Northeastern Pennsylvania v. County of Lackawanna Transit
938 F.3d 424
3rd Cir.2019Background
- COLTS (Lackawanna County Transit System) sells limited advertising space on buses (small part of budget) and in 2011–2013 adopted policies excluding certain classes of ads, including a 2013 provision barring ads that "promote the existence or non-existence of a supreme deity" or are "otherwise religious in nature."
- Northeastern Pennsylvania Freethought Society proposed an interior/exterior bus ad reading "Atheists" with its name and website; COLTS rejected that ad three times under its religion/political prohibitions.
- Before the formal policies, COLTS had accepted many religious, political, and controversial ads without complaint; policy drafters relied on controversies elsewhere and on fear of disturbance to justify the ban.
- Freethought sued under 42 U.S.C. § 1983 after repeated rejections; the District Court upheld COLTS’ policy as viewpoint neutral and reasonable in a limited public forum.
- The Third Circuit held the 2013 religious-speech ban facially unconstitutional as viewpoint discrimination (and alternatively unreasonable as a content-based restriction) and directed entry of declaratory relief and a permanent injunction against enforcing the ban as to Freethought.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether COLTS’ religious-speech ban is viewpoint discrimination | Ban targets atheistic/religious viewpoint and excludes messages because of perspective | Policy is a subject-matter exclusion of religion (neutral) aimed at avoiding controversy | Court: Ban is viewpoint discriminatory (violates Rosenberger/Lamb’s Chapel/Good News Club); invalid |
| Whether forum classification saves the policy (designated/limited/nonpublic) | Ad space is at least a designated/limited public forum and viewpoint rules are forbidden | COLTS says it has (or converted to) a nonpublic/limited forum and may exclude subject matters | Court: Forum type not outcome-determinative; viewpoint discrimination is forbidden in any forum and resolves the case |
| If viewpoint-neutral, whether the religious ban is a permissible content-based restriction (reasonableness) | Even if content-based, restriction must be reasonable and tailored to forum purpose | Ban is reasonable to protect safety, ridership, revenue, and neutrality—preventing disruption | Court: Even assuming neutrality, broad ban is unreasonable and arbitrary as applied; COLTS failed to show sufficient threat or consistent administration |
| Remedy — entitlement to injunction | Seeks declaratory judgment and permanent injunction to run the ad | COLTS opposed relief | Court: Freethought showed irreparable harm and no adequate remedy at law; injunction and declaratory relief ordered |
Key Cases Cited
- Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (viewpoint-based exclusion of religious editorial viewpoint invalid)
- Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384 (ban on religious uses of school forum violated viewpoint neutrality)
- Good News Club v. Milford Cent. Sch., 533 U.S. 98 (excluding religious instruction from a forum otherwise open to similar secular instruction is viewpoint discrimination)
- Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788 (forum analysis; content-based exclusions in nonpublic forums must be reasonable)
- Minn. Voters All. v. Mansky, 138 S. Ct. 1876 (limits on discretion and vagueness in nonpublic-forum enforcement)
- Archdiocese of Wash. v. Wash. Metro. Area Transit Auth., 897 F.3d 314 (D.C. Cir. decision distinguishing subject-matter bans on religion from viewpoint discrimination)
- Child Evangelism Fellowship of N.J. v. Stafford Twp. Sch. Dist., 386 F.3d 514 (3d Cir. application of Rosenberger/Good News Club principles)
- Lehman v. City of Shaker Heights, 418 U.S. 298 (plurality upholding prohibition on political ads in certain bus car-card spaces due to captive-audience concerns)