds, catechisms, etc.? See supra at 2–3. And relatedly—

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10 Newsom, J., Concurring 22-11787

I mean in a metaphysically inextricable sense—what is it about, say,

“philosophical” speech that disqualifies it from “religious” status

and the accompanying protection?

There’s one more possibility, I suppose: Maybe the Supreme

Court means that “religious” viewpoints can be identified on an ad

hoc basis vis-à-vis some “secular” comparator. So, for instance, in

Lamb’s Chapel, the Court held that a school district had impermissi-

bly discriminated on the basis of viewpoint when it opened its

premises for all “social, civic, or recreational purposes” but refused

to allow their use to screen a film that addressed “family issues and

child rearing” from a “religious perspective.” 508 U.S. at 391–94.

At first blush, that seems pretty straightforward. But I wonder

whether it’s too easy—and maybe even tautological? Does the

mere existence of a non-religious or irreligious alternative auto-

matically transform any regulation of religious content into a re-

striction of the “religious” viewpoint? If so, why doesn’t the same

logic hold in the political-speech context? Imagine a “content”-

based ban on political advertising on city buses—which, again,

would be permissible under existing doctrine. See Lehman, 418 U.S.

at 304. Couldn’t an advocacy group simply repackage its challenge,

complaining that the prohibition discriminates on the basis of

viewpoint because it permits ads about, say, gas prices from com-

mercial perspectives but not political ones?

However you slice it, I’m just not sure the religion-as-ipso-

facto-viewpoint approach holds up very well. I fear that it may

cause more confusion than it’s worth.

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21-12106 Newsom, J., Concurring 11

* * *

One last thing: Wouldn’t cases like this be better handled

under the Free Exercise Clause? At the very least, the analysis

seems pretty free-exercise-y to me. Justice Scalia made a similar

point in his concurring opinion in Good News Club. There, in the

course of agreeing with the Court’s free-speech-based disposition,

he said that he didn’t “suppose it matter[ed]” whether the re-

striction at issue was “characterized as viewpoint or subject-matter

discrimination.” Good News Club, 533 U.S. at 122 (Scalia, J., concur-

ring). The reason, he explained—conspicuously citing free-exercise

precedents—is that “excluding the Club’s speech . . . ‘because it’s

religious’ will not do.” Id. (citing Church of Lukumi Babalu Aye, Inc.

v. City of Hialeah, 508 U.S. 520, 532–33, 546 (1993); Employment Div.,

Dep’t of Hum. Res. of Ore. v. Smith, 494 U.S. 872, 877–78 (1990)). I

suspect that under modern free-exercise doctrine, litigants like

Young Israel will rack up the wins. But, if free-exercise logic is “do-

ing the work,” we might be better off just deciding the cases on

those grounds.

III

I’m not sure there’s an easy answer to any of this. In fact,

I’m pretty sure there isn’t. The difficulty, I think, is inherent in the

nature of religion—and particularly in using “religion,” or “reli-

gious”-ness, as a constitutional measuring stick. We use those

terms daily, and I think it’s probably fair to say that we have a rough-

and-ready sense of what they entail. But as is so often the case, the

devil (or in this case the deity) is in the details. And the deeper one

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12 Newsom, J., Concurring 22-11787

probes, the harder it becomes to settle on a precise, necessary-and-

sufficient definition of “religion,” and thus of “religious” speech.

Truth is, there is no one defining characteristic of “religion”; there

are arguably—and a thoroughly argued—many. Accordingly, the

lines separating “religious” from philosophical and even political

traditions (and expression) are hazy at best. At the end of the day,

I fear that the terms “religion” and “religious” are exactly as the

majority describes them, “inherent[ly] ambigu[ous],” Maj. Op. at

21, and thus particularly precarious foundations on which to build

free-speech doctrine.

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1 Grimberg, J., Concurring 22-11787

GRIMBERG, District Judge, Concurring:

I join Parts I, II, III.B, and III.C of the Court’s opinion. I write

separately because I would have gone farther. In my view, our anal-

ysis should not have stopped at the obvious Mansky violation if

HART’s policy is incapable of ever being applied constitutionally. It

cannot be. The policy’s inability to be applied reasonably should

not inoculate it from its more severe and incurable constitutional

flaw. By constructing a policy that is so clearly and completely in-

capable of reasonable application, HART has successfully evaded a

ruling on the viewpoint-versus-subject-matter dispute that is at the

heart of this case. And that evaded ruling, in my view, has long

been settled by the Supreme Court’s “trilogy” of cases: Lamb’s

Chapel v. Center of Moriches Union Free School District, 508 U.S. 384,

387 (1993), Rosenberger v. Rector & Visitors of University of Virginia,

515 U.S. 819, 831–32 (1995), and Good News Club v. Milford Central

School, 533 U.S. 98, 109, 120 (2001). Even if HART drafted a policy

in theoretically perfect compliance with Mansky (although I share

Judge Newsom’s skepticism that this is even possible), I believe the

trilogy is fatal to HART’s religious ad prohibition.

A review of the trilogy cases is in order. In Lamb’s Chapel, a

school district allowed use of facilities for “social, civic, or recrea-

tional” purposes, but not “religious purposes.” On that basis, it de-

nied the use of its facilities to a church that wanted to show a film

series on family values and childrearing. The government argued

that the school’s ban was a permissible subject matter exclusion ra-

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2 Grimberg, J., Concurring 22-11787

ther than a denial based on viewpoint. The Supreme Court disa-

greed. According to the Court, the subjects—family values and

childrearing—were permissible, and the school therefore engaged

in viewpoint discrimination by excluding the church from address-

ing the topics from its Christian viewpoint.

Next came Rosenberger. There, the University of Virginia sub-

sidized the costs of some student publications but declined to fund

those that “primarily promot[ed] or manifest[ed] a particular be-

lie[f ] in or about a deity or an ultimate reality.” The Supreme Court

held that this constituted viewpoint discrimination since it pre-

cluded a religious perspective, or viewpoint, as to subjects that

could otherwise be discussed and considered from a secular per-

spective. The Court noted that “religion may be a vast area of in-

quiry, but it also provides…a specific premise, a perspective, a

standpoint from which a variety of subjects may be discussed and

considered.” Id. at 831.

Finally, in Good News Club, a local Christian organization ap-

plied for use of a school cafeteria, a space open for community use,

to hold the group’s weekly afterschool meetings. But, the school’s

community use policy, which foreclosed use “by any individual or

organization for religious purposes,” barred the group’s request.

The Supreme Court held that this constituted impermissible view-

point discrimination. The unconstitutional nature of the policy

was rooted in its acceptance of groups that would promote the

moral and character development of children, but its exclusion of

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21-12106 Grimberg, J., Concurring 3

the Club’s activities—which also promoted the moral and charac-

ter development of children—because they were religious in na-

ture. The Court held that “speech discussing otherwise permissible

subjects cannot be excluded from a limited public forum on the

ground that the subject is discussed from a religious viewpoint.”

533 U.S. at 112.

The trilogy cases have been applied to public transportation

systems at least twice—with opposing results. In Archdiocese of

Wash. v. Wash. Metro. Area Transit Auth., 897 F.3d 314 (D.C. Cir.

2018), the public transportation system (WMATA) rejected a pro-

posed advertisement from the Catholic Church bearing the silhou-

ette of three shepherds and sheep, along with the words “Find the

Perfect Gift” and a church website URL, based on a policy prohib-

iting religious advertisements. The D.C. Circuit determined that

the policy, materially identical to the policy before us today, did not

constitute unconstitutional viewpoint discrimination but rather an

appropriate subject matter prohibition. The Supreme Court denied

certiorari. 1 Justice Gorsuch, however, dissented from the denial of

cert, noting that in his view this case was wrongly decided under

the trilogy. While that statement of course bears no precedential

value, the logic is sound and deftly articulates my position in this

case. As Justice Gorsuch pointed out, “[n]o one dispute[d] that, if

Macy’s had sought to place the same advertisement with its own

website address, [WMATA] would have accepted the business

1 The full Court could not hear the case because then-Circuit Court Judge Ka-

vanaugh participated in the appellate decision.

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4 Grimberg, J., Concurring 22-11787

gladly. Indeed, WMATA admit[ted] that it views Christmas as hav-

ing ‘a secular half ’ and ‘a religious half,’ and it has shown no hesi-

tation in taking secular Christmas advertisements.” Archdiocese of

Washington v. Washington Metro. Area Transit Auth., 140 S. Ct. 1198,

1199 (2020). Where the same advertisement, with the same content is

welcomed when references to religion are removed and replaced

with secular ones, I see no way around concluding, based on the

trilogy, that the public transportation system engaged in unconsti-

tutional viewpoint discrimination. 2

That is precisely what happened in this case. When pre-

sented with Young Israel’s ad, HART suggested that it would run

the advertisement if Young Israel removed references in the ad to

Judaism—the menorah and the word Chanukah, for example.

HART essentially asked Young Israel to remove the religious angle

of the ad, but not otherwise change the content. What’s more,

HART previously had accepted ads for secular holiday events that

involved ice skating and seasonal décor. I read the trilogy of cases

as concluding that this is precisely what HART cannot do—permit

advertising on “a subject sure to inspire religious views”—holiday

events—“and then suppress those views” while allowing a secular

analogue. Archdiocese of Washington, 140 S. Ct. at 1200.

2 The other post-trilogy public transportation case is Ne. Pa. Freethought Soc’y

v. Cnty. of Lackawanna Transit Sys., 938 F.3d 424, 432–37 (3d Cir. 2019), where

the Third Circuit determined that the Lackawanna Transit System violated the

First Amendment when it enacted a policy with prohibitions on religious mes-

sages, finding that the policy and its application constituted religious view-

point discrimination.

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21-12106 Grimberg, J., Concurring 5

The majority opinion rightly notes that our circuit’s holding

in Cambridge Christian School, Inc. v. Florida High School. Athletic

Ass’n, 942 F.3d 1215 (11th Cir. 2019), must be considered in any

viewpoint discrimination analysis. Maj. Op. at 17–18. In Cambridge

Christian, a case decided on a motion to dismiss, the Florida High

School Athletic Association (FHSAA) rejected two Catholic

schools’ requests to read a prayer on the loudspeaker before a foot-

ball game. This Court determined that the FHSAA’s restriction was

content-based, not viewpoint-based, because the complaint was

clear “that the FHSAA relied on the nature of the proposed mes-

sage as a prayer when it decided not to grant the schools’ request....

The complaint [did] not allege, for instance, that Christian prayer

was prohibited but that Jewish or Muslim prayer would have been

allowed, which would present an obvious case of viewpoint dis-

crimination.” Id. at 1242. The Court explicitly did not rule out the

possibility of discovery revealing that the prayer prohibition was

discriminatory of a viewpoint if, for example, “a secular act of sol-

emnization or invocation of some sort would have been permitted

by the state at the outset of the game.” Id. at n.8. In other words,

if the content of the prayer could otherwise have been invoked for

a secular purpose, the schools would have a “strong” case that the

prohibition constituted viewpoint discrimination.

For this reason, I believe Cambridge Christian offers little guid-

ance for our purposes. We have far more facts presented here, at

the summary judgment stage, than the Cambridge Christian Court

had before it when ruling on the motion to dismiss. In fact, we have

precisely the facts that the Cambridge Christian Court indicated

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6 Grimberg, J., Concurring 22-11787

would make a strong case for viewpoint discrimination— specifi-

cally, a secular comparator. The facts and procedural posture of our

case cleave far closer to those in the trilogy cases. I see no material

difference between the facts in the trilogy cases and the facts here.

HART’s policy constitutes unconstitutional viewpoint discrimina-

tion, and there is no change in the way its policy is administered

and applied that can fix this fundamental constitutional flaw.

Of course, my position provides no solution to the legiti-

mate concerns posed in Judge Newsom’s concurrence about the

inherent difficulty of drawing a religious-based viewpoint/subject

matter distinction in the first instance. I share his skepticism that

there can ever be a coherent categorical determination that reli-

gious speech is ipso facto an expression of one’s viewpoint rather

than a subject matter. Even with respect to my position, I

acknowledge that the logical distinction is not precise—it matters

greatly how we define the scope of a policy and prohibition. For

example, in Lamb’s Chapel, the Court determined the subject mat-

ter to be “family issues/childrearing” and the viewpoint to be reli-

gious. However, it could just as easily have determined that the sub-

ject matter was “religious films” and gone the other way. Here,

HART’s position that the subject matter of Young Israel’s advertise-

ment was “Chanukah on Ice” is a reasonable one. The subject mat-

ter/viewpoint distinction can arguably be drawn in favor of either

party.

That said, the Supreme Court has drawn this line so that it

favors Young Israel in this case. Putting aside broader concerns

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21-12106 Grimberg, J., Concurring 7

about the nature of religion, to decide this case we must work with

and within current Free Speech doctrine and I believe the trilogy

answers the viewpoint/subject matter dispute here loudly and

clearly. So much so that I would have reached that question in the

majority opinion, as the district court did. Otherwise, and as it cur-

rently stands, HART can continue drafting viewpoint discrimina-

tory policies while also failing to reasonably apply them—perpetu-

ally evading review of the ultimate constitutional flaw.