The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In Northeastern Pennsylvania Freethought Society v. County of Lackawanna Transit System, the county bus system refused to run ads for the society that said "Atheist. NEPA Freethought.org" and "Atheists. NEPA Freethought Society. NEPAfreethought.org." (An ad that omitted "Atheists" and just said "NEPA Freethought Society. Meetup.com/nepafreethoughtsociety" was allowed in 2014.)
The bus system said that the ads violated various policies:
The June 21, 2011 COLTS' Advertising Policy, which was applicable at the time of its initial rejection of plaintiff's ad, prohibited advertising "that is deemed in COLTS['] sole discretion to be derogatory to any . . . religion," or "that [is] objectionable, controversial or would generally be offensive to COLTS' ridership based solely on the discretion of COLTS." . . . COLTS' policy also prohibited ads for tobacco products, alcohol, and political candidates. . . .
On September 17, 2013, COLTS adopted a new advertising policy. The 2013 policy provides that COLTS will not accept advertisements: "that promote the existence or non-existence of a supreme deity, deities, being or beings; that address, promote, criticize or attack a religion or religions, religious beliefs or lack of religious beliefs; that directly quote or cite scriptures, religious text or texts involving religious beliefs or lack of religious beliefs; or are otherwise religious in nature."
But the society alleged that, even while the original policy was in effect, COLTS
had accepted several advertisements from religious organizations and ads later deemed to violate its policy, including ads from the following: 1. St. Mary's Byzantine Catholic Church; 2. St. Matthew's Lutheran Church; 3. Christian Women's Devotional Alliance; 4. Hope Church; 5. a School Board candidate; 6. Brewer's Outlet, a beer distributor; and 7. Old Forge Times, an online blog containing links to anti-Semitic websites. . . .
In fact, it is alleged that for at least a decade prior to January 2012 [when the Society submitted its first ad], COLTS had never rejected any advertisement. . . .
On Wednesday, a federal district court concluded that, if the facts are as the society alleged, this would be unconstitutional viewpoint discrimination.
Plaintiff has alleged sufficient facts to support a plausible claim that COLTS was rejecting its ads because it disagreed with the underlying ideology of atheism which plaintiff's speech expressed. "Viewpoint discrimination occurs when the government 'targets not subject matter, but particular views taken by speakers on a subject.'"
Plaintiff has alleged that COLTS allowed several religious groups to place ads on its properties as well as other types of ads which were in violation of its policy. Plaintiff alleges that COLTS unevenly enforced its policies and it abused its discretion by favoring certain groups, such as groups that were religious in nature, over others…. Further, plaintiff alleged that up until the time that it sought to advertise, COLTS accepted every ad that was presented to it, including ads that violated its own policies. Thus, plaintiff alleges that COLTS has permitted the display of religious advertisements recognizing certain churches and groups.
Sounds right to me; viewpoint discrimination is forbidden in a nonpublic forum, and this rule survives the Supreme Court's Walker v. Sons of Confederate Veterans decision. The court in Sons of Confederate Veterans stressed, "[T]his case does not resemble other cases in which we have identified a nonpublic forum. . . . [T]his case [is not] like [Lehman v. City of Shaker Heights], where we found the advertising space on city buses to be a nonpublic forum. See R.A.V. v. St. Paul (1992) (identifying Lehman as a case about a nonpublic forum). There, the messages were located in a context (advertising space) that is traditionally available for private speech. And the advertising space, in contrast to license plates, bore no indicia that the speech was owned or conveyed by the government."
The bus system argued that the religious group ads "do not establish inconsistent application or opening the forum to the issue of the existence or non-existence of god," because
It is not the name of the organization that created the issue. As noted earlier and in the Complaint, NEPA Freethought Society has also been permitted to run an ad indicating its name. What was not permitted is the word "Atheist," or any other discussion of the existence or non-existence of god.
Merriam-Websters' online dictionary defines "atheist" as: a person who believes that God does not exist; one who believes that there is no deity. By the very definition of the word, it raises the issue of the existence of non-existence of god. Plaintiff's argument that the word does not fall under the provisions of the policy ignores the definition of the word.
Plaintiff has not alleged any facts to establish that any other ad has been run with a message regarding the existence or non-existence of god….
But I think the bus system's argument is unsound, and the district court was right not to accept it. The names of the churches and religious groups that appeared on the ads (apparently St. Mary's Byzantine Catholic Church, St. Matthew's Lutheran Church, Christian Women's Devotional Alliance, and Hope Church) themselves "raise the issue of the existence . . . of god" as much as the word "Atheist" does. (If the policy had said that groups can include only their names, however ideologically laden the names might be, but can't include other ideological terms, then one might say that such a policy was being applied without regard to viewpoint; but that was not the bus system's stated policy.)