826 F.3d 947
7th Cir.2016Background
- Citilink (municipal transit authority in Fort Wayne) denied a proposed public-service bus advertisement from a nonprofit ("Health Link") that provided women’s health services.
- The ad itself contained no reference to abortion or any political/religious/moral message; it included a website (womenshealthlink.org) that only indirectly revealed a pro‑life orientation via nested links and a mission statement.
- Citilink’s published ad policy bans ads that "express or advocate opinions or positions upon political, religious, or moral issues," and enumerates other content prohibitions (e.g., profanity, obscenity, libel) unrelated to this ad.
- Citilink relied on the organization’s perceived pro‑life affiliation (shared address with a local Right to Life group and an initial inquiry from that group) to conclude the ad was ineligible, despite no such content in the ad itself.
- Health Link sued alleging unconstitutional, arbitrary, and discriminatory suppression of protected speech; the district court granted summary judgment to Citilink, and the Seventh Circuit reversed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Citilink’s refusal violated the First Amendment by discriminating against Health Link’s ad | Citilink discriminated by excluding an innocuous public‑service ad based on the advertiser’s alleged viewpoints/associations | Citilink argued its policy bans ads by advertisers who express political/religious/moral positions and applied the ban to Health Link because of its pro‑life ties | Court held the refusal was arbitrary viewpoint discrimination against protected speech and impermissible under the First Amendment |
| Whether the content of Health Link’s ad or linked website justified exclusion | The ad itself contains no political/religious/moral content; the policy is limited to ad content and does not extend to external websites | Citilink treated the advertiser (and its web content/associations) as disqualifying even though the ad complied with content rules | Court held Citilink could not ban the ad based on the advertiser’s beliefs or remote website content when the ad complied with its stated content rules |
| Forum analysis: what standard applies to bus ad spaces | Health Link argued that regardless of forum label, the government must honor the boundaries it sets and not discriminate on viewpoint | Citilink asserted its ad spaces are a forum where it may exclude political/religious/moral messaging consistent with its policies | Court declined to decide the exact forum category but held that, under forum principles, Citilink violated the rule against viewpoint discrimination and must respect its own content limits |
| Consistency in application of policy (selective enforcement) | Health Link pointed to other permitted advertisers whose activities could be viewed as moral/political (e.g., United Way, vaccination advocacy) showing inconsistent enforcement | Citilink argued its application was proper and targeted | Court relied on the inconsistency and the policy’s text to conclude discriminatory enforcement further showed impermissible censorship |
Key Cases Cited
- Perry Education Assn. v. Perry Local Educators' Ass'n, 460 U.S. 37 (discussion of public, designated, and nonpublic forums)
- Cornelius v. NAACP Legal Defense & Educational Fund, Inc., 473 U.S. 788 (limitations permissible in a nonpublic forum to serve forum’s purpose)
- Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (government must respect boundaries it has itself set; no viewpoint discrimination)
- Lehman v. City of Shaker Heights, 418 U.S. 298 (government may exclude certain commercial/solicitation speech on transit property)
- Police Dep't of City of Chicago v. Mosley, 408 U.S. 92 (prohibition on speech based on subject matter/viewpoint is unconstitutional)
- Illinois Dunesland Preservation Soc. v. Illinois Dep't of Natural Res., 584 F.3d 719 (forum analysis in Seventh Circuit)
- American Freedom Defense Initiative v. Suburban Mobility Auth. for Reg. Transp., 698 F.3d 885 (6th Cir. case upholding ban on explicitly political/religious transit ad; contrasted with innocuous ad here)
- Shuttlesworth v. City of Birmingham, 394 U.S. 147 (invalidating censorship used to suppress speech)