WHITE COAT WASTE PROJECT, Plаintiff - Appellee, v. GREATER RICHMOND TRANSIT COMPANY, Defendant - Appellant. WHITE COAT WASTE PROJECT, Plaintiff - Appellant, v. GREATER RICHMOND TRANSIT COMPANY, Defendant - Appellee.
No. 20-1710, No. 20-1740
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
Argued: September 21, 2021 Decided: May 20, 2022
PUBLISHED
Appeals from the United States District Court for the Eastern District of Virginia at Richmond. M. Hannah Lauck, District Judge. (3:17-cv-00719-MHL)
Before GREGORY, Chief Judge, and NIEMEYER and RICHARDSON, Circuit Judges.
Affirmed in part, reversed in part, and remanded with instructions by published opinion. Judge Richardson wrote the opinion, in which Chief Judge Gregory and Judge Niemeyer joined.
Richard Earl Hill, Jr., OFFICE OF THE CITY ATTORNEY - RICHMOND, Richmond, Virginia, for Appellant/Cross-Appellee. Matthew Daniel Strugar, LAW OFFICE OF MATTHEW STRUGAR, Los Angeles, California, for Appellee/Cross-Appellant.
RICHARDSON, Circuit
When White Coat Waste Project tried to run an advertisement denouncing animal experimentation with the Greater Richmond Transit Company, the ad was denied for being impermissibly “political.” So White Coat sued, challenging that denial as a violation of its First Amendment rights. Richmond Transit responds that, as a private company, it is not bound by the First Amendment, and even if it were, its policy passes constitutional muster because it only restrains speech in a nonpublic forum. The district court disagreed on both counts, concluding that Richmond Transit is a state actor subject to constitutional constraints and that its policy violates the First Amendment right to free speech. But the district court granted White Coat only partial summary judgment, holding that it could not provide the facial relief White Coat sought because public-transit political-advertising bans can sometimes accord with the Constitution. See Lehman v. City of Shaker Heights, 418 U.S. 298, 303-04 (1974) (plurality opinion).
We conclude that the district court correctly identified Richmond Transit as a state actor. See Lebron v. Nat‘l R.R. Passenger Corp., 513 U.S. 374, 400 (1995). And we hold that Richmond Transit‘s policy is not “capable of reasoned application” and is therefore unconstitutionally unreasonable. See Minn. Voters All. v. Mansky, 138 S. Ct. 1876, 1892 (2018). Finally, we hold that the district court erred in denying facial relief. Even if another public-transit political-advertising ban may be constitutional, this ban is incapable of reasoned, constitutional application in all circumstances. So it is facially unconstitutional and warrants facial relief.
I. Background
Richmond Transit operates a public transit system in Richmond and the surrounding areas. The corporation was formed in 1973, when Virginia amended Richmond‘s charter to enable it to “acquire, operate, lease, or otherwise provide for the operation of a public transportation system . . . both within and outside the City of Richmond.” Act of March 15, 1973, ch. 348, 1973 Va. Acts 472, 476. The City then enacted a resolution authorizing a slate of incorporators “to form a stock corporation known as ‘Greater Richmond Transit Company’ . . . for the purpose of providing mass transportation service as a public service corporation,” and empowering the city attorney “to do all other necessary things to bring such corporation into being.” Council Res. 73-R44-45, 1973 Council (Richmond, Va. 1973) (saved as
Like many transit companies, Richmond Transit derives revenue from selling advertising space on its buses. Advertisers must comply with Richmond Transit‘s advertising policy, which prohibits, for example, alcohol and tobacco advertisements, advertisements for pornography, advertisements containing vulgarity, and (most relevant here) “[a]ll political ads.” J.A. 159 (2013 advertising policy); J.A. 156 (2018 advertising policy). Richmond Transit‘s policy declares its “intent not to allow any of its transit vehicles or property to become a public forum for dissemination, debate, or discussion of public issues.” J.A. 156, 159. But the policy fails to define what could constitute “political ads” or “public issues.”
Richmond Transit generally uses an outside contractor to sell its advertising space. If that contractor believes an ad may violate the advertising policy, it must submit the ad to Richmond Transit for review. Those submissions go to the Director of Communications, Carrie Rose Pace. According to Pace, an advertisement will be rejected as political if it is “not viewpoint neutral” - i.e., any ad “expressing a viewpoint and only that viewpoint.” J.A. 231. And any advertisement from what it calls a “political action group” - i.e., any group that “engage[s] in specific targeted policy advocacy that would be related to their one side of the political issue” - is prohibited. J.A. 263. To determine whether a group is a political action group, Pace may review the оrganization‘s website.
Implementing the political-ad policy has required making some difficult decisions. Richmond Transit has run advertisements for the vice-presidential debate, a free-expression exhibit at an art museum, and an anti-dog-fighting nonprofit asking readers to spay and neuter their dogs. It rejected an advertisement from the Physicians Committee for Responsible Medicine encouraging local hospitals to “go #FastFoodFree!” and readers to “EAT MORE CHICKPEAS!,” and another from a hospital association advocating for increased government healthcare funding. J.A. 294-95, 302-04, 381.
White Coat is a nonprofit seeking to end taxpayer-funded animal experimentation. It sought to run an ad on Richmond Transit‘s buses targeting the local McGuire Veterans Affairs Medical Center. The advertisement features three dogs peering out of what appear to be prison bars, along with the text: “Prisoners of Waste - McGuire VAMC: Stop Taxpayer-Funded Dog Experiments!” J.A. 388. In small print in the bottom-left corner, the advertisement states: “White Coat Waste Project.” J.A. 388. Pace reviewed White Coat‘s website and determined that White Coat was a political action group, so she rejected the аdvertisement. Richmond Transit informed White Coat that if it partnered with the local government, it might be able to run the ad as a “public service advertisement.” J.A. 411.
White Coat instead sued Richmond Transit under
Following discovery, the district court granted partial summary judgment to White Coat. First, the court held that Richmond Transit could be sued under
II. Discussion
We begin with the state-action issue and hold that Richmond Transit is a state actor operating “under color of state law.” See West v. Atkins, 487 U.S. 42, 48 (1988). Richmond Transit is therefore subject to suit under
A. State Action and Color of State Law
Like many constitutional provisions, “the Free Speech Clause prohibits only governmental abridgment of speech,” not ”private abridgment of speech.” Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1928 (2019). So courts must ensure “that constitutional standards” such as the First Amendment are only enforced “when it can be said that the State is responsible for the specific conduct of which the plaintiff complains” - a requirement known as “state action.” Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass‘n, 531 U.S. 288, 295 (2001) (emphasis omitted) (quoting Blum v. Yaretsky, 457 U.S. 991, 1004 (1982)). Alongside the constitutional state-action limitation,
While the constitutional state-action and statutory color-of-law requirements are technically distinct, courts treat them “as the same thing.” United States v. Price, 383 U.S. 787, 794 n.7 (1966).3 “The ultimate issue in determining whether a person is subject to suit under
Often, the answer is clear. The army is the government. See Goldman v. Weinberger, 475 U.S. 503, 507 (1986). So is a municipal zoning board. See Vill. of Euclid v. Ambler Realty Co., 272 U.S. 365, 389 (1926). And usually, private corporations are not the government. See Burton v. Wilmington Parking Auth., 365 U.S. 715, 721-22 (1961); cf. Trs. of Dartmouth Coll. v. Woodward, 17 U.S. (4 Wheat.) 518, 636-37 (1819) (Marshall, C.J.) (“But this [corporate] being does not share in the civil government of the country, unless that be the purpose for which it was created. . . . It is no more a State instrument, than a natural person exercising the same powers would be.“). Usually, but not always.
In Lebron, the Supreme Court noted a special class of corporate entities, “Government-created and -controlled corporations,” that are part of the government despite their ostensibly private character. 513 U.S. at 397. The Court there confronted a similar case to our own: The National Railroad Passenger Corporation, commonly known as Amtrak, refused to display a political advertisement, which prompted a First Amendment challenge. Id. at 376-77. Amtrak argued that it was a corрoration, not a government entity, so it was not bound by the First Amendment. Id. at 392.
The Supreme Court disagreed, holding Amtrak was a government entity. Id. at 400. The government is afforded administrative flexibility to achieve its ends, but organizational creativity cannot release it from its constitutional mandates: “It surely cannot be that government, state or federal, is able to evade
So Lebron establishes that a corporation is “Government-created and -controlled” and part of the government for purposes of the First Amendment where: (1) creation of the corporation occurred by “special law“; (2) creation was “for the furtherance of governmental objectives“; and (3) retention by the government of “permanent authority to appoint a majority of the directors of that corporation.” Id. at 397, 400.4 Richmond Transit satisfies all three elements.5
1. Creation by Special Law
To understand what constitutes creating a corporation by “special law,” we turn first to Lebron. Amtrak‘s creation was authorized by the Rail Passenger Service Act of 1970, Pub. L. 91-518, 84 Stat. 1327 (repealed 1994). Lebron, 513 U.S. at 384.6 The Act did not incorporate Amtrak under a federal charter, but merely authorized the executive branch to file the articles of incorporation. Rail Passenger Service Act, § 301-02, 84 Stat. at 1330. The executive branch exercised the Act‘s authority by appointing agents, who then formed Amtrak under the general corporate law of the District of Columbia. Lebron, 513 U.S. at 385. The Supreme Court determined that this Act was a “special law.” See id. at 399 (“[W]here, as here, the Government creates a corporation by special law . . . .” (emphasis added)). Thus, the “special law” prong is satisfied when a law authorizes the incorporation of a particular entity, including when a law does not explicitly
Despite Lebron, Richmond Transit argues that a “special law” must actually charter the corporation, directly bringing it into being. That would suffice. See, e.g., Hack v. President & Fellows of Yale Coll., 237 F.3d 81, 83-84 (2d Cir. 2000) (holding that Yale College‘s charter, recognized in Connecticut‘s constitution, was a “special law“), abrogated on other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002); Hall v. Am. Nat‘l Red Cross, 86 F.3d 919, 921 (9th Cir. 1996) (holding that the Red Cross, reincorporated under a federal charter, was created by “special law“). But under Lebron, it is unnecessary.
Richmond Transit alternatively argues that a “special law” must lay out unique rules for the organization and functioning of the corporation. Because Richmond‘s resolution authorizing Richmond Transit‘s creation did not provide special rules - instead relying on the default rules of Virginia corporate law to dictate Richmond Transit‘s form - Richmond Transit submits that it was not a special law.
We reject that interpretation for two reasons. First, it would undermine the core рrinciple of Lebron: that the government cannot evade the Constitution by resorting to a corporate form. Lebron focuses on substance, not the formal details of a corporation‘s structure - whether the government chose to structure the corporation under the default rules of general corporate law or to opt out and organize it differently. It cannot be that government can evade the most solemn obligations imposed in the Constitution by simply resorting to the corporate form prescribed by a state‘s general corporate law. See Lebron, 513 U.S. at 397. Second, Richmond Transit‘s proposed interpretation of the phrase “special law” - a law providing detailed rules for the corporation - is inconsistent with the actual meaning of “special law.” That a law is detailed, providing specific rules for the corporation, does not make it “special.”7 A corporation created by such a law would be a “special” corporation (i.e., “of a distinct or particular kind or character“), since its structure would be unique from other corporations. But that does not mean that the law creating it would be “special.”
Instead, we conclude that “created by special law” means something simpler than Richmond Transit suggests: The government must form the corporation under a particular legal grant of authority. In other words, the incorporation of the entity must be authorized by a law “having a specific or particular function” or “purpose,” under which the corporation is formed. In that sense, “special” operates simply to clarify that Lebron does not apply to all corporations, even though almost all corporations are created by a state‘s general corporate law in a technical
Language in Lebron makes this clear. The Court describes government-created and -controlled corporations as those where the government “has specifically created that corporation for the furtherance of governmental objectives, and not merely holds some shares but controls the operation of the corporation through its appointees.” 513 U.S. at 399 (emphasis added).8 Thus, the key is specific government creation. When a law authorizes government actors to incorporate entities for the government‘s purposes, and the actor forms a corporation under that authority, “the Government creates a corporation by special law.” Id. at 400.
Here, Virginia authorized Richmond to “acquire, operate, lease, or otherwise provide for the operation of a public transportation system.” Act of March 15, 1973, ch. 348, 1973 Va. Acts at 476 (emphasis added). This empowered Richmond to incorporate a public-transit corporation, which it did by specifically creating Richmond Transit in its April 1973 resolution. That resolution expressly authorized a group of “incorporators” to create the “Greater Richmond Transit Company . . . for the purpose of providing mass transportation service as a public service corporation,” and empowered Richmond‘s attorney to “do all other necessary things to bring such corporation into being.” Richmond Council Res. 73-R44-45. When the incorporators acted to form Richmond Transit, they were doing so not as private citizens or as ministerial approvers of a private corporation, but as agents of the state, acting under Virginia‘s statutory grant of authority as delegated to them by Richmond. Richmond Transit therefore owes its existence to two “special laws” of the state9 that authorized its creation; that it relies on general Virginia corporate law for its internal structure is irrelevant.
In Philips, we lacked evidence that Pitt County had expressly authorized the creation of the hospital corporation. Instead, we described the hоspital corporation as having been “created in 1953, presumably at the instance of Pitt County, under the general nonprofit incorporation statutes of North Carolina.” Id. First, as conveyed by the word “presumably,” we were unsure of how much Pitt County was involved with the corporation‘s formation. And we presumed only that the hospital corporation was created “at the instance of” Pitt County (i.e., “at the urging or suggestion of” Pitt County, Instance, Random House Webster‘s College Dictionary (2d revised ed. 2000)), not by government designees acting under a law authorizing its formation.
In summary, Richmond Transit owes its existence to particularized laws authorizing Richmond to incorporate it. So it was created by “special law” under Lebron.
2. Creation for the Furtherance of Governmental Objectives
Having found Richmond Transit was created by “special law,” we next ask if it was created to further governmental objectives. While some cases might present difficult questions of what counts as a “governmental objective,” this case does not. Virginia‘s original statutory grant authorized Richmond to “provide for the operation of a public transportation system,” Act of March 15, 1973, ch. 348, 1973 Va. Acts at 476, and Richmond‘s enacting resolution makes plain that “the corporation shall be organized for the purpose of providing mass transportation service as a public service corporation,” Richmond Council Res. 73-R44-45. And we know from Lebron that public transportation is a governmental objective. See 513 U.S. at 383-84, 400. So Richmond Transit was created to further governmental objectives.10
3. Government Appointment of Directors
Richmond Transit also satisfies the final aspect of Lebron - that the government “retains for itself permanent authority to appoint a majority of the directors
Richmond Transit challenges this conclusion by claiming that the directors are not “policymakers,” pointing to language from Lebron that the government must exercise control “not as a creditor but as a policymaker.” 513 U.S. at 399. That language in Lebron distinguished Amtrak from Conrail, a company in which the government temporarily appointed a majority of board members. Id. The Court noted that the government assumed control of Conrail only temporarily to ensure that it would repay obligations it owed to the United States. Id. The government-appointed board members fulfilled only that purpose, and their voting power would cease аfter enough of that debt was repaid. Id. This is not the role that Richmond and Chesterfield County have in the operation of Richmond Transit. Under Richmond Transit‘s bylaws, the board members appointed by the two government entities exercise, directly or indirectly, “[a]ll powers of the corporation” and manage all “business and affairs of the corporation.” J.A. 490; accord
Richmond Transit also relies extensively on language from Philips about control of the corporation, suggesting that the third Lebron element is satisfied only if government actors directed the policy at issue. But Philips did not consider control in the context of the Lebron test. Its discussion of control related to the distinct “entwinement” and “close nexus” state action inquiries. Philips, 572 F.3d at 182-84. Philips‘s discussion of Lebron occurred in a separate section of the opinion, and it did not address the control element. See id. at 185-86. And adopting Richmond Transit‘s position would directly contradict Lebron, where just as here, the challenged rejection of the advertisement came from ostensibly private employees. See 513 U.S. at 377. Indeed, the point of Lebron is to determine whether these ostensibly private decisionmakers are, for
Because all three elements of the Lebron tеst are satisfied, Richmond Transit is a part of the government for constitutional purposes and acts under the color of state law for purposes of
B. Violation of Constitutional Rights
We next turn to whether Richmond Transit has violated White Coat‘s constitutional right of free speech. White Coat asserts Richmond Transit‘s political-advertising ban violates its First Amendment rights as an unreasonable prohibition of speech.
The First Amendment prohibits laws “abridging the freedom of speech.”
Courts have identified several types of such government-owned forums with differing degrees of free-speech protection. “Traditional public forums” are “‘public places’ historically associated with the free exercise of expressive activities, such as streets, sidewalks, and parks,” and governments have limited leeway to restrict speech in such forums. United States v. Grace, 461 U.S. 171, 177, 180 (1983). The government may designate other property - lacking that historical association with free expression - as a public forum by opening the property for expressive activity. Int‘l Soc‘y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992). These “designated public forums” - which include, for example, a government-owned auditorium - follow the same rules as traditional public forums. See id.; Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 555 (1975). But the third category is the one relevant here: “nonpublic forums.” “Public property which is not by tradition or designation a forum for public communication” is a nonpublic forum, where the government has wider latitude to limit speech. Perry Educ. Ass‘n v. Perry Local Educators’ Ass‘n, 460 U.S. 37, 46 (1983).
Ass‘n v. Perry Loc. Educators’ Ass ‘n, 460 U.S. 37, 46 (1983). Speech limitations in these nonpublic forums “must survive only a much more limited review“—they only need to be reasonable and viewpoint-neutral. Int‘l Soc‘y for Krishna Consciousness, 505 U.S. at 679.13
Bus advertising
Distinguishing between nonpublic and designated public forums requires examining both the expressed policy of the government and the “nature of the property and its compatibility with expressive activity.” Cornelius, 473 U.S. at 802. The government creates a designated public forum “only by intentionally opening a nontraditional forum for public discourse.” Id. Thus, if Richmond Transit has not intentionally opened up the advertising space on its buses to public discourse, that advertising space is a nonpublic forum.
Richmond Transit‘s expressed policy is not to open its advertising space for the discussion of public issues, and paid bus advertisements are not particularly compatible with the free flow of ideas. Thus, as the Supreme Court and our sister circuits have concluded, transit advertising space is a nonpublic forum. See Lehman, 418 U.S. at 301–02 (plurality opinion) (holding that transit advertising was not a public forum); Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 576 U.S. 200, 218 (2015) (characterizing Lehman as holding “the advertising space on city buses to be a nonpublic forum“); see also Archdiocese of Wash. v. Wash. Metro. Area Transit Auth., 897 F.3d 314, 322–23 (D.C. Cir. 2018); Children of the Rosary v. City of Phoenix, 154 F.3d 972, 977–78 (9th Cir. 1998).14
So we turn to whether Richmond Transit‘s policy meets the minimum standards applicable to nonpublic forums.
If government is to function, it must be permitted to maintain a subset of its property for certain limited uses without opening it for people to “propagandize protests or views . . . whenever and however and wherever they please.” Greer, 424 U.S. at 836 (quoting Adderley, 385 U.S. at 48). This control includes “the right to make distinctions in access on the basis of subject matter and speaker identity.” Perry Educ. Ass‘n, 460 U.S. at 49. So courts have “long recognized that the government may impose some content-based restrictions on speech in nonpublic forums, including restrictions that exclude political advocates and forms of political advocacy.” Minn. Voters All. v. Mansky, 138 S. Ct. 1876, 1885–86 (2018) (citing Lehman, 418 U.S. at 303-304).
But even in nonpublic forums, the government lacks complete freedom: any speech restrictions must still be “reasonable and not an effort to suppress expression mеrely because public officials oppose the speaker‘s view.” Perry Educ. Ass‘n, 460 U.S. at 46. So speech restrictions in nonpublic forums must be both (1) reasonable and (2) viewpoint-neutral. Child Evangelism Fellowship of Md., Inc. v. Montgomery Cnty. Pub. Schs., 457 F.3d 376, 383 (4th Cir. 2006). White Coat argues that the Richmond Transit‘s policy fails on both counts.
We therefore turn to consider whether Richmond Transit‘s prohibition is reasonable. The reasonableness of a nonpublic-forum speech restriction follows the same familiar means-ends framing with which all first-year law students are familiar. Reasonableness demands more than a rational basis for the rule: “[I]t isn‘t enough simply to establish that the regulation is rationally related to a legitimate governmental objective, as might be the case for a typical exercise of the government‘s police power.” Multimedia Publ‘g Co. of S.C., Inc. v. Greenville-Spartanburg Airport Dist., 991 F.2d 154, 159 (4th Cir. 1993). But, on the other hand, the government need not satisfy strict scrutiny: there is no “requirement that the restriction be narrowly tailored or that the Government‘s interest be compelling.” Cornelius, 473 U.S. at 808–09. So reasonableness is akin to some form of so-called intermediate scrutiny, in which the government‘s means and ends must both be “reasonable.”
White Coat does not appear to challenge Richmond Transit‘s ends, accepting there is a legitimate interest in avoiding some class of politically charged advertisements. Nor could they. In Lehman v. City of Shaker Heights, the Supreme Court faced this very issue—a city-owned public transit system prohibited “political advertising” on its vehicles. 418 U.S. at 299–300. Lehman, a candidate for state office, sought to run an advertisement, which the city denied under the policy. Id. at 299–301. Justice Blackmun‘s plurality opinion first concluded that transit advertising space is not a public forum, but part of the “commercial venture” of the transit system, a means to “provide rapid, convenient, pleasant, and inexpensive service to the commuters of Shaker Heights.” Id. at 301–303. It then concluded that the City‘s prohibition on political advertising was not “arbitrary, capricious, or invidious,” but pursued “reasonable legislative objectives advanced by the city in a proprietary capacity.” Id. at 303–04. Such a policy “minimize[d] chances of abuse, the appearance of favoritism, and the risk of imposing upon a captive audience.” Id. at 304. So the plurality concluded the restriction complied with the
The Court held that restriction was incapable of reasoned application. Id. at 1892. Without requiring narrow tailoring, the Court held “the State must be able to articulate some sensible basis for distinguishing what may come in from what must stay out.” Id. at 1888. This does not require eliminating all discretion but merely that any discretion “must be guided by objective, workable standards.” Id. at 1891. The Court reiterated its holding in Lehman that not all political speech bans in nonpublic forums wоuld be problematic—i.e., it remains a reasonable end. Id. at 1885–86. But the means Minnesota used did not pass muster: “[I]f a State wishes to set its polling places apart as areas free of partisan discord, it must employ a more discernible approach . . . .” Id.
Just as in Mansky, Richmond Transit seeks to ban all “political” ads. And just as in Mansky, Richmond Transit has no formal definition of “political,” and no written guidelines clarifying how the standard is to be applied. As the Supreme Court noted, “the word can be expansive,” covering anything “of or relating to government, a government, or the conduct of governmental affairs” or “[o]f, relating to, or dealing with the structure or affairs of government, politics, or the state.” Mansky, 138 S. Ct. at 1888 (first quoting Webster‘s Third New International Dictionary (2002); and then quoting American Heritage Dictionary (3d ed. 1996)). Faced with this broad, undefined standard and the directive to keep Richmond Transit‘s buses from becoming a forum to discuss “public issues” (whatever that might mean), employees have done their best to flesh out a reasonable test. But those attempts have fallen short.
Richmond Transit‘s actions make clear that it does not rely on the plain meaning of “political,” as it has consistently run ads that relate to the government or politics. For example, Richmond Transit ran an advertisement for the vice-presidential debate, which is certainly “relating to . . . politics.” See id. It also ran an advertisement for a pro-free- speech art exhibit. And
Instead, Pace explained that an advertisement is political if it is not “viewpoint neutral,” defined as “expressing a viewpoint and only that viewpoint.” J.A. 231. But even if we were to credit this unwritten, informal definition as authoritatively interpreting Richmond Transit‘s policy, cf. Mansky, 138 S. Ct. at 1889 (instructing that courts should consider the government‘s “authoritative constructions” of their own law (emphasis added) (quoting Forsyth Cnty. v. Nationalist Movement, 505 U.S. 123, 131 (1992))), it provides little clarity, cf. id. (observing that a “murky” construction of a policy cannоt save it from
Is it because the McDonald‘s advertisement sells a product or service, while the anti-McDonald‘s advertisement does not? This explanation would seem consistent with Richmond Transit‘s prior practice. For example, it approved an advertisement encouraging spaying and neutering of dogs from Gracie‘s Guardians, which provided spaying and neutering services. It then rejected White Coat‘s advertisement which, despite its similar topic, did not promote a particular product or service. And Richmond Transit refused an advertisement by the Physicians Committеe for Responsible Medicine asking readers to “EAT MORE CHICKPEAS!,” J.A. 294, 381, but said that poultry purveyor Chick-Fil-A would be permitted to ask riders to “Eat Mor Chikin.” But even if this commercial/non-commercial distinction fully explains Richmond Transit‘s past decisions, it is not a standard that Richmond Transit has ever identified. Indeed, our need to search out alternative rationales to justify Richmond Transit‘s decisions reveal that its policy, as it stands, does not provide a “sensible basis for distinguishing what may come in from what must stay out.” Mansky, 138 S. Ct. at 1888.
This ambiguity in the standard is compounded by the ambiguity in what it applies to. Richmond Transit may reject advertisements containing no “political” content as “political.” Under Section 14 of its advertising policy, an advertisement that “[c]ontains internet address(es) and/or telephone number(s) that direct(s) viewers” to political content are also disallowed. J.A. 159. But, according to Richmond Transit, this policy applies not only to the webpage located at a listed URL, but other pages in the same domain and other sites that are “linked” to that webpage.16
But even an advertisement that lacks “political” content and contains no URLs or phone numbers may still be rejected if Richmond Transit determines that the advertiser is a “political action group” or “political action individual.” J.A. 262–63, 322-23. This rule—that groups or people that “engage in a specific targeted policy advocacy that would be related to their one side of the political issue” cannot run any advertisements tangentially related to their political motivations—is nowhere to be found in Richmond Transit‘s advertising policy. See J.A. 263. Yet that is precisely why White Coat‘s advertisement was rejected. And the precise scope of this rule is murky. For instance, Richmond Transit suggested to White Coat that, if they partnered with a local government entity, they might be able to run their anti-dog-experimentation advertisement—despite the nature of both the advertisement itself and of their organization remaining the same.
When taken together, Richmond Transit‘s vaguely defined рolicies and even vaguer unwritten rules make it impossible for a reasonable person to identify what violates their advertising policy and what does not. And as in Mansky, the problem goes “beyond close calls or borderline or fanciful cases.” 138 S. Ct. at 1891. For instance, consider an advertisement for Walmart directing a reader to Walmart.com. A reader of Richmond Transit‘s policy would reasonably conclude that the advertisement does not violate its advertising policy. But, unknown to that reader, Richmond Transit would then scour Walmart‘s website, including pages related to the company‘s global responsibility initiatives. If that page “expresses a viewpoint and only that viewpoint” on any of an unidentified class of public issues, the advertisement would apparently be rejected. See J.A. 232. And even if Walmart then decided to omit the URL from its advertisement, it might still be rejected if Richmond Transit determines Walmart to be a “political action group” under its vague interpretation of that unwritten prohibition. But even now, after years of litigation trying to define Richmond Transit‘s policy, it is difficult to say for sure. That is the crux of the Mansky problem: Richmond Transit‘s advertising policy does not provide “оbjective, workable standards” by which a decisionmaker or would-be advertiser can distinguish “what may come in from what must stay out.” Mansky, 138 S. Ct. at 1888, 1891.
Perhaps sensing that it cannot prevail under Mansky, Richmond Transit argues that the case simply does not apply to public-transportation advertisements. While reasonableness is judged “in light of the purpose served by the forum,” id. at 1886 (quoting Cornelius, 473 U.S. at 806), there is no reason to believe that Mansky‘s general requirement of reasonableness somehow applies only to voting precincts. If anything, the Mansky
But both Richmond Transit and the district court appear to believe that there is conflict between Lehman and Mansky, and that expanding Mansky to transit advertisements essentially overrules Lehman. We disagree. As discussed, Lehman resolved whether a transit operator may prohibit political advertising. Mansky clarified how they may (and may not) do so. Lehman noted that the City‘s political-advertising ban had been employed with great consistency: “There was uncontradicted testimony at the trial that during the 26 years of public operation, the Shaker Heights system, pursuant to city council action, had not accepted or permitted any political or public issue advertising on its vehicles.” 418 U.S. at 300-01. This indicates that the policy was capable of reasoned application; the Court was addressing the antecedent question of whether any political-advertising ban is permissible in a nonpublic forum, answering in the affirmative. And Mansky goes out of its way to reaffirm that holding. Reasonable political speech prohibitions remain lawful: A state can ban political insignia at precincts—it just has to offer a “more discernable” standard of what a “political insignia” is than Minnesota‘s. Mansky, 138 S. Ct. at 1888, 1891–92. So too here: Richmond Transit may well be able to enact a political-advertising ban, but the ban must be capable of reasoned application. The current ban simply is not.
In reaching this conclusion, we join our two sister circuits that have considered the applicability of Mansky to similar public-transit political-advertising prohibitions. In American Freedom Defense Initiative v. Suburban Mobility Authority for Regional Transportation, 978 F.3d 481, 486 (6th Cir. 2020), the Sixth Circuit struck down a ban on “[p]olitical or political campaign advertising” by Detroit‘s public transit system. The court recognized that, based on Lehman, Detroit‘s transit system was pursuing a permissible objective in prohibiting such advertisements, but cautioned that it was still required to “adopt ‘objective, workable standards’ to achieve its permissible ends.” Id. at 494 (quoting Mansky, 138 S. Ct. at 1891). Applying Mansky, the court first found that the word “political” was not definite enough to provide a workable standard on its own, and that there was no written guidance clarifying its meaning. Id. at 494–95. The court then found that the Detroit transit system‘s definition of “political” during litigation—as advocating a viewpoint on an issue on which “factions of society have taken up positions . . . that are not in agreement“—was similarly unworkable, since it could apply to a large swath of advertisements that Detroit‘s transit system had run, such as advertisements promoting free birth control. Id. at 496. Even Michigan or Ohio State football advertisements, the court remarked, would be considered “political” under the transit system‘s definition. Id. at 497. The court also balked at an aspect of the policy which, much like that of Richmond Transit, prohibited organizations
The Third Circuit similarly struck down a prohibition on transit advertisements that “contain[ed] political messages” or addressed “political issues,” holding that Mansky “squarely resolve[d] the issues in [that] case.” Ctr. for Investigative Reporting v. Se. Pa. Transp. Auth., 975 F.3d 300, 313, 316 (3d Cir. 2020). The court observed that while Mansky did not purport to “set the outer limit of what a State may proscribe,” it also “did not limit its holding to polling locations.” Id. at 316. Applying Mansky to the prohibition before it, the court held that “the lack of structure and clear policies governing the decision-making process creates a real risk that [the advertising policy] may be arbitrarily applied,” the very concern addressed by Mansky. Id. at 316–17.17
Today, we join our sister circuits and conclude that Richmond Transit‘s policy violates the
C. Facial or As-Applied Challenge
We next turn to the question presented by White Coat‘s cross-appeal: whether Richmond Transit‘s policy is unenforceable facially or only as applied to White Coat. The line between facial and as-applied challenges goes to “the breadth of the remedy employed by the Court,” but the line has not been particularly “well defined.” Citizens United v. Fed. Election Comm‘n, 558 U.S. 310, 331 (2010). “In the
White Coat is not making an overbreadth challenge, so the sole question is whether “the [law] lacks any plainly legitimate sweep.” Id. (alteration in original). The district court appeared to believe that Lehman dictated the answer to this question, because it demonstrated that a transit company could, under some circumstances, prohibit “political” advertisements. But facial invalidity does not mean that no ban on political advertising could ever be lawful. It simply means that there is no circumstance in which this particular ban on political advertising could be lawfully applied. United States v. Salerno, 481 U.S. 739, 745 (1987) (“A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.” (emphasis added)). Thus, the fact that the Supreme Court found a similar provision cоnstitutional in Lehman is not fatal to a facial challenge. In Mansky, for example, the Court held that the Minnesota election statute was facially unconstitutional, despite acknowledging that other states’ more reasonably discernable laws banning political expression were likely constitutional. 138 S. Ct. at 1185, 1891 (“That is not to say that Minnesota has set upon an impossible task. Other States have laws proscribing displays (including apparel) in more lucid terms.“).
So while some other public-transit political-advertising bans might be lawful, that does not resolve whether the challenged provision lacks any legitimate sweep; instead, we must focus on this particular challenged prohibition. See Stevens, 559 U.S. at 474. As we have already discussed, Richmond Transit‘s policy includes more than its written prohibition on “political” advertising; it encompasses its construction of that word to prohibit advertisements that are “not viewpoint neutral” or are created by groups that “engage in a specific targeted policy advocacy that would be related to their one side of the political issue.” J.A. 231, 263. We must decide whether this particular policy, taken as a whole, possesses any legitimate sweep.
Having already concluded that the policy is not “capable of reasoned application,” it is logically unavoidable that the law lacks any legitimate swеep. If a law is “not capable” of being reasonably applied, it lacks “the ability or qualities necessary for” reasonable application, meaning it could never be reasonably applied. See Capable, Webster‘s New World College Dictionary (5th ed. 2018). Because reasonable application is a requirement of nonpublic-forum speech restrictions, a restriction that can never be reasonably applied necessarily lacks any legitimate sweep.
This conclusion is confirmed by considering what it would mean for Richmond Transit‘s policy to be unconstitutional only as applied to White Coat. An as-applied challenge is one which depends on the identity or circumstances of the plaintiff. See Richmond Med. Ctr. for Women v. Herring, 570 F.3d 165, 172–73 (4th Cir. 2009) (en banc). A facial challenge can be decided “without regard to its impact on the plaintiff asserting the facial challenge.” Educ. Media Co. at Va. Tech, Inc. v. Swecker, 602 F.3d 583, 588 (4th Cir. 2010). If we were to conclude that the law is unconstitutional only as applied to White Coat, that would reflect that White Coat‘s particular circumstances are somehow relevant to our decision. Yet our conclusion that Richmond Transit‘s policy is incapable of rеasoned application does not depend on White Coat‘s identity or the advertisement it wished to run; it depends on the vagueness and imprecision of Richmond Transit‘s policy in a vacuum, so the policy is facially unconstitutional.
A hypothetical drives the point home. Imagine another would-be advertiser called Black Jacket. Black Jacket tries to run an advertisement with Richmond Transit but is rejected under its political-advertising policy. Black Jacket then sues Richmond Transit. No matter what advertisement they sought to run, Black Jacket could make precisely the same argument White Coat did here: Richmond Transit‘s policy is vague, inconsistently enforced, and otherwise not “capable of reasoned application.” And they would prevail, for exactly the same reason White Coat did here: Richmond Transit‘s policy provides no clear guidelines on what is or is not prohibited. The only way Richmond Transit can legitimately employ its political advertising policy moving forward is to modify it in some way—to make it more clear, less discretionary, and more reasonable. But the policy as it currently exists is unreasonable and unconstitutional as applied to every would-be advertiser, so it is facially invalid.
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While transit companies may prohibit political advertising, they must do so by enacting a neutral policy capable of reasoned application. Otherwise, such a prohibition abridges would-be advertisers’ freedom of speech and is facially unconstitutional under the
AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED.
Notes
- “of a distinct or particular kind or character”
- “pertaining or peculiar to a particular person, thing, instance, etc.: distinctive”
- “having a specific or particular function, purpose, etc.”
- “distinguished from what is ordinary or usual”
- “extraordinary; exceptional”
- “particularly valued”