975 F.3d 300
3rd Cir.2020Background:
- CIR (a nonprofit news org.) submitted a comic-strip ad summarizing its investigation of racial disparities in mortgage lending for display inside SEPTA buses.
- SEPTA (via its ad manager and General Counsel) rejected the ad under two 2015 Advertising Standards provisions: (a) banning “political” ads and (b) banning ads that express opinions on “matters of public debate.”
- CIR sued under the First and Fourteenth Amendments seeking declaratory relief and a permanent injunction to run the ad; a bench trial followed.
- The District Court struck certain overbroad language from SEPTA’s standards, found the revised policy facially valid and viewpoint neutral as applied, and required SEPTA to adopt a meet-and-confer process.
- On appeal the Third Circuit focused on Mansky v. Minnesota Voters Alliance: it found SEPTA’s revised provisions still incapable of reasoned application (due to vague terms and erratic application by decisionmakers) and reversed, directing declaratory relief and an injunction against enforcing the provisions to exclude CIR’s ad.
- The Court noted trial evidence of inconsistent application (examples of accepted and rejected ads) and held that SEPTA could revise its policy but could not enforce the defective provisions against CIR.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are the challenged provisions "capable of reasoned application" (Mansky test)? | Provisions are vague ("political," "public debate") and allow arbitrary enforcement. | Policy is sufficiently definite; differs from Mansky (forum, procedures, no contradictory guidelines). | Held: Not capable of reasoned application; provisions invalid under Mansky. |
| Viewpoint discrimination (as-applied) | SEPTA applied standards to suppress CIR’s viewpoint on racial lending disparities. | After District Court edits, standards are viewpoint neutral as applied. | Court did not need to decide viewpoint; invalidity under Mansky resolved the case. |
| Forum classification and applicable standard | CIR contended forum status matters; analysis should consider nonpublic/forum limits. | SEPTA emphasized nonpublic-forum deference permitting content limits. | Court assumed nonpublic forum but held even under that standard restrictions must be capable of reasoned application; provisions failed. |
| Remedy: Should CIR get an order requiring SEPTA to run the ad? | CIR sought declaratory judgment and permanent injunction ordering SEPTA to run the ad. | SEPTA argued District Court’s narrower remedy and opportunity to revise policy sufficed. | Held: CIR entitled to declaratory relief and permanent injunction barring enforcement; case remanded for entry of judgment for CIR (SEPTA may still revise policy lawfully). |
Key Cases Cited
- Minnesota Voters Alliance v. Mansky, 138 S. Ct. 1876 (2018) (a content ban in a nonpublic forum is invalid if not capable of reasoned application)
- Lehman v. City of Shaker Heights, 418 U.S. 298 (1974) (plurality upholding ban on political ads on city buses)
- Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995) (viewpoint discrimination is especially forbidden)
- NAACP v. City of Philadelphia, 834 F.3d 435 (3d Cir. 2016) (forum-analysis and reasonableness of content restrictions)
- Northeastern Pa. Freethought Soc’y v. Cnty. of Lackawanna Transit Sys., 938 F.3d 424 (3d Cir. 2019) (sequencing viewpoint/subject-matter and forum analysis)
- Bd. of Airport Comm’rs of L.A. v. Jews for Jesus, Inc., 482 U.S. 569 (1987) (risk of arbitrary enforcement when standards are open-ended)
- Elrod v. Burns, 427 U.S. 347 (1976) (loss of First Amendment freedoms constitutes irreparable injury)