Lead Opinion
On remand from the United States Supreme Court, see Lebron v. National R.R. Passenger Corp., — U.S. —,
On appeal, after staying the injunction, we reversed the judgment of the district court, “conclud[ing] that Amtrak is not a governmental actor subject to the strictures of the First Amendment.” Lebron v. National R.R. Passenger Corp. (AMTRAK),
Because we conclude that Amtrak’s historical refusal to accept political advertisements such as Lebron’s on the Spectacular is a reasonable use of that forum that is neutral as to viewpoint, and that Lebrón lacks standing to assert a facial challenge to Amtrak’s general policies concerning the acceptance of advertising for display at Pennsylvania Station, we again reverse the judgment of the district court.
Background
On November 30, 1992, Lebrón, an artist who creates political billboard displays (frequently involving commentary on public issues), and TDI, which manages the leasing of advertising space for Amtrak, entered into a leasing agreement (the “Lease”) under which Lebrón would rent the Spectacular, “a curved back-lit display space approximately 103 feet wide by ten feet high ... [which] dominates the west wall of the rotunda on the upper level of Penn Station where thousands of passengers pass each day,” for the months of January and February 1993. Le-brón II,
Lebrón then submitted his proposed advertisement (the “Display”) to TDI. Lebrón characterizes the Display as “an allegory about the destructive influence of a powerful, urban, materialistic and individualistic culture on rural, community based, family-oriented and religious cultures.” The district court described the Display as follows:
The work is a photomontage, accompanied by considerable text. Taking off on a widely circulated Coors beer advertisement which proclaims Coors to be the “Right Beer,” Lebron’s piece is captioned “Is it the Right’s Beer Now?” It includes photographic images of convivial drinkers of Coors beer, juxtaposed with a Nicaraguan village scene in which peasants are menaced by a can of Coors that hurtles towards them, leaving behind a tail of fire, as if it were a missile. The accompanying text, appearing on either end of the montage, criticizes the Coors family for its support of right-wing causes, particularly the contras in Nicaragua. Again taking off on Coors’ advertising which uses the slogan of “Silver Bullet” for its beer cans, the text proclaims that Coors is “The Silver Bullet that aims The Far Right’s political agenda at the heart of America.”
Lebrón I,
When TDI saw the Display, it offered Le-brón any of 500 alternative billboard sites that TDI had available in New York City (none of which were in Penn Station), but Lebrón rejected this offer. Echoing the allegation in his complaint that the Spectacular is “a unique advertising location in the City of New York,” Lebrón stated in an affidavit that:
The very size of the Spectacular allowed me to design and visualize this wоrk with an effectiveness and clarity that would have been otherwise impossible to achieve. Its size and shape make it one of the largest advertising display spaces in New York City, and its prominent location in Pennsylvania Station means that it is visible to a large segment of the traveling public, providing an excellent opportunity*654 to reach exactly the kind of audience I hope to engage with the subject matter of this piece. For all of these reasons, I consider the space an extraordinarily unique advertising location in New York City, and a unique challenge to my communicative skills as an artist that no gallery and few other public environments could provide.
Shortly thereafter, Amtrak rejected the Display, stating that its “ ‘policy is that it will not allow political advertising on the [S]pеc-tacular advertising sign.’ ” Lebrón II,
This policy, however, is not committed to writing, Lebrón I,
In this regard, Amtrak has leased advertising space to various noncommercial groups, including:
the New York Department of the Environment, the New York Department of Commerce, a foundation for muscular dystrophy, and Plain Truth Magazine, a free magazine on political and social issues published by The Worldwide Church of God. In addition, testimony of the general counsel of TDI indicates that TDI regularly displays public service advertisements, including subjects such as the homeless, the environment, drunk driving, AIDS awareness, health issues, and race relations.
Id. at 1004. The Plain Truth is distributed at a four-sided, seven-foot kiosk that disрlays an advertisement for the magazine and is located in front of the Spectacular.
In addition, however, it is undisputed that in the twenty-six years of its existence, the Spectacular has never been used for any type of advertising other than commercial promotions. The only advertisements that have appeared on the Spectacular have promoted DuPont Company, Resorts International in Atlantic City, the Broadway play “Sophisticated Ladies,” Fujitsu Computers, Nike athletic wear, and A & S Department Stores.
Lebrón commenced this action alleging a violation of his First Amendment rights and brеach of contract, and seeking equitable relief or, alternatively, damages. The district court granted a mandatory injunction requiring Amtrak and TDI to exhibit the Display on the Spectacular. Lebrón I,
As previously stated, we initially reversed on the ground that Amtrak is not subject to First Amendment constraints, and therefore did not consider the merits of Lebron’s First Amendment claim. Lebrón II,
We requested supplemental letter briefs from the parties, and heard reargument on the First Amendment issues.
Discussion
Because Lebrón seeks access to government property, we begin with a review of the public forum doctrine.
Under this approach, regulation of speech on government property that has traditionally been available for public expression is subject to the highest scrutiny. Such regulations survive only if they are narrowly drawn to achieve a compelling state interest. Perry [Educ. Ass’n v. Perry Local Educators’ Ass’n], 460 U.S. [37,] 45, 103 S.Ct. [948,] 955 [74 L.Ed.2d 794 ] [ (1983) ]. The second category of public property is the designated public forum, whether of a limited or unlimited character — property that the state has opened for expressive activity by part or all of the public. Ibid. Regulation of such property is subject to the same limitations as that governing a traditional public forum. Id., at 46,103 S.Ct., at 955 . Finally, there is all remaining public property. Limitations on expressive activity conducted on this last category of property must survive only a much more limited review. The challenged regulation need only be reasonable, as long as the regulation is not an effort to suppress the speaker’s activity due to disagreement with the speaker’s view. Ibid.
International Soc’y for Krishna Consciousness, Inc. v. Lee,
“[I]n defining the forum [the Supreme Court has] focused on the access sought by the speaker.... In cases in which limited access is sought, [the Court’s] cases have taken a more tailored approach to ascertaining the perimeters of a forum within the confines of the government property.” Cornelius v. NAACP Legal Defense and Educ. Fund, Inc.,
Amtrak contends that our public forum inquiry must focus on the Spectacular alone, rather than all Penn Station advertising space. We agree. Because of its unique size, location, and visibility, Lebrón sought access only to the Spectacular, and refused to accept any other advertising space in New York City managed by TDI. Although Lebrón now contends that we should broaden our public forum inquiry to all Penn Station advertising space, it was he who determined that only the Spectacular would be acceptable for his display. Cf. Air Line Pilots
To determine the Spectacular’s forum category, we must examine “the policy and practice of the government to ascertain whether it intended to designate a place not traditionally open to assembly and debate as a public forum.” Cornelius,
Although Amtrak does not maintain a written policy with respect to the Spectacular, its practice is clear; it has never opened the Spectacular for anything except purely commercial advertising. See Air Line Pilots Ass’n,
In light of Amtrak’s undisputed practice with respect to the Spectacular, therefore, we conclude that the Spectacular is not a рublic forum; most likely, it is a non-public forum, or perhaps it is a limited public forum opened for purely commercial speech. See Calash v. City of Bridgeport,
Accordingly, Amtrak’s policy of excluding noncommercial advertisements from the Spectacular will be upheld so long as the policy is “viewpoint-neutral and reasonable in relation to the forum’s purpose.” Calash,
Lehman v. City of Shaker Heights,
Here, we have no open spaces, no meeting hall, park, street corner, or other public thoroughfare. Instead, the city is engaged in commerce. It must provide rapid, convenient, pleasant, and inexpensive service to the commuters of Shaker Heights. The car card space, although incidental to the provision of public trans*657 portation, is part of the commercial venture. In much the same way that a nеwspaper or periodical, or even a radio or television station, need not accept every proffer of advertising from the general public, a city transit system has discretion to develop and make reasonable choices concerning the type of advertising that may be displayed in its vehicles. In making these choices, this Court has held that a public utility “will be sustained in its protection of activities in public places when those activities do not interfere with the general public convenience, comfort and safety.” Public Utilities Comm’n v. Pollak, 343 U.S. [451,] 464-65 [72 S.Ct. 813 , 821-22,96 L.Ed. 1068 [ (1952) ].
Because state action exists, however, the policies and practices governing access to the transit system’s advertising space must not be arbitrary, capricious, or invidi-ous_ Revenue earned from long-term commercial advertising could be jeopardized by a requirement that short-term candidacy or issue-oriented advertisements be displayed on car cards. Users would be subjected to the blare of political propaganda. There could be lurking doubts about favoritism, and sticky administrative problems might arise in parceling out limited space to eager politicians. In these circumstances, the managerial decision to limit car card space to innocuous and less controversial commercial and service oriented advertising does not rise to the dignity of a First Amendment violation....
No First Amendment forum is here to be found. The city consciously has limited access to its transit system advertising space in order to minimize chances of abuse, the appearance of favoritism, and thе risk of imposing upon a captive audience. These are reasonable legislative objectives advanced by the city in a proprietary capacity. In these circumstances, there is no First or Fourteenth Amendment violation.
Lehman,
It is especially significant that, as in Lehman, Amtrak acts in this case in a proprietary capacity, rather than as a governmental regulator. As the Court stated in Krishna:
Where the government is acting as a proprietor, managing its internal operations, rather than acting as lawmaker with the power to regulate or license, its action will not be subjected to the heightened review to which its actions as a lawmaker may be subject. Kokinda, supra, 497 U.S., at [725], 110 S.Ct., at [3119] (plurality opinion) (citing Cafeteria & Restaurant Workers v. McElroy,367 U.S. 886 , 896,81 S.Ct. 1743 , 1749,6 L.Ed.2d 1230 (1961)). Thus, we have upheld a ban on political advertisements in city-operated transit vehicles, Lehman v. City of Shaker Heights,418 U.S. 298 ,94 S.Ct. 2714 ,41 L.Ed.2d 770 (1974), even though the city permitted other types of advertising on those vehicles. Similarly, we have permitted a school dis*658 trict to limit access to an internal mail system used to communicate with teachers employed by the district. Perry Education Assn. v. Perry Local Educators’ Ass’n,460 U.S. 37 ,103 S.Ct. 948 ,74 L.Ed.2d 794 (1983).
505 U.S. at-,
Amtrak’s decision, as a proprietor, to decline to enter the political arena, even indirectly, by displaying political advertisements is certainly reasonable. Amtrak’s position as a government controlled and financed public facility, used daily by thousands of people, made it highly advisable to avoid the criticism and the embarrassments of allowing any display seeming to favor any political view. This was particularly so with respect to the Spectacular in view of its uniqueness and size. Cf. Calash,
Lebrón urges us to reach the same conclusion as the district court, arguing that Amtrak’s policy is unwritten, inconsistently applied, and possibly viewpoint biased. We disagree.
The fact that a policy is not committed to writing does not of itself constitute a First Amendment violation. Cf. City of Lakewood v. Plain Dealer Publishing Co.,
Neither of these concerns is implicated here. Amtrak’s prior written agreements, together with the testimony of the Amtrak official responsible for approving advertisements on the Spectacular and Amtrak’s historic practice of reserving the Spectacular for commercial advertisements, dispel the notion that Amtrak enjoyed “unbridled discretion” or could have perpetrated an “illegitimate abuse of censorial power” in rejecting an advertisement because of its political content. Furthermore, because the policy against political advertisements was limited in scope to the Spectacular, there is no evidence that Amtrak’s policy has ever been applied inconsistently.
The district court also intimated that Amtrak’s policy might be void for viewpoint bias, depending upon which of the conflicting versions offered at trial represented Amtrak’s true policy. Although the district court entered no findings of fact, its concern was primarily based upon statements appearing in Amtrak’s 1967 and 1980 agreements with TDI, which gave Amtrak the discretion to refuse any advertising that “involve[s] political or other views which could result in dissension or involve [Amtrak] in dissension, complaints or controversy with its patrons or the public.”
Because we have found that Amtrak’s policy against political advertisements was limited in scope to the Spectacular, Lebron’s attempt to attack Amtrak’s policies regarding the acceptance of advertisements in Penn Station generally, rather than on the Spectacular, amounts, in substance, to a facial challenge to those policies as they might be applied to advertisements other than Lebron’s and to locations not at issue. Ordinary rules of standing, of course, would bar Lebrón from mounting such a challenge. As the Supreme Court has made clear: “Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.” Broadrick v. Oklahoma,
Further, “[t]he question of standing is not subject to waiver ...: “we are required to address the issue even if the courts below have not passed on it, and even if the parties fail to raise the issue before us. The federal courts are under an independent obligation to examine their own jurisdiction, and standing “is perhaps the most important of [the jurisdictional] doctrines.” ’ ” United States v. Hays, — U.S. —, —,
Broadrick also recognized, however, that “the Court has altered its traditional rules of standing to permit — in the First Amendment area — ‘attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.’” Id.
In our view, this ease affords no occasion for application of the overbreadth doctrine, and Lebrón accordingly lacks standing to assert a general challenge to Amtrak’s advertising policies. The doctrine has only been applied to the conduct of the government in its role as a regulator, not as a proprietor. See e.g., City of Lakewood,
Such concerns simply are not implicated by Amtrak’s role as the proprietor of Penn Station, essentially seeking to derive revenues from the sale of advertising while minimizing interference with or disruption of the station’s commercial function. See Lehman,
Conclusion
We reverse the judgment of the district court and remand with the instruction that the district court dismiss Lebron’s complaint. As previously noted, see Lebrón II,
Notes
Judge Leval became a member of the Second Circuit Court of Appeals on November 8, 1993.
. The licensing agreements between Amtrak’s predecessor, the Pennsylvania Railroad Company ("PRC”), and TDI provided that the PRC could refuse any advertisement that it deemed " 'unlawful, immoral, improper or offensive to good taste ... or [to] involve political or other views which could result in dissension or [to] involve [PRC] in dissension, complaints or controversy with its patrons or the public.' ” Lebrón I,
. The stated twenty-six years of the Spectacular’s existence, and the list of advertisers over that period, is premised upon the record presented on this appeal, which was completed over two years ago.
. Lebrón contends that because the only government interest in Lehman that garnered the support of a majority of the Court is protecting captive audienсes, the case must be read as so limited. However, the Supreme Court has repeatedly reaffirmed a broader reading of Lehman, often specifically citing to the plurality opinion. See, e.g., Krishna, 505 U.S. at-,
. Lebron invokes Lamb’s Chapel v. Center Moriches Union Free School District, — U.S. —,
Dissenting Opinion
dissenting:
Because I believe that Amtrak, a governmental entity now authoritatively determined to be subject to First Amendment limitations, see Lebron v. National R.R. Passenger Corp., — U.S. —,
The Court’s dismissal of Lebron’s lawsuit rests on two premises, both of which, in my view, are flawed. The first concerns the identification of the forum for purposes of applying public forum analysis. The second concerns the standard for determining whether a governmental actor’s policy for rejecting advertisements violates First Amendment requirements.
1. The relevant forum. The premise of the Court’s identification of the relevant forum is that, in advertising cases, a court should consider the particular billboard on which an applicant wishes to display a message. Proceeding from this premise, the Court narrows its inquiry to “the Spectacular,” the large billboard high on the west wall of the rotunda of the upper level of Penn Station. No prior case has taken such a restricted view of the relevant forum, and I think it can be readily demonstrated that the Court’s premise is incorrect.
The Supreme Court has instructed that the relevant forum is to be determined by “the access sought by the speakеr.” Cornelius v. NAACP Legal Defense and Educational Fund, Inc.,
All of these cases focus on a means of communication, not the particular location where an advertiser prefers to display its ad. It is unimaginable thаt in Cornelius the Court would have permitted one political party to solicit funds through the Combined Federal Campaign at one side of the lobby of a federal building while denying another party the opportunity to solicit funds through the Campaign at the other side, or that in Perry the Court would have permitted one group to place a political message in the mail boxes of one school while denying another group a similar right at other schools, or that in Lehman the Court would have permitted political ads on one bus while prohibiting political ads on other buses.
The two cases relied on by the majority in the pending appeal, both interestingly and accurately cited with a signal meaning “compare,” are also instructive. In Air Line Pilots Assn. v. Dept of Aviation,
Nevertheless, the Court in the pending case limits its public forum analysis to the one billboard in Penn Station on which Le-brón wishes to display his ad — the so-called “Spectacular.” There is no question that this billboard is bigger than any other in Penn Station, more visible, and, if one can afford it, more desirable. But public forum analysis cannot be so particularized as to focus on one of several billboards on government property, no matter how preferable that one billboаrd’s size and location may be to an advertiser. The reason can be readily demonstrated. As everyone who has ever walked through Penn Station knows, the Spectacular is high atop the west wall of the station’s rotunda, and two small billboards are high atop the north and south walls of the same rotunda. If Amtrak had permitted the Democratic Party to place political ads on either of the two smaller billboards in the rotunda, can it be seriously argued that any court would limit its forum analysis to the one large billboard and permit Amtrak to deny the Republican Party the opportunity to place its political ad on the Spectacular, just because no political ad had previously been on that precise space?
The relevant forum must be at least advertising spacе in the rotunda of Penn Station— the means of communication to which Lebrón sought access. Once the forum is defined to have at least this scope, Amtrak’s violation of the First Amendment is evident because it has leased advertising space on a kiosk in the rotunda for The Plain Truth, a magazine the Court acknowledges is devoted to “political and social issues.” It is clearly unconstitutional for Amtrak to permit its advertising space in the rotunda to be used to convey the message of The Plain Truth and deny space in the same rotunda to the message that Lebrón believes conveys the plain truth about the brewers of Coors Beer.
2. Amtrak’s policy. Even if the relevant forum is the one billboard space known as the Spectacular, the Court’s second premise — that the scope and lawfulness of Amtrak’s exercise of discretion regarding political ads may be ascertained solely from its past practice — is also unsound. The proper inquiry, the Supreme Court has instructed, focuses not solely on past practice but on “policy and practice,” Cornelius,
First, the agreement between Amtrak and Transportation Displays Incorporated (TDI), the leasing agent for billboards in Penn Sta
In view of this evidence, the District Court’s findings that Amtrak’s alleged policy against political ads was unwritten, unclear, and undisseminated provide ample basis for the Court’s ultimate conclusion that the policy permitted the unfettered exercise of discretion and created the risk of abuse that the First Amendment prohibits. See Lebron v. Washington Metropolitan Area Transit Authority,
Disregarding the evidence and the District Judge’s findings, this Court ascertains Amtrak’s policy solely by looking to the past practice of not yet contracting for a political ad on the Spectacular. But where a policy is unwritten, unclear, and undisseminated, the fact that it has not yet been used discrimina-torily does not save it from invalidation under the First Amendment. The vice of conferring unfettered discretion on government officials to determine which messages may be conveyed is not avoided by their past pattern of not making a discriminatory decision. The vice inheres in the opportunity for discrimination, and the First Amendment requires that opportunity to be held to an acceptable minimum by a clear and well understood policy that appropriately limits the discretion of the officials who must administer it. See Gentile v. State Bar of Nevada,
The prohibition against vague regulations of speech is based in part on the need to eliminate the impermissible risk of discriminatоry enforcement_ The question is not whether discriminatory enforcement occurred here, and we assume it did not, but whether the Rule is so imprecise that discriminatory enforcement is a real possibility.”
Gentile,
Wholly apart from the absence of a clear, understandable, and understood policy, Le-brón might be correct that, to the extent that the defendant’s policy purports to bar political ads, it is a viewpoint-based discrimination that violates the First Amendment. See Air Line Pilots Assn. v. Department of Aviation,
In my view, the District Court’s findings, fully supported by the evidence, entitled Le-brón to prevail on his claim that Amtrak’s refusal to permit display of his ad violated the First Amendment. At a minimum, he is entitled to a declaration that Amtrak has violated the First Amendment, damages (to the extent, if any, not precluded by F.D.I.C. v. Meyer, — U.S. —, —,
I respectfully dissent.