Reply Brief — Lebron v. National Railroad Passenger Corp.

No. 95-1373 1 vapreme Ci urt US

.N THE

Suprene Court of the Tnited

OCTOBER TERM, 1995

>

MICHAEL A. LEBRON,

Petitioner,

—\V oe

NATIONAL RAILROAD PASSENGER CORPORATION (AMTRAK),

Respondent.

PETITION FOR A WRIT OF C2RTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

REPLY MEMORANDUM FOR PETITIONER

DAVID D. COLE

Counsel of Record

CENTER FOR CONSTITUTIONAL

RIGHTS

Georgetown University Law

R. BRUCE RICH

BERNADETTE M. MCCANN EZRIN@

JONATHAN BLOOM

MARC BROTMAN

WEIL, GOTSHAL & MANGES LLP

767 Fifth Avenue Center

New York. New York 10153 600 New Jersey Avenue, N.W.

(212) 310-8000 Washington, D.C. 20001

(202) 662-9078

GLORIA C. PHARES

PAUL, HASTINGS, JANOFSKY

& WALKER

399 Park Avenue

New York, New York 10022

(212) 318-6016

Attorney Jor Petitioner

es A a Sa ae

Rat

TABLE OF CONTENTS

PAGE

py OB Be as 8 ey | a nn eas il

og ESE RR RS Oe eee ern eae l

PER AEE SME aR opel JIS oie een NC RUA eR 3

I. THE INTERLOCUTORY NATURE OF

THE COURT OF APPEALS’ DECISION

DOES NOT PRECLUDE SUPREME COURT

ME Cbs ice udpecewiins Ki eeaidsanvecseskees 3

I]. EVEN IF THE FORUM IS LIMITED TO

THE SPECTACULAR, PUBLIC FORUM

ANALYSIS REQUIRES EXAMINATION

OF HOW AMTRAK IMPLEMENTED ITS

STATIONWIDE POLICY ON OTHER

SPN CaN ou bd 6h es CEN aTENC MS hes cue 6

IIl. THE COURT OF APPEALS’ DETERMI-

NATION THAT AMTRAK’S POLICY

WAS VIEWPOINT-NEUTRAL CONFLICTS

WITH DECISIONS OF THIS COURT AND

OTHER COURTS OF APPEALS............ 8

IV. AMTRAK’S POLICY CANNOT BE

SQUARED WITH AYNES V. MAYOR OF

MING hoa u dec Canees 3 kecedeus been ees es 9

ap AONEEs S5eednkcadcss pad ebasho su cudetous coneaaes 10

li

TABLE OF AUTHORITIES

Cases PAGE

Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970) .... 5

Air Line Pilots Ass’n v. Department of Aviation,

hye Bel ye, te s,s se 7, 8,9

Airport Comm'rs of Los Angeles v. Jews

for Jesus, Inc. 482 U.S. 569 (1987) ............... 5

Cox Broadcasting Corp. v. Cohn,

S30 U.S. SE CIT Oe sickins etdnsapelinastaaenes 4,6

Doran v. Salem Inn, Inc., 422 U.S. 922 (1975)........ 3 ]

Elrod v. Burns, 427 U.S. 347 (1976)..........0.000005 3 |

Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46

he , SP et ee ae es eam SOT Ok mh CM 4 |

Gillespie v. U.S. Steel Corp., 379 U.S. 148 (1964).... 4

Herbert v. Lando, 441 U.S. 153 (1979) ..........00.05. 3 |

Hynes v. Mayor of Oradell, 425 U.S. 610 (1976)...... 10

Lamb’s Chapel v. Center Moriches Union

Free School Dist., 508 U.S. 384 (1993) .......... 9

Lebron v. National R.R. Passenger Corp.,

GD F.3d GSO Cae Ce Te enn cnc danecsinccens. passim

Lebron v. National R.R. Passenger Corp.,

$11 -F. Samp. 99S GO. F. BOGS oi a snescnncnc passim

Lehman v. City of Shaker Heights,

QED UD. Fe Ce ino ahh Ga Kien ckent penne 10

Miami Herald Publishing Co. v. Tornillo,

O36 UE. DEE CG Pe sab seh cancteencanassenseeees 4,6

ili

PAGE

Organization for a Better Austin v. Keefe,

oy cant Ned ie OE nen 4,6

Rosenberger v. Rector of the Univ. of Virginia,

13S. Ce. PROP i acis...,.......... 9

Time, Inc. vy. Pape, 401 U.S. 279 3) Se ea eli 3

United States y. Kokinda, 497 U.S. 720 (1990)........ 7

Zobrest v. Catalina Foothills School Dist..

509 U.S. 1, 113 S.Ct. 2462 Sa ea 5

Constitution; Statutes:

sh ft rr passim

8 ts ISS 3

Miscellaneous:

Robert L. Stern & Eugene Gressman, Supreme Court

Practice § 4.18 ON 3

17 Charles A. Wright et al., Federal Practice and

Procedure § 4036 (2d Sn 3

IN THE

Supreme Court of the Wnited States

OCTOBER TERM, 1995

No. 95-1373

i

MICHAEL A. LEBRON,

Petitioner,

onl one

NATIONAL RAILROAD PASSENGER CORPORATION

(AMTRAK),

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

<_- -

REPLY MEMORANDUM FOR PETITIONER

INTRODUCTION

Amtrak concedes in its opposition that its asserted policy

against politica! advertising applies to all Penn Station adver-

tising. Pet. Opp. 9. It now describes this restriction as per-

mitting only “commercial advertising.” Jd. at 2.' Yet the

district court found that Amtrak had permitted the display of

numerous noncommercial ads in Penn Station. Pet. App. 20c.

In fact, no Amtrak official ever described the policy in this way.

Pet. 6-7 (delineating Amtrak officials’ conflicting descriptions of policy);

see also Pet. App. 17c (finding that Amtrak’s executives “were them-

selves at odds over the meaning of Amtrak’s policy”).

These included a long-running ad for The Plain Truth, a free

conservative religious magazine dealing with social and polit-

ical issues that sold nothing and was both advertised and dis-

tributed from a four-sided kiosk immediately in front of the

Spectacular, the billboard to which Michael Lebron sought

access. Because Amtrak had one stationwide policy, the Plain

Truth ad could have been displayed on the Spectacular. At the

time Amtrak rejected Lebron’s ad, the Plain Truth ad read

“Say No to Adultery.” Yet Amtrak maintains that it could con-

stitutionally invoke an unwritten policy to reject Lebron’s

ad—which essentia!ly said “Say No to Coors”—on the ground

that his ad was noncommercial, and therefore “political.”

The only way to uphold such viewpoint-based discrimina-

tion is to disregard Amtrak’s prior treatment of advertising

under the policy, which is precisely what the panel majority

did. As Chief Judge Jon O. Newman pointed out in dissent,

“(t]he majority has concluded that the policy has been con-

sistently applied by overlooking the instances where it has not

been consistently applied.” Pet. App. 5b.

In its opposition, Amtrak seeks to defend the court of

appeals’ blindered analysis by advancing a “display-case-by-

display-case” theory of public forum doctrine. Under this the-

ory, the government may justify discriminatory treatment of

speech under a single policy by limiting judicial inquiry to the

specific display case to which a speaker sought access, even

where under the government’s own asserted policy the same

content standards apply to all display cases.

If the government can avoid a charge of viewpoint or con-

tent discrimination by simply disregarding its prior incon-

sistent treatment of other speech, it will always be able to

argue that its actions were neutral. The court of appeals’ anal-

ysis robs both the public forum doctrine and the content and

viewpoint neutrality mandates of any vitality, and therefore

warrants review.

a a ee ee ee

ae

ae

ARGUMENT

I. THE INTERLOCUTORY NATURE OF THE COURT

OF APPEALS’ DECISION DOES NOT PRECLUDE

SUPREME COURT REVIEW

As a threshold matter, Amtrak argues that the Court should

not grant certiorari because the court of appeals remanded the

case to the district court for resolution of Lebron’s contract

claim, making its decision technically interlocutory. But there

is no jurisdictional bar to review of interlocutory federal court

of appeals decisions under 28 U.S.C. § 1254(1), and this

Court often grants such review where First Amendment rights

are at issue.* Where, as here, delaying review will cause harm

to time-sensitive First Amendment rights and upholding the

constitutional claims will terminate the litigation, immediate

review is especially warranted.

“The loss of First Amendment freedoms, for even minimal

periods of time, unquestionably constitutes irreparable

injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). Precisely

because Lebron’s ad was time-sensitive, the district court

expedited proceedings and issued a permanent injunction

within five weeks after filing. Yet the court of appeals’ stay

of that injunction has now been in place for more than three

years, as this case has proceeded to the court of appeals twice,

and is now before this Court for a second time. Remitting

Lebron to district court to litigate his contract claim at this

See, e.g., Doran v. Salem Inn, Inc., 422 U.S. 922, 927 (1975)

(granting certiorari from decision affirming Preliminary injunction

in First Amendment challenge to ordinance against topless dancing);

review order protecting libel defendant from discovery and remanding for

further proceedings); Time, Inc. y. Pape, 401 U.S. 279, 283 (1971) (grant-

court for jury determination): see generally 17 Charles A. Wright et al.,

Federal Practice and Procedure § 4036 at 30-31 (2d ed. 1988) (and cases

cited therein); Robert L. Stern & Eugene Gressman, Supreme Court Prac-

tice § 4.18 at 195 (7th ed. 1993).

late date would at a minimum delay relief for several more

years. Even where speech rights are not at stake, the Court

has granted certiorari from a non-final judgment where “delay

of perhaps a number of years. . . might work a great injus-

tice.” Gillespie v. U.S. Steel Corp., 379 U.S. 148, 153 (1964).

The Court’s concern for the impact of delay on First

Amendment freedoms has led it to review even interlocutory

state court judgments, where, unlike here, finality is a juris-

dictional prerequisite. In Miami Herald Publishing Co. v.

Tornillo, 418 U.S. 241 (1974), for example, the Court granted

certiorari to review the constitutionality of a right-of-reply

statute, even though the Florida Supreme Court had remanded

the case for trial. Had the newspaper prevailed on statutory

grounds at trial, the constitutional issue might have been

avoided. Nonetheless, the Court granted certiorari, stating, “it

would be intolerable to leave unanswered, under these cir-

cumstances, an important question of freedom of the press

under the First Amendment; an uneasy and unsettled consti-

tutional posture of [the statute] could only further harm the

operation of a free press.” Jd. at 247 n.6.° The case for imme-

diate review is even stronger here, where there is no “finality”

jurisdictional requirement, and delaying resolution will result

not merely in an indirect chilling effect, but in the direct and

continuing deprivation of speech rights.‘

? See also Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 485-86

(1975) (granting certiorari to review First Amendment challenge to a rape

victim shield law, where the state supreme court had remanded for fur-

ther proceedings, because “a failure to decide the question now will leave

the press in Georgia operating in the shadow of the civil and criminal

sanctions of a rule of law and a statute the constitutionality of which is

in serious doubt”); Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 56

(1989) (granting certiorari where party seeking review might prevail on

nonconstitutional grounds in further state court proceedings because res-

olution of First Amendment issue “should not remain in doubt”).

‘ See Organization for a Better Austin v. Keefe, 402 U.S. 415, 418

n. (1971) (granting certiorari to review state court’s temporary injunction

where “the temporary injunction. . . which has already been in effect

Amtrak also invokes the prudential rule that constitutional

questions should be avoided where the dispute may be

resolved on nonconstitutional grounds. But that rule does not

apply here. First, nonconstitutional grounds not considered

below do not trigger this prudential rule:

The fact that there may be buried in the record a non-

constitutional ground for decision is not by itself enough

to invoke th[e] rule [of avoiding constitutional ques-

tions]. ‘Where issues are neither raised before nor con-

sidered by the Court of Appeals, this Court will not

ordinarily consider them.’

Zobrest v. Catalina Foothills School Dist., 509 U.S.1,__, 113

S.Ct. 2462, 2466 (1993) (quoting Adickes v. S.H. Kress & Co..

398 U.S. 144, 147 n.2 (1970)).° This case has been litigated

solely on First Amendment grounds since the district court’s

initial decision in February 1993, and Amtrak has never pre-

viously argued that the contract claim should have been

resolved first. Indeed, plaintiff did not pursue his state law

claim on appeal, and did not ask that the state law claim be

resurrected.®

Second, the state law claim to which Amtrak now points

would not provide Lebron with complete relief, and therefore

for over three years, has already had marked impact on petitioner’s First

Amendment rights”).

5 See also Airport Comm'rs of Los Angeles v. Jews for Jesus, Inc.,

482 U.S. 569, 572 (1987) (granting certiorari to decide First Amendment

issue where district court and court of appeals decided case on First

Amendment grounds without reaching plaintiffs’ state law claims).

e The court of appeals resurrected the state law Claim sua sponte,

not when it issued its initial decision on the First Amendment claims in

October 1995 (Pet. App. 18a), but only when it denied rehearing. Pet.

App. >». Lebron should not be forced to forfeit expeditious resolution of

his First Amendment claim merely because a panel that may have con-

sidered its opinion vulnerable to this Court’s review sought to render its

opinion interlocutory, by reviving a claim no party had mentioned, much

less pursued.

would not permit avoidance of the First Amendment issue.’

Contract law offers no basis for expedited relief to forestall

Lebron’s irreparable injury to his First Amendment rights,

and therefore cannot provide immediate relief for that injury.

Moreover, the scope of Amtrak’s “disapproval” rights under

the contract may turn on whether it had constitutional author-

ity to reject the ad as political. Thus, the contract claim will

not render First Amendment analysis unnecessary.

Third, the Court has reviewed interlocutory judgments in

speech cases even where unresolved nonconstitutional claims

could theoretically provide full relief. See Tornillo, 418 U.S.

at 247; Cox Broadcasting, 420 U.S. at 485; Organization for

a Better Austin, 402 U.S. at 418 n.. Those cases establish that

the mere possibility of nonconstitutional resolution is no bar

to review where, as here, the lower courts have finally

resolved the First Amendment claim, further delay will cause

continuing First Amendment harm, and upholding the First

Amendment claim will terminate the litigation.

Il. EVEN IF THE FORUM IS LIMITED TO THE

SPECTACULAR, PUBLIC FORUM ANALYSIS

REQUIRES EXAMINATION OF HOW AMTRAK

IMPLEMENTED ITS STATIONWIDE POLICY ON

OTHER BILLBOARDS

Amtrak’s “display-case-by-display-case” theory of the pub-

lic forum is predicated on the argument that the relevant

“forum” is the Spectacular because that is the specific bill-

board to which Lebron sought access. But even assuming that

the forum should be so limited, it does not follow that evi-

dence of Amtrak’s acceptance of noncommercial ads on other

Penn Station billboards is irrelevant. Since by Amtrak’s own

account it applies the same policy to all advertising spaces in

7 Indeed, Amtrak has argued that there is no contract between

Lebron and Amtrak, and that the TDI-Amtrak contract language pro-

viding that “all advertising material. . . shall be subject to approval by

Amtrak,” ES, precludes any contract relief.

Penn Station, evidence regarding the policy's implementation

throughout the station sheds light on the actual scope of the

policy as to the Spectacular. Indeed, where the Policy is

unwritten, and no two Amtrak officials can agree on its scope,

Amtrak’s practices may be the best evidence of the policy.

The court of appeals’ contrary view is in direct conflict

with Air Line Pilots Ass’n v. Department of Aviation, 45 F.3d

1144, 1154 (7th Cir. 1995). In that case, the Seventh Circuit

held that public forum analysis must not accept the govern-

ment’s “stated or Paper policy,” but must “examine the actual

policy—as gleaned from the consistent Practice with respect

to various speakers—to determine whether a State intended to

create a designated public forum” (emphasis added). Such an

inquiry is necessary to “guard against the dangers of post-hoc

States v. Kokinda, 497 U.S. 720, 737-38 (Kennedy, J., con-

curring) (“If our public forum jurisprudence is to retain vital-

ity, we must recognize that. . . customary use by the public

may control the case.”).

The district court found that under its Single stationwide

policy, Amtrak had permitted the display of numerous non-

commercial ads,® including the Plain Truth ad.° In fact,

. Amtrak now objects that the record does not Support this find-

ing, Pet. Opp. 14, but Amtrak did not challenge the district court’s find-

ing as clearly erroneous on appeal. It is too late in the day to challenge

it now.

Amtrak’s assertion that its display of the Plain Truth ad was

consistent with “the acceptance of advertisements for Publications with-

out reference to the publication’s content,” Pet. Opp. 14 n.6, is contra-

dicted by its own officials’ testimony and has never been asserted before.

Both Amtrak’s Vice-President in charge of advertising and Bruce

Bourque, who reviews advertising content for Amtrak, testified that an

ad discussing Time mMagazine’s coverage of Mikhail Gorbachev's fall

would be barred for its “political” content. DeAngelo Dep. at 308, 314:

A835-35; E306. Amtrak cites only E26! and E347 aS support for its

newly claimed policy on publications, neither of which even addresses

Amtrak had never previously rejected an ad as political. This

evidence establishes that Amtrak’s invocation of its unwrit-

ten policy against Lebron was either “post-hoc policy for-

mulation or the discretionary enforcement of an effectively

inoperative policy.” Air Line Pilots Ass'n, 45 F.3d at 1153.

Yet the panel considered none of that evidence relevant.

In this respect, the panel’s result directly conflicts with Air

Line Pilots Ass'n. In that case, although the union sought

access to a single display case in O’ Hare Airport’s Concourse

B, 44 F.3d at 1148, the Seventh Circuit did not limit its

inquiry to one specific display case. Indeed, the court specif-

ically reversed the district court because it had examined only

the 48 display cases in Concourse B, rather than all O’ Hare

advertising spaces. /d. at 1154. Here, the panel majority lim-

ited its inquiry to a single display case, and in doing so under-

mined any speech-protective function of the public forum

doctrine.

Ill. THE COURT OF APPEALS’ DETERMINATION

THAT AMTRAK’S POLICY WAS VIEWPOINT-

NEUTRAL CONFLICTS WITH DECISIONS OF

THIS COURT AND OTHER COURTS OF APPEALS

Lebron argued that Amtrak’s conduct in this case was view-

point discriminatory in two senses: (1) it permitted the display

of the politically conservative, noncommercial Plain Truth ad

the issue. E261 lists advertisers who displayed ads in Penn Station, and

E347 is petitioner's objection to the quality of certain photocopies. And

even this post-hoc justification fails to explain how an ad for a purely

noncommercial magazine falls within a policy purportedly limited to

commercial ads.

If Amtrak's policy were to accept any ad for a publication, no matter

how political the ad, and regardless of the noncommercial nature of the

publication, its policy would be unreasonable in light of the purposes of

the forum because it would not serve Amtrak's asserted purpose of avoid-

ing political controversy. Amtrak’s claim that Lebron has not challenged

Amtrak's policy as “unreasonable” in light of the purposes of the forum,

Pet. Opp. 20, is simply wrong. See Pet. 21 n.20.

9

while barring the display of Lebron’s politically liberal non-

commercial ad; and (2) its policy against “political” adver-

tisements is itself viewpoint-based under this Court's

decisions holding policies against “religious” speech view-

point-based. Pet. 14-16.

Amtrak offers no response whatsoever to the first argument,

except to proffer for the first time a purported policy regard-

ing advertising for publications that is contrary to its own

officials’ testimony and that renders the policy wholly arbi-

trary. The undisputed fact is that Amtrak displayed politically

conservative noncommercial ads for The Plain Truth for five

years, and then turned around and told Lebron it would not

display his ad because it was political. A more blatant form of

viewpoint discrimination would be difficult to imagine.

Amtrak maintains that its general policy is viewpoint-neu-

tral because it prohibits political “subject matter,” not polit-

ical viewpoints. But whatever else one might say about

Lebron’s ad, it plainly addresses the otherwise includable sub-

ject of whether to buy Coors beer. See Pet. Opp. la. Amtrak

does not deny that under its policy Coors could display ads

urging viewers to buy Coors beer, and Anheuser-Busch could

display ads urging viewers not to buy Coors beer because

Budweiser tastes better. Thus, the same subject matter—

whether to buy Coors beer—is permitted if addressed from a

“commercial” viewpoint, but barred if addressed from a

“political” viewpoint. Under Rosenberger v. Rector of the

University of Virginia, 115 $. Ct. 2510 (1995), Lamb’s Chapel

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

(1993), and Air Line Pilots Ass'n, 45 F.3d at 1159, that is

viewpoint discrimination.

IV. AMTRAK’S POLICY CANNOT BE SQUARED

WITH HYNES V. MAYOR OF ORADELL

Amtrak contends that the panel majority’s rejection of

Lebron’s vagueness challenge is consistent with this Court’s

10

decision in Hynes v. Mayor of Oradell, 425 U.S. 610 (1976),

because the Court in Oradell objected to the failure to define

“cause,” not “political.” This reading is disingenuous.

The ordinance Hynes invalidated required permits for solic-

itations “for a Federal, State, County or Municipal political

campaign or cause.” 425 U.S. at 614 n.1. Describing the

vagueness challenge, the Court stated that “persons can-

vassing for political causes would be unccrtain whether the

ordinance covered them.” /d. at 621 n.5. And in declaring the

ordinance vague, the Court expressly stated, “nor is political

‘cause’ defined.” Jd. at 622. The constitutional infirmity was

that “cause” was modified only by “political,” and therefore

the prohibited causes were insufficiently clear. Similarly here,

“advertisement” is modified only by “political,” leaving

would-be advertisers to guess as to what is permitted and

what is not.'®

CONCLUSION

For all the above reasons, the petition for a writ of

certiorari should be granted.

we Finally, Amtrak suggests that the plurality decision in Lehman

v. City of Shaker Heights, 418 U.S. 298 (1974), implicitly holds that a

policy against political advertising is not vague, notwithstanding the plu-

rality’s failure to address the issue, because the dissent complained of the

inability to distinguish ideological and nonideological speech. Pet. Opp.

23-24. But petitioners in Lehman advanced no vagueness challenge, and

therefore that issue was not before the Court. In addition, the plurality

expressly relied on the fact that the Ohio Supreme Court had narrowly

construed the ordinance so that it distinguished sharply between adver-

tisers seeking to sell a good or service, and all others. 418 U.S. at 303-

04. As the district court found, Pet. App. 16c-19c, and as Amtrak’s

opposition confirms, Amtrak’s unwritten policy has no sharp lines, and

that is precisely the problem.

GLORIA C. PHARES

PAUL, HASTINGS,

JANOFSKY & WALKER

399 Park Avenue

New York, New York 10022

(212) 318-6000

Respectfully submitted,

DAVID D. COLE

Counsel of Record

CENTER FOR

CONSTITUTIONAL RIGHTS

Georgetown University

Law Center

600 New Jersey Avenue, N.W.

Washington, D.C. 20001

(202) 662-9078

R. BRUCE RICH

BERNADETTE M. MCCANN

EZRING

JONATHAN BLOOM

MARC BROTMAN

WEIL, GOTSHAL

& MANGES LLP

767 Fifth Avenue

New York, New York 10153

(212) 310-8000

Attorneys for Petitioner

April 23, 1996