The opinion of the court was delivered by: BARTLE
This is a case about posters, in the Philadelphia subway and commuter rail stations, which carried the message, "WOMEN WHO CHOOSE ABORTION SUFFER MORE AND DEADLIER BREAST CANCER."
CBM is a small non-profit religious, educational, and charitable organization incorporated in Virginia. It has been engaged in a campaign over the last year and one-half to acquaint women in particular and the public generally with what it believes to be the health risks attendant to an abortion. As part of this effort, it has sought to post its message in the subway and commuter rail stations in various cities, including Baltimore, Philadelphia, and Washington.
In December, 1995 Bradley Thomas, the president of CBM, contacted SEPTA about the placement of antiabortion advertisements in SEPTA's subway and rail stations. Thomas was directed to TDI, which has a contract with SEPTA to solicit, oversee, and manage the placement of advertisements in and on SEPTA's buses, subways, trains and facilities. Under that contract TDI was prohibited from displaying "any libelous, slanderous, or obscene" material. SEPTA retained the right to approve in advance all advertising and to remove any advertisement it found to be objectionable for any reason.
After numerous phone conversations and discussions, TDI and SEPTA ultimately approved the copy for CBM's posters. They read, as noted above, "Women who choose abortion suffer more and deadlier breast cancer." The signs were graphically designed with bold white lettering on a background of black and bright red, except that the word "deadlier" was written in red. The posters also contained the following in small print: "Information: 1-800-634-2224," as well as CBM's name as the sponsoring organization. The 800 number did not connect to CBM. Instead, it belonged to an organization known as the American Rights Coalition ("ARC") located in Chattanooga, Tennessee. ARC would send callers various pamphlets explaining what it believed to be the linkage between abortion and breast cancer.
The written contract between TDI and CBM, which was for one year, was dated January 22, 1996. The contract included the amount CBM agreed to pay for the poster display and the number of posters to be installed. It also provided that if SEPTA "should deem such advertising objectionable for any reason, TDI shall have the right to terminate the contract and discontinue the service without notice."
On January 15, 1996, a week before the contract was dated, TDI placed two CBM signs in prominent locations by overhead clocks in Philadelphia's Suburban Station. Additional signs were located in 25 of the subway and commuter rail stations in Philadelphia and the surrounding suburbs.
Shortly after their installation, SEPTA and TDI required CBM to identify itself more prominently on the advertisements. CBM complied. It supplied "snipes" or large decals which TDI affixed to the posters. They contained the following language:
Christ's Bride, Ministries, Inc. (CBM) is a charitable, religious, educational, non-profit 501(c)(3) organization incorporated in Virginia. CBM, P.O. Box 22 Merrifield, VA 22116 (703) 598-2226
In early February, 1996, several weeks after the advertisements were displayed, SEPTA received a copy of a letter written by Dr. Philip Lee, Assistant Secretary of Health in the United States Department of Health and Human Services. The addressee of the letter was Mr. Lawrence Reuter, General Manager of the Washington Metropolitan Area Transit Authority, where CBM's signs had also appeared. In his correspondence, Dr. Lee asserted, "This ad is unfortunately misleading, unduly alarming, and does not accurately reflect the weight of the scientific literature." He added, "We strongly object to the ad because it appears to be based on studies that are inconclusive, biased, and poorly designed." He urged the Washington Metro system to withdraw the advertisements. Relying primarily on Dr. Lee's letter, SEPTA's General Manager, Louis Gambaccini, exercised SEPTA's contractual right and directed TDI to remove the CBM posters. TDI did so on February 16, 1996. Prior to their removal, SEPTA never made any independent study or determination as to the accuracy of CBM's message, that is, whether or not women who have an abortion will in fact "suffer more and deadlier breast cancer."
CBM had spent over $ 3,300 for the printing of the posters and had paid SEPTA slightly over $ 6,000 for the display of the posters for two months. Since the advertisements had run for only one month, SEPTA returned to CBM $ 3,043, which represented half of its payment.
Because the parties have stipulated to consolidate the preliminary injunction hearing with a trial on the merits, the court proceeds under the standard for a permanent injunction. First, the plaintiff must demonstrate that the court's exercise of equity jurisdiction is proper. Second, the plaintiff must actually succeed on the merits of its claim. Third, the plaintiff must show that the balance of the equities tips in favor of injunctive relief. Roe v. Operation Rescue, 919 F.2d 857, 867 n.8 (3d Cir. 1990). We turn first to the merits of plaintiff's claim.
As a preliminary matter, it is undisputed that SEPTA and its agent TDI are state actors for purposes of this lawsuit, and therefore are subject to First and Fourteenth Amendment constraints. See Lebron v. National Railroad Passenger Corporation, 513 U.S. 374, 115 S. Ct. 961, 972, 130 L. Ed. 2d 902 (1995). SEPTA, created in 1968 by Act of the General Assembly, operates pursuant to 74 Pa. Cons. Stat. Ann. § 1501 et seq.; see Feingold v. SEPTA, 512 Pa. 567, 517 A.2d 1270, 1275 (Pa. 1986). It "exercise[s] the public powers of the Commonwealth as an agency and instrumentality thereof." 74 Pa. Cons. Stat. Ann. § 1502. Moreover, it cannot be gainsaid that the issue of abortion is one of the most spirited subjects of current public discourse. CBM's antiabortion message is a form of political speech protected by the First Amendment.
Consequently, we must determine if a state actor may prohibit such speech and if so under what circumstances.
It is well settled that the government's ownership of property does not automatically open that property to all speech. Rather, as the Supreme Court has stated:
Even protected speech is not equally permissible in all places and at all times. Nothing in the Constitution requires the Government freely to grant access to all who wish to exercise their right to free speech on every type of Government property without regard to the nature of the property or to the disruption that might be caused by the speaker's activities.
Cornelius v. NAACP Legal Defense and Education Fund, 473 U.S. 788, 799-800, 87 L. Ed. 2d 567, ...