Policy Excluding Transit Ads That Are “Political,” “Controversial, Offensive, Objectionable, or in Poor Taste” Violates First Amendment

PETA’s claim under the First Amendment standard for speech in nonpublic forums was evaluated by the court. This is very similar to the First Amendment standard that applies to speech in limited public forums. The Court did not consider whether it was necessary for Shore Transit to decide at this point whether its advertising space is public or nonpublic because PETA’s claims were denied under the less stringent standard that applies to nonpublic forums. And it concluded that this standard—that any restrictions on such ads must be reasonable and viewpoint-neutral—wasn’t met here:

The parties are not in agreement on two Supreme Court cases. City of Shaker Heights v. Lehman (1974) Minnesota Voters Alliance v. Mansky (2018). The cases are explained in greater detail.

LehmanThe Supreme Court reviewed “whether a municipality that operates a public transit system and offers advertising space on cars for sale is allowed to accept political advertising for a candidate for office under the First and Fourteenth Amendments.” A political candidate, the petitioner, claimed that car cards were a “public forum” protected under the First Amendment and Shaker Heights had to be displayed his campaign advertisement. Uncontradicted testimony was also offered at trial [indicated] that during the 26 years of public operation, the Shaker Heights system … had not accepted or permitted any political or public issue advertisement on its vehicles.”  …

ManskyPetitioners challenged the Minnesota law that forbade certain clothing in polling stations. It was banned. Inter aliaAnything that is a “political badge”, a political button or any other political insignia. To provide additional guidance, a policy was created that provided specific examples of clothing falling under the ban.[a]Any item including the name or affiliation of a Minnesota political party such as the Republican [Democratic–Farmer–Labor]”; “[a]”no item that includes the name of any candidate in an election.”;[a]”[i]”Ssue-oriented material intended to influence or affect voting.”[m]Promoting an identifiable group of political views.

Supreme Court ruled that polling places were nonpublic forums and that speech bans must be reasonable and viewpoint neutral. Although it could not find any basis to disapprove Minnesota’s ruling that advocacy forms should be banned from the polling places, the Court said that Minnesota was “not drawing.”[n]A reasonable line.” According to the Court, “the State must be capable of articulating some sensible basis to distinguish what may come into and what must remain out.” The Court also noted that “the State must have the ability to articulate some rational basis for distinguishing the two.” “The unmoored usage of the term “political”, in Minnesota law, and the haphazard interpretations provided by the State in official guidance or representations. [the]Minnesota’s restriction will fail this forgiving test if it is ruled in favor of the Court. The government’s discretion must be guided by “objective, practical standards.” A judge in an election may be influenced by his own political views about what is ‘political’.

The Court stated that the definition of “political”, while imprecise, could also be used in “expansive” terms and found the extra guidance not helpful. The Court found that the first three examples—items “including the name of a political party in Minnesota”; “including the name of a candidate at any election”; or “in support of or opposition to a ballot question at any election”—were “clear enough.” However, the final two—”[i]”Sue oriented material intended to influence or affect voting” and[m]aterial promoting a group with recognizable political views”—were unclear and did not provide voters with adequate guidance as to what items could or could not be worn. Id.If one candidate had raised concerns about military aid or funding for veterans, would a “Support Our Troops” shirt be prohibited? How about a # MeToo shirt? This refers to the movement that aims to make sexual harassment and assault more visible ?”).. Minnesota was constitutionally allowed to remove political messages from polling stations.[d]It did not support its noble intentions by a law that could be applied rationally.”

Mansky is best read to refine—rather than abrogate—Lehman.In these two instances, the government can seek to exempt political advocacy from a forum that is not public. But, to do so, the government must offer a “sensible base” that allows for separation of what might come in and which must remain out. …

PETA is able to claim that the Defendants advertising restrictions are unworkable and unreasonable. They are not “objective” or “workable”. Assuming that Shore Transit’s advertising space is a nonpublic forum, Defendants’ desire to limit certain content within its transit system—including advertisements that are “political” in nature—may be reasonable.

However, it was alleged that the ban on advertising which is “political”, “controversial”, offensive, objectionable, and in poor taste” does not give a basis to distinguish what might come in and what must be kept out. In fact, “political,” is exactly the term in question. Mansky, and the additional terms—”controversial, offensive, objectionable, or in poor taste”—provide no additional limiting guidance. Even though Defendants assert that it’s not clear that the prohibitions on advertising could be used in an arbitrary manner, the lack of clarity is what permits haphazard applications.

Arguments of the defendants Lehmancompels Court to rule that advertising prohibitions are constitutional. Mansky are unavailing. However LehmanAlthough it is similar to the case before, this Court does not have to recognize as constitutional any public transit ban that prohibits political advertising. Further, LehmanThe decision was based on a documented factual record that indicated that during the 26-years of public operation, [the transit system]It had never accepted or allowed any political or public-issue advertisement on its vehicles.” and there was no evidence that it did not. There is no such robust factual record currently before the Court, and the Court therefore cannot make any conclusions regarding the types of advertisements Defendants generally permitted, nor whether Defendants have arbitrarily enforced the advertising prohibitions….

The Defendants claim that PETA’s advertisements do not explicitly endorse a candidate, but they still “clearly involve a political agenda” because they use inherently political language. It is obvious that an endorsement for a candidate is clearly political, but it isn’t so obvious that “Close slaughterhouses: Save workers, families and the animals” is inherently political, as Defendants argue. The difficulty in understanding the term “political” is evident by this example. It is difficult to understand how an entity that is charged with eliminating “political speech” could make this a principled decision. Advertisers may not be able to determine which topics are included in the umbrella.

Because the criteria contained in Defendants’ policy are insufficient to ensure principled, consistent application, PETA has sufficiently pled that Defendants’ advertising prohibitions are unreasonable….

As alleged, the advertising prohibitions an not only unreasonable, they are also viewpoint discriminatory…. [I]n both public and nonpublic forums, “a policy … that does not provide sufficient criteria to prevent viewpoint discrimination … generally will not survive constitutional scrutiny.” Viewpoint neutrality also requires that the government not only refrains from explicitly discriminating against viewpoints, but that adequate safeguards are provided. ProtectForbidding the inappropriate exclusion of views

There are two Supreme Court cases that provide relevant guidance about the nature of viewpoint discrimination. In one case, the Supreme Court struck down the Lanham Act’s prohibition on federal registration of trademarks that ” ‘disparage … or bring … into contemp[t]Discredit or denigrate any “persons, alive or deceased”. ” Matal v. Tam. According to the Court, this clause against disaragement was discriminatory in its viewpoint because it “accompanies a view of harassment.”[g]Iving offense is a point of view.” Id. (Alito, J., opinion); Also see id.“The law reflects that the government disapproves of some messages it considers offensive. This is the essence .”). viewpoint discrimination. Because the Lanham Act prohibited “immoral and scandalous” trademarks, the Supreme Court in the second case ruled against it. This was similar to what the Court had thrown out in Matal“It also disfavors some ideas.” Iancu v. Brunetti (2019). (2019).[ted]Registering marks that promote society’s morality and sense of rectitude is permissible, but it is not permitted for marks that ridicule these ideas.” Impermissible “distinguishe[d]Between two opposing sets of ideas.

For this Court to say that words such as “objectionable”, or “in bad taste,” can withstand constitutional scrutiny would be contrary to common sense. Terms like “scandalous”, or “immoral,” however, is a stretch of the Court’s good judgment. Further, it is difficult to see how a policy that provides that “Shore Transit … reserves the right to reject any advertising that it determines to be controversial, offensive, objectionable or in poor taste,” without any additional guidance, “provide[s]You should have adequate protections Protectagainst improper exclusions of viewpoints By its terms, application of the policy is contingent on Defendants’ own assessment of what may be offensive—providing ample opportunity for Defendants to improperly exclude speech on the basis of viewpoint. The policy also does not require advertisers to be rejected by Defendants, but it reserves Shore Transit the right to.

{It’s not certain whether “political”, as used in the title, can be considered viewpoint discriminatory. A few courts have ruled that this term isn’t facially discriminatory because it prohibits all “political speech” but not only certain kinds of political speech. But even an impartial law, it can be used in discriminatory ways. That said, because the Court finds that the ban on “political” advertisements is unreasonable as formulated, and because the remaining constitutionally deficient language does nothing to cure the policy in its entirety, the Court need not conclusively determine whether it is also viewpoint discriminatory.}

Defendants point out the special nature of advertising space within public transit. Accordingly, the First Amendment allows for a prohibition to be placed in such a way that it is permissible. As the Fourth Circuit has emphasized, however, it is not possible to ban advertising space in public transit.[t]The ban on discrimination based on point of view is an ongoing principle.”

While the Court is certainly sympathetic that Defendants may have an interest in limiting graphic or gory imagery on its buses, the manner in which Defendants allegedly have done so appears to be neither viewpoint neutral nor reasonable….

However, the court was unable to decide whether or not restrictions on grisly images, of animals, fetuses or other, might be allowed if well crafted. Gritty Speech (Cornell L. Rev. 2015).