The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Policy Excluding Transit Ads That Are "Political," "Controversial, Offensive, Objectionable, or in Poor Taste" Violates First Amendment
From PETA v. Shore Transit, decided last week by Chief Judge James Bredar (D. Md.):
On May 12, 2020, PETA submitted two proposed advertisements to Shore Transit [a public transit agency] …. Both included the text "No one needs to kill to eat. Close the slaughterhouses: Save the workers, their families, and the animals." One has the word "kill" superimposed on a bloody cleaver; the other includes an image of a child holding a chicken…. [Shore Transit responded]: "After considerable consideration, we will decline the PETA ads. We find them too offensive for our market and political in nature." …
The court evaluated PETA's claims under the First Amendment standard applicable to speech in a nonpublic forum, which is pretty much the same as that applicable to speech in a limited public forum. ("Because PETA's claims survive dismissal under the more lenient standard applicable to a nonpublic forum, the Court does not find it necessary at this stage to conclusively determine whether Shore Transit's advertising space is a public or nonpublic forum.") And it concluded that this standard—that any restrictions on such ads must be reasonable and viewpoint-neutral—wasn't met here:
As an initial matter, the parties disagree on the applicability of two Supreme Court decisions, Lehman v. City of Shaker Heights (1974) and Minnesota Voters Alliance v. Mansky (2018), to this case. As described more fully below, read together, these cases explain that, while the government may impose content-based restrictions on political advocacy in a nonpublic forum, it may not do so without providing objective and workable standards.
In Lehman, the Supreme Court considered "whether a city which operates a public rapid transit system and sells advertising space for car cards on its vehicles is required by the First and Fourteenth Amendments to accept paid political advertising on behalf of a candidate for public office." The petitioner, a political candidate, argued that the car cards constituted a "public forum protected by the First Amendment" and that the city of Shaker Heights was therefore required under the First Amendment to display his campaign advertisement. Further, "uncontradicted testimony at the 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." …
In Mansky, petitioners challenged a Minnesota statute that prohibited certain apparel in polling places. The statute prohibited, inter alia, any "political badge, political button, or other political insignia." A policy, which was issued to provide further guidance, provided examples of apparel falling within the ban: "[a]ny item including the name of a political party in Minnesota, such as the Republican, [Democratic–Farmer–Labor], Independence, Green or Libertarian parties"; "[a]ny item including the name of a candidate at any election"; "[a]ny item in support of or opposition to a ballot question at any election"; "[i]ssue oriented material designed to influence or impact voting"; and "[m]aterial promoting a group with recognizable political views."
The Supreme Court concluded that the polling place was a nonpublic forum and, therefore, that any prohibitions on speech had to be viewpoint neutral and reasonable. Although the Court could find "no basis for rejecting Minnesota's determination that some forms of advocacy should be excluded from the polling place," the Court explained that the Minnesota had not "draw[n] a reasonable line." The Court explained that "the State must be able to articulate some sensible basis for distinguishing what may come in from what must stay out," and "the unmoored use of the term 'political' in the Minnesota law, combined with haphazard interpretations the State has provided in official guidance and representations to [the] Court, cause Minnesota's restriction to fail even this forgiving test." Government discretion "must be guided by objective, workable standards. Without them, an election judge's own politics may shape his views on what counts as 'political.'"
In particular, the Court explained that the term "political" was imprecise and could be "expansive" and found the additional guidance to be unhelpful. 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]ssue oriented material designed to influence or impact 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. ("Would a 'Support Our Troops' shirt be banned, if one of the candidates or parties had expressed a view on military funding or aid for veterans? What about a '# MeToo' shirt, referencing the movement to increase awareness of sexual harassment and assault?"). In short, while Minnesota's desire to eliminate political messaging from its polling places was a constitutionally permissible goal, "Minnesota ha[d] not supported its good intentions with a law capable of reasoned application."
Mansky is best read to refine—rather than abrogate—Lehman. These two cases explain that, in a nonpublic forum, a government may seek to exclude forms of political advocacy. However, in so doing, the government must provide a "sensible basis for distinguishing what may come in from what must stay out." …
Here, PETA has sufficiently alleged that Defendants' advertising restrictions are unreasonable because they are neither "objective" nor "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, as alleged, the prohibition on advertisements that are "political," "controversial, offensive, objectionable, or in poor taste" fails to provide a "sensible basis for distinguishing what may come in from what must stay out." Indeed, the term "political" is the exact term at issue in Mansky, and the additional terms—"controversial, offensive, objectionable, or in poor taste"—provide no additional limiting guidance. While Defendants argue that there is no suggestion that the advertising prohibitions have the potential for haphazard application, it is precisely this lack of clarity that allows for haphazard application.
Defendants' arguments that Lehman compels the Court to find the advertising prohibitions to be constitutional and that this case is distinguishable from Mansky are unavailing. Although Lehman is similar to this case in some regards, it does not require this Court to accept as constitutional any public transit ban on political advertisements. Further, Lehman was decided on a developed factual record, which indicated that "during the 26 years of public operation [the transit system] had not accepted or permitted any political or public issue advertisement on its vehicles" and that there was no evidence of arbitrary, capricious, or invidious enforcement. 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….
Finally, Defendants argue that PETA's proposed advertisements "do not specifically contain an endorsement of a political candidate" but that they nonetheless "clearly implicate a political agenda, in that they contain inherently political language." While an endorsement of a political candidate is plainly "political," it is not so obvious that the statement "Close the slaughterhouses: Save the workers, their families, and the animals" is "inherently political," as Defendants suggest. This example only demonstrates the difficulty of interpreting the word "political." Given the wide variety of issues that enter the political arena at local, state, and national levels, absent further objective criteria, it is unclear how an entity charged with excluding "political" speech could do so in a principled way, or how an advertiser is to know what topics fall under this 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." Further, "viewpoint neutrality requires not just that a government refrain from explicit viewpoint discrimination, but also that it provide adequate safeguards to protect against the improper exclusion of viewpoints."
Two Supreme Court cases provide pertinent guidance on the contours 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] or disrepute' any 'persons, living or dead.' " Matal v. Tam. The Court explained that this anti-disparagement clause was viewpoint discriminatory because "[g]iving offense is a viewpoint." Id. (Alito, J., opinion); see also id. (Kennedy, J., concurring in part and concurring in judgment) ("The law thus reflects the Government's disapproval of a subset of messages it finds offensive. This is the essence of viewpoint discrimination."). In the second case, the Supreme Court struck down the Lanham Act's prohibition on "immoral or scandalous" trademarks because, like the prohibition the Court struck down in Matal, "it too disfavors certain ideas." Iancu v. Brunetti (2019). The Court found that this prohibition "permit[ted] registration of marks that champion society's sense of rectitude and morality, but not marks that denigrate those concepts." The prohibition impermissibly "distinguishe[d] between two opposed sets of ideas: those aligned with conventional moral standards and those hostile to them; those inducing societal nods of approval and those provoking offense and condemnation."
It would strain common sense for this Court to conclude that terms such as "objectionable" or "in poor taste" withstand constitutional scrutiny while terms like "scandalous" or "immoral" do not. 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] adequate safeguards to protect against the improper exclusion 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. Further, the policy does not even require Defendants to reject advertisements it deems offensive, it merely reserves Shore Transit's right to do so.
{Whether the term "political" is viewpoint discriminatory is a closer call. Some courts have determined that such a term is not facially viewpoint discriminatory, because it bans any "political" speech, not certain types of political speech. However, even a facially neutral law can be applied in a discriminatory manner. 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 note the unique nature of advertising space in public transit and argue that the extent to which Defendants' prohibition "is permissible under the First Amendment must be analyzed within the context of the forum in which it occurs." However, as the Fourth Circuit has explained, "[t]he ban on viewpoint discrimination is a constant."
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….
The court didn't have an occasion to discuss whether restrictions on gruesome images (whether of animals, fetuses, or otherwise) might be permissible if properly crafted; for more on that, see Gruesome Speech (Cornell L. Rev. 2015).
