# Petition for Writ of Certiorari — Southeastern Pennsylvania Transportation Authority v. Christ's Bride Ministries, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1049%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1999 - **Citation:** 525 U.S. 1068 ## Text 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 Be > § $ 7, lla 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1049%3A1. Public record. Not legal advice.