Appendix — Lebron v. National Railroad Passenger Corp.

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UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 1494—August Term, 1994

(Argued: April 27, 1993 Decided: December 27, 1993

Reversed and Remanded: February 21, 1995

Reargued: May 11, 1995 Decided: October 30, 1995)

Docket No. 93-7127

MICHAEL A. LEBRON,

Plaintiff-Counter-Defendant-Appellee,

—vVs$.—

NATIONAL RAILROAD PASSENGER CORPORATION

(AMTRAK),

Defendant-Appellant,

—and—

TRANSPORTATION DISPLAYS. INCORPORATED.

Defendant-Counter-Claimant.

Before:

NEWMAN, Chief Judge, and

LUMBARD and MAHONEY, Circuit Judges.

On remand from the United States Supreme Court, see

Lebron v. National R.R. Passenger Corp., 115 S. Ct. 961

(1995), appeal from a judgment entered February 11, 1993 in

the United States District Court for the Southern District of

New York, Pierre N. Leval, then-District Judge, that enjoined

defendant-appellee National Railroad Passenger Corporation to

display a political advertisement prepared by plaintiff-counter-

defendant-appellee Michael A. Lebron on a large billboard

known as the Spectacular in New York City’s Pennsylvania

Station, the district court having determined that Amtrak’s fail-

ure to do so violated the First Amendment. See Lebron v.

National R.R. Passenger Corp. (AMTRAK), 811 F. Supp. 993

(S.D.N.Y. 1993).

We initially reversed on the ground that Amtrak is not a

governmental actor subject to the strictures of the First

Amendment. Lebron v. National R.R. Passenger Corp.

AMTRAK), 12 F.3d 388 (2d Cir. 1993). The Supreme Court

reversed and remanded, but left open the question whether

Amtrak’s conduct violated the First Amendment. 115 S. Ct. at

974-75. We now conclude that Amtrak’s historical refusal to

accept political advertisements such as Lebron’s on the

Spectacular is a reasonable use of that forum that is neutral as

to viewpoint, and that Lebron lacks standing to assert a facial

challenge to Amtrak’s general policies concerning the accep-

tance of advertising for displa it Pennsylvania Station.

Reversed. Chief Judge Newman dissents in a separate opin-

ion.

KEVIN T. BAINE, Washington, D.C. (Nicole K.

Seligman, Steven M. Farina, Williams &

Connolly, Washington, D.C., William G.

Ballaine, Mark S. Landman, Siff Rosen P.C.,

New York, New York, of counsel), for

Defendant-Appellant.

Wi es

DAvID D. COLE, Washington, D.C. (Center for

Constitutional Rights, Washington, D.C., R.

Bruce Rich, Gloria C. Phares, Robin E.

Silverman, Bernadette M. McCann Ezring,

Jonathan Bloom, Weil, Gotshal & Manges,

New York, New York, of counsel), for

Plaintiff-Counter-Defendant-Appellee.

MAHONEY, Circuit Judge:

On remand from the United States Supreme Court, see

Lebron v. National R.R. Passenger Corp., 115 S. Ct. 961 (1995)

(“Lebron III”), this appeal of a judgment entered February 11,

1993 in the United States District Court for the Southern

District of New York, Pierre N. Leval, then-District Judge,*

again comes before us. The district court enjoined defendant-

appellee National Railroad Passenger Corporation (“Amtrak”)

and defendant-counter-claimant Transportation Displays,

Incorporated (“TDI”) to display a political advertisement pre-

pared by plaintiff-counter-defendant-appellee Michael A.

Lebron on a large billboard known as the Spectacular in New

York City’s Pennsylvania Station (“Penn Station”), having

determined that Amtrak’s failure to do so violatea the First

Amendment. See Lebron v. National R.R. Passenger Corp.

(AMTRAK), 811 F. Supp. 993 (S.D.N.Y. 1993) (“Lebron I’’).

On appeal, after staying the injunction, we reversed the

judgment of the district court, “conclud[ing] that Amtrak is

not a governmental actor subject to the strictures of the

First Amendment.” Lebron v. National R.R. Passenger Corp.

(AMTRAK), 12 F.3d 388, 389 (2d Cir. 1993) (“Lebron II’). The

Supreme Court reversed and remanded, holding that Amtrak “is

part of the Government for purposes of the First Amendment,”

° Judge Leval became a member of the Second Circuit Court of

Appeals on November 8, 1993.

Lebron Ili, 115 S. Ct. at 974-75, but “express[ing] no opinion

as to whether Amtrak’s refusal to display Lebron’s advertise-

ment violated that Amendment.” /d. at 975.

Because we conclude that Amtrak’s historical refusal to

accept political advertisements such as Lebron’s on the

Spectacular is a reasonable use of that forum that is neutral as

to viewpoint, and that Lebron lacks standing to assert a facial

challenge to Amtrak’s general policies concerning the accep-

tance of advertising for display at Pennsylvania Station, we

again reverse the judgment of the district court.

Background

On November 30, 1992, Lebron, an artist who creates polit-

ical billboard displays (frequently involving commentary on

public issues), and TDI, which manages the leasing of adver-

tising space for Amtrak, entered into a leasing agreement (the

“Lease”) under which Lebron would rent the Spectacular, “a

curved back-lit display space approximately 103 feet wide by

ten feet high . . . [which] dominates the west wall of the

rotunda on the upper level of Penn Station where thousands of:

passengers pass each day,” for the months of January and

February 1993. Lebron I], 12 F.3d at 389. Although Lebron did

not specify the precise nature of his display, he did inform TDI

that his work was generally political. Jd. By the terms of the

Lease, “ ‘[a]ll advertising copy is subject to approval of TDI

and [Amtrak] as to character, text, illustration, design and oper-

ation. . . . [I]f [Amtrak] should deem such advertising objec-

tionable for any reason, TDI shall have the right to terminate

the contract and discontinue the service without notice.’ ” /d.

(quoting the Lease, alterations partially added).

Lebron then submitted his proposed advertisement (the

“Display”) to TDI. Lebron characterizes the Display as “an

allegory about the destructive influence of a powerful, urban,

materialistic and individualistic culture on rural, community

based, family-oriented and religious cultures.” The district

court described the Display as follows:

The work is a photomontage, accompanied by consid-

erable text. Taking off on a widely circulated Coors beer

advertisement which proclaims Coors to be the “Right

Beer,” Lebron’s piece is captioned “Is it the Right’s Beer

Now?” It includes photographic images of convivial

drinkers of Coors beer, juxtaposed with a Nicaraguan

village scene in which peasants are menaced by a can of

Coors that hurtles towards them, leaving behind a tail of

fire, as if it were a missile. The accompanying text,

appearing on either end of the montage, criticizes the

Coors family for its support of right-wing causes, par-

ticularly the contras in Nicaragua. Again taking off on

Coors’ advertising which uses the slogan of “Silver

Bullet” for its beer cans, the text proclaims that Coors is

“The Silver Bullet that aims The Far Right’s political |

agenda at the heart of America.”

Lebron I, 811 F. Supp. at 995.

When TDI saw the Display, it offered Lebron any of 500

alternative billboard sites that TDI had available in New York

City (none of which were in Penn Station), but Lebron rejected

this offer. Echoing the allegation in his complaint that the

Spectacular is “a unique advertising location in the City of

New York,” Lebron stated in an affidavit that:

The very size of the Spectacular allowed me to design

and visualize this work with an effectiveness and clarity

that would have been otherwise impossible to achieve.

Its size and shape make it one of the largest advertising

display spaces in New York City, and its prominent loca-

tion in Pennsylvania Station means that it is visible to a

large segment of the traveling public, providing an

excellent opportunity to reach exactly the kind of audi-

ence I hope to engage with the subject matter of this

piece. For all of these reasons, I consider the space an

extraordinarily unique advertising location in New York

City, and a unique challenge to my communicative skills

as an artist that no gallery and few other public envi-

ronments could provide.

Shortly thereafter, Amtrak rejected the Display, stating that its

“ “policy is that it will not allow political advertising on the

[S]pectacular advertising sign.’ ” Lebron Il, 12 F.3d at 389

(quoting Amtrak rejection letter, alteration in Lebron I/).

This policy, however, is not committed to writing, Lebron I,

811 F. Supp. at 1001, although the licensing agreement between

Amtrak and TDI (which is addressed to all of Amtrak’s adver-

tising space) states that: “ ‘All advertising material, exhibit

material, notices and advertisements, and their manner of pre-

sentation and design, shall be subject to approval by Amtrak,

which may disapprove any such items at its own discretion.” ”

Id. at 1002 (quoting licensing agreement).' In addition, the

licensing agreement provides that public service announce-

ments may be accepted, at a reduced rate and when space is

available, although they may be preempted by commercial

advertising. /d. at 1003. Public service advertisements may be

accepted only from “ ‘recognized, legitimate [tax exempt] not-

for-profit organizations, corporations, National, State or Local

government agencies and subdivisions, philanthropic or cul-

tural organizations whose activities would be of interest or ben-

efit to a majority of the area population,’ ” and must “adhere to

‘good taste, decency and community standards.’ ” /d. (quoting

licensing agreement, alterations in Lebron /).

:' The licensing agreements between Amtrak's predecessor, the

Pennsylvania Railroad Company (“PRC”), and TDI provided that the

PRC could refuse any advertisement that it deemed “ ‘unlawful, immoral,

improper or offensive to good taste. . . or [to] involve political or other

views which could result in dissension or [to] involve [PRC] in dissen-

sion, complaints or controversy with its patrons or the public.’ ” Lebron

7, 811 F. Supp. at 1001-02 (quoting PRC-TDI licensing agreements)

(alterations partially added, emphasis added). However, this language has

been superseded by the language quoted in the text of this opinion.

In this regard, Amtrak has leased advertising space to vari-

ous noncommercial groups, including:

the New York Department of the Environment, the New

York Department of Commerce, a foundation for muscu-

lar dystrophy, and Plain Truth Magazine, a free magazine

on political and social issues published by The Worldwide

Church of God. In addition, testimony of the general

counsel of TDI indicates that TDI regularly displays pub-

lic service advertisements, including subjects such as the

homeless, the environment, drunk driving, AIDS aware-

ness, health issues, and race relations.

Id. at 1004. The Plain Truth is distributed at a four-sided,

seven-foot kiosk that displays an advertisement for the maga-

zine and is located in front of the Spectacular.

In addition, however, it is undisputed that in the twenty-six

years of its existence, the Spectacular has never been used for

any type of advertising other than commercial promotions. The

only advertisements that have appeared on the Spectacular have

promoted DuPont Company, Resorts International in Atlantic

City, the Broadway play “Sophisticated Ladies,” Fujitsu

Computers, Nike athletic wear, and A & S Department Stores.”

Moreover, as Lebron has acknowledged, Amtrak previews pro-

posed advertisements for the Spectacular, while it views adver-

tisements to be used at other locations only after they are

exhibited.

Lebron commenced this action alleging a violation of his

First Amendment rights and breach of contract, and seeking

equitable relief or, alternatively, damages. The district court

granted a mandatory injunction requiring Amtrak and TDI to

exhibit the Display on the Spectacular. Lebron J, 811 F. Supp.

at 1005. After holding that Amtrak is a government actor sub-

ject to the First Amendment, id. at 995-1000, the court con-

The stated twenty-six years of the Spectacular’s existence, and

the list of advertisers over that period, is premised upon the record pre-

sented on this appeal, which was completed over two years ago.

cluded that Amtrak’s refusal to exhibit the Display violated that

amendment. /d. at 1000-05. The court provided four bases for

this determination: (1) Amtrak’s policy of not accepting polit-

ical advertisements is not clearly set forth, in that it is not

reduced to writing, id. at 1001-02; (2) the policy is vague, in

that it is difficult to draw the line between political, public

interest, and commercial advertisements, as demonstrated by

conflicting testimony by Amtrak’s officials, id. at 1002-03; (3)

the policy is not consistently applied, in that certain public ser-

vice advertisements that Amtrak has accepted might be viewed

as political, id. at 1003-04; and (4) the policy may be void as

discriminating on the basis of viewpoint, in that Amtrak may

inquire into whether a particular advertisement is offensive, id.

at 1004-05.

As previously stated, we initially reversed on the ground that

Amtrak is not subject to First Amendment constraints, and

therefore did not consider the merits of Lebron’s First

Amendment claim. Lebron I], 12 F.3d at 392. We instructed the

district court not to exercise supplemental jurisdiction over the

remaining state law claim, but noted that Lebron would be free

to pursue that claim in state court. /d. at 392-93. The Supreme

Court reversed and remanded on the “government actor” issue,

directing us to consider the merits of Lebron’s First

Amendment claim. Lebron III, 115 S. Ct. at 974-75.

We requested supplemental letter briefs from the parties, and

heard reargument on the First Amendment issues.

Discussion

Because Lebron seeks access to government property, we

begin with a review of the public forum doctrine.

Under this approach, regulation of speech on government

property that has traditionally been available for public

expression is subject to the highest scrutiny. Such regu-

lations survive only if they are narrowly drawn to achieve

a compelling state interest. Perry [Educ. Ass'n v. Perry

Local Educators’ Ass'n], 460 U.S. [37,] 45, 103 S. Ct.

[948,] 955 [(1983)]. The second category of public prop-

erty is the designated public forum, whether of a limited

or unlimited character—property that the state has opened

for expressive activity by part or all of the public. /bid.

Regulation of such property is subject to the same limi-

tations as that governing a traditional public forum. /d., at

46, 103 S. Ct., at 955. Finally, there is all remaining pub-

lic property. Limitations on expressive activity conducted

on this last category of property must survive only a much

more limited review. The challenged regulation need only

be reasonable, as long as the regulation is not an effort to

suppress the speaker’s activity due to disagreement with

the speaker’s view. /bid.

International Soc’y for Krishna Consciousness, Inc. v. Lee, 112

S. Ct. 2701, 2705-06 (1992). Reasonable, content-neutral time,

place, or manner restrictions are permissible in a public forum.

See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).

“[I]n defining the forum [the Supreme Court has] focused on

the access sought by the speaker. . . . In cases in which lim-

ited access is sought, [the Court’s] cases have taken a more tai-

lored approach to ascertaining the perimeters of a forum within

the confines of the government property.” Cornelius v. NAACP

Legal Defense and Educ. Fund, Inc., 473 U.S. 788, 801 (1985)

(emphasis added) (holding that federal fund-raising drive, not

federal workplace generally, was relevant forum for analysis).

Amtrak contends that our public forum inquiry must focus

on the Spectacular alone, rather than all Penn Station adver-

tising space. We agree. Because of its unique size, location, and

visibility, Lebron sought access only to the Spectacular, and

refused to accept any other advertising space in New York City

managed by TDI. Although Lebron now contends that we

should broaden our public forum inquiry to all Penn Station

advertising space, it was he who determined that only the

Spectacular would be acceptable for his display. Cf. Air Line

10a

Pilots Ass'n, Int’! v. Department of Aviation, 45 F.3d 1144,

1151-52 (7th Cir. 1995) (where speaker seeks access to diorama

display cases in airport, public forum inquiry focuses on dis-

play cases rather than airport as a whole); Hubbard

Broadcasting, Inc. v. Metropolitan Sports Facilities Comm’n,

797 F.2d 552, 555-56 (8th Cir.) (where speaker seeks access to

advertising space in sports arena, public forum inquiry focuses

on advertising space rather than entire arena), cert denied, 479

U.S. 986 (1986).

To determine the Spectacular’s forum category, we must

examine “the policy and practice of the government to ascer-

tain whether it intended to designate a place not traditionally

open to assembly and debate as a public forum.” Cornelius,

473 U.S. at 802. We must bear in mind that “[t]he government

does not create a public forum by inaction or by permitting lim-

ited discourse, but only by intentionally opening a nontradi-

tional forum for public discourse.” Jd.; see also Krishna, 112

S. Ct. at 2706 (quoting Cornelius, 473 U.S. at 802). Thus, even

when the government opens a forum for some speech, the

forum does not become a public forum if the government did

not intend to open the forum without limitation. See United

States v. Kokinda, 497 U.S. 720, 730 (1990) (plurality opinion);

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

37, 48 (1983). When only some First Amendment access has

been granted, the reasonableness test applies. Kokinda, 497

U.S. at 730 (plurality opinion); Perry, 460 U.S. at 49.

Although Amtrak does not maintain a written policy with

respect to the Spectacular, its practice is clear; it has never

opened the Spectacular for anything except purely commercial

advertising. See Air Line Pilots Ass'n, 45 F.3d at 1154 (“a court

must examine the actual policy - as gleaned from the consistent

practice with regard to various speakers - to determine whether

a State intended to create a designated public forum”); cf. AJDS

Action Comm. v. Massachusetts Bay Transp. Auth., 42 F.3d 1,

10-12 (1st Cir. 1994) (prohibiting advertisements concerning

lla

use of condoms pursuant to written policy prohibiting sexually

explicit advertisements constituted “discrimination in the appli-

cation of supposedly neutral standards” when other sexually

explicit advertisements had been allowed).

In light of Amtrak’s undisputed practice with respect to the

Spectacular, therefore, we conclude that the Spectacular is not

a public forum; most likely, it is a nonpublic forum, or perhaps

it is a limited public forum opened for purely commercial

speech. See Calash v. City of Bridgeport, 788 F.2d 80, 83-84

(2d Cir. 1986) (sports arena opened only to civic, charitable,

and nonprofit groups either a nonpublic forum or a limited pub-

lic forum not required to accommodate other members of gen-

eral public).

Accordingly, Amtrak’s policy of excluding noncommercial

advertisements from the Spectacular will be upheld so long as

the policy is “viewpoint-neutral and reasonable in relation to

the forum’s purpose.” Calash, 788 F.2d at 84: see also

Cornelius, 473 U.S. at 806 (“Control over access to a non-

public forum can be based on subject matter and speaker iden-

tity so long as the distinctions drawn are reasonable in light of

the purpose served by the forum and are viewpoint neutral.”).

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

particularly well addressed to this issue as presented in the

instant case. In Lehman, the city imposed a ban on political

advertisements in buses, but allowed other types of adver-

tisements, including commercial and public service ads. A can-

didate for public office challenged this policy as a First

Amendment violation, and the Court responded as follows:

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, con-

venient, pleasant, and inexpensive service to the com-

muters of Shaker Heights. The car card space, although

incidental to the provision of public transportation, is part

12a

of the commercial venture. In much the same way that a

newspaper or periodical, or even a radio or television sta-

tion, need not accept every proffer of advertising from the

general public, a city transit system has discretion to

develop and make reasonable choices concerning the type

of advertising that may be displayed in its vehicles. In

making these choices, this Court has held that a public

utility “will be sustained in its protection of activities in

public places when those activities do not interfere with

the general public convenience, comfort and safety.”

Public Utilities Comm’n v. Pollak, 343 U.S. [451,] 464-65

[(1952)].

Because state action exists, however, the policies and

practices governing access to the transit system’s adver-

tising space must not be arbitrary, capricious, or invidious.

. . . Revenue earned from long-term commercial adver-

tising 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 favoritism, and sticky administrative prob-

lems might arise in parceling out limited space to eager

politicians. In these circumstances, the managerial deci-

sion to limit car card space to innocuous and less con-

troversial commercial and service oriented advertising

does not rise to the dignity of a First Amendment viola-

No First Amendment forum is here to be found. The

city consciously has limited access to its transit system

advertising space in order to minimize chances of abuse,

the appearance of favoritism, and the risk of imposing

upon a Captive audience. These are reasonable legislative

objectives advanced by the city in a proprietary capacity.

In these circumstances, there is no First or Fourteenth

Amendment violation.

13a

Lehman, 418 U.S. at 303-04 (plurality opinion) (emphasis

added).

It is especially significant that, as in Lehman, Amtrak acts in

this case in a proprietary capacity, rather than as a govern-

mental regulator. As the Court stated in Krishna:

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 sub-

jected to the heightened review to which its actions as a

lawmaker may be subject. Kokinda, supra, 497 U.S., at

[725], 110 S. Ct., at [3119] (plurality opinion) (citing

Cafeteria & Restaurant Workers v. McElroy, 367 U.S.

886, 896, 81 S. Ct. 1743, 1749, 6 L.Ed.2d 1230 (1961)).

Thus, we have upheld a ban on political advertisements in

city-operated transit vehicles, Lehman v. City of Shaker

Heights, 418 U.S. 298, 94 S. Ct. 2714, 41 L.Ed.2d 770

. Lebron contends that because the only government interest in

Lehman that garnered the support of a majority of the Court is protect-

ing captive audiences, the case must be read as so limited. However, the

Supreme Court has repeatedly reaffirmed a broader reading of Lehman,

often specifically citing to the plurality opinion. See, e.g., Krishna, 112

S. Ct. at 2705 (“we have upheld a ban on political advertisements in city-

operated transit vehicles”) (citing Lehman); Kokinda, 497 U.S. at 726

(plurality opinion) (“In Lehman, the plurality concluded that the ban on

political advertisements (combined with the allowance of other adver-

tisements) was permissible under [the arbitrary and capricious] stan-

dard”) (followed by quotation from Lehman, 418 U.S. at 304) (plurality

opinion); Cornelius, 473 U.S. at 806 (“a speaker may be excluded from

a nonpublic forum if he wishes to address a topic not encompassed within

the purpose of the forum”) (citing Lehman); Perry, 460 U.S. at 47 (“[I]n

[Lehman] (opinion of BLACKMUN, J.), a plurality of the Court con-

cluded that a city transit system’s rental of space in its vehicles for com-

mercial advertising did not require it to accept partisan political

advertising.”); see also Air Line Pilots Ass’n, 45 F.3d at 1153 n.3 (declin-

ing “to limit Lehman’s holding to situations involving captive audi-

ences”); Calash, 788 F.2d at 84 (citing Lehman plurality opinion for

proposition that “rental of space to commercial advertisers does not

require City to accept political advertising on buses”). We therefore see

no need to address Amtrak’s argument that its policy could be justified

on the basis of the captive audience doctrine.

l4a

(1974), even though the city permitted other types of

advertising on those vehicles. Similarly, we have per-

mitted a school district to limit access to an internal mail

system used to communicate with teachers employed by

the district. Perry Education Assn. v. Perry Local

Educators’ Ass’n, 460 U.S. 37, 103 S. Ct. 948, 74 L.Ed.2d

794 (1983).

112 S. Ct. at 2705.

Amtrak’s decision, as a proprietor, to decline to enter the

political arena, even indirectly, by displaying political adver-

tisements is certainly reasonable. Amtrak’s position as a gov-

ernment controlled and financed public facility, used daily by

thousands of people, made it highly advisable to avoid the crit-

icism and the embarrassments of allowing any display seeming

to favor any political view. This was particularly so with

respect to the Spectacular in view of its uniqueness and size.

Cf. Calash, 788 F.2d at 84 (finding the city’s decision to limit

access to sports arena to civic, charitable, and nonprofit groups,

but not rock musicians, reasonable) (citing Cornelius, 473 U.S.

at 809-11); Perry, 460 U.S. at 50-53; and Lehman, 418 U.S. at

304 (plurality opinion)). Nor would a policy against “political”

advertising on the Spectacular be void for vagueness in light of

the Supreme Court’s decision in Lehman, 418 U.S. at 303-04

(plurality opinion).

Lebron urges us to reach the same conclusion as the district

court, arguing that Amtrak’s policy is unwritten, inconsistently

applied, and possibly viewpoint biased. We disagree.

The fact that a policy is not committed to writing does not of

itself constitute a First Amendment violation. Cf. City of

Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 770

(1988) (“[T]he limits the city claims are implicit in its law must

be made explicit by textual incorporation, binding judicial or

administrative construction, or well-established practice.”).

City of Lakewood and the other cases cited by the district court

stand for the propositions that “in the area of free expression a

15a

licensing statute placing unbridled discretion in the hands of a

government official or agency constitutes a prior restraint and

may result in censorship,” id. at 757, and that “the absence of

express standards makes it difficult to distinguish, ‘as applied,’

between a licensor’s legitimate denial of a permit and its ille-

gitimate abuse of censorial power.” Jd. at 758.

Neither of these concerns is implicated here. Amtrak’s prior

written agreements, together with the testimony of the Amtrak

official responsible for approving advertisements on the

Spectacular and Amtrak’s historic practice of reserving the

Spectacular for commercial advertisements, dispel the notion

that Amtrak enjoyed “unbridled discretion” or could have per-

petrated an “illegitimate abuse of censorial power” in rejecting

an advertisement because of its political content. Furthermore,

because the policy against political advertisements was limited

in scope to the Spectacular, there is no evidence that Amtrak’s

policy has ever been applied inconsistently.

The district court also intimated that Amtrak’s policy might

be void for viewpoint bias, depending upon which of the con-

flicting versions offered at trial represented Amtrak’s true pol-

icy. Although the district court entered no findings of fact, its

concern was primarily based upon statements appearing in

Amtrak’s 1967 and 1980 agreements with TDI, which gave

Amtrak the discretion to refuse any advertising that “involve[s]

political or other views which could result in dissension or

involve [Amtrak] in dissension, complaints or controversy with

its patrons or the public.” 811 F. Supp. at 1001-02 (quoting TDI

licensing agreements) (alterations partly added). Of course, if

such a policy were used to screen out only controversial polit-

ical advertisements—that is, political advertisements distasteful

to the majority—it would be void for viewpoint bias. On the

other hand, it seems more sensible to read the language as a

justification, however inartfully phrased, for a categorical ban

against political advertising, see, e.g., Lehman, 418 U.S. at 304

(characterizing commercial advertising as “innocuous and less

controversial” than political advertising), rather than as a test

l6a

for discriminating against certain types of political advertise-

ments.4

Because we have found that Amtrak’s policy against polit-

ical advertisements was limited in scope to the Spectacular,

Lebron’s attempt to attack Amtrak’s policies regarding the

acceptance of advertisements in Penn Station generally, rather

than on the Spectacular, amounts, in substance, to a facial chal-

lenge to those policies as they might be applied to advertise-

ments other than Lebron’s and to locations not at issue.

Ordinary rules of standing, of course, would bar Lebron from

mounting such a challenge. As the Supreme Court has made

clear: “Embedded in the traditional rules governing constitu-

tional adjudication is the principle that a person to whom a

statute may constitutionally be applied will not be heard to

challenge that statute on the ground that it may conceivably be

applied unconstitutionally to others, in other situations not

before the Court.” Broadrick v. Oklahoma, 413 U.S. 601, 610

(1973) (collecting cases).

Further, “[t]he question of standing is not subject to

waiver. . .: ‘we are required to address the issue even if the

courts below have not passed on it, and even if the parties fail.

to raise the issue before us. The federal courts are under an

independent obligation to examine their own jurisdiction, and

standing “is perhaps the most important of [the jurisdictional]

‘. Lebron invokes Lamb's Chapel v. Central Moriches Union Free

School District, 113 §. Ct. 2141 (1993), which invalidated a ban on the

showing of religiously oriented films in public schools when secularly

oriented films on the identical subjects were permitted, to argue that

Amtrak’s policy violates viewpoint neutrality. Lebron perceives view-

point discrimination because “(u]nder Amtrak’s policy, the Coors Brew-

ing Company could advertise and encourage purchase of its beer, but

Lebron’s critical treatment of the same subject matter, discouraging pur-

chase of Coor’s beer, was rejected because it expressed a ‘political’ point

of view.” The argument is plainly specious. The “subject matter” of

the Display can hardly be described, with any remote sense of accuracy,

as the merits or demerits of Coors Beer. As Lebron himself stated in

an affidavit, “I do not seek to sell anything other than ideas with this

advertisement.”

17a

doctrines.” ’ ” United States v. Hays, 115 S. Ct. 2431, 2435

(1995) (quoting FW/PBS, Inc. v. City of Dallas, 493 U.S. 215,

230-31 (1990) (quoting Allen v. Wright, 468 U.S. 737, 750

(1984))) (alteration in FW/PBS).

Broadrick also recognized, however, that “the Court has

altered its traditional rules of standing to permit—in the First

Amendment area—‘attacks on overly broad statutes with no

requirement that the person making the attack demonstrate that

his own conduct could not be regulated by a statute drawn with

the requisite narrow specificity.’” Jd. at 612 (quoting

Dombrowski v. Pfister, 380 U.S. 479, 486 (1965)). Broadrick

went on to emphasize that this overbreadth doctrine “has been

employed by the Court sparingly and only as a last resort.” Id.

at 613; see also Younger v. Harris, 401 U-S. 37, 52 (1971)

(“Procedures for testing the constitutionality of a statute ‘on its

face’. . . are fundamentally at odds with the function of the

federal courts in our constitutional plan.”).

In our view, this case affords no occasion for application of

the overbreadth doctrine, and Lebron accordingly lacks stand-

ing to assert a general challenge to Amtrak’s advertising poli-

cies. The doctrine has only been applied to the conduct of the

government in its role as a regulator, not as a proprietor. See

e.g., City of Lakewood, 486 U.S. at 759-62 (newspaper per-

mitted to mount facial challenge to ordinance that granted

municipal mayor uncircumscribed authority to allow or disal-

low distribution of newspapers via newsracks on public

streets); Board of Airport Comm'rs v. Jews for Jesus, Inc., 482

U.S. 569, 571, 574-77 (1987) (allowing overbreadth challenge

to ordinance that barred “First Amendment activities within the

Central Terminal Area at Los Angeles International Airport”).

It is invoked against a statute that “ ‘threatens others not before

the court - those who desire to engage in legally protected

expression but who may refrain from doing so rather than risk

prosecution or undertake to have the law declared partially

invalid,’ ” id. at 574 (quoting Brockett v. Spokane Arcades,

Inc., 472 U.S. 491, 503 (1985)), and invalidation of a statute on

18a

its face is permitted “only if the overbreadth is ‘substantial.’ ”

Id. (collecting cases).

Such concerns simply are not implicated by Amtrak’s role as

the proprietor of Penn Station, essentially seeking to derive

revenues from the sale of advertising while minimizing inter-

ference with or disruption of the station’s commercial function.

See Lehman, 418 U.S. at 303 (plurality opinion). Thus, Lebron

lacks standing to present a facial challenge to Amtrak’s general

advertising policies in this litigation. This would be so even if

Lebron had adduced a stronger showing of erosion of Amtrak’s

policy against political advertisements than the handful of

assertedly borderline cases that was presented in this litigation.

As Chief Judge Newman pointed out in Lebron I], “Amtrak’s

billboard space in Pennsylvania Station, even if used in the past

for ads of a public service nature, has not become a forum for

ads of such pointed political content as Lebron’s attack on the

makers of Coors Beer for promoting ‘The Far Right’s political

agenda.’ ” 12 F.3d at 394 (Newman, C.J., dissenting).

Conclusion

We reverse the judgment of the district court and remand

with the instruction that the district court dismiss Lebron’s

complaint. As previously noted, see Lebron II, 12 F.3d at 392-

393, Lebron is free to pursue his state law claim in state court.

JON O. NEWMAN, Chief Judge, dissenting:

Because I believe that Amtrak, a governmental entity now

authoritatively determined to be subject to First Amendment

limitations, see Lebron v. National R.R. Passenger Corp., 115

S. Ct. 961 (1995), has violated the First Amendment by its

rejection of the political advertisement that Michael Lebron

19a

contracted to display on a billboard in Penn Station, I respect-

fully dissent.

The Court’s dismissal of Lebron’s lawsuit rests on two

premises, both of which, in my view, are flawed. The first con-

cerns the identification of the forum for purposes of applying

public forum analysis. The second concerns the standard for

determining whether a governmental actor’s policy for reject-

ing advertisements violates First Amendment requirements.

1. The relevant forum. The premise of the Court’s identi-

fication of the relevant forum is that, in advertising cases, a

court should consider the particular billboard on which an

applicant wishes to display a message. Proceeding from this

premise, the Court narrows its inquiry to “the Spectacular,” the

large billboard high on the west wall of the rotunda of the

upper level of Penn Station. No prior case has taken such a

restricted view of the relevant forum, and I think it can be read-

ily demonstrated that the Court’s premise is incorrect.

The Supreme Court has instructed that the relevant forum is

to be determined by “the access sought by the speaker.”

Cornelius v. NAACP Legal Defense and Educational Fund,

Inc., 473 U.S. 788, 801 (1985). The-meaning of that instruction

is made clear by the facts of Cornelius. The plaintiff sought

access to what the Court called “a particular means of com-

munication,” id.—the Combined Federal Campaign, a charity

drive aimed at federal employees. The Court ruled that the

charity campaign itself was the relevant forum, rather than the

entirety of the federal workplace. The cases relied on by

Cornelius further illuminate the Court’s meaning. In Perry

Education Assn. v. Perry Local Educators’ Assn., 460 U.S. 37

(1983), the Court confined its inquiry to a school district’s

interschool mail system, rather than all parts of school prop-

erty. Cornelius referred to the mail system as “a particular

means of communication.” 473 U.S. at 801 (emphasis added).

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

Court confined its inquiry to advertising space on city-owned

buses.

20a

All of these cases focus on a means of communication, not

the particular location where an advertiser prefers to display its

ad. It is unimaginable that in Cornelius the Court would have

permitted one political party to solicit funds through the

Combined Federal Campaign at one side of the lobby of a fed-

eral building while denying another party the opportunity to

solicit funds through the Campaign at the other side, or that in

Perry the Court would have permitted one group to place a

political message in the mail boxes of one school while deny-

ing another group a similar right at other schools, or that in

Lehman the Court would have permitted political ads on one

bus while prohibiting political ads on other buses.

The two cases relied on by the majority in the pending

appeal, both interestingly and accurately cited with a signal

meaning “compare,” are also instructive. In Air Line Pilots

Assn. v. Dept. of Aviation, 45 F.3d 1144 (7th Cir. 1995), the

Court focused on diorama display cases throughout an airport,

rather than the entirety of the airport. The Court did not limit

its analysis to one display case. In Hubbard Broadcasting, Inc.

v. Metropolitan Sports Facilities Commission, 797 F.2d 552

(9th Cir.), cert. denied, 479 U.S. 986 (1986), the Court focused

on all advertising space in a sports arena, rather than the

entirety of the arena. The Court did not limit its analysis to one

portion of the advertising space.

Nevertheless, the Court in the pending case limits

its public forum analysis to the one billboard in Penn Station

on which Lebron wishes to display his ad—the so-called

“Spectacular.” There is no question that this billboard is bigger

than any other in Penn Station, more visible, and, if one can

afford it, more desirable. But public forum analysis cannot be

SO particularized as to focus on one of several billboards on

government property, no matter how preferable that one bill-

board’s size and location may be to an advertiser. The reason

can be readily demonstrated. As everyone who has ever walked

through Penn Station knows, the Spectacular is high atop the

west wall of the station’s rotunda, and two small billboards are

PRR te 2s ETI IEE RES OIE SOE AOS MME FIRM AIRE I HALE HS MUONS RRR MNP at On

OS IS di

2la

high atop the north and south walls of the same rotunda. If

Amtrak had permitted the Democratic Party to place political

ads on either of the two smaller billboards in the rotunda, can

it be seriously argued that any court would limit its foram anal-

ysis to the one large billboard and permit Amtrak to deny the

Republican Party the opportunity to place its political ad on the

Spectacular, just because no political ad had previously been on

that precise space?

The relevant forum must be at least advertising space in the

rotunda of Penn Station—the means of communication to

which Lebron sought access. Once the forum is defined to have

at least this scope, Amtrak’s violation of the First Amendment

is evident because it has leased advertising space on a kiosk in

the rotunda for The Plain Truth, a magazine the Court acknowl-

edges is devoted to “political and social issues.” It is clearly

unconstitutional for Amtrak to permit its advertising space in

the rotunda to be used to convey the message of The Plain

Truth and deny space in the same rotunda to the message that

Lebron believes conveys the plain truth about the brewers of

Coors Beer.

2. Amtrak's policy. Even if the relevant forum is the one

billboard space known as The Spectacular, the Court’s second

premise—that the scope and lawfulness of Amtrak’s exercise

of discretion regarding political ads may be ascertained solely

from its past practice—is also unsound. The proper inquiry, the

Supreme Court has instructed, focuses not solely on past prac-

tice but on “policy and practice,” Cornelius, 473 U.S. at 802:

see Lehman, 418 U.S. at 303 (“policies and practices”). If it

were the case that the only evidence of Amtrak’s approach to

political ads was its past practice, an inquiry confined to that

practice would be defensible. But the record in this case con-

tains more evidence, and the District Court made findings

based on that evidence that are not even arguably clearly erro-

neous.

First, the agreement between Amtrak and Transportation

Displays Incorporated (TDI), the leasing agent for billboards

22a

in Penn Station, states, “All advertising material, exhibit mate-

rial, notices and advertisements, and their manner of presen-

tation and design, shall be subject to approval by Amtrak,

which may disapprove any such items at its own discretion.”

Lebron v. National R.R. Passenger Corp., 811 F. Supp. 993,

1002 (S.D.N.Y. 1993). It is difficult to imagine a more stan-

dardless statement of policy. Second, as the District Court

found, neither the key Amtrak official responsible for super-

vising Amtrak’s arrangements with TDI nor any of the execu-

tives of TDI knew of any prohibition on political advertising at

any of Amtrak’s facilities. Jd. Third, other key Amtrak officials

could not agree on what Amtrak’s policy was. One testified that

the policy prohibited only those advertisements that were both

“political and divisive or objectionable,” while another could

not say what the policy meant. /d. Fourth, the guidelines of

Amtrak’s leasing agent, TDI, do not prohibit political adver-

tisements but merely consider them commercial and therefore

subject to full rate charge. Jd. at 1003.

In view of this evidence, the District Court’s findings that

Amtrak’s alleged policy against political ads was unwritten,

unclear, and undisseminated provide ample basis for the

Court’s ultimate conclusion that the policy permitted the unfet-

tered exercise of discretion and created the risk of abuse that

the First Amendment prohibits. See Lebron v. Washington

Metropolitan Area Transit Authority, 749 F.2d 893, 899 (D.C.

Cir. 1984).

Disregarding the evidence and the District Judge’s findings,

this Court ascertains Amtrak’s policy solely by looking to the

past practice of not yet contracting for a political ad on the

Spectacular. But where a policy is unwritten, unclear, and

undisseminated, the fact that it has not yet been used dis-

criminatorily does not save it from invalidation under the First

Amendment. The vice of conferring unfettered discretion on

government Officials to determine which messages may be con-

veyed is not avoided by their past pattern of not making a dis-

criminatory decision. The vice inheres in the opportunity for

23a

SSO RU ape tag aia Bie Sp 8 oo

discrimination, and the First Amendment requires that oppor-

tunity 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. See Gentile v. State Bar of

Nevada, 111 S. Ct. 2720, 2732 (1991) (imprecise standards

concerning permissible statements by lawyers); Lakewood v.

Plain Dealer Publishing Co., 486 U.S. 750, 755-59 (1988)

(unfettered discretion to permit newspaper dispensing devices

on governmental property). As the Supreme Court has

5 observed,

The prohibition against vague regulations of speech is

based in part on the need to eliminate the impermissible

risk of discriminatory enforcement. . . . The question is

: not whether discriminatory enforcement occurred here,

and we assume it did not, but whether the Rule is sO

imprecise that discriminatory enforcement is a real pos-

sibility.”

ANNE. gh Let fc i yi

Gentile, 111 S. Ct. at 2732 (citations omitted). In some cases,

it might be possible to infer the existence of a policy that

passes constitutional muster from a record consisting solely of

‘ a pattern of past practice. But in the pending case such a pol-

4 icy cannot be inferred from past practice in the face of sub-

: stantial evidence that has persuaded a District Judge to make

4 findings that the alleged policy was not understood by the offi-

cials responsible for administering it.

Wholly apart from the absence of a clear. understandable,

i and understood policy, Lebron might be correct that, to the

; extent that the defendant’s policy purports to bar political ads,

it is a viewpoint-based discrimination that violates the First

Amendment. See Air Line Pilots Assn. vy. Department of

Aviation, 45 F.3d 1144 (7th Cir. 1995). As Lebron contends, the

defendants are willing to display an ad urging the public to buy

Coor’s beer but are unwilling to display his ad urging the pub-

lic not to do so. He makes a substantial argument that view-

point-based discrimination is occurring when government

allows an ad promoting the sale of a product, but purports to

Rosie Pm aie Sea sist Ser aes ade eR OOM is WOR Te Kd Leese,

24a

prohibit an ad opposing a product because of the views of its

manufacturer. Presumably, Amtrak would allow an ad oppos-

ing the sale of Coor’s beer because of its alcoholic content or

for any reason unrelated to the views of its manufacturer. I

need not decide whether to accept Lebron’s argument since his

other positions are well supported on this record.

In my view, the District Court’s findings, fully supported by

the evidence, entitled Lebron to prevail on his claim that

Amtrak’s refusal to permit display of his ad violated the First

Amendment. At a minimum, he is entitled to a declaration that

Amtrak has violated the First Amendment, damages (to the

extent, if any, not precluded by F.D./.C. v. Meyer, 114 S. Ct.

996, 1004-06 (1994)), and equitable relief requiring promul-

gation and dissemination of a clear policy concerning political

ads. Since the Court concludes that Amtrak has no liability at

all, I need not consider the further issue of whether the equi-

table relief ought to include a requirement that Lebron’s ad be

displayed. My statement from the prior appeal, 12 F.3d at 394

(Newman, C.J., dissenting), quoted by the Court out of its con-

text, was directed solely at the issue of the possible scope of

relief, not the issue of liability on which the Court today rules.

I respectfully dissent.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 1494—August Term, 1992

(Argued: April 27, 1993 Decided: December 27, 1993

Reversed and Remanded: February 21, 1995

Reargued: May 11, 1995 Decided: October 30, 1995

On rehearing: December 29, 1995)

Docket No. 93-7127

MICHAEL A. LEBRON,

Plaintiff- Counter-Defendant-Appellee,

—vVS.—

NATIONAL RAILROAD PASSENGER CORPORATION

(AMTRAK),

Defendant-Appellant,

—and—

TRANSPORTATION DISPLAYS, INCORPORATED,

Defendant-Counter-Claimant.

Before:

NEWMAN, Chief Judge, and

LUMBARD and MAHONEY, Circuit Judges.

Opinion on rehearing of this Court’s October 30, 1995

reversal of the judgment of the United States District Court

for the Southern District of New York, Pierre N. Leval, Judge,

that granted an injunction to plaintiff-counter-defendant-

appellee Michael A. Lebron requiring defendant-appellant

National Railroad Passenger Corporation (Amtrak) and defen-

dant-counter-claimant Transportation Displays, Incorporated

to display a political advertisement prepared by Lebron on a

large billboard known as the Spectacular in New York City’s

Pennsylvania Station. The petition for rehearing is denied.

Chief Judge Newman dissents in a separate opinion.

GLORIA C. PHARES, New York, New York, (Paul,

Hastings, Janofsky & Walker, New York,

New York, R. Bruce Rich, Bernadette

McCann Ezring, Jonathan Bloom, Marc

Brotman, Weil, Gotshal & Manges, New

York, New York, David D. Cole, Center for

Constitutional Rights, Washington, D.C., of

counsel), for Plaintiff-Counter-Defendant-

Appellee.

KEVIN T. BAINE, Washington, D.C. (Nicole K.

Seligman, Steven M. Farina, Williams &

Connolly, Washington, D.C., William G.

Ballaine, Mark S. Landman, Siff Rosen P.C.,

New York, New York, of counsel), for

Defendant-Appellant.

MAHONEY, Circuit Judge:

Plaintiff-Counter-Defendant-Appellee Michael A. Lebron

petitions for rehearing of this Court’s decision in Lebron v.

National Railroad Passenger Corp. (Amtrak), No. 93-1727,

[App., supra, la} (2d Cir. Oct. 30, 1995) (“Lebron I’), famil-

iarity with which is assumed. We deny the petition for rehear-

ing, but amend Lebron / as follows:

1. The sentence at [App., supra, 15a, lines 14-17], is

deleted.

2. The sentence at [App., supra, 16a, lines 3-9], is

amended to read as follows:

Because Lebron insisted that TDI display his proposed

advertisement only on the Spectacular, his attempt to

attack Amtrak’s policies regarding the acceptance of

advertisements in Penn Station generally, rather than on

the Spectacular, amounts, in substance, to a facial chal-

lenge to those policies as they might be applied to adver-

tisements other than Lebron’s and to locations not at

issue.

3. The two sentences at [App., supra, 18a, lines 19-22], are

replaced by the following:

We reverse the judgment of the district court and

remand for consideration of Lebron’s contract claim and

TDI’s counterclaim for a declaratory judgment that it is

entitled to terminate the Lease. Because initial subject

matter jurisdiction over Lebron’s federal claim is now

clear, and a full trial has been “conducted on an expe-

dited basis, upon written submissions,” Lebron J, 811 F.

Supp. at 994, the interests of judicial economy and fair-

ness to the parties counsel that this litigation be com-

pleted in federal court.

We note the assertion in Chief Judge Newman’s dissent

from this disposition of the petition for rehearing that we now

approve an inconsistent Amtrak policy because, “as the

District Court found, advertisements falling within a broad

category of political messages had been displayed in Penn

Station.” Judge Leval concluded only that a handful of the

advertisements shown in Penn Station over the years had been

“arguably ‘political.’ ” Lebron v. National R.R. Passenger

Corp. (Amtrak), 811 F. Supp. 993, 1004 (S.D.N.Y. 1993)

(referring to advertisements by New York Department of the

Environment, New York Department of Commerce, a foun-

dation for muscular dystrophy, and Plain Truth magazine; and

public service advertisements concerning “subjects such as

the homeless, the environment, drunk driving, AIDS aware-

ness, health issues, and race relations”). Amtrak is probably

entitled to consider such advertisements as “public service

announcements” within the meaning of its standard licensing

agreement. See Lebron I, [App., supra, 6a-7a]. In any event,

“Amtrak’s billboard space in Pennsylvania Station, even if

used in the past for ads of a public service nature, has not

become a forum for ads of such pointed political content as

Lebron’s attack on the makers of Coors beer for promoting

‘the Far Right’s political agenda.’ ” Lebron v. National R.R.

Passenger Corp., 12 F.3d 388, 394 (2d Cir 1993) (Newman,

C.J., dissenting), rev’d and remanded, 115 S. Ct. 961 (1995).

We rely upon Lebron | with respect to our analysis of the

forum issue. See id., [App., supra, 8a-14a].

JON O. NEWMAN, Chief Judge, dissenting:

I respectfully dissent from the denial of the petition for

rehearing.

When the Court first issued its opinion on the merits of

Lebron’s First Amendment challenge, it premised substantial

portions of its ruling on the view that Amtrak’s advertising

policy on political messages, whatever the policy’s content,

was limited in geographic scope to the one large billboard in

Penn Station known as “the Spectacular.” Lebron’s petition

for rehearing challenges that premise, pointing out unrefuted

contrary evidence in the record, a contrary assumption, if not

a finding, underlying the District Court’s analysis, and the

acknowledgement by Amtrak in its appellate brief that its pol-

icy “applies to all advertising in Amtrak’s facilities.” Brief

for Appellant at 7. The Court responds to Lebron’s petition by

amending its opinion to delete the two passages of the opin-

ion as originally issued that had asserted that Amtrak’s

policy against political advertisements is limited to the

Spectacular.

Though the deletions are fully justified, they leave the

Court’s legal analysis of Lebron’s First Amendment challenge

even more vulnerable than I thought it was at the time of the

Original opinion. See __ F.3d —_... ..... (Newman, C.J., dis-

senting). For example, the original opinion had concluded that

there is no evidence that Amtrak’s policy has ever been

applied inconsistently “because the policy against political

advertising was limited in scope to the Spectacular.” Id.

at__. The revised recognition that Amtrak’s policy, what-

ever its content, is not limited in scope to the Spectacular

leaves unsupported the majority’s view that the policy has not

been applied inconsistently. in fact, as the District Court

found, advertisements falling within a broad category of polit-

ical messages had been displayed in Penn Station.' The

majority has concluded that the policy has been consistently

applied by overlooking the instances where it has not been

consistently applied. This conclusion, previously reached on

. The majority again notes, as it did in the initial opinion on the mer-

its, that my dissent from the very first Lebron ruling had observed that

Penn Station “has not become a forum for ads of such pointed political

content as Lebron’s [proposed ad for the Spectacular.]” 12 F.3d at 394

(emphasis added). The fact that the ads Amtrak previously allowed in

Penn Station were only of a general political nature and did not contain

political content as “pointed” as Lebron’s ad does not detract in any way

from the District Court’s finding, supported by abundant evidence, that

the Amtrak policy has been inconsistently applied. Whether the differ-

ence between Lebron’s ad and prior ads should have a bearing on the

scope of relief, which is the issue I discussed in the prior dissent, is an

issue entirely different from whether Amtrak has incurred liability for

applying its “policy” inconsistently in violation of the First Amendment.

a view that the policy applied only to one location, is left in

place, even though there is now recognition that the policy

applies throughout Amtrak’s facilities.

Perhaps the majority now means to rest its ultimate con-

clusion solely on its view that the relevant forum for purposes

of public forum analysis is only the Spectacular. I previously

set forth my reasons for thinking that that view is not legally

sound. See id. at___-___. With the factual underpinning of

the majority’s view as to the scope of the Amtrak policy now

discarded, I simply note that the public forum view of the

majority, even if correct, is irrelevant since, no matter what

the scope of the forum, a governmental entity violates the

First Amendment when it bars display of political messages

pursuant to a “policy” that has been found by a fact-finder,

with abundant evidentiary support, to be vague, unwritten,

undisseminated, unclear to those who must administer it, and

inconsistently applied. In Board of Airport Commissioners v.

Jews for Jesus, Inc., 482 U.S. 569 (1987), the Supreme Court

found it unnecessary to decide whether the Los Angeles

International Airport was a public forum because the gov-

ernmental ordinance regulating speech on the premises was

constitutionally defective. Jd. at 573-74. The constitutional

defects in Amtrak’s “policy” similarly make public forum

analysis irrelevant.

I agree with the majority that the state law issues are prop-

erly returned to the District Court for further consideration,

but I would grant the petition for rehearing.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

92 Civ. 9411 (PNL)

Dated: February 5, 1993

As Amended February 8, 1993

a ee ee ae

| MICHAEL A. LEBRON.

Plaintiff,

—_—VvV.—

THE NATIONAL RAILROAD PASSENGER CORPORATION

(AMTRAK) and TRANSPORTATION DISPLAYS INCORPORATED,

Defendants.

OPINION AND ORDER

Findings of Fact and Conclusion of Law

PIERRE N. LEVAL, U.S.D_J.

This is a so-called “Bivens” action,’ brought under the First

Amendment by an artist, Michael A. Lebron, would-be lessor

of a gigantic billboard in New York’s Pennsylvania Station.

The primary defendant is Amtrak, the National Passenger

Railroad Corporation, which, as owner of the billboard,

rejected the two-month lease plaintiff had contracted for with

Amtrak’s leasing agent because plaintiff’s display was “polit-

See Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).

ical.” Plaintiff contends the rejection was inconsistent with

the requirements of the First Amendment. He sues to invali-

date the rejection so that he can obtain the benefit of his lease

agreement.

As an alternative theory, plaintiff alleges that Amtrak and

its leasing agent Transportation Displays Incorporated

(“TDI”), the second defendant, are estopped by reason of

delay from denying plaintiff’s contract.

On the consent of the parties, trial was conducted on an

expedited basis, upon written submissions. The court's find-

ings of fact and conclusions of law are as follows.

Background

Lebron is an artist who creates works for display on bill-

boards. His works often involve commentary on public issues.

See, e.g., Lebron v. Washington Metropolitan Area Transit

Authority, 749 F.2d 893 (D.C. Cir. 1984). During 1991 and

1992, he made plans for a photomontage for a particular bill-

board in Penn Station. The billboard is known as the Spec-

tacular; it is a curved, back-lit display space approximately

103 feet wide and 10 feet high, covering the east-facing wall

of the rotunda area, facing passengers (and others) who walk

westward toward the waiting areas, ticket booths, and train

platforms.

Defendant TDI is an advertising agency that handles the

leasing of billboards for many of Amtrak’s properties and for

other billboard owners in the rail transportation system.

Amtrak has authorized TDI to lease the billboards in Penn

Station. While the licensing agreement reserves for Amtrak

the right of approval of all advertising copy, in practice,

Amtrak does not review advertising copy, excepting adver-

tisements for the Spectacular.

In August 1991, Lebron first contacted TDI about con-

tracting for billboard space in Penn Station. He spoke from

time to time with William B. Schwartz, a TDI account exec-

utive. Schwartz told him that while no displays would be

accepted that included obscenity or violence, there were no

other policy restrictions on advertising.

The Spectacular was available for two months at the begin-

ning of 1993. Lebron and TDI reached agreement on financial

terms of $18,500 a month for January and February 1993. In

August 1992, Schwartz gave Lebron the standard rental form

contract, which Lebron signed and returned. During the nego-

tiations, Schwartz asked Lebron what he would display on the

billboard. Lebron responded that in general his work was

political, although it often looked like advertising, but that he

preferred to keep confidential the specific content of the work

he was creating for the Spectacular. Schwartz did not suggest

that the political nature of the work would be a problem.

On November 30, 1992, TDI signed the agreement. The

terms of the contract included the following:

All advertising copy is subject to approval of TDI and

the Transportation Facility concerned [i.e., the owner of

the billboard] as to character, text, illustration, design

and operation.

If for any cause beyond its control TDI shall cease to

have the right to continue the advertising covered by this

contract, or if the Transportation Facility concerned

should deem such advertising objectionable for any

reason, TDI shall have the right to terminate the contract

and discontinue the service without notice.

During the fall, Lebron worked on creation of his piece for

the 10 x 103 foot space. On December 2, 1992, he provided

TDI with a color photocopy of his piece. The work is a pho-

tomontage, accompanied by considerable text. Taking off on

a widely circulated Coors beer advertisement which proclaims

Coors to be the “Right Beer,” Lebron’s piece is captioned

“Is it the Right’s Beer Now?” It includes photographic images

of convivial drinkers of Coors beer, juxtaposed with a Nicar-

aguan village scene in which peasants are menaced by a can

of Coors that hurtles towards them, leaving behind a tail of

fire, as if it were a missile. The accompanying text, appearing

on either end of the montage, criticizes the Coors family for

its support of right-wing causes, particularly the contras in

Nicaragua. Again taking off on Coors’ advertising which uses

the slogan of “Silver Bullet” for its beer cans, the text pro-

claims that Coors is “The Silver Bullet that aims The Far

Right’s political agenda at the heart of America.”

On December 7, TDI sent the work on to Amtrak for

approval. Ten days later, Anthony DeAngelo, the Amtrak Vice

President for Real Estate and Operations Development, the

person authorized by Amtrak’s Board of Directors to oversee

third-party advertising located on Amtrak property, disap-

proved Lebron’s work on the grounds that it was “political.”

Amtrak notified TDI of this decision on December 23 in a let-

ter stating that “Amtrak’s policy is that it will not allow polit-

ical advertising on the [S]pectacular advertising sign.” Lebron

learned of Amtrak’s rejection from TDI on December 29,

1992, three days before his advertisement was to appear in the

Spectacular.

Discussion

A. Governmental Action

Lebron contends that in rejecting his work Amtrak engaged

in censorship in violation of his free speech rights under the

First Amendment. Alternatively put, he contends that

Amtrak’s actions violated the requirements that the First

Amendment imposes on governmental regulation of speech.

The prohibitions of the First Amendment are “a restraint on

government action, not that of private persons.” Columbia

Broadcasting System, Inc. v. Democratic National Committee,

412 U.S. 94, 114 (1973) (citing Public Utilities Comm'n v.

Pollak, 343 U.S. 451 (1952)).

Amtrak claims it is a private entity, immune from the

restrictions of the First Amendment and, to the contrary, guar-

anteed the right under the First Amendment to control speech

on its billboards in whatever fashion it chooses. The first

issue in contention thus turns on whether Amtrak should be

deemed a governmental or a private actor for these purposes.

“Conduct that is formally ‘private’ may become... so

impregnated with a governmental character as to become sub-

ject to the constitutional limitations placed upon state action.”

Evans v. Newton, 382 U.S. 296, 299 (1966). The Supreme

Court has outlined several ways through which the activities

of a private entity can become governmental action. One such

standard is relevant here.* Under this standard, known as the

“symbiotic relationship” test, private activity becomes subject

to the restrictions that the Constitution imposes on govern-

ment when the government “has so far insinuated itself into a

position of interdependence with [the private entity] that it

must be recognized as a joint participant in the challenged

activity.” Burton v. Wilmington Parking Auth., 365 U.S. 715.

725 (1961); accord Evans v. Newton, 382 U.S. at 299. There

must be a “ ‘sufficiently close nexus between the State and

the challenged action . . . so that the action of the [private

actor] may be fairly treated as that of the State itself.’ ” Blum

v. Yaretsky, 457 U.S. 991, 1004 (1982) (quoting Jackson v.

Metropolitan Edison Co., 419 U.S. 345, 351 (1974)). See also

Myron v. Consolidated Rail Corp., 752 F.2d 50, 54 (2d Cir.

1985) (same standards applied in assessing “federal action”

. The other two standards are the “public function” doctrine,

Flagg Bros., Inc. v. Brooks, 436 U.S. 149. 157 (1978), and the “state

compulsion” doctrine, Adickes v. S. H. Kress & Co., 398 U.S. 144 (1970).

The latter is applicable when the government “has exercised coercive

power or has provided. . . significant encouragement, either overt or

covert,” to bring about the challenged action. Blum v. Yaretsky, 457 U.S.

991, 1004 (1982). The former doctrine holds government action may be

present “if the private entity has exercised powers that are ‘traditionally

the exclusive prerogative of the State."” Blum, 457 U.S. at 1005 (quot-

ing Jackson v. Metropolitan Edison Co., 419 U.S. 345, 353 (1974)); see

also Flagg Bros., Inc. v. Brooks, 436 U.S. 149. 160 (1978). It is not

enough that the government has authorized a private entity to perform a

task; it must be a role traditionally performed by the state. See Flagg

Bros., 436 U.S. at 160-62; Jackson, 419 U.S. at 352-53: see also Marsh

v. Alabama, 326 U.S. 501 (1946) (COmpany town with all the attributes

of public town subject to constitutional limitations).

as for “state action”) (citing cases). The symbiotic relation-

ship test “focuses on the [government’s] overall relationship

with the private actor,” Hadges v. Yonkers Racing Corp., 918

F.2d 1079, 1082 (2d Cir. 1990), and “does not require that the

plaintiff demonstrate that the state was involved 1n the chal-

lenged conduct.” Stevens v. New York Racing Ass'n, Inc., 665

F. Supp. 164, 171 (E.D.N.Y. 1987).

The Supreme Court has consistently emphasized that the

issue of state, or governmental, action turns on a factual

inquiry specific to each situation. “Only by sifting facts and

weighing circumstances can the nonobvious involvement of

the State in private conduct be attributed its true signifi-

cance.” Burton v. Wilmington Parking Authority, 365 U.S. at

722 (private restaurant, operated in space leased from city

owned parking garage, that refused service to blacks, deemed

governmental actor where revenues from discriminatory ser-

vice ultimately financed the public parking facility); see Skin-

ner v. Railway Labor Executives Ass'n, 489 U.S. 602, 614

(1989) (“Whether a private party should be deemed an agent

or instrument of the Government for Fourth Amendment pur-

poses necessarily turns on the degree of the Government’s

participation in the private party’s activities, a question that

can only be resolved ‘in light of all the circumstances.’ ”)

(citations omitted); Lugar v. Edmondson Oil Co., 457 U.S.

922, 939 (1982) (determination “necessarily fact-bound”); see

also Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982) (pri-

vate remedial school held to be non-governmental, notwith-

standing state regulation and funding, in a suit by discharged

teachers).

I conclude, based on examination of the federal govern-

ment’s deep and controlling entwinement in Amtrak’s struc-

ture and operations, that, when Amtrak undertakes to control

the content of speech on its billboards, its conduct must be

deemed governmental rather than private.

What is clear at a glance is that Amtrak does not comfort-

ably fit the conventional mold of either private or govern-

mental entity.

In form and name it resembles more closely a private entity.

It is a for-profit business corporation and is decreed by act of

Congress “not [to] be an agency, instrumentality, authority, or

entity, or establishment of the United States Government.” 45

U.S.C. § 541. Its common stock is owned by private railroad

companies.

On the other hand, in both image and reality, it is impreg-

nated with governmental character and inseparably inter-

twined with governmental authority and financing. Looking

first at the symbolic, Congress established Amtrak. 45 J.S.C.

§ 501, and defined it as a “mixed-ownership government cor-

poration.” 31 U.S.C. § 9101. It is defined in the Americans

with Disabilities Act, 42 U.S.C. § 12101, et seg., asa “public

entity.”* 42 U.S.C. § 12131(1)(C).

More significant is the governmental penetration of

Amtrak’s operations. All of Amtrak’s directors are appointed

directly or indirectly by the President of the United States. 45

U.S.C. § 543. Of its nine board members, five are directly

appointed by the President: the sixth is the Secretary of

Transportation sitting ex officio, who is also appointed

directly by the President. Two board members are selected by

the United States Government, as the owner of all of Amtrak’s

preferred stock. The final member of the board is the pres-

ident of Amtrak, who is selected by the other directors.

The parties agree that Amtrak’s board is responsible for con-

trolling Amtrak and would have the authority to approve

or disapprove of Amtrak’s advertising policies throughout

its facilities. Indeed, the board has, by resolution, autho-

rized Amtrak’s current agreements with TDI concerning

advertising.

Amtrak is also subject to the Freedom of Information Act. 45

U.S.C. § 546(g).

One is selected from a list supplied by the Railway Labor Exec-

utives Association, one from among the governors of states with an inter-

est in rail transportation, and one as a representative of business with an

interest in rail transportation. 45 U.S.C. § 543(a)(1)(C). Two directors are

selected from lists of names supplied by commuter authorities that work

with Amtrak. § 543(a)(1 )(D)(ii).

The federal government is also deeply involved in the

financing of Amtrak’s operations. Every year, Congress

appropriates the sum necessary to cover the shortfall of

Amtrak’s operating results. See 45 U.S.C. § 601.° For example,

for the fiscal year ending September 30, 1993, Congress has

appropriated up to $846 million for Amtrak’s operating

losses, capital improvements, tax liability, and labor protec-

tion costs and for the Northeast Corridor Improvement Pro-

gram. Pub. L. 102-388, 106 Stat. 1520 (Oct. 6, 1992). For this

reason, Amtrak’s revenues from the leasing of its billboard

space are, in a sense, revenue of the federal government.

Every dollar of net billboard revenue realized by Amtrak

results in a one dollar reduction of the subsidy obligation of

the federal government. Conversely, if Amtrak subsidized any

exhibitor on its billboards by charging less than the market

rate, the display would essentially be financed by the federal

government.*

Amtrak has also been vested with various attributes of gov-

ernmental character. For example, Congress has given Amtrak

the power of eminent domain, 45 U.S.C. § 545(d), exemption

; In fact, as the parties have agreed, in 1976, Amtrak's fiscal year

end for accounting purposes was changed from December 31 to Septem-

ber 30 “to coincide with the fiscal year adopted by the federal govern-

ment and used in providing federal assistance to [Amtrak].”

Congress stated as a goal that Amtrak use its “best business judgment

in taking actions to minimize Federal subsidies.” 45 U.S.C. § 501a(1), and

Congress encouraged Amtrak to “enter into agreements with the private

sector and undertake initiatives which are consistent with good business

judgment and designed to maximize its revenues and minimize Federal

subsidies.” 45 U.S.C. § 50la(14).

° See Burton, 365 U.S. at 724 (discriminatory practices of restau-

rant allegedly increased business and therefore benefitted the restaurant's

landlord, the government, supporting finding of state action); Citizens to

End Animal Suffering & Exploitation, Inc. v. Faneuil Hall Marketplace,

Inc., 745 F. Supp. 65, 73 (D. Mass. 1990) (state action finding supported

by fact that success of private entity served financial interests of city in

reviving urban area); Stevens v. New York Racing Ass'n. Inc., 665 F.

Supp. at 172-75 (likelihood of state action where excess revenues of the

non-profit association went to the state).

from state and local taxes and fees, including all real estate

taxes, 45 U.S.C. § 546(b), and various loan guarantees, 45

U.S.C. § 602, so that it borrows under the credit of the federal

government. Amtrak is required to report annually to Congress

on its operations. 45 U.S.C. § 548.

Finally, the federal government has invested billions of dol-

lars in Amtrak’s properties. Amtrak acquired its Northeast

Corridor properties, including Penn Station, by statutory con-

demnation paid for by the United States.’ See Regional Rail

Reorganization Act of 1973, 45 U.S.C. § 701 er seq. The fed-

eral government has also invested billions of dollars in the

improvement of Amtrak’s Northeast Corridor facilities. See

45 U.S.C. § 854 (authorizing up to $2.5 billion). While

Amtrak owns the fee in Penn Station, the federal government

holds a mortgage on it, and indeed on all the Northeast Cor-

ridor properties.®

After much litigation and negotiation, the federal government,

in 1981, paid Penn Central $2.113 billion as compensation for the North-

east Corridor properties, including Penn Station.

. In addition, portions of Penn Station are used by other govern-

mental entities under leases with Amtrak. For example, Amtrak leases

significant portions of Penn Station to the Long Island Rail Road (LIRR)

and New Jersey Transit (NJT), both public entities, for the operation of

their respective rail passenger services. An array of leases and joint

agreements among Amtrak, LIRR, and NJT govern the management of

public areas of Penn Station and the funding of construction and main-

tenance of various train and tunnel facilities. Hence, portions of the sta-

tion occupied by LIRR and NIT are subject to constitutional limitations,

and these areas are largely contiguous with those controlled by Amtrak.

Indeed, some facilities of LIRR and NJT, such as ticket and information

booths, are in the midst of Amtrak’s facilities on the same floor of Penn

Station as the Spectacular. Notably, the public therefore has little way of

knowing whether or not it is in an area where constitutional limiiations

apply. See Coleman v. Wagner College, 429 F.2d 1120, 1127 (2d Cir.

1970) (Friendly, J., concurring) (suggesting that one rationale for hold-

ing of Burton is that when “citizens may reasonably believe [action] to

have been taken at the state’s instance, state action may legitimately be

found even though the state left the private actors almost complete free-

dom of choice”).

10c

Thus, when Amtrak undertakes to control the content of the

messages on its billboards in Penn Station, these controls dre

exercised by a corporation whose directors are appointed by

the President, whose operations are financed by the federal

government, and whose properties, in major part, are mort-

gaged to the federal government.

Amtrak contends that it cannot be deemed a governmental

actor. It first cites a range of cases which found in various

contexts that Amtrak is not a government agency or entity.

See, e.g., National R.R. Passenger Corp. v. Atchison, T. & S.F.

Ry. Co., 470 U.S. 451, 454 (1985); National R.R. Passenger

Corp. v. Two Parcels of Land, 822 F.2d 1261, 1264 (2d Cir.),

cert. denied, 484 U.S. 954 (1987); Ehm v. National R.R. Pas-

senger Corp., 732 F.2d 1250, 1253-56 (Sth Cir.), cert. denied,

469 U.S. 982 (1984); Kimbrough v. National R.R. Passenger

Corp., 549 F. Supp. 169, 173 (M.D. Ala. 1982); Sentner v.

Amtrak, 540 F. Supp. 557 (D.N.J. 1982). These cases do not

determine the question in this case. Plaintiff does not contend

that Amtrak is a governmental agency. What plaintiff con-

tends is that the federal government is sufficiently entwined

in Amtrak’s operations and authority that the particular

actions at issue must be deemed governmental action.

Next Amtrak relies on a number of cases in which dis-

charged employees charged either Amtrak or the similarly

structured Consolidated Rail Corporation (“Conrail”) with

unconstitutional governmental action. In each of these cases,

the courts held that Amtrak’s (or Conrail’s) actions in dealing

with its employees were not deemed to be governmental

action. See, e.g., Myron v. Consolidated Rail Corp., 752 F.2d

50 (2d Cir. 1985) (constitutional limitations do not apply to

the activities of Conrail in discharging an individual

employee); Anderson v. National R.R. Passenger Corp., 754

F.2d 202, 204 (7th Cir. 1984) (in challenge to employee ter-

mination, Amtrak not a state actor); Andrews v. Consolidated

Rail Corp., 831 F.2d 678 (7th Cir. 1987) (Conrail not state

actor in refusing to reinstate employee); Morin v. Consoli-

dated Rail Corp., 810 F.2d 720 (7th Cir. 1987) (no state

llc

action in discharging employee); Marcucci v. National R.R.

Passenger Corp., 589 F. Supp. 725 (N.D. Ill. 1984) (no state

action in wrongful discharge suit); Rost v. National R.R. Pas-

senger Corp., 1989 WL 104809 (E.D. Pa. Sept. 11, 1989) (“no

allegations concerning the nexus between the federal gov-

ernment and Amtrak’s personnel practices.”); Hankin v.

National R.R. Passenger Corp., 1987 U.S. Dist. LEXIS 10741

(N.D. Ill. Nov. 16, 1987) (following Anderson): cf. Railway

Labor Executives Ass’n v. National R.R. Passenger Corp., 691

F. Supp. 1516, 1524 n.11 (D.D.C. 1988) (drug testing by

Amtrak not Fourth Amendment violation). Amtrak argues that

these authorities conclusively determine for the present liti-

gation that it is not a governmental actor.

The argument is unpersuasive. The fact that Amtrak is con-

sidered a private employer in administering its employment

of personnel does not mean it will be deemed private when it

regulates speech. Whether conduct of a particular entity will

be deemed governmental action can vary with the type of

action at issue.° As Judge Friendly explained in Wahba v. New

York University, 492 F.2d 96, 100 (2d Cir. 1974), “we do not

find decisions dealing with one form of state involvement and

a particular provision of the Bill of Rights at all determinative

in passing upon claims concerning different forms of gov-

ernment involvement and other constitutional guarantees.”

See also Weise v. Syracuse University, 522 F.2d 397, 404 (2d

Cir. 1975). Indeed Amtrak conceded at oral argument that, if

it restricted service to passengers on the basis of race, reli-

gion, or national Origin, it would be deemed a governmental

actor in that respect. See Burton v. Wilmington Parking

Authority, supra.

In my view, the regulation of public speech through the use

of the billboards in public train stations raises very different

Indeed, several courts have concluded that Amtrak can be a State

actor in the context of false arrest claims brought against Amtrak secu-

rity officers. See, e.g., Merola v. National R.R. Passenger Corp., 683 F.

Supp. 935, 940-41 (S.D.N.Y. 1988); Sisak v. National Railroad Passenger

Corp., 1992 WL 42245 (S.D.N-Y. February 24, 1992).

12c

considerations from Amtrak’s administration of its work

force.

In actions based on an employer’s dealings with employees,

no particularly great significance attaches to whether the

employer’s actions are deemed to be private or governmental.

There are no important policies of the Constitution that would

be undermined by permitting an employer that is entwined

with government to deal with employees under the rules that

govern private employers. On the other hand, where the con-

duct in question is the regulation of speech, enormous dif-

ferences follow from whether the actor is deemed to act as

government or as a private individual. And to allow an entity

controlled by and intertwined with the government to regu-

late, control, or censor speech in the manner that is permitted

for a private actor risks to do enormous damage to one of the

most important principles of the Bill of Rights.

If Amtrak is deemed a private actor for this purpose, it

would enjoy the full range of the private citizen’s rights of

free speech under the First Amendment. It would be free to

exercise discriminatory control over the messages transmit-

ted by its billboards. For example, as the Presidential election

approached, Amtrak would have the absolute right to devote

all of its billboards to champion the reelection of the incum-

bent president and warn of danger to the republic if the chal-

lenger should be elected. Amtrak would enjoy this right, just

like the owner of a private bar or bowling alley who has the

undeniable right to cover the walls, if he chooses, with

posters advocating the reelection of the president. Similarly,

Amtrak would be free to sponsor advertisements on its bill-

boards either opposing abortion or favoring choice; it could

likewise advocate adherence to Catholicism and deprecate

Protestantism, or vice versa, as it chose.

If, on the other hand, Amtrak’s billboard regulation is

deemed governmental, Amtrak would be barred from favor-

ing a political candidate, from favoring messages of any cho-

sen viewpoint, from sponsoring messages that established

religion, from exercising arbitrary discrimination in allowing

access to its billboards, and from regulating the speech of its

13c

billboard tenants in any way, except within narrow parame-

ters.

Among the most powerful principles asserted by our Con-

stitution are those found in the First Amendment designed to

prevent Government from exercising discretionary control

over the content of the speech of private persons and entities.

“Regulations which permit the Government to discriminate on

the basis of the content of the message cannot be tolerated

under the First Amendment,” Regan v. Time, Inc., 468 U.S.

641, 648-49 (1984) (citations omitted), for “the Government’s

ability to impose content-based burdens on speech raises the

spector that the Government may effectively drive certain

ideas or viewpoints from the marketplace.” Simon & Schus-

ter, Inc. v. Members of New York State Crime Victims Bd., 112

S.Ct. 501, 508 (1991) (citation omitted).

Given the force of this principle, it is inconceivable that

Amtrak, whose directors are appointed by the President,

whose operations are financed by the Government, and which

is subject to Governmental control and intertwinement in all

the respects outlined above, would be free under the First

Amendment to donate its billboards to the support of the

incumbent President’s reelection campaign. But that is the

inevitable consequence if Amtrak is correct in its contention

that it is engaged in private action when it controls the con-

tent of ads on its billboards.

One might argue that the conclusion should be otherwise

when control is exercised not by the Presidentially-appointed

directors, but by a lower level employee. But the argument is

not persuasive. Regardless to what degree the board of direc-

tors exercises its control, it has the power to control the

actions of the corporation it governs. Furthermore, the con-

trols here at issue were exercised by a high officer, the direc-

tor of Amtrak’s real estate operations, to whom the Amtrak

board had directly delegated such authority. '°

Indeed, the minutes of meetings of Amtrak’s board of directors

show that the board has, on at least one occasion, authorized an indi-

vidual lease for the Spectacular.

l4c

I conclude that, notwithstanding Amtrak’s private charac-

ter in its employment contracts, it must be deemed to engage

in governmental action when it undertakes to regulate the

content of the advertisements on its billboards.

B. The Requirements of the First Amendment

I now turn to the question whether Amtrak’s actions com-

port with the requirements that the First Amendment places

on such governmental conduct.

Along with other constraints, the First Amendment requires

that, when the government regulates speech, it must do so by

a policy that is (i) clearly set forth, (ii) not so vague as to be

subject to abuse, (1ii) consistently applied and (iv) not based

on viewpoint. These rules are intended to avoid the risk that

government may impose arbitrary, discriminatory, or prefer-

ential controls on speech. See generally City of Lakewood v.

Plain Dealer Publishing Co., 486 U.S. 750, 757-764 (1988)

(invalidating ordinance giving town mayor complete discre-

tion in licensing sidewalk newsracks). Without explicit stan-

dards, clearly disclosed, government regulation of speech may

be applied in an arbitrary and discriminatory manner. See

Grayned vy. City of Rockford, 408 U.S. 104, 108-09 (1972);

Cramp v. Board of Public Instruction, 368 U.S. 278, 286-87

(1961) (terms of regulation must be “susceptible of objective

measurement”). The Supreme Court has cautioned that a

scheme for regulating speech “that places ‘unbridled discre-

tion in the hands of a government official or agency consti-

tutes a prior restraint and may result in censorship.’ ”

FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 225 (1990)

(quoting Lakewood, 486 U.S. at 757). “Precision of regulation

must be the touchstone in an area so closely touching our

most precious freedoms.” NAACP v. Button, 371 U.S. 415,

438 (1963). In addition, a government restriction may not dis-

criminate against speech on the basis of the viewpoint of the

speaker. See Perry Educ. Ass’n v. Perry Local Educators’

Ass'n, 460 U.S. 37, 45-46 (1983) (regulation of public forum

must be content-neutral; regulation of non-public forum must

1Sc

be viewpoint-neutral); see also United States v. Kokinda, 497

U.S. 720, 729 (1990); Longo v. United States Postal Service,

953 F.2d 790, 796 (2d Cir.) (“[r]estrictions on expression

because of disagreement with message or idea being conveyed

by the speaker” violate First Amendment), vacated and

remanded on other grounds, ____ U.S. ___, 113 S. Ct. 3]

(1992), reinstated, 983 F.2d 91 (2d Cir. 1992); see generally

International Society for Krishna Consciousness v. Lee, 1992,

ccavcsnin Ds cnn 4928. Ct. 270) (1992),

I find that Amtrak’s policy violates the first three (and pos-

sibly also the fourth) of these requirements.

(1) Not clearly set forth. The Amtrak policy identified by

Mr. DeAngelo as the reason for the rejection is its prohibition

of “political” advertisements in Penn Station. Nowhere is this

policy committed to writing. Nor was the existence of the pol-

icy disseminated. Thus TDI, which leased out nearly all the

billboards in Penn Station without consulting Amtrak, was

unaware of the policy's existence. An unwritten censorship

policy is susceptible to inconsistent application that threatens

free speech. See Lakewood, 486 U.S. at 757: see also Abel v.

Town of Orangetown, 759 F. Supp. 161, 164-65 (S.D.N-Y.

1991) (invalidating zoning ordinance allowing town board

unfettered discretion in granting consent to place sign on

town property); New Alliance Party v. Dinkins, 743 F. Supp.

1055, 1064-65 (S.D.N.Y. 1990) (special events permitting

system of parks violated First Amendment where permits

granted or refused without any regulatory guidelines).

In attempting to identify a writing that contains its policy,

Amtrak points to two earlier advertising licensing agreements

between Amtrak (or its predecessor, the Pennsylvania Rail-

road Company) and TDI. These agreements, dated 1967 and

1980, governed TDI’s leasing of the Spectacular. Both agree-

ments contained a provision stating that Amtrak could refuse

any advertising that Amtrak, “in its judgment,” may deem

“unlawful, immoral, improper or offensive to good taste. .

or involve political or other views which could result in dis-

16c

sension or involve [Amtrak] in dissension, complaints or con-

troversy with its patrons or the public. . . .”

However, neither of these licensing agreements is still in

effect. The 1980 agreement, which superseded the 1967

agreement, was itself superseded by another agreement in

1985 covering all Amtrak billboards in Penn Station. The

1985 agreement and its successor, the 1991 agreement, do

not include any provision comparable to the one in the 1967

and 1980 agreements. They do state that, “All advertising

material, exhibit material, notices and advertisements, and

their manner of presentation and design, shall be subject

to approval by Amtrak, which may disapprove any such items

at its own discretion.” This broad provision clearly does

not state, or even imply, the rejection of all “political” adver-

tising.

Moreover, the evidence makes clear that Amtrak’s supposed

policy rejecting “political” advertising was not even known

to many of those responsible for billboard advertising.

William P. Delaney, a project manager in Amtrak’s Real

Estate Department who is responsible for supervising

Amtrak’s arrangements with TDI for advertising in Amtrak’s

facilities, knew of no prohibition on “political” advertising .

applicable to any of Amtrak’s facilities. None of the execu-

tives at TDI, who had been leasing Penn Station billboard

space for years and who had authority to approve advertising

copy for all areas other than the Spectacular, knew of

Amtrak’s policy barring “political” advertisements.

(ii) Vague. Even if Amtrak’s policy, as expressed by Mr.

DeAngelo, were in writing, or otherwise clearly set forth,

such a policy would still be constitutionally infirm, for the

term “political” is of such unclear meaning that it is easily

susceptible to arbitrary or discriminatory censorship by those

administering the policy. See Bullfrog Films, Inc. v. Wick, 847

F.2d 502, 513-14 (9th Cir. 1988) (invalidating as vague

regulations that barred issuing educational certificates to

documentary films that attempted “to influence opinion, con-

viction or policy (religious, economic, or political propa-

17c

ganda), to espouse a cause, or conversely, when they seem to

attack a particular persuasion” and that “appear to have as

their purpose or effect to attach or discredit economic, reli-

gious, or political views or practices”); see also Coates v.

Cincinnati, 402 U.S. 611, 614 (1971) (“conduct. . . annoy-

ing to persons passing by” unconstitutionally vague); Gay

Men's Health Crisis v. Sullivan, 792 F. Supp. 278, 293-96

(S.D.N.Y. 1992) (“offensive to a majority of adults” uncon-

stitutionally vague).

The policy might be thought, for example, to bar only

advertisements relative to candidates for political office. It

might be thought to encompass public service messages on

public issues, including drunk driving, safe sex, abortion

counselling, and religious messages. It might also cover com-

mercial advertising that included public service messages like

“Keep America Beautiful,” or that discussed controversial

issues.

Amtrak’s executives were themselves at odds over the

meaning of Amtrak’s policy. Mr. DeAngelo at times indicated

that the policy prohibited only those advertisements that were

both “political” and divisive or objectionable; at other times,

he stated that the policy prohibited all advertisements that

were not devoted to the selling of a product or service. Bruce

M. Bourque, Amtrak’s Project Director for Real Estate Devel-

opment for Penn Station, who first reviews advertising mate-

rial submitted for the Spectacular, knew that there was a

policy barring “political” advertisements, but he could not

really say what such a policy meant. See U.S. Southwest

Africa/Namibia Trade & Cultural Council v. United States,

708 F.2d 760, 769 (D.C. Cir. 1983) (“the hazy line between

ideological and commercial speech is reflected in the record

of this case”).

This is not to say that reasonable individuals could never

agree that a particular advertisement was or was not “polit-

ical.” As the court explained in U.S. Southwest Africa/

Namibia Trade & Cultural Council v. United States, 708 F.2d

at 769, ‘

18c

The point is not that the distinction between commercial

and political speech is entirely unworkable—there is lit-

tle doubt that it can operate successfully at the extremes

to screen out patently political from wholly commercial

advertisements. Rather, the point is that there is a gray

area near the middle in which this particular subject mat-

ter restriction tends to operate as a sub rosa penalty on

presenting political viewpoints in “controversial,” as

opposed to more benign “commercial,” forms.

This again reflects the manner in which Amtrak's policy is

susceptible to abuse, for “[a]pplying this guideline involves

an exercise of discretion and subjective judgment on the part

of [Amtrak] officials.” Lebron v. Washington Metropolitan

Area Transit Authority, 749 F.2d 893, 899 (D.C. Cir. 1984). In

such circumstances, the threat is great that “the policy oper-

ates in part to screen out only controversial, but not non-con-

troversial, political messages.” U.S. Southwest Africa/

Namibia Trade & Cultural Council, 708 F.2d at 769.

Amtrak contends that the term “political” as employed in

its policy means to include (and therefore prohibit) all adver-

tisements that do not seek to sell a product or service. How-

ever, that is certainly not what the term “political” is

generally understood to mean, and, as noted, this is not how

the relevant personnel understand the policy. When a standard

for governmental control of speech is so unclear, there is a

high likelihood of inconsistent and discriminatory application.

Such a vague policy provides Amtrak officials with precisely

the kind of unfettered discretion to control speech that the

Supreme Court has held to contravene the First Amendment.

See, e.g., FW/PBS, Inc., 493 U.S. at 226; Lakewood, 486 US.

at 757; Shuttlesworth v. Birmingham, 394 U.S. 147, 151

(1969); Saia v. New York, 334 U.S. 558, 560 (1948) (“There

are no standards prescribed for the exercise of [the official's]

discretion.”); see generally Staub v. City of Baxley, 355 U.S.

313, 322 (1958) (“It is settled by a long line of recent deci-

sions of this Court that an ordinance which . . . makes the

19c

peaceful enjoyment of freedoms with the Constitution guar-

antees Contingent upon the uncontrolled will of an official—

as by requiring a permit or license which may be granted or

withheld in the discretion of such official—is an unconstitu-

tional censorship or prior restraint upon the enjoyment of

those freedoms.”).

(ii) Not consistently applied. A further infirmity in

Amtrak's “no political advertisements” policy is that it is not

consistently applied. As noted above, the policy is unknown

to Amtrak's leasing agent, with the result that billboard space

in Penn Station has repeatedly been leased for advertisements

that are “political” in the sense of Amtrak’s definition.

Indeed, the licensing agreement between Amtrak and TDI

expressly allows for public service advertisements (at reduced

rates or no charge). And TDI maintains written Guidelines

For Public Service Advertising. They provide that such adver-

tising will be displayed (at less than full rate) for no more

than a thirty-day period, only when space is available and

may be pre-empted by any commercial (i.e.. full rate) adver-

tising. The guidelines are designed to insure that such non-

commercial advertisements shall be accepted only from

“recognized, legitimate [tax exempt] not-for-profit organi-

zations, corporations, National, State or Local government

agencies and subdivisions, philanthropic or cultural organi-

zations whose activities would be of interest or benefit to a

majority of the area population,” and that the advertisements

adhere to “good taste, decency and community standards.” It

is clear that all of the advertisements covered by the Guide-

lines for Public Service Advertising are of the type that

Amtrak contends are prohibited by its rule.

Furthermore, TDI’s leasing guidelines do recognize a dis-

tinction affecting advertisements that are “political.” The TDI

guideline, however, does not reject them, but rather considers

them commercial and therefore subject to full rate charge."'

- Particularly baffling in the context of this case is the TDI guide-

line that states:

(footnote continued)

20c

It is clear beyond dispute that Amtrak’s policy is not being

consistently followed. TDI’s records show that it leases space

to advertisers that are not “commercial,” and some of which

are arguably “political.” These include the New York Depart-

ment of the Environment, the New York Department of Com-

merce, a foundation for muscular dystrophy, and Plain Truth

magazine, a free magazine on political and social issues pub-

lished by The Worldwide Church of God. In addition, testi-

mony of the general counsel of TDI indicates that TDI

regularly displays public service advertisements, including

subjects such as the homeless, the environment, drunk driv-

ing, AIDS awareness, health issues, and race relations.'*

(iv) Void for viewpoint bias. Furthermore, depending on

which of the many proffered versions really is Amtrak’s pol-

icy, the policy may also be void because of discrimina-

tion based on viewpoint. See Perry Educ. Ass'n, 460 U.S. at

45-46.

If, for example, Amtrak’s policy, as Mr. DeAngelo some-

times testified, is directed against divisive, controversial, or

objectionable matter, or if, as set forth in the 1967 and 1980

agreements with TDI, it gives Amtrak discretion to refuse any

advertising involving “views which could result in dissension

or involve [Amtrak] in dissension, complaints or controversy

with its patrons or the public. . . ,” it would be void; gov-

Because of the separation of Church and State dictates of our

Constitution, organizations that are primarily religious in struc-

ture do not qualify for Public Service space.

(Emphasis in original).

a3 Amtrak contends that its policy has been consistently applied

with respect to the Spectacular, as it has never had a political adver-

tisement in that space. Amtrak does not contend, however, that its pol-

icy against political advertisements applies only to the Spectacular. But

even if it did, the policy would nonetheless be void for the first two rea-

sons discussed: that it is not written or clearly disseminated and that it is

too vague to be consistently applied (and also perhaps for the fourth rea-

son discussed, that it is viewpoint-based censorship, depending on the

meaning of Amtrak’s policy).

2Ic

ernment may not regulate speech by a criteria. Texas v.

Johnson, 491 U.S. 397, 414 (1989). “[T]he use of the con-

troversial nature of speech as the effective touchstone for reg-

ulation ‘threatens a value at the very core of the First

Amendment, the “profound national commitment to the prin-

ciple that debate on public issues should be uninhibited,

robust, and wide-open.” ’ ” U.S. Southwest Africa/Namibia

Trade & Cultural Council, 708 F.2d at 769 (quoting Consol-

idated Edison Co. v. Public Service Commission, 447 U.S.

530, 548 n.9 (1980) (Stevens, J.. concurring) (quoting New

York Times v. Sullivan, 376 U.S. 254, 270 (1964))). An adver-

tisement such as Lebron’s

cannot be prohibited . . . merely because it provokes

disagreements and offends the sensibilities of the major-

ity. “Speech is often provocative and challenging. It may

Strike at prejudices and preconceptions and have pro-

found unsettling effects as it presses for acceptance of an

idea.” It is precisely this speech for which the protection

of the First Amendment was intended.

Penthouse International, Ltd. v. Koch, 599 F. Supp. 1338,

1350 (S.D.N.Y. 1984) (citation omitted); see also Terminiello

v. City of Chicago, 337 U.S. 1, 4 (1949) (“A function of free

speech under our system of government is to invite dispute.”);

United States v. Schwimmer, 279 US. 644, 654-55 (1929)

(Holmes, J., dissenting) (“not free thought for those who

agree with us but freedom for the thought that we hate”).

If the policy is as set forth in TDI’s guidelines, whether for

Public Service Advertising or for Commercial Advertising, it

is void for the same reason, for these guidelines are designed

to ensure against advertising that is controversial, in bad taste,

or inconsistent with the taste and preferences of the majority

of the community. Such standards are of course permissible

for a private actor, but not for a governmental actor or an

actor whose symbiotic relationship with government renders

the act of regulation governmental. Because Amtrak is Satu-

rated with the presence of the federal government, it may not

22¢

regulate speech in an effort to shield its customers from the

abrasive, the obnoxious, the controversial.

Conclusion

Plaintiff Lebron has convincingly demonstrated that in

rejecting his contract to display his art on its billboard

Amtrak was engaged in governmental action and that the stan-

dards employed by Amtrak in rejecting his work violated its

obligations under the First Amendment.”

Defendants are accordingly directed to give plaintiff imme-

diate access to the Spectacular in accordance with his con-

tract.

Dated: New York, N.Y.

February 5, 1993

SO ORDERED:

Pierre N. Leval, U.S.D.J.

3 I do not reach Lebron’s alternative contract theory because this

resolution makes it superfluous.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Filed January 8, 1998

Docket No. 97-9505

MICHAEL A. LEBRON.

Appellant-Plaintiff,

—vs.—

THE NATIONAL RAILROAD PASSENGER

CORPORATION (AMTRAK),

Appellee-Defendant,

TRANSPORTATION DISPLAYS INCORPORATED,

Defendant.

Each motion must be accompanied by a

supporting affidavit.

(Local Rule 27(a))

NOTICE OF MOTION FOR STIPULATION

OF SUMMARY AFFIRMANCE

MOTION BY: (Name, address and tel. no. of law firm

and of attorney in charge of case)

Gloria C. Phares, Esq.

Patterson, Belknap, Webb & Tyler LLP

1133 Avenue of the Americas

New York, NY 10036

(212) 336-2000

Has consent of opposing counsel:

A. been sought [x] Yes LINo

B. been obtained Yes L No

Has service been effected? Yes LINo

Is oral argument desired? LI Yes No

(Substantive motions only)

Requested return date: None requested, motion by stipulation

(See Second Circuit Rule 27(b).)

Has argument date of appeal been set:

A. by scheduling order? Yes LINo

B. by firm date/argument notice? O Yes No

C. If yes, enter date: March 9, 1998

OPPOSING COUNSEL: (Name, address and tel. no. of law

firm and of attorney in charge of

case)

William G. Ballaine, Esq.

Landman, Corsi, Ballaine & Ford P.C

120 Broadway

New York, NY 10271

(212) 238-4500

EMERGENCY MOTIONS, MOTIONS FOR STAYS

& INJUNCTIONS PENDING APPEAL

Has request for relief been made below? L] Yes No

(See F-R.A.P. Rule 8)

Would expedited appeal eliminate need for this motion?

& Yes No

If no, explain why not: Requesting the summary affirmance

of the district court’s judgment dismissing Appellant’s com-

plaint

Will the parties agree to maintain the

status quo until the motion is heard? Yes LJ No

Judge or agency whose order is being appealed:

Judge Whitman Knapp

Brief statement of the relief requested:

(Complete, also, Page 2 of this form.)

Stipulated motion to have this Court summarily affirm the

district court’s judgment dismissing Appellant’s complaint.

/s/ RIA C. PHARES

By: (Signature of Attorney)

Signed name must must be printed beneath.

Gloria C. Phares

Date: January 7, 1998

/s/ ' RON

Appearing for: (Name of Party)

Appellant or Petitioner: Plaintiff [_] Defendant

Appellee or Respondent: L Plaintiff [J] Defendant

ORDER

IT is HEREBY ORDERED that the motion be and it hereby is

granted

FOR THE COURT

GEORGE LANGE III, Clerk

by: /s/ Beth J. Meador

Beth J. Meador, Administrative Attorney

THE CERTIFIED (W%) ORDER ( ) NOTICE

( ) STATEMENT OF COSTS

HAS BEEN RECEIVED BY_/s/_AS

DATE: 1/22/98

Filed January 14, 1998

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.