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Pittsburgh League of Young Voters Education Fund v. Port Authority of Allegheny County

August 14, 2008

PITTSBURGH LEAGUE OF YOUNG VOTERS EDUCATION FUND AND AMERICAN CIVIL LIBERTIES FOUNDATION OF PENNSYLVANIA, PLAINTIFFS,
v.
PORT AUTHORITY OF ALLEGHENY COUNTY AND ANTHONY J. HICKTON DIRECTOR OF SALES, DEFENDANTS.



The opinion of the court was delivered by: Mcverry, J.

OPINION AND ORDER OF COURT

Pending before the Court are the parties' cross-motions for summary judgment: MOTION FOR SUMMARY JUDGMENT filed by defendant Port Authority of Allegheny County (Document No. 48); MOTION FOR SUMMARY JUDGMENT filed by defendant Anthony J. Hickton (Document No. 50); and the MOTION FOR PARTIAL SUMMARY JUDGMENT filed by plaintiffs Pittsburgh League of Young Voters Education Fund and American Civil Liberties Foundation of Pennsylvania (Document No. 55). The Motions for Summary Judgment have been thoroughly briefed (Document Nos. 49, 51, 67, 68, 69, 70) and are ripe for disposition. The Motion for Partial Summary Judgment has also been thoroughly briefed (Document Nos. 61, 62, 72, 74) and is ripe for disposition.

The factual record has also been thoroughly developed via the DEFENDANTS JOINT CONCISE STATEMENT OF FACTS (Document No. 52), PLAINTIFFS' POSITION WITH RESPECT TO DEFENDANTS' UNDISPUTED FACTS (Document No. 65), PLAINTIFFS' CONCISE STATEMENT OF MATERIAL FACTS IN SUPPORT OF THEIR MOTION FOR PARTIAL SUMMARY JUDGMENT (Document No. 60), and the ANSWER TO PLAINTIFFS' CONCISE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF THEIR MOTION FOR PARTIAL SUMMARY JUDGMENT (Document No. 63), as well as the numerous exhibits submitted by both parties.

After an indepth consideration of the motions, the filings in support and opposition thereto, the briefs of the parties, the relevant case law, and the record as a whole, the Court finds that there is sufficient record evidence upon which a reasonable fact-finder could return a verdict for plaintiffs on their claims of viewpoint discrimination. Accordingly, the defendants' motions for summary judgment will be denied in part and granted in part. The Court also finds that the plaintiffs' claims for viewpoint discrimination cannot be resolved on summary judgment because of the existence of genuine issues of material fact. Accordingly, the plaintiffs' motion for partial summary judgment will be denied.

PROCEDURAL BACKGROUND

Plaintiffs, Pittsburgh League of Young Voters Education Fund ("Fund") and American Civil Liberties Foundation of Pennsylvania ("ACLU"), brought this lawsuit on December 8, 2006 by filing an amended complaint pursuant to 42 U.S. C. § 1983 alleging that defendants violated their rights under the First and Fourteenth Amendments to the United States Constitution by refusing to accept and display their proposed ex-offender voter-education advertisements.

Plaintiffs have filed the instant motion for partial summary judgment in which they contend that they are entitled to judgment as a matter of law on the issue of the defendants' liability because 1) Port Authority designated its bus-advertising space as a public forum, 2) Port Authority acted unreasonably and committed viewpoint discrimination by refusing to run their advertisements despite having run similar advertisements in the past, and 3) Port Authority's advertising policy is unconstitutionally vague.

Defendant Port Authority of Allegheny County ("Port Authority") has filed the instant motion for summary judgment in which it contends that it is entitled to judgment as a matter of law because 1) the advertising space on Port Authority's vehicles constitutes a non-public forum and Port Authority reasonably exercised its right to restrict political and non-commercial advertisements on its vehicles and 2) Port Authority's rejection of the advertisements was viewpoint neutral because it did not accept advertisements with contrary viewpoints.

Finally, Defendant Anthony J. Hickton ("Hickton") has filed a motion for summary judgment in which he contends that he is entitled to judgment as a matter of law for the reasons that Port Authority asserts and because he is entitled to qualified immunity since a reasonable person would not have known that rejecting the advertisements clearly violated established First Amendment law.

FACTUAL BACKGROUND

The Advertising Policy

Port Authority is a state government agency that owns and operates the public mass transportation system in Allegheny County, Pennsylvania, including buses and light rail vehicles. As part of its services, Port Authority maintains advertising space on its vehicles and property. The advertising space includes spaces for cards called "interior bus cards" above the seats and along the internal side of buses. Port Authority has space for approximately 16,000 interior bus cards, but less than 20% of the available spaces are typically in use at any given time.

During the relevant period, Port Authority had a formal Advertising Policy in place, which has been in effect since March 27, 1998. The Policy was prepared by outside legal counsel and adopted by the Port Authority Board of Directors. The Policy provides:

It shall be the policy of Port Authority of Allegheny County to accept commercial advertising for posting in and on Port Authority vehicles and other property owned or controlled by Port Authority, of its sole choosing, with the objective of maximizing revenue while maintaining standards of decency and good taste without infringing on First Amendment rights of Prospective Advertisers. Accordingly, Port Authority will not accept advertisements that are obscene, unlawful, misleading, libelous or fraudulent. Further, Port Authority will not accept advertisements that are non-commercial; that appeal to prurient interests, that are or may be offensive to riders; that glamorize or otherwise promote violence, sexual conduct, alcohol, or tobacco use; that are political in nature or contain political messages; or that are reasonably determined not to be in good taste. This policy is intended to be an objective and enforceable standard for advertising that is consistently applied. It is also Port Authority's declared intent not to allow any of its Transit Vehicles or Property to become a public forum for dissemination, debate or discussion of public issues.

Pl. Appx. 336a. At all times relevant to this case, much of the responsibility for applying the Policy rested with Anthony J. Hickton, who, as Director of Sales, was responsible for supervising the sale of Port Authority advertising space. He held that position from July 2004 until he retired on March 1, 2007. As Director, Hickton had the authority to approve or disapprove the sale of proposed advertisements on Port Authority vehicles. Hickton testified that his approval was necessary for all sales of interior bus cards, unless they were co-sponsored by Port Authority.*fn1

Hickton was not a lawyer nor did he have any type of formal legal training. He did not attend any training seminars related to the application of the Policy, Pl. Appx. 39a, nor did he have the benefit of any additional written definitions of any of the Policy's terms in any document adopted by Port Authority's Board of Directors. When Hickton initially became the Director of Sales, however, he discussed the policy with the then in-house legal counsel of Port Authority. The in-house counsel informed Hickton that an advertisement was "commercial" "[i]f there was something for sale, a price of admission or goods were being exchanged." Pl. Appx. 35a. Hickton testified that he applied that definition during his tenure as Director of Sales and had no reason to believe that the definition had changed. Pl. Appx. 36a.

When Hickton was presented with an advertisement, he would initially apply his own judgment to determine whether it satisfied the terms of the Advertising Policy. Pl. Appx. 45a, 50a. If he did not have any questions as to whether the advertisement satisfied the Policy, he had the authority to independently authorize or reject it. Pl. Appx. 37a, 132a. If Hickton had questions about an advertisement he could bring the matter to the attention of Port Authority's in-house counsel, Senior Staff Attorney Christopher J. Hess ("Hess"), who is now assistant general manager for legal and corporate services. Hess provided guidance to Hickton about the interpretation of a commercial advertisement on a number of occasions. Hickton has also sometimes encouraged prospective advertisers with questions about the interpretation of the Policy to contact Hess.

Hess testified that the term "commercial advertising" as used in the Policy was defined as "any form of advertising which either has an explicit commercial purpose or which involves the provision of a good [or] service, some form of compensation in exchange for you taking some action to receive that good [or] service or some other form of compensation, direct or indirect." Pl. Appx. 131a. He stated that he spoke to Hickton about his interpretation and required him to follow it as substantially as possible. In addition, Hess prepared a 12-page legal memorandum, dated August 15, 2005, in which he analyzed whether Port Authority could accept advertisements from government agencies without having to open its advertising space to private citizens with similar messages. Hess concluded that Port Authority could accept advertisements about the availability of government agencies' services or programs without opening up the advertising space, regardless of whether the advertisements were commercial or noncommercial in character. Hess provided a copy of the memo to Hickton and had a number of discussions with him about the substance of the memo.

Both Hickton and Hess claim that Port Authority routinely rejects advertisements that it believes violate the Policy. Port Authority, however, does not maintain any records or statistics regarding advertisements it has rejected or the basis for those rejections. Pl. Supp. Appx. 2b. Hickton asserts that Port Authority refused an advertisement from an organization named Jews for Jesus because it was non-commercial and rejected an advertisement from a candidate seeking election to Allegheny County Council because it was political in nature. Def. Appx. Ex. G.

The Ex-Offender Voting Rights Advertisements

Plaintiff Pittsburgh League of Young Voters Education Fund is the local affiliate of the national League of Young Voters Education Fund, a 501(c)(3) organization. The Fund engages in non-partisan community and civic education and voter registration and conducts numerous educational workshops for students in local high schools. It also attempts to educate people about the ways in which they can become more engaged in the political process. Plaintiff American Civil Liberties Foundation of Pennsylvania is a 501(c)(3) organization that engages in litigation, public education around voter and other civil liberties issues, and membership drives.

In late 2005, the Fund and the ACLU entered into a coalition with other organizations to undertake a project designed to inform the community that convicted felons, or "ex-offenders," have the right to vote in Pennsylvania upon their release from prison.*fn2 After members of the coalition determined that bus advertisements would be a good medium to reach ex-offenders and their families in Allegheny County, the ACLU applied for and received a grant on behalf of the coalition to pay for advertisements on Port Authority buses.

In late 2005, Lisa Krebs, who was employed by the ACLU as a community education organizer, contacted Hickton to inquire about placing paid advertisements related to their ex-offender voter-education advertisements on Port Authority buses. Hickton informed her verbally that Port Authority would not run the advertisements. Khari Mosley, who was the Fund's state director, also communicated with Hickton about the advertisements and was advised that Port Authority would not accept them. Hickton testified that he declined the advertisements because they were both non-commercial and political in nature.*fn3 Pl. Appx. 87a. Liza Krebs testified, however, that Hickton informed her that he could not run the advertisement because Port Authority only runs commercial advertising, Pl. Appx. 102a, and Khari Mosley testified that Hickton referenced the Policy's commercial versus non-commercial distinction in rejecting the advertisement.

On February 24, 2006, representatives of the ACLU sent a letter to Port Authority's Chief Executive Officer requesting that Port Authority reconsider its position and permit representatives of the coalition to purchase "public-service advertising of its campaign to educate voters regarding their voting rights on PAT buses." Def. Opp. Appx. Ex. J at 1. Hess then sent a reply letter to the ACLU's legal director, dated March 24, 2006, explaining Port Authority's refusal to place the advertisements. Id. at 3-4 Hess stated that you are aware that Port Authority's Advertising Policy prohibits advertisements that are non-commercial. . . .

. . . [T]he purpose of the ACLU's proposed advertising is explicitly non-commercial and is solely directed at education of potential voters. The obvious risk to Port Authority in accepting advertisements such as your own is that Port Authority vehicles could become a public forum and the captive audience of the riding public . . . will be subjected to advertisements that many would find offensive and improper.

Id. at 1-2. Neither Hess, Hickton, nor anyone else at Port Authority received or requested a written draft of the proposed text or graphics of the ex-offender voting rights advertisements before making his decision, but they were informed of the subject matter of the proposed advertisements.

Following Defendant's refusal to run the ex-offender voting rights advertisements, Plaintiffs used the grant money to purchase six billboard advertisements sometime in September and October of 2006. Above the logos of the Fund and the ACLU, the billboard included the text "Vote Nov. 7th. Its Your Right. For your family. For our future. Questions? 412-728-2197."

Plaintiffs then filed a complaint which alleged that Port Authority created a designated public forum for advertisements on its buses through its widespread practice of accepting and running non-commercial advertisements. They claim that the refusal of Port Authority and Anthony Hickton to run their ex-offender voting rights advertisements amounted to impermissible content-based discrimination and was not narrowly tailored to promote a compelling government interest. In the alternative, they assert that the defendants' refusal to run the advertisements despite having run similar non-commercial advertisements from other organizations was unreasonable and viewpoint discriminatory. Plaintiffs seek declaratory and injunctive relief and damages for the violation of their rights under the First and Fourteenth Amendments to the U.S. Constitution.

STANDARD OF REVIEW

Rule 56(c) of the Federal Rules of Civil Procedure reads, in pertinent part, as follows:

[Summary Judgment] shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

In interpreting Rule 56(c), the United States Supreme Court has stated:

The plain language . . . mandates entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to material fact," since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial.

Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986).

An issue of material fact is genuine only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court must view the facts in a light most favorable to the non-moving party, and the burden of establishing that no genuine issue of material fact exists rests with the movant. Celotex, 477 U.S. at 323. The "existence of disputed issues of material fact should be ascertained by resolving all inferences, doubts and issues of credibility against the moving party." Ely v. Hall's Motor Transit Co., 590 F.2d 62, 66 (3d Cir. 1978) (quoting Smith v. Pittsburgh Gage & Supply Co., 464 F.2d 870, 874 (3d Cir. 1972)). Final credibility determinations on material issues cannot be made in the context of a motion for summary judgment, nor can the district court weigh the evidence. Josey v. John R. Hollingsworth Corp., 996 F.2d 632 (3d Cir.1993); Petruzzi's IGA Supermarkets, Inc. v. Darling-Delaware Co., 998 F.2d 1224 (3d Cir.1993).

When the non-moving party will bear the burden of proof at trial, the moving party's burden can be "discharged by 'showing'-that is, pointing out to the District Court-that there is an absence of evidence to support the non-moving party's case." Celotex, 477 U.S. at 325. If the moving party has carried this burden, the burden shifts to the non-moving party, who cannot rest on the allegations of the pleadings and must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Petruzzi's IGA Supermarkets, 998 F.2d at 1230. When the non-moving party's evidence in opposition to a properly supported motion for summary judgment is "merely colorable" or "not significantly probative," the court may grant summary judgment. Anderson, 477 U.S. at 249-250.

DISCUSSION

"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 . . . ." Cornelius v. NAACP Legal Defense and Educational Fund, Inc., 473 U.S. 788, 799-800 (1985). The Supreme Court has adopted a forum analysis to determine whether a government entity must permit speech on its property whereby "the extent to which the Government can control access depends on the nature of the relevant forum." Id. at 800. Where "the property in question is either a traditional public forum or a forum designated as public by the government . . . the government's content-based restrictions on private speech must survive strict scrutiny to pass constitutional muster." Christ's Bride Ministries, Inc. v. Southeastern Pennsylvania Transp. Authority, 148 F.3d 242, 247 (3d Cir. 1998). In a nonpublic forum, however, access "can be restricted as long as the restrictions are 'reasonable and [are] not an effort to suppress expression merely because public officials oppose the speaker's view.'" Cornelius, 473 U.S. at 800 (quoting Perry Education Assn. v. Perry Local Educators. Assn., 460 U.S. 37, 46 (1983)).

Plaintiffs claim that Port Authority has created a designated public forum on its buses' for non-commercial, public issue, or educational advertisements in its advertising space by its widespread practice of running non-commercial advertisements. Defendants respond that Port Authority has consistently applied its Policy to prohibit political and non-commercial advertisements. They argue that all of advertisements that plaintiffs point to as evidence that it has opened its advertising space are either government-sponsored advertisements not subject to the forum analysis or were commercial advertisements that were in conformity with their Policy.

Government Speech

Before delving into the forum analysis, the Court must address the defendants' contentions that any advertisements sponsored by Port Authority or another government agency should not factor into the forum analysis because they are government speech. When the government speaks "different principles" apply than those involving government regulation of private speech. Rosenberger v. Rector and Visitors of University of Virginia, 515 U.S. 819, 834 (1995). When the government "is the speaker or when it enlists private entities to convey its own message" it is entitled to make "content-based choices," id. at 833, and may discriminate based on viewpoint. Planned Parenthood of South Carolina Inc. v. Rose, 361 F.3d 786, 792 (4th Cir. 2004).

The natural first step in a case involving a state's action in refusing or authorizing a particular message is to determine whether the message is government speech or whether it falls "[i]n the realm of private speech or expression [where] government regulation may not favor one speaker over another." Rosenberger, 515 U.S. at 834. If, when authorizing a certain message the state actor adopts it as its own, then it is exercising its authority to "promote its policies and positions either through its own officials or through its agents." Sons of Confederate Veterans, Inc. v. Commissioner of the Virginia Dept. of Motor Vehicles, 288 F.3d 610, 617 (4th Cir. 2002).

Here defendants do not apply the government speech doctrine in its usual context by arguing that they were entitled to reject the advertisements because they were government speech. See. e.g., Arizona Life Coalition Inc. v. Stanton, 515 F.3d 956, 968 (9th Cir. 2008) (rejecting argument that License Plate Commission was entitled to deny specialty license plate because the messages on specialty license plates were government speech). Instead, defendants seek to limit the scope of their actions that will be considered in determining whether their denial of the advertisements was content or viewpoint-based.

This apparently new use of the doctrine is reasonable in this context. Plaintiffs recognize that the sponsorship of the advertisements "has little relevance to the forum analysis," Pl. Resp. to Def. M.S.J. at 12, if they are Port Authority's speech. Although plaintiffs do not claim that Port Authority violated their constitutional rights by sponsoring other non-commercial advertisements, they claim that the sponsored advertisements show that defendants had a pattern of violating the Policy. But, the sponsorship did not violate the Policy and the Court should not consider it in the forum analysis if it was an exercise of Port Authority's right to "promote particular messages." Griffin v. Department of Veterans Affairs, 274 F.3d 818, 822 (4th Cir. 2001). Thus, the Court will determine whether by sponsoring or co-sponsoring non-commercial advertisements Port Authority adopted them as its own speech. Id. at 963.

The Four-Factor Test

The Court must determine the proper standard for distinguishing between government and private speech. The government speech doctrine is still in the formative stages. The doctrine had its origin in Rust v. Sullivan in which the Supreme Court upheld a provision allocating funds to doctors for family planning counseling but forbidding them from discussing abortion with the program's patients. 500 U.S. 173 (1991). The Court explained that, "the Government has not discriminated on the basis of viewpoint; it has merely chosen to fund one activity to the exclusion of another." Id. at 174-75. Although the Court did not rely explicitly on the rationale that the doctors' actions were government speech, the Court has consistently interpreted Rust on that basis in later cases. Legal Services Corp. v. Velazquez, 531 U.S. 533, 541 (2001).

Following Rust, the Court discussed the doctrine in dicta in a number of cases, but did not provide a clear standard for determining what constitutes government speech. Wells v. City and County of Denver, 257 F.3d 1132, 1140 (10th Cir. 2001); Sons of Confederate Veterans, Inc., 288 F.3d at 617. To distinguish between government and private speech the Fourth, Eighth, and Tenth Circuits adopted a nonexhaustive four-factor test. See Arizona Life Coalition Inc. v. Stanton, 515 F.3d 956, 964 (9th Cir. 2008). The factors are:

(1) the central "purpose" of the program in which the speech in question occurs; (2) the degree of "editorial control" exercised by the government or private entities over the content of the speech; (3) the identity of the "literal speaker"; and (4) whether the government or the private entity bears the "ultimate responsibility" for the content of the speech, in analyzing circumstances where both government and a private entity are claimed to be speaking.

Sons of Confederate Veterans, Inc., 288 F.3d at 618 (quoting Wells, 257 F.3d at 1141).

In 2005, after the four-factor test had been developed, the Supreme Court addressed the government speech doctrine in the context of a compelled-subsidy challenge to a federal program. Johanns v. Livestock Marketing Ass'n, 544 U.S. 550, 553 (2005). The program required beef producers to fund generic promotional messages supporting the beef industry through a tax on the sale or importation of cattle. Id. Johanns centered on the government versus private speech distinction because under the First Amendment the government can compel individuals to subsidize government speech, but not private speech. Id. at 559. The Court held that the promotional campaign was government speech even though non-governmental entities helped to design it because the campaign was "effectively controlled by the Federal Government itself." Id. at 560.

First, the Court reasoned that the message of the campaign was "established by the Federal Government" because "Congress has directed the implementation of a 'coordinated program' of promotion," and "Congress and the Secretary have also specified, in general terms, what the promotional campaigns shall contain." Id. at 560-61. Second, the message was subject to a high degree of governmental control because "the Secretary exercises final approval authority over every word used in the promotional campaign." Id. at 562. The Court concluded that, "[w]hen . . . the government sets the overall message to be communicated and approves every word that is disseminated, it is not precluded from relying on the government-speech doctrine merely because it solicits assistance from non-governmental sources in developing specific messages." Id.

The Supreme Court did not reference the four-factor test used by the Fourth, Eighth, and Tenth Circuits in Johanns. In 2006, the Sixth Circuit concluded that Johanns effectively negated the four-factor test. American Civil Liberties Union of Tennessee v. Bredesen, 441 F.3d 370, 375 (6th Cir. 2006). The Bredesen Court relied on Johanns to uphold the Tennessee legislature's adoption of a law approving the issuance of a "Choose Life" specialty license plate while declining to make available a "Pro-Choice" plate. Id. at 375. The law authorized the issuance of a license plate with a "Choose Life" logo that was to be designed in consultation with a representative of a private organization. Id. at 372. Tennessee retained a veto over the plate design. Id. at 376. The Court held that "Johanns requires the court to conclude that 'Choose Life' is Tennessee's message because the [statute] determines the overarching message and Tennessee approves every word on such plates." Id. at 375. In reaching its decision, the Court rejected the reasoning of a Fourth Circuit case that invalidated a virtually identical "Choose Life" license plate law while holding that the speech on the plate was a hybrid of government and private speech. Id. at 380 (citing Rose, 361 F.3d 786). The Court rejected the reasoning of Rose in part because it believed that it was "in tension with the intervening case of Johanns" because it relied on the pre-Johanns four-factor test rather than on Johanns' "authoritative test for determining when speech may be attributed to the government for First Amendment purposes." Id.

In Arizona Life Coalition Inc. v. Stanton, the Ninth Circuit disagreed with the Bredesen Court's conclusion that the Johanns test is markedly different from the four-factor test employed by the Fourth Circuit. 515 F.3d 956, 965 (9th Cir. 2008). The Court noted that Johanns is factually distinguishable because it involved the unique compelled-speech context, but said that it could be instructive when determining whether messages disseminated under a specialty license plate statute were government speech. Id. It explained that in Johanns "the Court relied on factors similar to those set forth in the four-factor test," including "who controlled the speech, the purpose of the program, and the fact that the Secretary of Agriculture exercised final editorial control over the promotional campaign." Id. (internal citations omitted). The Court decided to "adopt the Fourth Circuit's four-factor test-supported by the Supreme Court's decision in Johanns-to determine whether messages conveyed through Arizona's special organization plate program constitute government or private speech." Id.

This Court agrees with the Ninth Circuit that the Fourth Circuit's four-factor test remains viable after Johanns and will adopt it, as informed by Johanns, as a helpful tool for distinguishing between government and private speech. See also WV Ass'n of Club Owners and Fraternal Services, Inc. v. Musgrave, 512 F. Supp. 2d 424, 433 (S.D. W.Va. 2007) ("The four-factor . . . test is consistent with the Supreme Court's subsequent decision in" Johanns.). The Court will apply the test while keeping mind that the four factors are not exhaustive or always applicable. Sons of Confederate Veterans, Inc., 288 F.3d at 619; Musgrave, 512 F. Supp. 2d at 435.

The Program

Before delving into the specifics of the four-factor test, the Court must determine the definition of Port Authority's "program" that is to be analyzed. Under the first factor of the Sons of Confederate Veterans ("SCV") test the Court examines "the central 'purpose' of the program in which the speech in question occurs." SCV, 288 F.3d at 618 (quoting Wells, 257 F.3d at 1141). In the context of the specialty licence plate cases, courts have debated whether the "program" is the particular license plate at issue, the specialty license plate program, or the state's entire license plate program. In Arizona Life Coalition, for example, the Ninth Circuit decided to analyze the purpose of the specialty license plate program rather than Arizona's entire license plate program because the specialty licence plate program had a more specific purpose than Arizona's general license plate program. 515 F.3d at 965 ("By allowing organizations to obtain specialty license plates with their logo and motto, Arizona is providing a forum in which philanthropic organizations can exercise their First Amendment rights in the hopes of raising money to support their cause." (internal citation omitted)). In Bredesen, on the other hand, the majority simply analyzed the specific "Choose Life" specialty license plate at issue. 441 F.3d at 381 (Martin, J., dissenting) (criticizing the majority for examining the specific "Choose Life" license plate rather than the entire specialty license plate program).

Here, a similar question arises as to whether this Court should examine each sponsored advertisement individually or view all of the sponsored advertisements as one program. The most reasonable approach is to divide the advertisements into the three categories or programs adopted by the parties during their briefing and the hearing on the motions: 1) those that were co-sponsored by Port Authority 2); those that were cosponsored by another state agency; and 3) those that were exclusively sponsored by Port Authority. This division recognizes the unique characteristics of the three categories and is supported by the parties' reliance on these categories. Analyzing each advertisement individually would create a laborious and unworkable test that does not properly ...


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