337 F. Supp. 3d 562
E.D. Pa.2018Background
- CIR (Center for Investigative Reporting) sought to place a bus-interior ad reporting research that alleged racial disparities in mortgage lending; SEPTA rejected it under its 2015 Advertising Standards as political/issue speech.
- SEPTA adopted the 2015 Standards after litigation over an earlier AFDI advertisement; the Standards state SEPTA intends its ad space to be a non-public forum and list prohibitions including political ads and ads expressing viewpoints on public issues.
- CIR sued under the First and Fourteenth Amendments seeking declaratory and injunctive relief; bench trial limited to testimony of SEPTA General Counsel Gino Benedetti and documentary exhibits.
- Key factual findings: SEPTA leases ad space to generate modest revenue but balances revenue with rider safety/comfort; SEPTA accepted many commercial and public-service ads but rejected a small number of proposals since 2015, including CIR’s ad.
- Court found portions of the Standards (language like "political in nature" and "matters of public debate") impermissibly broad under Mansky and ordered those phrases struck, required SEPTA to add a meet-and-confer procedure and publish its ad rules online; otherwise the amended Standards were upheld as reasonable and viewpoint neutral in a non-public forum.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Forum classification | SEPTA’s ad space remains a designated public forum and thus strict scrutiny applies | SEPTA intentionally closed the forum (2015 Standards) making it non-public; reasonableness review applies | Forum = non-public (SEPTA successfully closed it) |
| Vagueness / capability of reasoned application (Mansky) | Challenged provisions vest unbridled discretion; facial challenge permissible | Standards are guided by objective categories; not unconstitutionally vague | Portions (e.g., "political in nature" clause and "matters of public debate") struck as incapable of reasoned application; SEPTA ordered to amend policy |
| Reasonableness of restrictions in non-public forum | Standards are not reasonably tied to forum purpose and may reduce revenue; inconsistent application (newsfeeds, public-service ads) undermines reasonableness | Restrictions are reasonably tied to forum purpose: revenue balanced with rider safety/comfort and avoiding disruption; AFDI experience justified closure | As amended, Standards are reasonable in light of forum purpose and surrounding circumstances |
| Viewpoint neutrality / as-applied challenge | Accepting bank ads but rejecting CIR’s ad was viewpoint discrimination | Bank ads were commercial/required to carry Equal Housing legends; CIR’s ad expressed a viewpoint on a prohibited topic | No viewpoint discrimination: Standards (as amended) are viewpoint neutral and SEPTA reasonably applied them to reject CIR’s ad |
Key Cases Cited
- Minn. Voters Alliance v. Mansky, 138 S. Ct. 1876 (2018) (administrative restrictions must allow "reasoned application" and provide objective, workable standards)
- Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788 (1985) (forum analysis; non-public forum restrictions must be reasonable and viewpoint neutral)
- Perry Educ. Assn. v. Perry Local Educators' Assn., 460 U.S. 37 (1983) (public, designated, and non-public forum framework)
- Lehman v. City of Shaker Heights, 418 U.S. 298 (1974) (upholding transit ad restrictions to avoid imposing on a captive audience)
- NAACP v. City of Philadelphia, 834 F.3d 435 (3d Cir. 2016) (reasonableness test for non-public forum restrictions; need record tying restriction to forum purpose)
- Christ's Bride Ministries v. SEPTA, 148 F.3d 242 (3d Cir. 1998) (prior Third Circuit decision treating SEPTA ad space as a designated public forum)
- Am. Freedom Def. Initiative v. SEPTA, 92 F. Supp. 3d 314 (E.D. Pa. 2015) (court found SEPTA's prior policy created a designated public forum)
- Am. Freedom Def. Initiative v. Suburban Mobility Auth., 698 F.3d 885 (6th Cir. 2012) (transit ad restrictions can be reasonable and nonpublic; addressed AFDI ad)
- Archdiocese of Wash. v. WMATA, 897 F.3d 314 (D.C. Cir. 2018) (upholding transit authority’s prohibition on certain ad categories as reasonable in non-public forum)