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Free Speech

Richmond's Limits on Ads on City Buses Struck Down as Unreasonably Vague


From White Coat Waste Project v. Greater Richmond Transit Co., decided today (quite correctly, I think) by the Fourth Circuit (Judge Julius Richardson, joined by Chief Judge Roger Gregory and Judge Paul Niemeyer):

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 court concluded that Richmond Transit is a government actor; though it's formally organized as a corporation, it's a "[g]overnment-created and -controlled corporation[]" (such as, for instance, Amtrak), created by the government for a government function and run by the government: "The City of Richmond appoints half of Richmond Transit's board, with Chesterfield County appointing the other half."

The court then concluded that the ad space on Richmond Transit buses wasn't a place for the government's own speech, but rather a "nonpublic forum," so the government can constrain speech there but only through restrictions that are viewpoint-neutral and reasonable. (I should note that other courts might have said it was a "limited public forum," but in any event the rule for the two is generally the same.) And it concluded that this restriction was not reasonable:

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." 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." 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 (1974), the Supreme Court [upheld] … a city-owned public transit system['s prohibition on] "political advertising" on its vehicles….

But even a reasonable end must not be pursued by unreasonable means. In Minnesota Voters Alliance v. Mansky (2018), the Supreme Court recently held that to be reasonable, nonpublic-forum speech restrictions must be "capable of reasoned application." The Minnesota statute in Mansky prohibited political apparel in polling places. The prohibition covered not only apparel identifying a candidate in the election, but any apparel bearing a "political" insignia. Minnesota had advanced various interpretations of the restriction, but eventually settled on a definition that included "words and symbols that an objectively reasonable observer would perceive as conveying a message about the electoral choices at issue in the polling place" or symbols "promoting a group with recognizable political views about the issues confronting voters in a given election."

The Court held that restriction was incapable of reasoned application. 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." This does not require eliminating all discretion but merely that any discretion "must be guided by objective, workable standards." The Court reiterated its holding in Lehman that not all political speech bans in nonpublic forums would be problematic—i.e., it remains a reasonable end. 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 …."

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." 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." It also ran an advertisement for a pro-free-speech art exhibit. And it has indicated that advertisements of the government itself are often permitted as "public service announcements." For example, [Carrie Rose Pace, Richmond Transit's Director of Communications, who makes decisions under the policy,] said that an advertisement stating "Support our troops" would not be political if run by the United States but would be political if run by someone else. On the other hand, Richmond Transit has stated that some advertisements that do not relate to the government, such as one calling for a boycott of the NFL or McDonald's, would still be "political." So an advertisement's relatedness to the government or politics is not the standard that Richmond Transit applies.

Instead, Pace explained that an advertisement is political if it is not "viewpoint neutral," defined as "expressing a viewpoint and only that viewpoint." But even if we were to credit this unwritten, informal definition as authoritatively interpreting Richmond Transit's policy, it provides little clarity, cf. Mansky (observing that a "murky" construction of a policy cannot save it from First Amendment challenges).

What does it mean for an advertisement to express a viewpoint? Consider two hypothetical advertisements. One, issued by McDonald's, says "Eat at McDonald's." Another, issued by an animal rights group, says "Don't Eat at McDonald's." These two advertisements express opposite viewpoints on the same issue. Yet it would seem, based on Pace's responses during her deposition, that the first ad would be accepted, [Joint Appendix] 233 (stating that an advertisement to drink Canada Dry Ginger Ale would not violate the advertising policy), but the second may be rejected as political. But it is hard to discern precisely why.

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 Committee for Responsible Medicine asking readers to "EAT MORE CHICKPEAS!," 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."

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. 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. { For example, a Christian organization sought to run an advertisement that directed readers to the URL "" That webpage, which had not been fully set up yet, contained no material violating Richmond Transit's policy. But a link in the corner of that webpage directed the user to the organization's primary website. Richmond Transit rejected the advertisement as religious based on the advertised URL being "linked" to a website containing religious material.}

This detail, which is not evident from the written policy, vastly expands the scope of the political-advertising prohibition's reach: If a company wishes to include a URL for its website on an advertisement, it may be rejected if any message anywhere on its website—or other websites it links to—meets Richmond Transit's unclear definition of political.

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." 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. 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 policies 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." For instance, consider an advertisement for Walmart directing a reader to 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. 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 "objective, workable standards" by which a decisionmaker or would-be advertiser can distinguish "what may come in from what must stay out." …

Richmond Transit … appear[s] 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." 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. 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.

{Because the policy is unreasonable, we need not consider whether it is viewpoint-neutral.}

Congratulations to Matthew Strugar on the victory.