Petition for Writ of Certiorari — Southeastern Pennsylvania Transportation Authority v. Christ's Bride Ministries, Inc.
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No.
\ Supreme Court, U.¢.
FILED
98 654 0CT 201998
IN THE
frarri¢ r - ‘
OFFiGe OF THE CiERK
Supreme Court of the United States
OCTOBER TERM, 1998
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION
AUTHORITY and TRANSPORTATION DISPLAYS, INC.,
Petitioners,
CHRIST’S BRIDE MINISTRIES, INC.,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
OF COUNSEL:
C. NEIL PETERSEN
Southeastern Pennsylvania
Transportation Authority
1234 Market Street
Philadelphia, PA 19107
TINA KOWALSKY HAUT
Transportation Displays, Inc.
275 Madison Avenue
New York, NY 10016
WILLIAM H. ROBERTS,
Counsel of Record
JORDANA COOPER
DANIEL H. WHEELER
BLANK ROME COMISKY
& MCCAULEY LLP
One Logan Square
Philadelphia, PA 19103
(215) 569-5500
DAVID RUDOVSKY
924 Cherry Street, Fifth Floor
Philadelphia, PA 19107
SETH KREIMER
3400 Chestnut Street
Philadeiphia, PA 19104
PACKARD PRESS® / APPELLATE DIVISION, 1617 JFK BOULEVARD, PHILA, PA. 19103 (215) 563-9000
at
APL IOP
QUESTIONS PRESENTED
In this case, involving a controversial paid advertisement
stating “WOMEN WHO CHOOSE ABORTION SUFFER
MORE & DEADLIER BREAST CANCER. information:
1-800-634-2224” sought to be posted within stations of a met-
ropolitan transit authority, petitioners Southeastern Pennsyl-
vania Transportation Authority (“SEPTA”) and Transporta-
tion Displays, Inc. (“TDI”), present the following questions:
1. Whether the decision below, handed down shortly
after this Court’s decision in Arkansas Educ. Television
Comm’n v. Forbes, 118 S.Ct. 1633 (Opinion filed May 18,
1998) (“Forbes”), without citation to or discussion of Forbes,
is inconsistent with the holding in Forbes that no government
intent to “designate” a public forum for First Amendment
purposes can be found where the government required prior
permission to access the forum and the approval process was
selective?
2. Whether, as the First, Third, and Seventh Circuits have
held, government property that is not a traditional public
forum (e.g., parks, streets, sidewalks) is to be deemed “desig-
nated” as a public forum, in the absence of specific guidelines
for its use, even where the government clearly reserves abso-
lute authority over content, thereby triggering strict First
Amendment scrutiny, or whether, as the Second and Ninth
Circuits have held, a government reservation of absolute
authority over content sufficiently evidences government
intent not to designate a public forum, thereby triggering the
more deferential standard applicable to a “non-public”
forum?
3. Whether, as the Third Circuit held below, the fact that
the government is acting in its role as proprietor of a commer-
cial venture (rather than as regulator of speech) has no impact
upon the level of scrutiny applicable to the government's
selection of messages based upon content, or whether, as the
Second and Seventh Circuits have held, the fact that the gov-
ernment is acting in its role as proprietor is “especially signifi-
cant” or at least “one factor” in determining the applicable
level of First Amendment scrutiny?
°
4. Whether the decision below is inconsistent with Corne-
lius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S.
788 (1985), and Forbes, in determining in the alternative that
in order to have acted “reasonably” even in a non-public
forum, prior to invoking its contractually reserved right to
decline to post a controversial advertisement claiming a link
between abortion and breast cancer, the transit authority was
required to provide an opportunity for the advertiser to rebut
information from the Assistant Secretary of Health in the
United States Department of Health and Human Services that
the advertisement was “unfortunately misleading” and
“unduly alarming” and did not “accurately reflect the weight
of the scientific literature?”
LIST OF CORPORATE AFFILIATES
Petitioner, Transportation Displays Inc., is a subsidiary of
TDI Worldwide, Inc., which is a subsidiary of Infinity Broad-
casting Corp., which is a subsidiary of CBS Corp.
iil
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ........cccccccscccccess i
LIST OF CORPORATE AFFILIATES............... iii
CE Wi Fes Fac dnes 00s dinceccesep wees 1
PE oe deidacd <u deccsvecscescodasenees 2
STATUTES AND CONSTITUTIONAL
AMENDMENTS INVOLVED................... 2
STATEMENT OF THE CASE .........ccccccccccecs 3
ee 2 re rere re 4
Fae IEE 6.h.0 6.50.3 Kacdusevdedesnios 4
Re A pn xscdsdousdinscnswases 4
By, PNG CenGiesécccawecedeusaue aces 5
a. District Court’s Finding of a Non-Public
re re pee ee 5
b. District Court’s Finding of Reasonable-
ness and Viewpoint Neutrality......... 6
DD. Tie Ce Pe i's 6h 0nd 5s dccccncccees 7
REASONS FOR GRANTING THE WRIT........... 10
I. The Court Should Grant The Writ, Vacate, And
Remand For Further Proceedings In Light Of
This Court's Decision Last Term In Arkansas
Educ. Television Comm’n v. Forbes, 118 S.Ct.
RE 5 nh han oan db RA ae pede a esa en 10
II. The Court Should Grant The Writ To Resolve
A Split Of The Circuits, To Clarify The Prin-
ciples Applicable In Determining Government
“Intent” To Designate A Public Forum, And To
Clarify The Significance, If Any, Of Govern-
ment’s Reservation Of Absolute Authority To
Select Among Messages Based Upon Content... 12
iV
TABLE OF CONTENTS — (Continued)
Page
III. The Court Should Grant The Writ To Clarify
The Weight To Be Accorded Government’s Pro-
prietary Status In Determining Intent To Create
A Public Forum, A Question On Which The
Ce PIII 0 a fc wa 0054. 00cddneeces 17
IV. The Court Should Grant The Writ Because The
Decision Below Is Inconsistent With This
Court’s Decisions In Cornelius v. NAACP Legal
Defense & Educ. Fund, Inc., And Forbes With
Respect To The Standard Of Reasonableness
Applicable In Non-Public Forums............. 20
CAPR RAMUING 0 vc recscesutscnecihaaeoshanwacdekba’s 22
TABLE OF AUTHORITIES
Cases: Page
AIDS Action Committee of Massachusetts, Inc. v. Massa-
chusetts Bay Transportation Authority, 42 F.3d 1 (1st
8 PP TTY Ts PTTL LL TTT TET 13, 14
Air Line Pilots Ass'n v. Department of Aviation of the
City of Chicago, 45 F.3d 1144 (7th Cir. 1995)....... 19
Arkansas Educ. Television Comm'n v. Forbes, 118 S. Ct.
SEED Con cb odedaccisctcocdseatic 9, 10, 11, 12, 21
Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886
(Riso. 0 06 tua haneceeeep 0s00sendensedeesssees 18
Cornelius v. NAACP Legal Defense & Educ. Fund, Inc.,
G53 UD, Fae GRO 6 cc ncccctcghevoboacdessess passim
Fighting Finest, Inc. v. Bratton, 9S F.3d 224 (2d Cir.
BODE oc cédcscsscdccudee sosanteunbanenseasseese 14
International Society for Krishna Consciousness, Inc. v.
Len, SB UBs Gre GSEs cc ccnccccsevscsasens 9, 18, 20
Jacobsen v. United States Postal Service, 993 F.2d 649 (9th
Cie, SGT ccccccocdctedcesascasedesdubedaseunen 14
Lebron v. National Railroad Passenger Corp., 69 F.3d 650
(2d Cir.), amended on denial of rehearing, 89 F.3d 39
(38 Cle 19000 cca couiuni Srmstda passim
Lehman v. City of Shaker Heights, 418 U.S. 299
nen :.:... ss, saat ete seen 6, 9, 18, 19, 20
New York Magazine v. The Metropolitan Transportation
Authority, 136 F.3d 123 (2d Cir.), cert. denied, 66
US Lis See GUD Sc ccdnomnscaacenectonetedass 19
Perry Education Assn. v. Perry Local Educators’ Assn.,
460 UB. SF CGE cdc ivcaticvictdcies 6, 11, 13, 15, 16
Planned Parenthood Ass’n of Chicago Area v. Chicago
Transit Authority, 767 F.2d 1225 (7th Cir. 1985)... 16, 17
vi
TABLE OF AUTHORITIES — (Continued)
Cases: Page
Planned Parenthood of Southern Nevada, Inc. v. Clark
County School District, 941 F.2d 817 (9th Cir. 1991)
(en DANG)... 2c cc cccccccccccccccesssccsesccess 13, 15
United States v. Kokinda, 497 U.S. 720 (1990) ........ 18, 20
Widmar v. Vincent, 454 U.S. 263 (1981). ..........++++- 11
Yeo v. Town of Lexington, 1997 WL 292173 (1st Cir.),
opinion withdrawn on grant of rehearing en banc, 131
F.3d 241 (ist Cir. 1997), cert. denied, 118 S.Ct. 2060
(19DB). ov ccccccccccccccccccccccccccccseces 13, 16, 17
Constitutional Provisions:
US. Const. Amend. I ...... ccc ccccccccccsccceees passim
tee) ON ©: PP Prrrerereeeeeeee 2
Statutory Provisions:
CTE Beiccsdccnccdcvvccecoscencecdtscceanes 2,3
Miscellaneous Authorities:
S. Gey, “Reopening the Public Forum — From Sidewalks
to Cyberspace,” 58 Ohio St. L. J. 1535 (1998) ...... 14
Note: A Procedural Approach to Limited Public Forum
Cases, 22 Fordham Urb. L. J. 1255 (Summer,
BOIS) cccccccccccccscccccccevevcccsscccncscees 14
Comment: Public Forum Doctrine Crashes At Kennedy
Airport, Injuring Nine: International Society for
Krishna Consciousness, Inc. v. Lee, 59 Brooklyn L.
Rev. 1271 (Fall, 1993) .......-.-ceceeeeceeececces 20
Comment: ‘Objective’ Approaches to the Public Forum
Doctrine: The First Amendment at the Mercy of
Architectural Chicanery, 90 N.W.U. L. Rev. 1185
vii
IN THE
Supreme Court of the United States
OCTOBER TERM, 1998
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION
AUTHORITY and TRANSPORTATION DISPLAYS, INC.,
Petitioners,
v.
CHRIST’S BRIDE MINISTRIES, INC.,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Petitioners, Southeastern Pennsylvania Transportation
Authority (“SEPTA”) and Transportation Displays, Inc.
(“TDI”), pray that a writ of certiorari issue to review the
opinion and judgment of the Court of Appeals for the Third
Circuit rendered in these proceedings on June 25, 1998.
OPINIONS BELOW.
The United States District Court for the Eastern District
of Pennsylvania, having held a bench trial in a consolidated
preliminary injunction hearing and trial on the merits, ruled in
favor of petitioners on all claims. The Opinion of the Honor-
able Harvey Bartle dated August 16, 1996, is reported at 937
F.Supp. 425 and appears at App. 34a.! The panel opinion of
the Court of Appeals for the Third Circuit reversing and
remanding the district court, filed June 25, 1998, is reported at
148 F.3d 242, and is reprinted at App. 5a. The Court of
1. References herein to the appendix accompanying the Petition are
denoted as “App. __.”
2
Appeals for the Third Circuit denied a petition for rehearing
and suggestion for rehearing en banc, without opinion, by
Order dated July 23, 1998, as amended by Order dated August
6, 1998. The Orders denying the petition for rehearing are
printed at App. la - 4a.
JURISDICTION.
The Court of Appeals entered judgment reversing and
remanding the judgment of the district court on June 25, 1998.
Petitioners’ timely petition for rehearing, filed July 9, 1998,
was denied by Order dated and entered July 23, 1998 (App.
la), as amended by Order dated and entered August 6, 1998
(App. 3a).
The jurisdiction of this Court is invoked under 28 U.S.C.
§ 1254(1). —
STATUTES AND CONSTITUTIONAL
AMENDMENTS INVOLVED.
U.S. Const. Amend. I:
Congress shall make no law respecting an establishment
of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the
right of the people peaceably to assemble, and to petition
the Government for a redress of grievances.
U.S. Const. Amend. XIV:
Section 1. All persons born or naturalized in the
United States, and subject to the jurisdiction thereof, are
citizens of the United States and of the State wherein
they reside. No State shall make or enforce any law which
shall abridge the privileges or immunities of citizens of
the United States; nor shall any State deprive any person
of life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the equal
protection of the laws.
Section 1 of the Civil Rights Act of 1871, Rev. Stat.
§ 1979, codified at 42 U.S.C. § 1983:
3
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be sub-
jected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitu-
tion and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding
for redress, except that in any action brought against a
judicial officer for an act or omission taken in such offic-
er’s jndicial capacity, injunctive relief shall not be granted
unless a declaratory decree was violated or declaratory
relief was unavailable. For the purposes of this section,
any Act of Congress applicable exclusively to the District
of Columbia shall be considered to be a statute of the
District of Columbia.
STATEMENT OF THE CASE.
The facts in this case are simple and not materially at
issue. The case squarely presents an important iss’1e involving
aspects of the First Amendment “public forum” doctrine on
which the circuits are sharply divided. Respondent, Christ's
Bride Ministries, Inc. (“Christ’s Bride”), a non-profit religious
organization, brought this case against petitioner, Southeast-
ern Pennsylvania Transportation Authority (“SEPTA”), a
metropolitan transit authority serving the Philadelphia, Penn-
sylvania area, and its advertising licensee or agent, Transpor-
tation Displays, Inc. (“TDI”), pursuant to 42 U.S.C. § 1983,
alleging a deprivation of First Amendment rights of freedom
of speech and challenging petitioners’ action in rejecting
advertising for display throughout SEPTA’s transit system
advertising network at commuter and subway rail stations.
The advertisement at issue (“the Advertisement”) was a
paid 21” x 62” and 46” x 60” transit advertisement containing
the following controversial public health claim linking abor-
tion and breast cancer:
“WOMEN WHO CHOOSE ABORTION SUFFER
MORE & DEADLIER BREAST CANCER. informa-
tion: 1-800-634-2224.”
4
The “800” telephone number given on the Advertisement was
operated by the American Rights Coalition, an organization
which, in response to telephone inquiries concerning the mes-
sage’s public health claim, sent callers information suggesting
they consider bringing medical malpractice actions against
physicians who had provided abortion services.
SEPTA initially posted the Advertisement for approxi-
mately one month at more than twenty-five locations within its
transit stations in the Philadelphia, Pennsylvania area, until it
became aware of a letter authored by the Assistant Secretary
of Health in the United States Department of Health and
Human Services stating that the Advertisement was “unfortu-
nately misleading” and “unduly alarming” and did not “accu-
rately reflect the weight of the scientific literature.” Having
determined, based upon the Assistant Secretary’s letter, that
the Advertisement's public health claim — that there is a link
between induced abortion and breast cancer — was highly
controversial, SEPTA invoked its right, expressly reserved in
its contract with TDI and in TDI’s contract with the adver-
tiser, Christ’s Bride, to remove the Advertisement.
Although SEPTA had accepted advertising that generally
touched upon the issue of abortion, no advertising on either
side of the Advertisement’s particular controversial public
health claim had ever previously been presented or accepted
by SEPTA.
1. Proceedings Below.
A. The District Court.
1. The Complaint.
On May 5, 1996, Christ’s Bride filed a three-count com-
plaint in the United States District Court for the Eastern Dis-
trict of Pennsylvania for declaratory judgment, preliminary
and permanent injunctive relief to require SEPTA to re-post
the Advertisement, and for compensatory damages. Respon-
dent’s complaint alleged violation of respondent's freedom of
speech under the First and Fourteenth Amendments to the
United States Constitution, violation of the right to equal pro-
tection of the laws, and breach of the advertising contract
between TDI ana Christ’s Bride.
2. The Trial.
By agreement of the parties and Order of the district
court, the hearing on Christ's Bride’s application for prelimi-
nary injunction was consolidated with trial on the merits under
Rule 65(a)(2), Fed.R.Civ.P. After a three-day bench trial on
June 25-27, 1996, the district court on August 16, 1996, filed a
Memorandum including its findings of fact and conclusions of
law (reprinted at App. 34a), finding in favor of petitioners,
SEPTA and TDI, and against plaintiff Christ's Bride on all
counts of the complaint.
a. District Court’s Finding of a Non-Public
Forum.
The district court held that the SEPTA station advertising
areas were a “non-public” forum. This determination was
based on uncontradicted evidence that SEPTA reserved and
exercised absolute control over every advertisement posted in
its system to ensure that such advertising remained compatible
with the predominant proprietary, public transit function
served by its transit operations — providing a clean, inexpen-
sive, comfortable and attractive mode of public transportation
in the metropolitan Philadelphia area. Under a SEPTA/TDI
contract dated July 3, 1993 (“the SEPTA/TDI contract”), as
amplified by additional directives from SEPTA managers,
TDI, as SEPTA’s advertising agent, had the responsibility ini-
tially to review each proposed advertisement and to bring to
SEPTA’s attention advertisements that involved any feature
that SEPTA might wish to review. The SEPTA/TDI contract
expressly provided that every advertisement to be placed in
SEPTA’s stations was required to be acceptable to SEPTA
and that SEPTA had the right to “remove” any unsuitable
advertisement:
All advertising displays at any time inserted or
placed by [TDI] in any display devices in any vehicle
and/or locations shall be of an appropriate character and
quality, and the appearance of all displays shall be accept-
able to SEPTA. No libelous, slanderous, or obscene
advertising may be accepted by [TDI] for display in [SEP-
TA’s] transit and railroad vehicles and facilities. All
6
advertising shall be submitted for SEPTA’s review and
approval prior to display. Any advertising determined by
... SEPTA, in its sole discretion, as objectionable within
the meaning of this subsection must not be utilized on any
SEPTA vehicle or facility. SEPTA shall have the right to
immediately remove any advertising material which has
already been applied, in the event that... SEPTA deems
material objectionable for any reason. .. .
q 5(a), App. 20a. Uncontradicted record evidence established
that TDI had likewise specifically reserved the right to cancel
its contract with each would-be advertiser in the event SEPTA
exercised its right to require removal of a proposed advertise-
ment. Thus, the TDI/Christ’s Bride contract stated that, if
SEPTA “should deem the advertising objectionable for any
reason,” TDI shall have the right to cancel the contract.
{ IV(b), App.10a. Uncontradicted evidence established that,
on specific prior occasions, SEPTA had, in fact, invoked this
contractual right and had declined to post proposed advertis-
ing materials it found unsuitable for its transit stations or tran-
sit vehicles. The trial record included evidence of a few of
these instances as examples.
Applying the teachings of Lehman v. City of Shaker
Heights, 418 U.S. 298 (1974), Perry Education Ass’n v. Perry
Local Educators’ Ass’n, 460 U.S. 37 (1983), and Cornelius v.
NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788
(1985), to the record, the district court determined that
SEPTA’s transit advertising space was a “non-public” forum.
The trial court found that SEPTA exercised “firm control”
over these areas. App. 40a. Moreover, the trial court found
that SEPTA’s role in reviewing and permitting advertisements
for posing “is not merely perfunctory.” App. 40a. Accordingly,
the trial court held that SEPTA “has not created a public
forum in its subway and train stations.” App. 41a.
b. District Court’s Finding of Reasonableness and
Viewpoint-Neutrality.
The district court also determined that SEPTA’s rejection
of the Christ’s Bride advertisement was a reasonable and
viewpoint-neutral action with regard to what it determined to
be a non-public forum. Respondent presented no evidence at
trial that SEPTA had ever rejected any proposed advertising
ee ee ee eee ee
7
materials based upon the advertisement’s viewpoint on the
abortion debate. In fact, as the district court stated, “SEPTA
has permitted advertising in subway and rail stations on both
sides of the abortion debate.” App. 47a. The district court
stated: “On the issue of abortion SEPTA has been ‘viewpoint
neutral.’” App. 47a.
The district court also determined that SEPTA’s decision
not to continue to display the Advertisement was “reason-
able.” Uncontradicted evidence established that SEPTA made
its decision to remove the Advertisement when it became
aware of a letter authored by the Assistant Secretary of
Health, United States Department of Health and Human Ser-
vices, addressed to the Washington Metropolitan Area Transit
Authority (“the HHS letter”), which stated that the Adver-
tisement’s copy was “misleading” and “unduly alarming” and
did not “accurately reflect the weight of the scientific litera-
ture.” App. 42a. The district court held it was reasonable for
SEPTA to have considered and given weight to the HHS let-
ter in determining that the subject matter was inappropriately
controversial, and therefore unsuitable for display, as a basis
for invoking its right to terminate the contract relating to dis-
play of the Advertisement.
B. The Court of Appeals.
The Court of Appeals rejected the district court’s deter-
mination that SEPTA’s transit advertising spaces constituted a
“non-public” forum, instead determining, notwithstanding the
contractual right to remove and the review procedure estab-
lished, that SEPTA had nonetheless “designated” the advertis-
ing space as an open public forum for expressive activity on
the broad subject of “abortion.” The Court of Appeals held
that SEPTA was therefore without power to screen advertise-
ments unless SEPTA’s actions withstood “strict scrutiny”
under the First Amendment. App. 29a. It rejected the district
court’s determination that SEPTA was reasonable in terminat-
ing the advertising contract. The Court of Appeals did not
reach the issue of viewpoint-neutrality.
The Court of Appeals disregarded SEPTA’s proprietary
(not regulatory) status and the uncontradicted evidence (i)
that SEPTA expressly reserved by contract its right to review
and to reject proposed advertising materials it found objec-
tionable; (ii) that SEPTA and its licensee reviewed every pro-
posed advertisement to determine compatibility for posting in
SEPTA’s transit advertising space; and (iii) that SEPTA had in
fact invoked its contractual right and declined to post unsuit-
able proposed advertising on prior occasions.
Because of the breadth of SEPTA's discretion, the Court
of Appeals gave no weight to SEPTA’s contractual reservation
of rights as evidence of SEPTA’s intent to control access to the
forum. Joining the Courts of Appeals for the First and Sev-
enth Circuits, and contrary to the decisions of the Courts of
Appeals for the Second and Ninth Circuits, the Court of
Appeals for the Third Circuit in this case erroneously con-
fused and conflated the question of “intent” to designate a
public forum with the unrelated question whether specific
guidelines, adopted in advance, constrained SEPTA’s exercise
of discretion to reject proposed advertising. Relying upon an
assortment of concurring and dissenting opinions rather than
majority opinions of this Court, the Court of Appeals rea-
sonec that even the undisputed prior exercise of absolute con-
trol and specific reservation of authority to reject advertising
wa* insufficient to negate an intent to “designate” government
property as a public forum, unless there were also evidence of
“particular standards and goals” (App. 21a):
[T]he fact that SEPTA has reserved for itself the
right to reject ads for any reason at all does not signify, in
and of itself alone, that no public forum has been created
.. . [T]he fact that the government has reserved the right
to control speech without any particular standards or
goals, and without reference to the purpose of the forum,
does not necessarily mean that it has not created a public
forum. If anything, we must scrutinize more closely the
speech that the government bans under such a protean
standard. (emphasis original).
In rejecting as inconclusive the record evidence of SEP-
TA’s intent, the Court of Appeals also discounted and disre-
garded SEPTA’s role as operator of a commercial venture,
exercising its managerial judgment to select advertising consis-
tent with its goal of providing safe, comfortable and pleasant
Ee eee noel
9
public transportation attractive to its patrons. In so reasoning,
the Court of Appeals ignored the teaching of this Court in
Lehman that where the government “is engaged in com-
merce,” attempting to “provide rapid, convenient, pleasant,
and inexpensive service to . . . commuters,” and where the
advertising space is “incidental to the provision of public
transportation,” a “city transit authority has discretion to
develop and make reasonable choices concerning the type of
advertising that may be displayed in its vehicles.” 418 U.S. at
303. The Court of Appeals also discounted this Court's teach-
ing in International Society for Krishna Consciousness, Inc. v.
Lee, 505 U.S. 672, 678 (1992), that “[w]here the government is
acting as a proprietor, managing its internal operations, rather
than acting as lawmaker with the power to regulate and
license, its actions will not be subjected to the heightened
review to which its actions as a lawmaker may be subject.”
The Court of Appeals in this case ultimately gave no effect to
the proprietary factor in its analysis.
In reversing the district court's non-public forum determi-
nation, the Third Circuit panel also overlooked or ignored this
Court’s teaching in Arkansas Educ. Television Comm'n v.
Forbes, 118 S.Ct. 1633 (1998), decided shortly before the Third
Circuit's decision in this case, in which this Court made it clear
that “the government does not create a designated public
forum when it does no more than reserve eligibility for access
to the forum to a particular class of speakers, whose members
must then, as individuals, ‘obtain permission’ to use it.” 118
S.Ct. at 1642 (internal citations omitted). Although petitioners
brought this Court’s decision in Forbes to the Court of
Appeals’ attention as requiring rehearing, rehearing was
denied without opinion. App. 1a.
The Court of Appeals additionally questioned the district
court’s determination that SEPTA had acted “reasonably.” In
Cornelius, this Court said that the “government's decision to
restrict access to a nonpublic forum need only be reasonable;
it need not be the most reasonable or the only reasonable
limitation,” 473 U.S. at 808, a principle recently reaffirmed in
Forbes (finding reasonable the exclusion of a political candi-
date lacking popular support from a televised debate). Never-
10
theless, the Court of Appeals in this case measured the rea-
sonableness of SEPTA’s judgment concerning use of its
property under a more exacting legal standard. Curiously, the
Court of Appeals (App. 33a) faulted SEPTA for not provid-
ing Christ’s Bride an opportunity to rebut the statements in
the HHS letter that the Advertisement was “misleading” and
“unduly alarming” and that it did not “accurately reflect the
weight of the scientific literature”:
Having decided to exclude the posters on [the] basis [that
they were unacceptably misleading], SEPTA did not act
reasonably when it failed to ask CBM to clarify the basis
on which the claim was made.
In determining that SEPTA had acted “unreasonably,”
the Court of Appeals once again faulted SEPTA for failing to
adopt specific guidelines for acceptable advertising, conflating
and confusing this unrelated question with the inquiry into
whether SEPTA “reasonably” excluded the controversial
Advertisement. Thus, the Court below concluded that SEP-
TA’s unreasonableness was “all the more true” where “there
is no policy, old or new, written or unwritten, governing the
display of ads making contested claims.” App. 33a (emphasis
supplied).
Compounding these errors, the Court of Appeals over-
looked or gave no weight to the teaching of Cornelius that
“avoidance of controversy” is by itself a sufficient justification
for exclusion of speech from a non-public forum. 473 U.S. at
811.
REASONS FOR GRANTING THE WRIT.
I. The Court Should Grant The Writ, Vacate, And Remand
For Further Proceedings In Light Of This Court’s Decision
Last Term In Arkansas Educ. Television Comm’n v.
Forbes, 118 S.Ct. 1633 (1998).
Certiorari should be granted to vacate and remand for
further consideration in light of this Court's decision in Forbes.
Within weeks of the Court of Appeals’ decision of these issues
in this case, this Court in Forbes made it clear that where
access to government property is “selective,” with “permis-
:
ee ee
11
sion” required, there is no demonstrated “intent” to designate
a public forum. Forbes is squarely applicable and irreconcil-
ably inconsistent with the decision below. As this Court stated
in Forbes:
The [ ] cases illustrate the distinction between ‘general
access,’ which indicates the property is a designated pub-
lic forum, and ‘selective access,’ which indicates the prop-
erty is a non-public forum. On one hand, the government
creates a designated public forum when it makes its prop-
erty generally available to a certain class of speakers, as
the university made its facilities generally available to stu-
dents in Widmar [v. Vincent, 454 U.S. 263 (1981)]. On the
other hand, the government does not create a designated
public forum when it does no more than reserve eligibility
for access to the forum to a particular class of speakers,
whose members must then, as individuals, ‘obtain permis-
sion,’ to use it. For instance, the Federal Government did
not create a designated public forum in Cornelius when it
reserved eligibility for participation in the CFC charity
drive to charitable agencies, and then made individual,
non-ministerial judgments as to which of the eligible agen-
cies would participate. 118 S.Ct. at 1642 (emphasis sup-
plied) (internal citations omitted).
Under this standard, SEPTA’s written reservation of the
right to reject inappropriate proposed advertisements conclu-
sively negated any intent to “designate” its transit advertising
network as a public forum. The Court of Appeals erroneously
rejected SEPTA’s contention below, misreading Cornelius and
Perry, overlooking Forbes, and subsequently refusing to
rehear the case in light of Forbes, neither distinguishing, dis-
cussing nor even citing this recent controlling precedent.
SEPTA’s policy of opening its property — not “generally”
— to all willing to pay the requisite fee, but rather “selec-
tively,” i.e., only to those (a) willing to pay the requisite fee,
and (b) who propose advertisements deemed suitable for post-
ing in SEPTA’s transit spaces, is precisely the fact pattern this
Court held in Forbes fails to support a conclusion finding a
public forum: “A designated public forum is not created when
12
the government allows selective access for individual
rather than general access for a class of speakers.” 118 S.Ct. at
1642 (emphasis supplied).
Under the principles reaffirmed in Forbes, the Third Cir-
cuit'’s reasoning is incorrect. This Court should grant the writ,
vacate, and remand to the Court of Appeals for further con-
sideration in light of this Court's recent decision in Forbes,
which is neither cited nor discussed in the Court of Appeals’
Il. The Court Should Grant The Writ To Resolve A Split Of
The Circuits, To Clarify The Principles Applicable In
Determining Government “Intent” To Designate A Pub-
lic Forum, And To Clarify The Significance, If Any, Of
Government's Reservation Of Absolute Authority To
Select Among Messages Based Upon Content.
Uncontradicted record evidence established that SEPTA
had reserved by written contract the right to approve all pro-
posed advertising materials and to reject those deemed objec-
tionable.2 The Court of Appeals failed to give weight to
SEPTA'’s express reservation of rights as evidencing intent not
to designate a public forum, however, in large part because of
the scope of the discretion retained by the transit authority.
Thus, the Court below said (App. 21a):
[T]he fact that the government has reserved the right to
control speech without any particular standards or goals,
and without reference to the purpose of the forum, does
not necessarily mean that it has not created a public
forum.
In fact, in the Court of Appeals’ analysis, a broad reservation
of rights was held to require an even more searching inquiry,
and to call for application of the stricter scrutiny applicable
only to government restriction of speech in a public forum.
Thus, the Court below held: “If anything, we must scrutinize
more closely the speech that the government bans under such
a protean standard.” App. 21a.
2. On this ground, SEPTA examined the color, size, graphics and gen-
eral content (as distinguished from viewpoint) in determining suitability and
compatibility of proposed advertising.
13
The circuits are sharply divided on precisely this question.
The Second and Ninth Circuits, strictly following Perry and
Cornelius, assess evidence regarding government intent to cre-
ate a public forum without regard to the breadth of discretion
retained by government. Lebron v. National Railroad Passen-
ger Corp., 69 F.3d 650 (2d Cir.), amended on denial of rehear-
ing, 89 F.3d 39 (2d Cir. 1995); Planned Parenthood of Southern
Nevada, Inc. v. Clark County School District, 941 F.2d 817 (9th
Cir. 1991) (en banc).
Other circuits, including the Third Circuit in this case and
the First and Seventh Circuits, apply Perry and Cornelius dif-
ferently and refuse to defer to an otherwise demonstrated
absence of intent to designate government property for public
discourse if the government has retained broad discretion in
selecting among messages based on content. Planned Parent-
hood Ass'n of Chicago Area v. Chicago Transit Authority, 767
F.2d 1225 (7th Cir. 1985); Yeo v. Town of Lexington, 1997 WL
292173 (ist Cir.), opinion withdrawn on grant of rehearing en
banc, 131 F.3d 241 (ist Cir. 1997), cert. denied, 118 S.Ct. 2060
(1998).
Alternatively, because of the unresolved confusion on this
important — frequently decisive — legal principle, lower
courts have searched for alternative grounds on which to
decide cases in order to avoid altogether a decision based on
this troublesome issue. Thus, the Court of Appeals for the
First Circuit, noting the “relatively murky status of the public
forum doctrine” in AIDS Action Committee of Massachusetts,
Inc. v. Massachusetts Bay Transportation Authority, 42 F.3d 1
(1st Cir. 1994), deliberately avoided deciding whether a transit
advertising space was a public forum, and instead rested its
decision upon an expanded notion of viewpoint discrimina-
tion. It held that the transit authority's rejection of a public
service advertisement about AIDS that employed sexual innu-
endo and double entendre gave rise to an impermissible
“appearance” of “viewpoint discrimination,” because the tran-
sit authority had previously allowed a commercial movie
advertisement that also employed sexual innuendo and double
entendre.
14
At least three circuits have specifically commented on
“muddied,” or “murky” status of the public forum doctrine
and have noted the need for definitive guidance from this
Court. See, e.g., AIDS Action Committee, 42 F.3d at 9 (noting
“murky status of the public forum doctrine”); Jacobsen v.
United States Postal Service, 993 F.2d 649, 655 n.2 (9th Cir.
1992) (noting public forum jurisprudence now “quite mud-
died”); Fighting Finest, Inc. v. Bratton, 95 F.3d 224, 229 (2d Cir.
1996) (Supreme Court has sent somewhat “mixed signals” as
to public forum criteria).
The current confusion regarding the principles governing
the determination whether a “public forum” has been desig-
nated in transit authority and government advertising space
cases, such as this one, presents perhaps the clearest example
of circuit conflict in this field of First Amendment litigation.
See S. Gey, “Reopening the Public Forum- From Sidewalks to
Cyberspace,” 58 Ohio St. L. J..1535, 1554 (1998) (post-Perry
public forum doctrine among the “most fractured area in mod-
ern constitutional law,” and examining cases dealing with gov-
ernment “in its role as proprietor of advertising space”); Note:
A Procedural Approach to Limited Public Forum Cases, 22
Fordham Urb. L. J. 1255, 1274 (Summer, 1995) (discussed
under heading “Lower Court Confusion: The Subway”). These
public forum cases have yielded inconsistent, doctrinally irrec-
oncilable results, and exhibit all the symptoms of circuit con-
fusion: fractured panel decisions, frequent amended opinions,
vacate orders, and withdrawal orders upon rehearing en banc
and rehearing. Definitive guidance is needed at this time on
this important, frequently recurring issue of First Amendment
litigation.
For example, the Second Circuit in Lebron v. National
Railroad Passenger Corp., 69 F.3d 650 (2d Cir.), amended on
denial of rehearing, 89 F.3d 39 (2d Cir. 1995), dealt with an
issue of denial of access to transit advertising space similar to
the issue here and reached a contrary result. The question
presented was whether the “Spectacular” billboard in New
York’s Pennsylvania Station was a public or non-public forum.
Amtrak, as proprietor of advertising space at the station, had
provided in its written advertising agreement with TDI (TDI,
15
SEPTA’s licensee, is also a petitioner in this case) that all
advertising materials “shall be subject to approval by Amtrak,”
and that Amtrak “may disapprove any such items at its own
discretion.” 69 F.3d at 653. The terms of the Amtrak/TDI con-
tract closely parallel those of the SEPTA/TDI contract
involved in this case. Correctly restating the test this Court
articulated in Cornelius and Perry, the Second Circuit stated
that “where only some First Amendment access has been
granted, the reasonableness test” applies because there has
been no purposeful dedication of a public forum. 69 F.3d at
656. The Court accordingly held that the billboard is a non-
public forum. The Second Circuit’s decision in Lebron cannot
be reconciled with the Third Circuit’s decision in this case.
The Ninth Circuit’s en banc decision in Planned Parent-
hood of Southern Nevada, Inc. v. Clark County School District,
941 F2d 817 (9th Cir. 1991), reads Perry and Cornelius in a
similar way. Student publications, including high school news-
papers, yearbooks, and athletic programs, had reserved the
right to reject controversial advertising materials. The major-
ity said that it “must assume that school-sponsored publica-
tions are nonpublic and that unless the schools affirmatively
intend to open a forum for indiscriminate use,” no public
forum had been designated. 941 F.2d at 819. Consistent with
the principle the Second Circuit applied in Lebron, and find-
ing the publications’ intent “most clearly evidenced by written
policies that explicitly reserve the right to control content,” the
Ninth Circuit majority opinion in Planned Parenthood deter-
mined that, although Planned Parenthood may have been the
first, or only, excluded advertiser, the schools did not grant
permission to advertise “as a matter of course,” and there was
“nothing in Perry or Cornelius to support a conclusion that
3. Lebron was a fractured panel decision. Dissenting, in terms reminis-
cent of the panel's decision in this case, Judge Newman stated the “vice” of
“unfettered discretion” “inheres in the opportunity for discrimination, and
the First Amendment requires that opportunity to be held to an acceptable
minimum by a clear and well understood policy that appropriately limits the
discretion of the officials who must administer it.” 69 F.3d at 662.
16
allowing some outside organizations to advertise converts the
school-sponsored publications into public forums.” 941 F.2d at
826.
Further demonstrating the instability of precedent in this
area, Planned Parenthood was also a sharply divided en banc
decision. The four-judge dissent expressly criticized the notion
—rejected by the Third Circuit panel in this case — that “so
long as Officials reserve for themselves broad discretion to
control content, then they will be deemed to have ‘intended’
to create a nonpublic forum[.]” 941 F.2d at 836. The same
theme echoes the words of Judge Newman, dissenting in Leb-
ron, and Mr. Justice Stevens (joined by Justices Souter and
Ginsburg), dissenting last term in Forbes, 118 S.Ct. at 1644,
1647 (“In its discussion of the facts, the Court barely mentions
the standardless character of the decision to exclude Forbes
from the debate. . . . [A] state’s failure to set any meaningful
boundaries at all cannot insulate the State’s action from First
Amendment challenge”).
In sharp contrast with the Ninth Circui. Planned Parent-
hood decision, the Seventh and First Circuits — and now the
Third Circuit in this case — reject a reading of Perry and Cor-
nelius that would find a forum non-public if broad discretion
to keep objectionable messages out of the forum is retained by
government. Thus, in this case, the Third Circuit expressly
agreed with the Seventh Circuit’s analysis in Planned Parent-
hood Ass’n of Chicago Area v. Chicago Transit Authority, 767
F.2d 1225 (7th Cir. 1985) (“Planned Parenthood (Chicago)”).
Like SEPTA, the Chicago Transit Authority contractually
reserved its right to reject proposed advertising. Nonetheless,
the Seventh Circuit found the transit authority display areas to
have been designated as a “public forum,” basing its reason-
ing, once again, on expressed dissatisfaction with the fact that
the transit authority evidenced “no policy at all” for advertise-
ment rejection. 767 F.2d at 1233. Thus, the strict scrutiny stan-
dard applicable only to a public forum was smuggled into the
analysis for determining whether the forum was a public
forum or a non-public forum. :
The First Circuit, in a recent divided panel decision, also
rejected the deferential interpretation of Perry and Cornelius
17
and sided with the Third and Seventh Circuits on precisely this
issue. In Yeo v. Town of Lexington, 1997 WL 292173 (1st Cir.),
opinion withdrawn on grant of rehearing en banc, 131 F.3d 241
(1st Cir. 1997), cert. denied, 118 S.Ct. 2060 (1998), advertise-
ments urging abstinence were rejected for publication by a
student newspaper and yearbook. Both student publications
maintained the policy that all ads are subject to final approval
by the editorial boards. The First Circuit majority squarely
rejected the Ninth Circuit’s Planned Parenthood decision. The
Court read this Court’s decision in Perry as not holding that
government can argue that it “only intended to open the
forum to messages that [it] alone were to deem appropriate
and acceptable.” 1997 WL at * 11. The dissent (Lynch, J.) dis-
agreed, stating, “The record here indicates that the students’
very strong intent was to avoid creating a public forum, or a
‘bulletin board’ as they termed it, on the [newspaper's] adver-
tising pages.” 1997 WL at *31.
The decisions of the First, Third and Seventh Circuits in
Yeo, Christ's Bride and Planned Parenthood (Chicago), respec-
tively, squarely conflict with the decisions of the Second and
Ninth Circuits in Lebron and Planned Parenthood that make
government intent the touchstone of the designated public
forum inquiry. The question of the role played in the forum
analysis of the government’s retention of broad discretion to
select among messages based upon content has divided the
circuits and has led to continuing, logically inconsistent results
in application of the public forum doctrine.
Certiorari should be granted to resolve this conflict
among the circuits on an important, frequently recurring issue
of First Amendment jurisprudence, the principles applicable
to ascertaining government intent with respect to its property.
Ill. The Court Should Grant The Writ To Clarify The
Weight To Be Accorded Government's Proprietary Sta-
tus In Determining Intent To Create A Public Forum, A
Question On Which The Circuits Are Divided.
The district court accepted SEPTA’s contention that an
important factor in the public forum “intent” inquiry is the
fact that SEPTA’s actions were those of the government as
18
proprietor of a commercial venture, not the government as
regulator of speech or expressive activity, and the incompat-
ibility of a public forum with the dominant function or use of
the property the government supervises in its proprietary role.
Here, the Court of Appeals rejected the notion of a
“bright-line” rule in cases where the government is running a
commercial operation (App. 18a), and found no occasion fur-
ther to consider the importance of the proprietary nature of
the transit venture. Accordingly, it failed to accord it any
weight whatsoever in its analysis of SEPTA’s intent.
In so holding, the Court of Appeals ignored the teaching
of International Society for Krishna Consciousness, Inc v. Lee,
505 U.S. 672 (1992) (Rehnquist, C.J.), that where the govern-
ment acts as proprietor, “strict scrutiny” is not the applicable
standard of First Amendment review:
Where the government is acting as a proprietor, managing
its internal operations, rather than acting as lawmaker
with the power to regulate or license, its action will not be
subjected to the heightened review to which its actions as a
lawmaker may be subject. 505 U.S. at 678 (emphasis sup-
plied).
Similar statements appear in plurality decisions in United
States v. Kokinda, 497 U.S. 720, 725 (1990) (O’Connor, J.) (“It
is a long-settled principle that governmental actions are sub-
ject to a lower level of First Amendment scrutiny when ‘the
governmental function operating. . . [is] not the power to regu-
late or license, as lawmaker, . . . but rather, as proprietor, to
manage [its] internal operation[s]. . .”)(quoting Cafeteria &
Restaurant Workers v. McElory, 367 U.S. 886, 896 (1961)), and
Lehman v. City of Shaker Heights, 418 U.S. 299 (1974) (Black-
mun, J.) (“Here, we have no open spaces, no meeting hall,
park, street corner, or other public thoroughfare. Instead, the
city is engaged in commerce. It must provide rapid, conve-
nient, pleasant, and inexpensive service to the commuters of
Shaker Heights. The car card space, although incidental to the
provision of public transportation, is a part of the commercial
venture. . . a city transit system has discretion to develop and
make reasonable choices concerning the type of advertising
that may be displayed in its vehicles”).
19
In spite of this Court’s sharp distinction between the gov-
ernment as proprietor and the government as regulator of
speech in defining the applicable level of judicial review, the
Court of Appeals in this case selected “heightened” scrutiny
as the applicable standard of review.
The courts of appeals in mass transit advertising cases
have sharply divided on this very issue, involving the signifi-
cance of the fact that government is acting as proprietor of a
commercial venture in deciding the public forum “intent”
issue. The Third Circuit gave no effect at all to SEPTA’s pro-
prietor status. Likewise, in a recent decision, the Second Cir-
cuit Court of Appeals in New York Magazine v. The Metro-
politan Transportation Authority, 136 F.3d 123 (2d Cir.), cert.
denied, 66 U.S.L.W. 3801 (1998), gave no effect to the propri-
etary nature of the transit venture. In that case, the advertis- _
ing standard at issue was an advertising standard that barred
display of the proposed advertisement as violative of New
York law (regarding invasion of the right of privacy and pub-
licity). The Court attempted to distinguish this Court’s land-
mark public transit advertising decision in Lehman, reasoning
that there was “no commercial reason” why MTA, although a
proprietor of the advertising space, would have any special
interest in the policy behind New York privacy and publicity
law that formed the basis for its rejection of the advertisement
at issue. 136 F.3d at 130.4
Yet a third conflicting approach is reflected in the Seventh
Circuit’s decision in Air Line Pilots Ass’n v. Department of
Aviation of the City of Chicago, 45 F.3d 1144 (7th Cir. 1995),
which involved the exclusion, on content grounds, of a pro-
posed advertisement from a diorama display case in Chicago’s
O’Hare Airport. The Seventh Circuit stated that a “propri-
etary role is one factor to be considered in determining
4. By contrast, and once again illustrating the confusion that permeates
the public forum decisions on this point, the Second Circuit panel in its ear-
lier decision in Lebron gave dispositive weight to the fact that Amtrak's
challenged actions were in its capacity as proprietor of commercial advertis-
ing space. Citing Lehman and quoting Lee, the Second Circuit panel in Leb-
ron found it “especially significant” that “Amtrak acts in this case in a pro-
prietary capacity, rather than as a governmental regulator.” 69 F.3d at 657.
20
whether a public forum was intended.” 45 F.3d at 1158. That
Court found more important in determining the City’s intent
the evidence of “consistent practice and past policy,” an
inquiry the district court was directed to make on remand. 45
F.3d at 1158.
Despite this Court’s decisions in Lee, Kokinda, and Leh-
man, the circuits remain divided on the significance, if any, to
be accorded to the government's role as proprietor of adver-
tising spaces in conducting the inquiry to determine whether
the government intended to designate a public forum.
Legal commentators agree that definitive guidance from
this Court is required to settle the “chaotic” confusion in the
lower courts in this important area of recurring First Amend-
ment litigation. See generally, “Comment: Public Forum Doc-
trine Crashes at Kennedy Airport, Injuring Nine: Interna-
tional Society for Krishna Consciousness, Inc. v. Lee,” 59
Brooklyn L.Rev. 1271 (Fall, 1993) (after Lee, “public forum
doctrine in a state of chaos,” and it is “virtually impossible for
a government or lower court to determine what principles now
govern speech restrictions on government property”); “Com-
ment: ‘Objective’ Approaches to the Public Forum Doctrine:
The First Amendment at the Mercy of Architectural Chica-
nery,” 90 N.W.U. L. Rev. 1185 (1996) (noting pre-Lee “confu-
sion among lower courts attempting to discern reliable guiding
principles from the Court’s public forum decisions”).
The Court should grant the petition for a writ of certio-
rari to resolve the circuit conflict and to clarify the First
Amendment principles applicable in the public forum analysis
where the government acts in a proprietary role, an issue
squarely presented by the Third Circuit's erroneous rejection
of this factor in this case.
IV. The Court Should Grant The Writ Because The Decision
Below Is Inconsistent With This Court’s Decisions In
Cornelius v. NAACP Legal Defense & Educ. Fund, Inc.
And Forbes, With Respect To The Standard Of Reason-
ableness Applicable In Non-Public Forums.
The Court of Appeals in this case disagreed with the dis-
trict court in determining that in declining to continue to post
21
the Advertisement, SEPTA and TDI acted “unreasonably”
and offended First Amendment principles, even in a non-
public forum. The crux of its disagreement is the proposition
that SEPTA was “unreasonable” in failing to afford Christ’s
Bride some additional opportunity to support the accuracy of
the claim it made in its posters concerning the alleged link
between abortion and breast cancer, which had been ques-
tioned by other informed and presumably expert public health
officials as “unfortunately misleading” and “unduly alarming,”
and “not accurately reflect[ing] the weight of the scientific lit-
erature.”
This aspect of the Third Circuit panel decision is clearly
inconsistent with this Court’s decisions in Cornelius, 478 U.S.
at 811, and Forbes, 118 S.Ct. at 1643-44, which (1) define a far
more deferential standard with respect to the issue of “reason-
ableness,” and (2) expressly hold that “avoidance of contro-
versy” is a constitutionally permissible basis upon which the
government may restrict access to a nonpublic forum.
The writ should be granted in this case because this
aspect of the Court oi Appeals’ decision squarely conflicts
with this Court’s precedents defining the applicable standard
of reasonableness, and determining that “avoidance of contro-
versy” incompatible with the proprietary use of government-
owned property provides a reasonable basis for government
action, as long as the government's action remains viewpoint-
neutral.
22
CONCLUSION.
The petition for certiorari should be granted.
OF COUNSEL:
C. NEIL PETERSEN
Southeastern Pennsylvania
Transportation Authority
1234 Market Street
Philadelphia, PA 19107
TINA KOWALSKY HAUT
275 Madison Avenue
New York, NY 10016
Respectfully submitted,
WILLIAM H. ROBERTS
Counsel of Record
JORDANA COOPER
DANIEL H. WHEELER
BLANK ROME COMISKY &
MCCAULEY LLP
KAIRYS & RUDOVSKY
APPENDIX
la
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 96-1829
CHRIST’S BRIDE MINSTRIES, INC.,
Appellant.
v.
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION
AUTHORITY; TRANSPORTATION DISPLAY’S INC.
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 96-cv-03631)
Argued May 21, 1997
Before: SLOVITER, STAPLETON, GREENBERG,
SCIRICA, COWEN, NYGAARD, ALITO, ROTH,
MCKEE, RENDELL, and WEIS!,
Circuit Judges
ORDER
The petition for rehearing in banc filed by appellees in
the above-entitled case having been submitted to the judges
who participated in the decision of this court and all judges
who concurred in the decision having asked for rehearing, and
a majority of the circuit judges of the circuit in regular active
* Honorable Joseph F. Weis’s, Senior Circuit Court Judge, vote is lim-
ited to panel rehearing only.
2a
service not having voted for rehearing by the court in banc,
the petition for rehearing is denied.
By the Court,
Dated: JUL 23, 1998 Sir.
, Circuit Judge
3a
UNITED STATIES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 96-1829
CHRIST’S BRIDE MINISTRIES, INC.,
Appellant.
v.
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION
AUTHORITY; TRANSPORTATION DISPLAY’S INC.
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 96-cv-03631)
Argued May 21, 1997
Before: SLOVITER, STAPLETON, GREENBERG,
SCIRICA, COWEN, NYGAARD, ALITO, ROTH,
MCKEE, RENDELL, and WEIS", Circuit Judges
AMENDED ORDER
The petition for rehearing in banc filed by appellees in
the above-entitled case having been submitted to the judges
who participated in the decision of this court and to all other
available judges of the circuit in regular active service, and no
judge who concurred in the decision having asked for rehear-
ing, and a majority of the circuit judges of the circuit in regu-
* Honorable Joseph F. Weis’, Senior Circuit Court Judge, vote is lim-
ited to panel rehearing only.
4a
lar active service not having voted for rehearing by the court
in banc, the petition for rehearing is denied.
By the Court,
Sent 2d.
&. Circuit Judge
Sa
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 96-1829
CHRIST’S BRIDE MINISTRIES, INC.,
Appellant.
v.
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION
AUTHORITY; TRANSPORTATION DISPLAY’S INC.
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 96-cv-0363 1)
Argued May 21, 1997
Present: Greenberg, Roth and Weis, Circuit Judges
JUDGMENT
This cause came on to be heard on the record from the
United States District Court for the Eastern District of Penn-
sylvania and was argued by counsel on May 21, 1997.
On consideration whereof, it is now here ordered and
adjudged by this Court that the judgment of the said District
Court entered August 16, 1996, be, and the same is hereby
reversed and the cause is remanded to the District Court for
further proceedings consistent with this opinion. Costs taxed
6a
against appellees. All of the above in accordance with the
opinion of this Court.
ATTEST:
@ Gf
Chief Deputy Clerk
Dated: June 25, 1998
7a
Filed June 25, 1998
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 96-1829
CHRIST'S BRIDE MINISTRIES, INC.,
Appellant
V.
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION
AUTHORITY; TRANSPORTATION DISPLAY’S INC.
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 96-cv-03631)
Argued May 21, 1997
Before: GREENBERG, ROTH and WEIS, Circuit Judges
(Opinion Filed June 25, 1998)
Mathew D. Staver, Esq.
Frederick H. Nelson, Esq. (Argued)
Nicole Arfaras Kerr, Esq. _
Liberty Counsel
1900 Summit Tower Boulevard
Suite 560
Orlando, FL 32810
James T. Owens, Esq.
25 South Church Street
Westchester, PA 19382-3220
Attorneys for Appellant
8a
William H. Roberts, Esq. (Argued)
Jordana Cooper, Esq.
Daniel H. Wheeler, Esq.
Blank, Rome, Comisky & McCauley
1200 Four Penn Center Plaza
Philadelphia, PA 19103
Seth Kreimer, Esq.
3400 Chestnut Street
Philadelphia, PA 19104
David Rudovsky, Esq.
Kairys & Rudovsky
924 Cherry Street
Fifth Floor
Philadelphia, PA 19107
Attorneys for Appellees
Tina Kowalsky Haut, Esq.
275 Madison Avenue
New York, NY 10016
Attorney for Appellee
Transportation Display’s Inc.
C. Neil Peterson, Esq.
1234 Market Street
Philadelphia, PA 19107
Attorney for Appellee Southeastern
Pennsylvania Transportation
Authority
OPINION OF THE COURT
ROTH, Circuit Judge:
Southeastern Pennsylvania Transportation Authority
(SEPTA) refused to display an advertisement stating that
“Women Who Choose Abortion Suffer More & Deadlier
Breast Cancer.” We must decide in this appeal whether, in
doing so, SEPTA, a regional transportation authority,
violated the First Amendment rights of the advertiser,
Christ’s Bride Ministries, Inc. (CBM). The district court
found, after conducting a bench trial, that the First
Amendment was not violated because the advertising space
at issue did not constitute a public forum and because
SEPTA acted reasonably in removing the posters. We do-not
agree with either conclusion. In light of the other
advertisements, including those relating to abortion, which
SEPTA had previously permitted to run on its property, and
in light of SEPTA’s own purposes in using and leasing the
space, we have determined that SEPTA intended to create
a designated public forum. We find that SEPTA’s action in
removing the posters does not survive the strict scrutiny
applied to speech within the parameters of a designated
public forum; nor does it pass the reasonableness test
applied where property of a governmental agency has not
been designated a public forum.
I. Background
SEPTA is an “agency and instrumentality” of the
Commonwealth of Pennsylvania, 74 Pa. Cons. Stat. Ann.
§ 1502. It operates buses, subways, and regional rail lines
in and around the City of Philadelphia. SEPTA contracts
with a licensee, Transportation Display’s Inc. (TDI), for the
construction and sale of advertising space in its stations
and in and on its vehicles. TDI and SEPTA are the
defendants in this case.
The plaintiff, CBM, began a public service campaign in
1995 to inform the public of what it believes to be the
increased risk of breast cancer for women who have had
abortions. As part of this campaign, CBM sought to display
posters in train and subway stations and on buses and at
bus stops in major urban areas, including Baltimore,
Washington, and Philadelphia.
CBM contacted SEPTA in late November 1995 about
placing posters in the Philadelphia area transit system.
SEPTA referred CBM to TDI. Bradley Thomas, president of
CBM, subsequently spoke with Robert R. Meara. Vice
President and Regional Manager at TDI. In December 1995,
Thomas sent a draft poster to TDI for review by Meara and
SEPTA. The poster stated “Women Who Choose Abortion
Suffer More & Deadlier Breast Cancer.” The district court
described the poster as “graphically designed with bold
10a
white lettering on a background of black and bright red,
except that the word ‘deadlier’ was written in red.” The
poster also included a 1-800 number for information which
connected callers not with CBM but with an organization
called the American Rights Coalition (ARC).
SEPTA requested that the poster better identify the
sponsor, CBM CBM complied and added a description of
CBM: “Christ's Bride Ministries, Inc. is a charitable,
religious, cducational, non-profit 501{(c)(3) organization
CBM, P.O Box 22 Merrifield, VA 22116. (703) 598-2226.”
SEPTA then approved the posters for display.
On January 15, 1996, the posters went up. TDI put two
of them next to overhead clocks in Suburban Station in
Philadelphia, and 24 others in subway and railroad stations
in Philadelphia and its suburbs. SEPTA immediately began
receiving what it described as “numerous” complaints about
the poster, which included “rider protest” and “criticism” by
“women’s health organizations” and “local government
officials.” Shortly thereafter, Robert Meara told CBM that
SEPTA wanted CBM to identify itself more prominently on
the posters CBM accordingly added decals to the signs that
identified and described CBM with larger and bolder type
After the posters were installed, TDI faxed to CBM a
contract, which Thomas signed and returned to TDI, also
via fax The contract was signed by Robert Meara of TDI
and dated January 22, 1996. The contract provided that
46” x 60” posters would be displayed at 24 locations in rail
stations for one year. The contract also stated that during
that year two 21” x 62” signs would be displayed on clocks
at Suburban Station. The monthly charge for the signs on
the clocks was $642 60, while the monthly charge for the
24 other posters was $2400. There were “terms and
conditions” on the back of the contract, including one that
stated “if the Transportation Facility concerned shovid
deem such advertising objectionable for any reason, 7DI
shall have the right to terminate the contract and
discontinue the service without notice.”
In early February, SEPTA received a copy of a letter
written by Dr. Philip Lee, Assistant Secretary of Health in
the United States Department of Health and Human
4
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Services. The letter was not addressed to anyone in SEPTA,
but instead to Lawrence Reuter, General Manager of the
Washington Metropolitan Area Transit Authority, where
CBM's posters were also displayed. Dr. Lee wrote to Reuter
that
It has recently come to my attention that the Metro
Transit System has posted more than 1,100 free public
service ads from the Christ’s Bride Ministries. The ad
states: “Women who choose abortion suffer more &
deadlier breast cancer. Information: 1-800-634-2224.”
This ad is unfortunately misleading, unduly alarming,
and does not accurately reflect the weight of the
scientific literature.
Dr. Lee went on to state that in his opinion the studies
showing a link between breast cancer and abortion suffered
from methodological weaknesses, that there was no
consensus on the purported relationship between breast
cancer and abortion, and that Dr. Lee knew of no evidence
supporting the claim that abortion causes “deadlier” breast
cancer. Dr. Lee also complained that callers to the 1-800
number were referred to an article in the Journal of the
National Cancer Institute, describing a study that suggested
a positive correlation between induced abortions and breast
cancer. Dr. Lee noted that although the article did appear
in the Journal, the Journal also published an editorial
stating that the results were not “conclusive.” Finally, Dr.
Lee expressed concern that callers to the 1-800 number
were being asked to participate in a survey and that callers
could become confused and think that the National Cancer
Institute supported the survey, which it did not.
Based on Dr. Lee’s letter, SEPTA removed the posters on
February 16, 1996. According to the testimony of Mr.
Gambaccini, SEPTA’s General Manager, the “heart” of the
decision to remove them was the questions about their
accuracy. The 1-800 number concerns were an “anci 4
consideration. It is uncontested that no one at SEPTA or
TDI conducted any other inquiry into the accuracy of the
message on the poster, or contacted CBM for information
that would support the claim made by the ad, o~ informed
CBM of SEPTA’s objections to the ad before removing the
posters. :
12a
On March 13, 1996, nearly a month later, Meara of TDI
wrote to Thomas of CBM, explaining that the posters had
been removed on February 16. Meara stated in his letter
that the decision had been made by SEPTA as a result of “a
letter from the U.S. Department of Health and Human
Services in which it concluded that the ad was
‘unfortunately misleading, unduly alarming and does not
accurately reflect the weight of the scientific literature’.” TDI
included a check to CBM for $3,042.60 for the “unused
portion” of the contract. CBM had paid a total of $6,086 for
two months of advertising.
CBM filed suit on May 10, 1996, naming SEPTA and TDI
as defendants. The complaint alleged violations »f CBM’s
rights under the First and Fourteenth Amendments and
also alleged breach of contract. CBM sought compensatory
damages and declaratory and injunctive relief pursuant to
42 U.S.C. §§ 1983, 1985{c) and 1986.’ The United States
District Court for the Eastern District of Pennsylvania
conducted a three-day bench trial in June 1996. The court
heard testimony about SEPTA’s and TDI's policies and
practices regarding advertising space on SEPTA property,
as well as testimony from experts about the alleged link
between breast cancer and induced abortions.
During the trial, three experts testified that the existing
studies and research do not support the existence of a
cause and effect relationship between abortion and breast
cancer. These experts did, however, acknowledge that some
studies show a weak “association” between induced
abortions and breast cancer. One of SEPTA’s experts
1.CBM has not appealed the district court's rejections of its claims
under 42 U.S.C. §§ 1985 and 1986. CBM has, however, objected to the
district court's denial of its breach of contract claim. It argues that it
only received one page of the two page contract and that there was no
“meeting of the minds” as to the terms of the contract between it and
TDI. The complaint does not make this allegation, however. CBM also
attached both pages of the contract to the complaint and relied on
language from the allegedly missing second page in the complaint itself.
CBM also argues that the contract is “unconscionable,” although the
complaint makes no such allegations. We reject these claims as being
without merit.
13a
testified that the better studies have not been consistent
and that some studies show no link at all.
CBM's expert, on the other hand, testified that he had
analyzed 23 epidemiological studies, 12 of which, in his
opinion, showed a statistically significant increase in breast
cancer among women who had undergone induced
abortions. He argued that this risk could not be accounted
for by the presence of other variables, such as age or
family. The increased risk, CBM's expert noted, was greater
than the relative risk associated with oral contraceptives.
Because manufacturers of contraceptives alert the public as
to the possible link between their product and breast
cancer, it should not be “unduly alarming” for CBM to
report a slightly greater risk purportedly associated with
induced abortions.
The district court issued an opinion on August 16, 1996,
holding for the defendants on all counts. The court
reasoned that public transit stations do not constitute
traditional public fora and that SEPTA and TDI had not
created a public forum because they maintained control
over the use of the advertising space. The court also found
that Dr. Lee’s letter was a “reasonable” basis on which to
remove the advertisement. The court commented that
“ultimately a consensus may develop” as to the link
between breast cancer and abortion but “at this time we do
not know.” The court did not decide whether either SEPTA’s
or CBM's experts were “right.”
CBM timely appealed to this Court. We have jurisdiction
under 28 U.S.C. § 1291.
Il. Standard of Review
In evaluating the claim that CBM’s First Amendment
rights have been violated, we have a “constitutional duty to
conduct an independent examination of the record as a
whole, without deference to the trial court.” Hurley v. Irish-
American Gay Group of Boston, 115 S.Ct. 2338, 2344
(1995). This independent duty does not extend to the
district court's rulings on matters of credibility, to which we
continue to defer, id. (citing Harte-Hanks Communications,
Inc. v. Connaughton, 491 U.S. 657, 688 (1989)), but it does
require us draw our own inferences from the factual
14a
evidence presented. United States v. Antar, 38 F.3d 1348,
1357 (3d Cir. 1994); Swineford v. Snyder Co. Pa., 15 F.3d
1258, 1165 (3d Cir. 1994).
Ill. State Action and Commercial Speech
Turning to the substantive issues, we readily dispose of
two initial matters. First, the United States Constitution
guarantees freedom of expression only against infringement
by the state, not by private actors. Hurley v. Irish-American
Gay Group of Boston, 115 S.Ct. 2338, 2344 (1995). In this
case, however, the parties agree that SEPTA is a state
actor, as is its licensee, TDI, and that their actions are
constrained by the First and Fourteenth Amendments.
Second, the posters come within the ambit of speech fully
protected by the First Amendment. The defendants argue
that because callers to the 1-800 number listed on the
poster may receive information advertising the services of
medical malpractice attorneys, CBM’s message is thereby
transformed into “commercial speech,” and should receive
substantially less constitutional protection. See Bolger v.
Youngs Drug Prods. Corp., 463 U.S. 60, 66-67 (1983). But
the speech at issue does not advertise goods or services,
nor does it refer to a specific product or service. The 1-800
number listed on the poster does not even connect callers
to CBM. Any economic motive of CBM for posting the
advertisement is very attenuated at best. See US.
Healthcare v. Blue Cross of Gr. Philadelphia, 898 F.2d 914,
932-933 (3d Cir. 1990). The speech involved is accordingly
not “commercial,” at least in the sense that it is afforded
less protection under the First Amendment.
IV. Public Forum
The government may, as a general rule, limit speech that
takes place on its own property without running afoul of
the First Amendment. Lamb’s Chapel v. Center Moriches
Union Free School Dist., 508 U.S. 384, 390 (1993); Perry
Educ. Ass’n. v. Perry Local Educators’ Ass’n, 460 U.S. 37,
46 (1983). Where, however, the property in question bos
either a traditional public forum or a forum
public by the government, the government's ability to timit
speech is impinged upon by the First Amendment. Perry.
460 U.S. at 45-46. In either a traditional or a designated
15a
public forum, the government's content-based restrictions
on private speech must survive strict Scrutiny to pass
constitutional muster. Id.; International Society for Krishna
Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992). The
government has, however, a far broader license to curtail
speech if the forum has not been opened to the type of
expression in question. In such a case, the government's
restrictions need only be viewpoint neutral and “reasonable
in light of the purpose served by the forum.” Rosenberger v.
Rector and Visitors of the Univ. of Va, 115 S.Ct. 2510,
2516-2517 (1995) . (quoting Cormelius v. NAACP Legal
Defense and Educ. Fund, Inc., 473 U.S. 788, 806 (1985)):
Kreimer v. Bureau of Police for the Town of Morristown, 958
F.2d 1242, 1262 (3d Cir. 1992).
In order to decide whether a public forum is involved
here, we must first determine the nature of the property
and the extent of its use for speech. The Supreme Court
wrestled with a similar question in Comelius v. NAACP
excluded-from a charity drive among federal employees. The
government argued in Comelius that the “federal
workplace” was the relevant forum. The plaintiffs on the
other hand maintained that the forum consisted only of the
charity drive itself. Id. at 800. The Court defined the forum
in terms of the access sought by the plaintiff. It accordingly
rejected the view that the entire workplace was the proper
forum, because the plaintiffs sought only to join the charity
drive, not to engage in actual, face-to-face solicitation in the
_workplace. Id. at 801. The Court went on to conclude that
the charity drive itself did not constitute a public forum
and that the restrictions on participation were reasonable.
In this case, the district court variously defined the forum
at issue as “the siations in a public transit system,” a
“public transportation system,” and “SEPTA’s subway and
the rail and subway stations as a whole. Instead, it sought
access only to the advertising space leased out by SEPTA,
through TDI. The contract between the parties
16a
next to the clécks at Subarbah Senior iif Pavtaatafiars we’
conclude, therefore, that the forum at issue is SEPTA's
advertising space. See, Airline Pilots Assoc. v. of
Aviation of the City of Chicago, 45 F.3d 1144, 1151 (7th Cir.
1995) (holding that display diorama in airport, not entire
concourse, constituted relevant forum); Lebron v. Nat'L R.R.
Corp., 69 F.3d 650, 655-656 (holding that one
billboard was the relevant forum, not the entire Penn
Station); New York Magazine v. Metropolitan Transp. Auth.,
136 F.3d 123, 130 (2d Cir. 1998) (holding that because
MTA allowed both commercial and political speech, the
outside of MTA buses is a designated public forum).”
Our next step is to decide whether SEPTA’s advertising
space is a public forum. It clearly does not constitute a
“traditional” public forum, archetypal examples of which
include streets and parks. These areas have been “held in
the public trust,” Lee, 505 U.S. at 680, and dedicated to
expressive activity for “time out of mind.” Id. (quoting
Hauge Committee for Industrial Organization, 307 U.S. 496,
515 (1939)). We agree with the district court that the
advertising space in the stations is not a traditional public
forum. We do not understand CBM to argue otherwise.
More difficult is the question whether SEPTA has created
: designated public forum by “expressly” dedicating its
space to “speech activity.” U.S. v. Kokinda, 497
U. S. 720, 726-727 (1990) (plurality opinion). A designated
2. The parties have not argued that the relevant forum is actually just
advertising space in the stations, to the exclusion of space leased on and
inside SEPTA vehicles. Because SEPTA stated that it used different
standards in evaluating advertisements that appeared as wrap-around
bus ads, one could conclude that these types of ads are a separate
forum. See Lebron, 69 F.3d at 655 (one billboard, not all of the billboards
in Penn Station, constituted the relevant forum because the billboard
was unique and the speaker sought access only to that specific
billboard), but see Lebron, 69 F.3d at 661 (Newman, C.J. dissenting)
{arguing that “public forum analysis cannot be so particularized as to
focus on one of several billboards on government property”). Whether we
consider the limitations on wrap-around bus ads as creating a separate
forum, or merely a particular limitation within the larger forum of
SEPTA's advertising space, our disposition of the case remains the same.
Se
tw et
SEY BORN A SR mo a RS eR
17a
RRCUGr! GBES ‘AST MARE SHEE a NSA. He Uses He
allowance of “limited discourse.” Cornelius, 473 U.S. at 802.
We accordingly look to the authority's intent with regard to
the forum in question and ask whether SEPTA clearly and
deliberately opened its advertising space to the public.
Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260, 269-
270 (1988); Perry, 460 U.S. at 37. To gauge SEPTA’s intent,
we examine its policies and practices in using the space
and also the nature of the property and its compatibility
with expressive activity. Gregoire v. Centennial School
District, 907 F.2d 1366, 1371 (3d Cir. 1990) {
forum, however, do not necessarily mean that SEPTA has
not created a public forum. They may demonstrate instead
that SEPTA intended to create a limited public forum, open
only to certain kinds of expression. See. e.g., Kreimer, 958
Rosenberger v. Rector and Visitors of the Univ. of Va., 115
S.Ct. 2510, 2517 (1995) (student activities fund, available
to student groups meeting certain criteria. constituted
limited public forum).
A. SEPTA’s policies
We will look first at the purpose for which SEPTA uses
the space in question. The main function of the advertising
space at issue is to earn a profit for SEPTA. Although
from the leasing of advertising space in its stations and in
and on its vehicles. The contract between TDI and SEPTA
States that “it is understood that it is Licensee's obligations
[sic] under the terms of this contract to produce revenues
3. That the generation of income is a goal of the advertising space is also
reflected in the manner in which SEPTA is paid by TDI under the
18a
The record shows that TDI and SEPTA also had a
StUidaay geal is ucing the cpare- nromoting “awareness”
of social issues and “providing a catalyst for change.” These
objectives are stated in the “TDI Cares” brochure. The “TDI
Cares” program, in which SEPTA participates, seeks to
““give back’ to the communities which [TDI] serves] in
many ways .. ..” In this program TDI picks an issue of
public concern and then pays for the materials and labor
involved in creating the advertisements. The purpose of the
program, in TDI’s words, is to assail TDI markets with
“images, both poignant and creative, which are designed to
elevate awareness and provide a catalyst for change.” This
page of the brochure is headed “consciousness” and states
that the program tries to “focus consciousness on an issue
of pressing human concern.” The testimony at trial was
that SEPTA participated in TDI’s annual campaign by
donating unsold advertising space. SEPTA and TDI “jointly
agree” on what initiatives will run in the Philadelphia area,
but it is not clear from the record which ads ran on SEPTA
property under this program.‘
SEPTA argues that where the government runs a
commercial operation, a “bright-line rule” directs that no
public forum has been created. For this proposition, SEPTA
contract. TDI guarantees a minimum annual payment to SEPTA, one
twelfth of which is due at the beginning of each month, but SEPTA
receives fifty-five percent of all net sales in any given monih if that
amount is greater than one twelfth of the guaranteed annual payment.
In the first agreement year, the guaranteed annual payment was
$2,000,000. This rose to $2,950,000 for the fifth and final agreement
year.
4. SEPTA contends that we should not consider the TDI Cares brochure
because it is hearsay. The brochure was, however, admitted into
evidence without objection by SEPTA. Moreover, it was offered not for the
truth of the matter asserted but for the fact that the assertions were
made — which is not hearsay. In addition, the brochure plays little role
in our decision. There is no evidence on the record of which ads actually
ran in the campaigns described in the brochure or of how much
advertising space SEPTA and/or TDI actually donated to those
campaigns. Considered with the other evidence in the record, the
brochure demonstrates, however, that the forum in question is suitable
for speech concerning social problems and issues.
ee eT ET ee
19a
cites International Society for Krishna Consciousness, Inc. v.
Lee, 505 U.S. 672 (1992). In Lee, the Court considered
restrictions on_ solicitation and leafleting in airport
terminals. The Court began by noting that the government
owned and operated the airport terminals and that:
Where the government is acting as a_ proprietor,
managing its internal operations, rather than acting as
a lawmaker with the power to regulate or license, its
actions will not be subjected to the heightened review
to which its actions as a lawmaker may be subject.
505 U.S. at 678 (quoting United States v. Kokinda, 497 U.S.
720, 725 (1990) (plurality opinion) (citing Cafeteria &
Restaurant Workers v. McElroy, 367 U.S. 866, 896 (1961))).
In Lee, the Court went on, however, to apply the factors
identified in Comelius to determine whether the airport
terminals were public fora. The Court reasoned that the
profit by serving the air-traveling public. The goal of the
terminal was “the facilitation of Passenger air travel” and
not “the promotion of expression.” 505 U.S. at 682. The
Court distinguished the restricted access in air terminals
from other “transportation nodes,” such as rail and bus
Stations. Id. at 681.
We do not read Lee, as SEPTA Suggests, to mean that
every time the government runs a commercial enterprise it
has, by definition, decided not to create an open forum. To
the contrary, it is the commercial and restricted nature of
an airport concourse which suggested that the government
did not intend the concourse to be primarily a forum for
expression. See also Cornelius, 473 U.S. at 799-800.
Here, we have determined that the forum is not the
SEPTA stations, but only the advertising space within the
Stations. We need not concern ourselves with solicitation or
leafletting of the public within the Stations but only with
the use of the ad space itself. The nature of this forum is
partly commercial, consistent with the goal of SEPTA to
eam a profit on its advertising space and with CBM'’s offer
to pay the commercial rate to lease that space. See Airline
Pilots Assoc. v. Dept. of Aviation of the City of Chicago, 45
F.3d 1144, 1157 (7th Cir. 1995); Stewart v. District of
20a
Columbia Armory Bd., 863 F.2d 1013, 1019 (D.C. Cir.
1988). However, SEPTA has also used the advertising space
to generate a profit through expressive activity. This
expressive use has not interfered with providing rail
transportation facilities to the public. Thus, the nature of
the forum suggests, but by no means establishes, see
Lehman v. City of Shaker Heights, 418 U.S. 298, 304
(1974), that the government has dedicated the space to
expression in the form of paid advertisements. See
Southeastern Promotions, Limited v. Conrad, 420 U.S. 546,
555 (1975) (holding municipal theaters were “public forums
designed for and dedicated to expressive activities”).
With these goals in mind, we next consider SEPTA’s
written policy governing permissible advertising. The
contract between TDI and SEPTA provides that “it is
SEPTA’s strong preference that [TDI] concentrate on
securing advertising other than that which is tobacco and
alcohol related.” The contract directs that TDI use its “best
efforts” to fill the space with other advertisements.
Recognizing that TDI’s responsibility under the contract is
to “produce revenues,” the contract permits the combined
sale of alcohol ind tobacco advertising of up to twenty
percent of the anual dollar value of the advertising. TDI
also, however, has an obligation to “pursue qualified public
health groups, as identified by SEPTA” and to make
advertising space available to them “on a one to one ratio
to the tobacco ard alcohol related advertising at that time,
subject to space availability.” In addition, the contract
reserves for SEPTA the right to reject advertisements that it
does not like:
All advertising displays at any time inserted or placed
by the Licensee in any display devices in any vehicle
and /or locations shall be of an appropriate character
and quality, and the appearance of all displays shall be
acceptable to SEPTA. No libelous, slanderous, or
obscene advertising maybe accepted by the Licensee for
display in the Authority's transit and railroad vehicles
and facilities. All advertising determined by the [sic]
SEPTA, in its sole discretion, as objectionable within
the meaning of this subsection must not be utilized on
any SEPTA vehicle or facility. SEPTA shall have the
2la
right to immediately remove any advertising material
which has already been applied, in the event that the
[sic] SEPTA deems material objectionable for any
reason, at the expense of the Licensee.
SEPTA argues that because it retained the right in its
sole discretion to reject or to remove any advertisement that
it deems objectionable, it did not create a public forum of
any sort. The authority's own statement of its intent,
however, does not resolve the public forum question.
Gregoire v. Centennial School District, 907 F.2d 1366, 1374
(3d Cir. 1990) (reasoning that “intent, as evidenced by a
government's statements, is a factor to be considered,” but
that “the forum inquiry does not end with the government’s
statement of intent”); see also Air Line Pilots Association,
Int’L v. Dept. of Aviation, 45 F.3d 1144, 1153-1154 (7th Cir.
1995); Stewart v. Dist. of Columbia Armory Bd., 863 F.2d
1013, 1016-1017, 1020 (D.C.Cir. 1988).
Furthermore, the fact that SEPTA has reserved for itself
the right to reject ads for any reason at all does not signify,
in and of itself alone, that no public forum has been
created. See Gregoire, 907 F.2d at 1375. In Gregoire, we
warned that “standards for inclusion and exclusion” in a
limited public forum “must be unambiguous and definite” if
the “concept of a designated open forum is to retain any
vitality whatever.” 907 F. 2d at 1375. We do not hold that
the government could never, pursuant to an open-ended
policy of exciuding speech as it sees fit, effectively close the
forum to certain speech (or maintain an entirely closed
forum) through a consistent practice of so doirig. But the
fact that the government has reserved the right to control
speech without any particular standards or goals, and
without reference to the purpose of the forum, does not
necessarily mean that it has not created a public forum. If
anything, we must scrutinize more closely the speech that
the government bans under such a protean standard. See
Gregoire, 907 F.2d at 1375; id. at 1386 (Stapleton, J.,
dissenting); Denver Area Educational Telecommunications
Consortium v. FCC, 116 S.Ct. 2374, 2414-2415 (1996)
(Kennedy, J., concurring in part and dissenting in part);
Lebron, 69 F.3d at 661-662 (Newman, C.J., dissenting).
22a
SEPTA’s purpose in operating the forum and its written
policies governing access provide no conclusive answer as
to whether the forum is intended to be closed or open. The
goal of generating income by leasing ad space suggests that
the forum may be open to those who pay the requisite fee.
SEPTA has specified a few areas in which it will not freely
accept advertising: alcohol and tobacco advertising beyond
a specified limit and ads deemed libelous or obscene. These
restrictions do not apply to the CBM posters. Beyond these
limitations, there are no specific restrictions on the type of
advertising that SEPTA will accept. In effect, SEPTA’s
reservation of the right to reject any ad for any reason does
not conclusively show that it intended to keep the forum
closed.
We turn now to SEPTA’s past practice in using the
advertising space, and the suitability of the forum to the
speech in question.
B. SEPTA's Past Practice and the Suitability of the
Forum for CBM’s Ad
SEPTA has accepted a broad range of advertisements for
display. These include religious messages, such as “Follow
this bus to FREEDOM, Christian Bible Fellowship Church;”
an ad criticizing a political candidate; and explicitly worded
advertisements such as “Safe Sex Isn't” and an
advertisement reminding viewers that “Virginity-It’s cool to
keep” and “Don't give it up to shut ‘em up.” Indeed, many
ads address topics concerning sex, family planning, and
related topics. Other examples include a controversial 2d
campaign on AIDS education and awareness, posters
stating “The Face of Adoption” “Consider Adoption” and
“Every child deserves a family,” and another ad reading
“Pregnant? Scared? Confused? A.R.C. Can Help Call 1-800-
884-4004 or (215-844-1082.)”
On the topic of abortion, SEPTA has accepted two ads.
One read “Choice Hotline, For Answers to Your Questions
About: Birth Control e Pregnancy e Prenatal Care e Abortion
e Adoption e HIV/AIDS e Sexually Transmitted Diseases
(STDs) Abortion — Making A Decision, Call State Health Line
1-800-692-7254 For Free Booklet on Fetal Development,
23a
Fetus is Latin for Little one - A Little Human is a Baby,
Confidential ¢ Free.” The other one addressed the health
benefits of legalizing abortion: “When Abortion Was Illegal,
Women Died. My Mother Was One of Them. Keep Abortion
Legal and Safe. Support the Clara Bell Duvall Education
Fund. 471-9110.”
From the broad range of ads submitted, SEPTA has
requested modification of only three. One was the large
woman; it was too “risque.” The same ad was accepted as
a smaller “poster” ad on the sides of buses. SEPTA also
asked for modification of an ad depicting a gun with a
condom stretched over it. The text of the ad, “Safe Sex
Isn't,” ultimately ran without the graphics. SEPTA also
requested that an advertisement for a personal injury law
firm delete references to rail accidents.
We conclude then, based on SEPTA's written policies,
which specifically provide for the exclusion of only a very
boundaries of the forum, particularly concerning visual
images that could be considered explicit. The topic of
abortion and its health effects were, however,
“encompassed within the purpose of the forum.” Comelius,
473 U.S. at 806.
SEPTA argues, however, and the district court concluded,
that the instances in which SEPTA requested modification
24a
objection by SEPTA. As we note above, SEPTA has
exercised control over only three ads, two of which had
graphics to which SEPTA objected, and one of which
solicited personal injury cases that could be directed
against SEPTA. In one case, the concern with the graphics
was unique to the wrap-around type bus ad — concerns
not implicated here. In all three cases, after negotiation
with the sponsor, the ads were permitted to run with some
modification.
Because of SEPTA’s policy in accepting ads, including
two on the specific topic in question, the argument that
SEPTA has “tight control” over the forum may apply to ads
which are similar to the ones for which SEPTA has required
modification. That does not mean, however, that such
control applies to subject matter over which SEPTA has
never before exercised any restrictions. Because the forum
may be limited in one way does not foreclose its status as
a public forum with respect to other categories of speech. If
it did, there would have been no limited public forum in
Widmar, 454 U.S. at 267, or in Rosenberger, 115 S.Ct. at
2510. Both cases involved designated fora which excluded
non-student groups. Nor would there have been a limited
public forum in Kreimer, where the library constituted a
public forum although it was open only to certain kinds
expression.°
5.In Denver Area Educational Telecommunications Consortium v. FCC,
116 S.Ct. 2374, 2388 (1996) (plurality opinion), the Court was troubled
by how to characterize the government's decision to limit a forum to
exclude certain speech. Does strict scrutiny apply, Justice Breyer asked
for the plurality, if the government “builds a band shell in the park and
dedicates it solely to classical music (but not to jazz)?” Justice Kennedy
responded that the correct analogy to the cable system at issue was “the
Government's creation of a band shell in which all types of music might
be performed except rap music,” and went on to say that “the provisions
here are content-based discriminations in the strong sense of
suppressing a certain form of expression that the Government dislikes,
or otherwise wishes to exclude on account of its effects, and there is no
justification for anything by strict scrutiny here.” 116 S.Ct. at 2374
(Justice Kennedy, concurring and dissenting). In this case, the past
practice of permitting much speech, particularly that on the topic of
abortion, makes Justice Kennedy's analogy apt.
STA SS GO
25a
But we reiterate that the government's exercise of some
restrictions on speech does not foreclose a public forum.
We do not hold that merely because the government may
have had a past practice of permitting some expressive
activity, it has created a public forum. Standing alone, a
“limited discourse” does not mandate that the government
intended the forum as public. Cornelius, 473 U.S. at 802;
Kokinda, 497 U.S. at 720; Perry, 460 U.S. at 47.° We must
look at the past practice in conjunction with the purpove of
to the forum and the government's purpose in creating the
forum demonstrated that the government intended the
forum to be closed. 473 U.S. at 804-805; see also, Kokinda,
497 U.S. at 730; Perry, 460 U.S. at 47-48. Here, on the
other hand, the purpose of the forum does not suggest that
it is closed, and the breadth of permitted speech points in
the opposite direction.
Moreover, there is no evidence that SEPTA rejected the ad
pursuant to a new or previously existing policy to close the
forum to debatable or misleading speech generally, or
Our consideration of the similarity of the speech in question to speech
permitted in the past is related to a determination of whether the
limitation constitutes viewpoint discrimination, although here we make
that inquiry only in conjunction with the other factors in the public
forum analysis. We do not reach the viewpoint discrimination issue in
this case. Even if we concluded that no viewpoint discrimination took
place, however, this would not make the past use of the space irrelevant
in determining whether the forum is public. How the forum has been
used in the past is a core component of the public forum inquiry. See,
e€.g., Cornelius at 803-805; see also Denver Area Consortium, 116 S.Ct.
at 2415 (Kennedy, J. concurring and dissenting) (“It contravenes the
First Amendment to give Government a general license to single out
6.In Kokinda, only four Justices concluded that no public forum had
been created. Four Justices reached exactly the opposite exclusion — a
limited public forum had been created — based in large part on the past
practice of permitting speech in the forum. Kokinda, 497 U.S. at 750.
: roser
26a
closed it to such speech on any particuiar topic of health.
To the contrary, SEPTA simply argues that the forum was
closed, and will be closed, to any speech that SEPTA wishes
to exclude for any reason. In other words, SEPTA does not
argue that the forum is closed to this particular type of
speech because SEPTA views it differently from the speech
it has permitted in the past. Instead, SEPTA claims the
forum is closed to all speech, and that short of viewpoint
discrimination, SEPTA can make any _ content-based
restrictions it chooses. SEPTA's prior acceptance of a broad
range of advertiseme~ts cuts particularly strongly against
this claim. Cf. Greyoire, 907 F.2d at 1373. As Justice
Kennedy reasoned in Denver Area Consortium, “|t]he power
to limit or redefine forums for a legitimate purpose [citation
omitted] does not allow the government to exclude certain
speech or speakers from them for any reason at all.” 116
S.Ct. at 2414 (Kennedy, J.) (concurring and dissenting).
The Seventh Circuit has also concluded, in a case similar
to this one, that a transportation authority created a
limited public forum. Planned Parenthood Ass'n v. Chicago
Transit Auth., 767 F.2d 1225 (7th Cir. 1985). In Planned
Parenthood, the Chicago Transit Authority (“CTA”) refused
to lease advertising space to Planned Parenthood for display
of “abortion-related” advertisements. Althoug’ CTA had
rejected an anti-Vietnam war ad (later displayed as part of
a settlement agreement), and an “Impeach Nixon” placard
(later displayed pursuant to court order), CTA had accepted
an anti-war ad depicting “large bombs falling on a child
releasing a dove with an olive branch in its beak.” 767 F.2d
at 1230. The court concluded that CTA had created a
limited public forum, reasoning that “CTA maintains no
system of control over the advertisements that it accepts ...
other than the general contractual directive .... to refuse
vulgar, immoral, or disreputable advertising” and that CTA
“has allowed its advertising space to be used for a wide
variety of commercial, public-service, public-issue, and
political ads.” Id. at 1232-1233. Noting as well that CTA
had no policy pursuant to which the ad was excluded, the
court concluded that the transportation authority had
created a public forum. We are confronted with a similar
factual situation in this case, and we reach the same
conclusion.
27a
In arguing to the contrary, SEPTA relies primarily on
Cornelius v. NAACP Legal Defense and Education Fund, 473
Lower Merion School, 776 F.2d 431, 436 (34 Ci, 1985). In
Comelius, however, the government had a “consistent
disruptive effects of individual charity drives throughout the
year, by “lessening the amount of expressive activity
occurring on public property.” Id. at 805. Here, there is no
comparable “policy and practice” demonstrating that the
government intended that the forum be closed to the
speech at issue in this case. Indeed, the record points
exactly the other way. In its efforts to generate advertising
revenues, SEPTA permitted abortion-related and other
controversial advertisements concerning sexuality.
a school board to permit a “Peace Fair” on the school’s
athletic field or inside the boys’ gymnasium. A student .
a Special Olympics, for a Memorial Day service, for a “Bike
Hike,” and for jogging, picnics, and similar activities. 776
F.2d at 434. The board rejected the request pursuant to an
unwritten, but long-standing policy of reserving the athletic
‘field for “athletic and governmental purposes.” The board
noted that use of the gym could cause damage to the floor,
and offered the use of the auditorium, which the group
7. This policy was in effect from 1963 until 1982. Cornelius, 473 U.S. at
792. During 1982 and 1983, some legal defense funds participated in
the charity drive under court order. An Executive Order issued in 1983
limited participation to “voluntary, charitable, health and welfare
agencies that provide or support direct health and welfare services to
individuals or their families,” excluding “jalgencies that seek to influence
the outcomes of elections or the determination of public policy through
political activity or advocacy, lobbying, or litigation on behalf of parties
other than themselves.” 473 U.S. at 795.
28a
rejected. We concluded, because permission to use the
facilities in question was not granted “as a matter of
course” and because the nature of the property suggested
the facilities did not have as their primary purpose
expressive activities, that the government had not created a
limited public forum. Id. at 436-437. The property at issue
here, on the other hand, has been dedicated to expressive
activity of exactly the sort in which petitioners seek to
engage. Moreover, as to the subject of abortion specifically,
and family planning issues generally, permission to post
advertisements has been granted as a “matter of course.”
There is no policy, written or unwritten, pursuant to which
CBM’s ads were removed.
Lehman v. City of Shaker Heights, 418 U.S. 298 (1974) is
similarly inapposite. In Lehman, the Court considered a
ban on political advertising in the city’s transit vehicles. A
candidate for city council challenged the city’s rejection of
his ad pursuant to the city’s policy, which had been in
effect for 25 years. The card space, the Court reasoned, was
a “commercial venture,” and the city was free to limit the
space to enhance commercial revenues, and to protect
riders from the “blare of political propaganda.” Id. at 303-
304. As we have made clear, however, SEPTA has no long-
standing practice of prohibiting ads like CBM’s; nor does it
have any policy pursuant to which the ads were removed.
SEPTA’s past practice is, instead, to include such ads.
Because we find that SEPTA has created a designated
public forum, content-based restrictions on speech that
come within the forum must pass strict scrutiny to comport
with the First Amendment. Perry, 460 U.S. at 46. As the
Supreme Court explained in Police Dept. of the City of
Chicago v. Mosley, 408 U.S. at 92, 95, “above ail else, the
First Amendment means that government has no power to
restrict expression because of its message, its ideas, its
subject matter, or its content.” Thus the government “may
not grant the use ef a forum to people whose views it finds
acceptable, but deny use to those wishing to express less
favored or more controversial views. And it may not select
which issues are worth discussing or debating in public
facilities.” Id. at 96. The prohibited expression in this case,
CBM’s ad, falls within the scope of the forum created by
29a
SEPTA. Thus, SEPTA’s restriction is subject to heightened
review.
SEPTA has not argued that its actions Survive strict
scrutiny. Accordingly, we conclude that CBM's First
Amendment rights were violated when SEPTA removed
CBM’s ads.
V. Reasonableness of SEPTA’s Restrictions
Even if the speech in question had fallen outside the
limited public forum created by SEPTA, we would
nonetheless conclude that SEPTA’s removal of the posters
violated the First Amendment because the removal was not
“reasonable.” When reviewing a governmental agency’s
limitation of speech on government property that has not
been designated a public forum, the “reasonableness” of
action limiting speech is gauged with reference to the
nature of the forum itself. As the Supreme Court explained:
Consideration of a forum’s special attributes is relevant
to the constitutionality of 4 regulation since the
s ce of the governmental interest must be
assessed in light of the characteristic nature and
function of the particular forum involved.
_ ‘to accomplish the most efficient and effective postal
delivery system.” Id. at 732. Solicitation, the postal service
had decided, was “inherently disruptive” of its business. Id.
30a
because they constituted “perhaps the clearest and most
direct way to achieve maximum library use.” Id; see also,
Hazelwood School Dist. v. Kuhimeier, 484 U.S. 270, 273
(1988) (content-based restrictions on speech in school
newspaper constitutional “so long as [they] are reasonably
related to legitimate pedagogical concerns”); Cornelius v
NAACP Legal Defense and Educ. Fund, Inc., 473 U.S. 788.
806 (1985) (distinctions in non-public forum based on
“subject matter and speaker identity” are constitutional as
long they are “reasonable in light of purpose served by the
Soran and are viewpoint neutral”); Lee v. Intern. Soc. for
Krishna Consciousness, Inc., 505 U.S. 672, 685 (1992)
(O'Connor, J., concurring) {reasonableness inquiry is
“whether [the restrictions on solicitation and on distribution
of literature] are reasonably related to maintaining the
multipurpose environment that the Port Authority has
created.”).
Similarly, in Lehman v. City of Shaker Heights, 418 U.S.
298, 303 (1974), the Court considered whether tbe city’s
refusal to accept political advertising on its rapid transit
vehicles violated the First Amendment. The Court reasoned
that
Revenue earned from long-term commercial advertising
could be jeopardized by a requirement that short-term
candidacy or issue-oriented advertisements be
displayed on car cards. Users would be subjected to
the blare of political propaganda. There could be
lurking doubts about political favoritism, and sticky
administrative problems might arise in parceling out
limited space to eager politicians. In _ these
circumstances, the managerial system to limit car card
space to innocuous and less controversial advertising
does not rise to the dignity of a First Amendment
violation.
418 U.S. at 304 (plurality opinion). The Court thus
reasoned that, in order to maximize commercial revenue
and eliminate concerns about political favoritism, the city
could restrict the car card space to exclude political
advertisement.
In this case, the district court concluded that SEPTA
acted reasonably in relying on Dr. Lee's letter to remove the
—— eT ee
3la
CBM posters. However, CBM paid the commercial rate for
the advertising Space, just like any other advertiser, and
Submitted an advertisement on abortion and mate
health, topics that were the subject of other
permitted Sdesilidaesmme co on of > geo and
the manner in which it was presented, were compatible
with the purposes of the forum.
Spock, 424 U.S. 831, 838 n.10 (1976). In this case,
concurring) (“because I cannot see how peaceful
pamphletting is incompatible with the multipurpose
environment of the Port Authority airports, I cannot accept
that a total ban on that activity is reasonable without an
explanation as to why such a restriction ‘preserves the
property’ for the several uses to which it has been put.
[citation to Perry]"): Airline Pilots Assoc. v. Dept. of Aviation,
45 F.3d 1144, 1161 (7th Cir. 1995) (Flaum, J. Concurring)
“inconsistent treatment,” in the eyes of the dissent, “renders the
Prohibition on solicitation unreasonable.” Kokinda, 497 U.S. 760-761
(Brennan, J. dissenting).
32a
SEPTA argued before the district court that Gambaccini
had testified that SEPTA “closed the debate to a situation in
which there are ads or debated and dubious statements of
medical fact.”® Consistent with this statement, SEPTA could
have argued that based on Dr. Lee’s letter, it viewed CBM’s
ad as “debated and dubious,” and accordingly excluded it.
A prohibition on “debated and dubious ads,” put in place
before, or because of the concerns about CBM’s ad, might
qualify as reasonable. We note, however, that SEPTA does
not have a policy of protecting riders from “debated and
dubious” speech generally, nor does SEPTA link this
purported policy to its use of the forum.
In any event, we need not reach that question.
Gambaccini did not testify to such a policy, implemented
either before or after the removal of CBM’s ad. Instead,
when questioned if he would post an ad saying “women
who choose abortion live longer and have less breast
cancer,” he answered “[Njot unless there was some credible
evidence to support it.” (Appendix at 354-355). This is a
different standard — a debatable advertisement may well be
supported by credible evidence. And if this standard
controlled, SEPTA was unreasonable because it failed to
give CBM an opportunity to produce such evidence.
Moreover, Gambaccini did not explain whether this
standard applied generally, or just to ads on the topic of
abortion and cancer. Nor did he explain SEPTA’s grounds
for adopting it. SEPTA has left us to guess why, in terms of
the purpose of the-forum, it excluded CBM’s ad, and why,
and to what extent, other ads will also be excluded. This
makes it difficult to evaluate the extent of the governmental
interest in excluding the speech from SEPTA’s property.
Finally, as we have noted, SEPTA never asked CBM —
the sponsor of the ad — to defend its accuracy, to explain
the basis for the ad, or to clarify it. Instead, SEPTA removed
the ad without contacting CBM — even though CBM had
modified the poster in response to SEPTA’s previous
requests.
9.SEPTA argued before us that it “determined not to devote its
advertising areas to alarming allegations regarding cancer and abortion,
given the controverted nature of the public health claim as described in
the HHS ‘tcuer.”
Teste:
34a
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CHRIST’S BRIDE MINISTRIES, INC. : CIVIL ACTION
‘ :
SOUTHEASTERN PENNSYLVANIA :
TRANSPORTATION AUTHORITY, etal. : NO. 96-3631
MEMORANDUM
Bartle, J. August 16, 1996
This is a case about posters, in the Philadelphia subway
and commuter rail stations, which carried the message,
“WOMEN WHO CHOOSE ABORTION SUFFER MORE
AND DEADLIER BREAST CANCER.”
I
Plaintiff Christ’s Bride Ministries, Inc. (“CBM”) has sued
the Southeastern Pennsylvania Transportation Authority
(“SEPTA”), the owner and operator of the commuter subway,
bus and rail systems in the Philadelphia metropolitan area,
and its licensee Transportation Displays, Inc. (“TDI”) for
removing CBM’s previously installed antiabortion posters.
CBM claims, pursuant to 42 U.S.C. § 1983, that defendants
violated its right of free speech under the First and Fourteenth
Amendments to the Constitution, and its right to equal pro-
tection under the Fourteenth Amendment. CBM also has a
contract claim. Among other relief, CBM seeks a permanent
injunction to compel the reinstallation of its signs. The court
held a non-jury trial on the merits. It now renders its findings
of fact and conclusions of law in accordance with Rule 52 of
the Federal Rules of Civil Procedure.
CBM is a small non-profit religious, educational, and
charitable organization incorporated in Virginia. It has been
engaged in a campaign over the last year and one-half to
acquaint women in particular and the public generally with
what it believes to be the health risks attendant to an abortion.
As part of this effort, it has sought to post its message in the
subway and commuter rail stations in various cities, including
Baltimore, Philadelphia, and Washington.
35a
In December, 1995 Bradley Thomas, the president of
CBM, contacted SEPTA about the placement of antiabortion
advertisements in SEPTA’s subway and rail stations. Thomas
was directed to TDI, which has a contract with SEPTA to
solicit, oversee, and manage the placement of advertisements
in and on SEPTA’s buses, subways, trains and facilities. Under
that contract TDI was prohibited from displaying “any libel-
Ous, Slaiderous, or obscene” material. SEPTA retained the
right to approve in advance all advertising and to remove any
advertisement it found to be objectionable for any reason.
A‘ter numerous phone conversations and discussions,
TDI and SEPTA ultimately approved the copy for CBM’s
posters. They read, as noted above, “Women who choose
abortion suffer more and deadlier breast cancer.” The signs
were graphically designed with bold white lettering on a back-
ground of black and bright red, except that the word “dead-
lier” was written in red. The posters also contained the follow-
ing in small print: “Information: 1-800-634-2224,” as well as
CBM’s name as the sponsoring organization. The 800 number
did not connect to CBM. Instead, it belonged to an organiza-
tion known as the American Rights Coalition (“ARC”)
located in Chattanooga, Tennessee. ARC wouid send callers
various pamphlets explaining what it believed to be the link-
age between abortion and breast cancer.
The written contract between TD] ‘and CBM, which was
for one year, was dated January 2, 1996. The contract
included the amount CBM agreed to pay for the poster dis-
play and the number of posters to be installed. It also pro-
vided that if SEPTA “should deem such advertising objection-
able for any reason, TDI shall have the right to terminate the
contract and discontinue the service without notice.”
On January 15, 1996, a week before the contract was
dated, TDI placed two CBM Signs in prominent locations by
overhead clocks in Philadelphia’s Suburban Station. Addi-
tional signs were located in 25 of the subway and commuter
rail stations in Philadelphia and the surrounding suburbs.
Shortly after their installation, SEPTA and TDI required
CBM to identify itself more Prominently on the advertise-
36a
ments. CBM complied. It supplied “snipes” or large decals
which TDI affixed to the posters. They contained the follow-
ing language:
Christ’s Bride, Ministries, Inc. (CBM) is a charitable,
religious, educational, non-profit 501(c)(3) organiza-
tion incorporated in Virginia. CBM, P.O. Box 22
Merrifield, VA 221160(703) 598-2226
In early February, 1996, several weeks after the advertise-
ments were displayed, SEPTA received a copy of a letter writ-
ten by Dr. Philip Lee, Assistant Secretary of Health in the
United States Department of Health and Human Services.
The addressee of the letter was Mr. Lawrence Reuter,General
Manager of the Washington Metropolitan Area Transit
Authority, where CBM’s signs had also appeared. In his corre-
spondence, Dr. Lee asserted, “This ad is unfortunately mis-
leading, unduly alarming, and does not accurately reflect the
weight of the scientific literature.” He added, “We strongly
object to the ad because it appears to be based on studies that
are inconclusive, biased, and poorly designed.” He urged the
Washington Metro system to withdraw the advertisements.
Relying primarily on Dr. Lee’s letter, SEPTA’s General Man-
ager, Louis Gambaccini, exercised SEPTA’s contractual right
and directed TDI to remove the CBM posters. TDI did so on
February 16, 1996. Prior to their removal, SEPTA never made
any independent study or determination as to the accuracy of
CBM'’s message, that is, wheiher or not women who have an
abortion will in fact “suffer more and deadlier breast cancer.”
CBM had spent over $3,300 for the printing of the post-
ers and had paid SEPTA slightly over $6,000 for the display of
the posters for two months. Since the advertisements had run
for only one month, SEPTA returned to CBM $3,043, which
represented half of its payment.
{I
Because the parties have stipulated to consolidate the
preliminary injunction hearing with a trial on the merits, the
court proceeds under the standard for a permanent injunction.
First, the plaintiff must demonstrate that the court’s exercise
of equity jurisdiction is proper. Second, the plaintiff must actu-
iniienicetmeiiteiin iittala iii |
37a
ally succeed on the merits of its claim. Third, the plaintiff must
show that the balance of the equities tips in favor of injunctive
relief. Roe v. Operation Rescue, 919 F-2d 857, 867 n.8 (3d Cir.
1990). We turn first to the merits of plaintiff's claim.
As a preliminary matter, it is undisputed that SEPTA and
its agent TDI are state actors for purposes of this lawsuit, and
therefore are subject to First and Fourteenth Amendment
constraints. See Lebron v. National Railroad Passenger Corpo-
Amendment.! Consequently, we must determine if a state
actor may prohibit such speech and if so under what circum-
It is well settled that the government’s ownership of prop-
erty does not automatically open that Property to all speech.
Rather, as the Supreme Court has stated:
Even protected speech is not equally permissible in
places and at all times. Nothing in the Constitu-
on every type of Government property without
regard to the nature of the Property or to the disrup-
tion that might be caused by the speaker's activities.
Cornelius v. NAACP Legal Defense and Education Fund, 473
U.S. 788, 799-800 (1985).
To determine what limits the government may place on
protected speech, the Supreme Court requires us to engage in
an exercise known as forum analysis. See Perry Education
1. Defendants argue strenuously that the plaintiff's message is commer-
cial speech entitled to significantly lesser Protection than political Speech.
We reject this argument as without merit.
38a
Association v. Perry Local Educator’s Association, 460 U.S. 37
(1983); International Society for Krishna Consciousness, Inc. v.
Lee, 505 U.S. 672 (1992). According to Perry, “[t]he existence
of a right of access to public property and the standard by
which limitations upon such a right must be evaluated differ
depending upon the character of the property at issue.” Perry,
460 U.S. at 44. The relevant forum in this case is SEPTA’s
subway and rail stations.
The Court in Perry recognized three types of fora: (1) the
traditional public forum; (2) the public forum created by gov-
ernment designation; and (3) the nonpublic forum. Traditional
public fora are those places “which by long tradition or by
government fiat have been devoted to assembly and debate
... Id. at 45. This category includes parks, public sidewalks,
and meeting halls. The governmen: is subject to strict scrutiny
in any attempt to limit First Amendment activity in a tradi-
tional public forum. It may exclude speech from a public
forum “only when the exclusion is necessary to serve a com-
pelling state interest and the exclusion is narrowly drawn to
achieve that interest.” Cornelius, 473 U.S. at 800.
The second category, a designated public forum, consists
of “public property which the state has opened for use by the
public as a place for expressive activity.” Perry, 460 U.S. at 45.
The government does not create a public forum by inaction or
by permitting limited discourse, but only by intentionaily
opening a nontraditional forum for public discourse. Corne- ~
lius, 473 U.S. at 802. Although the government is not required
to open or indefinitely retain the open nature of these places,
the government is bound, once it does sc, by the same limita-
tions as exist in the traditional pub’:c forum context. If SEPTA
has designated the subway and rail systems as public fora, then
the antiabortion sign may not be excluded without the show-
ing of a “compelling government interest.” Jd. at 800.
In contrast, a nonpublic forum, the third category, “is not
by tradition or designation a forum for public communication
...” Perry, 460 U.S. at 46. The mere fact that government
property is used for expressive activity does not qualify it as a
public forum. Rather, “the State, no less than a private owner
of property, has power to preserve the property under its con-
39a
Here, we have no Open spaces, no meeting hall, park,
Street corner, or other public thoroughfare. Instead,
the city is engaged in commerce .... The car card
space, although incidental to the Provision of public
transportation, is part of the commercial venture. In
much the same way that a newspaper or periodical,
or even a radio or television Station, need not accept
every proffer of advertising from the general public,
[emphasis added]. Lehman, 418 U.S. at 303.
More recently, in International Society of Krishna Con-
oe ee
40a
lawmaker with the power to regulate or license, its
action will not be subjected to the heightened review
to which its actions as a lawmaker may be subject.
Krishna, 505 U.S. at 678.
The Court emphasized that a public forum is not created
simply because it is a place where the public may freely come
and go. In coming to its conclusion that the airport terminal
was a nonpublic forum, the Court declared that transportation
centers do not have and have not traditionally had as their
purpose the “free exchange of ideas.” Krishna, 505 U.S. at
682. It further noted that “sites such as bus and rail terminals
traditionally have had private ownership,” a factor negating
any notion that they were designed to be treated as market
places for debate on public issues. Jd. at 681.
We think it is clear that stations in a public transit system
do not constitute a traditional public forum. They are not
parks, sidewalks, streets, or meeting halls. CBM, however,
argues that by virtue of the extensive advertising it accepts,
SEPTA has designated its subway and rail system as a public
forum. Plaintiff contends that SEPTA exercises little control
over who may advertise and the content of their messages. We
reject this contention.
SEPTA presented ample evidence that it retains firm con-
trol over the types of advertising which may be displayed in its
stations. It has rules and standards. Since garden variety com-
mercial advertisements constitute 99 percent of its book of
business, SEFTA rarely interferes with an advertiser’s chosen
message. Yet, its role in approving messages is not merely per-
functory. Thus, while an attorney generally may advertise her
legal services, SEPTA, not surprisingly, has consistently pro-
hibited any mention of representation for railroad, subway or
bus injuries. SEPTA has also exercised its privilege to reject
advertisements it considers offensive or in bad taste. For
example, SEPTA recently disapproved a hosiery commercial
with a scantily clad model proposed for a “wrap-around” dis-
play on a city bus.? SEPTA officials prohibited it as too risque
for such a conspicuous space. SEPTA has clearly exercised its
right to regulate advertising and to exclude messages which
2. Such “wrap-around” advertisersents envelop the entire circumfer-
ence of the bus with a piastic-type cover providing a prominent method for
reaching large numbers of po:caual customers.
ee
4la
are contrary to its standards. It has not created a public forum
in its subway and train Stations.
SEPTA, we conclude, is acting here as a proprietor and
not as a lawmaker or regulator. It owns and is operating what
is essentially a commercial venture, a public transportation
system. SEPTA stations, where CBM’s advertisements
appeared, are designed to facilitate the rapid and inexpensive
movement of commuters from one piace to another. Commut-
ers are there to travel, not to debate. The purpose of the
SEPTA stations is not to Promote the free exchange of ideas,
and SEPTA has never indicated to the contrary.3 See Krishna,
50S U.S. at 680-82. Like travelers in any station or terminal,
they are a captive audience for any advertisement displayed.
See Lehman, 418 U.S. at 302, 307. In sum, under the Supreme
Court's analysis in Lehman and Krishna, SEPTA's subway and
rail stations and their advertising space fit neatly within the
Il
Since the SEPTA system is a nonpublic forum, the gov-
ernment may restrict access “based on subject matter and
speaker identity so long as the distinctions drawn are reason-
3. To the extent it is relevant, the court takes judicial notive of some
operated these two systems into the 1960's. While the Broad Street subway
ome 30 pened and owned by the City of Philadelphia, it was leased unen
sit Come ats 280 10 @ private company, first the Philadelphia Rapid Trax
sit Company (“PRT”), and then the Philadelphia Transportation Company
and owned Privately. See Krishna, Supra at 681.
42a
able in light of the purpose served by the forum and are view-
point neutral.” Cornelius, 473 U.S. at 806. SEPTA’s decision to
restrict access to a nonpublic forum “need only be reasonable;
it need not be the most reasonable or the only reasonable
limitation.” Jd. at 808..
SEPTA and TDI argue that their actions meet this stan-
dard. They contend that removal of the plaintiff's antiabortion
signs was a reasonable decision because they relied on the
representation of a high government official in the United
States Department of Health and Human Services. The letter
of Dr. Philip Lee, Assistant Secretary of Health, warned that
CBM’s message that “women who choose abortion suffer
more and deadlier breast cancer” is “unfortunately mislead-
ing, unduly alarming, and does not accurately reflect the
weight of the scientific literature.” SEPTA asserts that having
received Dr. Lee’s pronouncement it exercised sound judg-
ment in removing an alarmist message trumpeting to the pub-
lic inaccurate and misleading health information.
At trial, we heard extensive testimony from four experts
concerning any links between abortion and breast cancer. Dr.
Clark Heath, Dr. Lynn Rosenberg, and Dr. Polly Newcomb
testified for SEPTA and TDI. Dr. Joel Brind testified for
CEM.
Dr. Heath is a medical doctor and since 1988 has held the
position of Vice President for Epidemiology‘ and Surveillance
Research at the National Cancer Institute in Atlanta, Georgia.
Dr. Heath is thoroughly familiar with the research concerning
induced abortion as a possible risk factor for breast cancer. Dr.
Rosenberg holds a doctorate in epidemiology and is currently
a professor of epidemiology at the Boston University School
of Medicine. Dr. Newcomb, a professor at the University of
Wisconsin Medical School, holds a Ph.D. in epidemiology and
a master’s degree in public health. She is presently on staff at
the Fred Hutchinson Cancer Research Center in Seattle,
4. Epidemiology is the science that deals with the incidence, distribu-
tion, and control of disease in a population.
43a
Washington. Dr. Rosvuxderg and Dr. Newcomb have each
co-authored studies about the causes of breast cancer:5 -
Drs. Heath, Rosenberg, and Newcomb all expressed the
unequivocal opinion that existing epidemiological research
does not support a cause and effect relationship between abor-
The experts discussed several factors underlying their
conclusions. First, they cited the lack of consistency between
the results of numerous Studies on the subject. While
between induced abortion and breast cancer, they pointed out
that others do not indicate any correlation at all. Second, most
of the studies to date were “retrospective” in their design, as
opposed to “prospective.” That is, they focused on a woman’s
past medical history rather than follow women and their medi-
tion. They also explained the effect of “confounding vari-
ables,” that is, the Possibility that other risk factors for breast
cancer such as age or family history may influence the results
of a study attempting to test the link between abortion and
breast cancer.
Dr. Heath noted that among studies which are most com-
prehensive, including the studies of Dr. Rosenberg and Dr.
Newcomb, the findings have not been Particularly consistent.
He concluded in his report:
5. For example, Drs. Rosenberg and Newcomb have studied the rela-
tionship of breast cancer to such independent risk factors as alcohol and
coffee consumption, cigarette smoke, oral contraceptives, breast implants,
physical activity, multiple births, and abortion. In 1988, Dr. Rosenberg con-
6. Approximately 23 studies have been conducted which include spe-
cific data on induced abortion and breast cancer incidence.
44a
Given this variability in study findings, coupico wiu
the low levels of risk described and the many meth-
odologic difficulties involved in all such research, it
seems clear at present that no consistent association
has been established and hence that no cause-effect
relationships can be inferred. It also seems safe to
suppose that, if increased risks do in fact exist, they
are likely to be very small.
These experts also discussed the concept of relative risk
value, that is, the percentage increase in the incidence of dis-
ease based on a particular risk factor.” For example, according
to Dr. Newcomb, the relative risk of smoking as a factor in the
incidence of lung cancer is approximately 22.0. Therefore, a
person who smokes regularly is 22 times more likely to expe-
rience lung cancer than a person who does not smoke. In the
scientific community, due to the size of the relative risk factor,
it is widely accepted that smoking causes lung cancer.
In the epidemiology of breast cancer, there are two fac-
tors with positive risk associations clearly acknowledged to
have a causal relationship: age and family history. In contrast
to smoking and lung cancer, Dr. Newcomb’s study produced a
relative risk factor of only 1.23 between induced abortion and
breast cancer. This means that for women without a history of
induced abortion, one in one hundred would suffer from
breast cancer. For women with a history of an induced abor-
tion, 1.23 women out of one hundred would contract breast
cancer. All three experts testified that a relative risk value in
the range of 1.23 is an extremely weak association. Dr.
Newcomb stated in her expert report:
Because, our study results were equivocal, likely
biased, and consistent with an extensive literature
which has been unable to establish a clear link
between abortion and breast cancer, . . . I must repu-
diate any implication that our study supports this
interpretation. In addition, our study did not evalu-
ate breast cancer mortality, so we provide no infor-
mation on survival in women with a history of
induced abortion ....
7. Epidemiologists use a scale centered at 1.0 to measure relative risk
associations. A relative risk value over 1.0 is a positive association; a rela-
tive risk value below 1.0 is a negative association.
ee
45a
that re is a causal link between induced abortion and the
Breast Cancer: a Comprehensive Review and Meta-analysis,”
which is scheduled to be published by a British peer review
journal later this year. This “meta-analysis” is a review of 23
published epidemiological studies which address a correlation
between induced abortion and breast cancer.
women with a history of induced abortions.* Taking all the
studies in his meta-analysis together, he found an average rela-
tive risk factor of 1.3. This increased risk, according to Dr.
Brind, could not be attributed to bias such as underreporting
of abortion history by the women in the Studies. He further
8. Six other studies showed Positive associations, but not within the 95
percent Certainty required to show statistical significance.
46a
Brind, a 1983 study? by H.E. Ownby and others found that
women who had had at least one abortion had a higher recur-
rence rate of breast cancer within three years than patients
who had no abortion history. He relied on the Ownby study
for the proposition that those patients with an abortion history
had more malignant cancer than those who had never had an
abortion.
Drs. Heath, Rosenberg, and Newcomb vigorously dis-
puted the findings in Dr. Brind’s meta-analysis as well as his
use of this methodology here. They questioned its accuracy
here where nearly all of the studies are retrospective as
opposed to prospective. Primarily, however, Drs. Heath,
Rosenberg, and Newcomb disagreed with the conclusions Dr. -
Brind drew from the study data. While acknowledging that
many studies show a weak positive association between abor-
tion and breast cancer, they maintained that the association is
not meaningful evidence of a cause and effect link. Finally,
they rejected Dr. Brind’s interpretation that any of the three
studies upon which he relied supported the notion that abor-
tion causes “deadlier” breast cancer.
It is undisputed that SEPTA relied solely on Dr. Lee’s
letter in making its decision to remove CBM’s posters. Admit-
tedly, SEPTA did not do research of its own on any link
between abortion and breast cancer. CBM contends that
SEPTA’s reliance on Dr. Lee’s letter alone was an insufficient
basis to withdraw CBM'’s posters. We disagree. The legal stan-
dard is whether SEPTA acted reasonably. It does not have to
be the most reasonable or the only reasonable decision. Cor-
nelius, 473 U.S. at 808. We find that it was reasonable for
SEPTA, a transportation authority with no medical expertise,
to rely solely on the medical opinion of a physician who is a
high government health official. It had no duty to investigate
further before taking action. In any event, the testimony of
Drs. Heath, Newcomb, and Rosenberg, all leading experts in
the field of epidemiology, confirms that SEPTA’s decision to
eliminate the antiabortion signs was justified.
In reaching this conclusion, this court, of course, takes no
position regarding the underlying scientific and medical ques-
tion involved. Specifically, we do not decide whether Drs. Lee,
9. This was a study of 238 breast cancer patients who had been preg-
nant.
47a
Heath, Rosenberg, and Newcomb, on the one hand, or Dr.
Brind, on the other, is right. The connection between abortion
and breast cancer may be an issue which scientists and physi-
cian’s will debate for years to come. Ultimately, a consensus
may develop. At this time, we do not know. We decide only
that based on the current state of scientific and medical knowl-
edge, SEPTA did not act unreasonably in excluding CBM’s
“health” message as inaccurate and misleading. In sum, it was
reasonable for SEPTA to respond in a way that was consistent
with the views of Dr. Lee, Dr. Heath, Dr. Rosenberg, and Dr.
Newcomb.
IV
In order to pass constitutional muster, SEPTA’s decision
must not only be reasonable. It must also be “viewpoint neu-
tral.” Cornelius, 473 U.S. at 806. Defendants submit that they
have not discriminated against CBM’s message based on its
antiabortion viewpoint. We agree. SEPTA has permitted
advertising in subway and rail stations on both sides of the
abortion debate. SEPTA has allowed messages advocating a
woman's right to choose abortion and advertisements for
medical clinics providing pregnancy termination services. On
the other hand, SEPTA has run numerous contrary advertise-
ments. For example, there have been Signs urging teenagers to
practice abstinence, offering counseling services to pregnant
women, and encouraging pregnant woman to consider adop-
tion as an alternative to terminating a pregnancy. One adver-
tisement, which espoused the antiabortion cause, stated:
For answers to your questions about: ... Abortion —
Making a Decision, Call State Health Line ... for
free booklet on fetal development. Fetus is Latin for
little one- A little human is a baby....
[emphasis added]. CBM has presented no evidence that
SEPTA has discriminated against it based on the content of its
message. On the issue of abortion SEPTA has been “view-
point neutral.” Cornelius, 473 U.S. at 806.
48a
Vv
We can easily dispose of CBM’s remaining arguments.
CBM contends that SEPTA admitted in a memorandum dated
February 14, 1996 from Mr. Gambaccini to SEPTA board
members that CBM’s message was protected by the First
Amendment. The memorandum included the statement: “Our
legal department, after reviewing the ad, concluded that the
advertiser has a right to purchase the space and that the
speech is protected under the First Amendment.” Whatever
the initial opinion of the SEPTA legal department on that
particular date, clearly SEPTA has changed its mind. In any
event, we are not bound by the one-time legal opinions of
lawyers.
CBM has not met the threshold showing to obtain injunc-
tive relief, namely, that it succeeds on the merits of its First
and Fourteenth Amendment claims. CBM has also not seri-
ously pursued the claims stated in its complaint under 42
U.S.C. §§ 1985 and 1986. They have no merit and we do not
address them here.
Nor may CBM recover on its breach of contract claim.
Section IV of the TDI-CBM contract clearly provides for the
termination of the contract:
b. If for any cause beyond its control TDI shall cease
to have the right to continue the advertising covered
by this contract, or if [SEPTA] should deem such
advertising objectionable for any reason, TDI shall
have the right to terminate the contract and discon-
tinue the service without notice.
The contract permits the termination that occurred in this
case. TDI refunded to CBM any money paid for the time the
signs were not posted. We will not permit CBM to recover for
the money it spent to make the signs. CBM assumed this risk
by entering a contract where TDI had the right to cancel at
the discretion of SEPTA based on the content of the adver-
tisement.
49a
VI
fr. conclusion, we will enter judgment in favor of defen-
dants Southeastern Pennsylvania Transportation Authority
and Transportation Displays, Inc. and against plaintiff Christ's
Bride Ministries, Inc.
50a
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CHRIST'S BRIDE MINISTRIES, INC. : CIVIL ACTION
‘. :
SOUTHEASTERN PENNSYLVANIA :
TRANSPORTATION AUTHORITY, etal. : NO. 96-3631
ORDER
AND NOW, this 16th day of August, 1996, based on the
court’s findings of fact and conclusions of law, it is hereby
ORDERED that judgment is entered in favor of defendants
Southeastern Pennsylvania Transportation Authority and
Transportation Displays, Inc. and against plaintiff Christ’s
Bride Ministries, Inc.
BY THE COURT:
—Hawetrothe/
N
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