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

July 30, 2009

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: Terrence F. McVerry United States District Court Judge

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Plaintiffs, Pittsburgh League of Young Voters Education Fund and American Civil Liberties Foundation of Pennsylvania, commenced this lawsuit by the filing of a Complaint pursuant to 42 U.S.C. § 1983 against Defendants, Port Authority of Allegheny County ("Port Authority") and Anthony J. Hickton ("Hickton"), Director of Sales, in which Plaintiffs allege 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 advertisement. Plaintiffs seek injunctive relief as well as monetary damages.

On December 8, 9, 10, 11, and 18, 2008, the Court conducted a non-jury trial and heard witness testimony and evidence. All parties were represented by counsel who presented and argued the issues skillfully and effectively. The transcript of the proceedings was filed on January 12, 2009. Proposed Findings and Fact and Conclusions were to be filed on or before March 13, 2009, and responses in opposition were to be filed on or before March 27, 2009, which were timely filed by all parties. The matter is now ripe for disposition.

Based on the testimony and evidence presented during trial and the applicable law, the Court enters the following Findings of Fact and Conclusions of Law pursuant to Federal Rule of Civil Procedure 52(a). For the reasons that follow, the Court finds in favor of Plaintiffs, Pittsburgh League of Young Voters Education Fund and American Civil Liberties Foundation of Pennsylvania.

FINDINGS OF FACT

Parties

1. Pittsburgh League of Young Voters Education Fund ("League") is a nonprofit organization under Section 501(c)(3) of the Internal Revenue Code. The League is a local affiliate of the national organization League of Young Voters Education Fund, which is not a Section 501(c)(3) organization.

2. The League's "core program is to build permanent comprehensive youth engagement and leadership development organizations in six states," including Pennsylvania. "Each local [League of Young Voters Education Fund] affiliate conducts a comprehensive year-round program which includes outreach, leadership development, training, arts-based organizing, alliance building and non-partisan voter engagement. . . ." Pl. Ex. 30.

3. American Civil Liberties Foundation of Pennsylvania (the "ACLU")*fn1 is a non-profit organization under 501(c)(3) of the Internal Revenue Code. Its mission is to defend and enforce constitutional rights. In addition to providing legal services to people who believe their rights have been violated, the ACLU provides public education, speakers, advocacy, and other services around issues of civil rights and liberties. The ACLU is affiliated with the American Civil Liberties Union, a separate corporation that is not a Section 501(c)(3) organization.

4. The ACLU has litigated a number of cases which involve women's rights, young people's rights, voting rights, and housing rights. The ACLU does not charge clients for any of its services, including legal representation.

5. The ACLU sometimes provides direct legal representation in matters for which, as a prevailing party, it may by statute be entitled to an award of fees and costs against the opposing party. An award of fees and costs is routinely sought in fee generating cases.

6. Whether an award of fees and costs may be available, however, does not factor into the decision of whether the ACLU will provide direct legal representation. In matters for which no award of fees or costs is available, the ACLU is neither compensated for its work nor reimbursed for its expenses.

7. Some of the ACLU's litigation is performed by private counsel who represent ACLU clients as "cooperating lawyers." Should a cooperating lawyer obtain an award of attorney's fees, a portion of that award is shared with the ACLU.

8. The Port Authority of Allegheny County ("Port Authority") is a governmental agency created pursuant to state law and it owns and operates the bus and rail mass transportation system in Allegheny County.

9. Anthony J. Hickton ("Hickton") held the position of Director of Sales for Port Authority from July 2004 until he retired on March 1, 2007. As Director of Sales, Hickton had the authority to approve or disapprove the sale of proposed advertisements appearing on and in Port Authority vehicles.

Advertising on Port Authority Vehicles

10. The advertising revenue of Port Authority, which totals approximately $1.5 million per year, is less than one-half of one percent of Port Authority's annual intake revenues of approximately $350 million. Two-thirds of Port Authority's intake revenues are comprised of funding received from the Commonwealth of Pennsylvania, Allegheny County, and the federal government. Port Authority also obtains additional revenue through the sale of advertising space in and on its buses and rail vehicles.

11. The Port Authority advertising space includes spaces for cards called "interior bus cards" above the seats along the upper internal side walls of its vehicles. Port Authority has space for approximately 16,000 interior bus cards, but only about 20% of the available spaces are occupied by advertisements at any given time.

12. Port Authority maintains a written formal Advertising Policy, which has been in effect since March 27, 1998. The Advertising Policy was prepared by outside legal counsel and adopted by the Port Authority Board of Directors. The Advertising Policy provides as follows:

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. (Advertising Policy, emphasis added.)

13. The Advertising Policy is devoid of definitions for any of its operative terms and Port Authority has never adopted guidelines which specifically define policy terms such as "commercial," "non-commercial," "offensive," "political in nature," or "political messages."

14. Since adopting the Advertising Policy, Port Authority has not accepted any political advertisements on its vehicles.

15. The Advertising Policy pertains to advertisements that Port Authority accepts from third parties, and does not preclude Port Authority from placing its own messages on Port Authority vehicles. See Pl. Exh. 48; and Def. Exh. 53.

16. Prior to January 2004, Port Authority did not have its own advertising department, but rather retained outside advertising vendors who specialized in selling public transportation advertising.

17. Transportation Displays, Inc., and its successor Viacom Outdoor ("Viacom") originally served as the outside advertising vendor for Port Authority. In July 2003, Obie Media replaced Viacom as the outside advertising vendor for Port Authority.

18. As the Manager of Sales, Hickton served as the Port Authority liaison with its outside advertising vendors. At all times, however, Port Authority retained ultimate control of its vehicle advertising and Hickton reviewed each advertisement prior to its installation.

19. In January 2004, Port Authority elected to bring the advertising in-house on a permanent basis. Hickton was thereafter promoted to Director of Sales and hired staff to assist in administering the advertising program. Prior to his promotion, Hickton had been a salaried employee. Upon becoming Director of Sales, he received a salary plus a commission on every revenue dollar that Port Authority generated through advertising.

20. 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. If he did not have any questions as to whether the advertisement satisfied the Advertising Policy, he had the authority to independently authorize or reject it. If Hickton had questions with regard to a proposed advertisement or the Port Authority Advertising Policy, he would consult with the Port Authority's marketing department and/or Christopher J. Hess ("Hess"), in-house counsel for Port Authority .

21. In 1994, Hess was employed by Port Authority as a senior staff attorney. In August 2006, he was promoted to the position of assistant general manager of legal and corporate services, where his responsibilities included direct oversight of Port Authority's legal department. Hess left Port Authority's employment in the latter part of 2008.

22. If a potential advertiser had questions about the Advertising Policy and/or questions about the interpretation of the Advertising Policy, Hickton would refer that advertiser to Port Authority's legal department.

23. Port Authority and Hickton did not review the text and/or content of each proposed advertisement to determine if it was permitted under the Advertising Policy. Based on discussions with potential advertisers, Defendants were often able to determine whether a prospective advertisement would be permitted or prohibited without seeing the text or content of the advertisement. Such occurred in this matter.

Port Authority Advertising Policies and Practices

24. According to Hickton, an acceptable "commercial" advertisement (i) had to have, or be about, an event with an admission price, (ii) involve a sale of goods, or (iii) offer an exchange of goods or services.

25. Port Authority accepted an advertisement from Animal Friends and the Humane Society offering a $5,000 reward for information leading to the arrest and conviction of people involved in dogfighting. Pl. Ex. 59. Port Authority considered the advertisement to be commercial because it offered a monetary reward.

26. On occasion, Port Authority sponsors or co-sponsors advertisements on its vehicles that it believes to be consistent with its business by encouraging or facilitating ridership. Port Authority has also co-sponsored advertisements which involve services (such as literacy services). Port Authority has no written standards by which it determines the noncommercial advertisements on which it will place its logo. Even when Port Authority places its logo on a non-commercial advertisement, the advertisement sponsor is still required to pay for the advertising space. However, when co-sponsoring, Port Authority often shares in the costs by charging discounted rates, charging for only a portion of time that the ads would run, or charging for only a limited number of the ads.

27. Examples of non-commercial advertisements that Port Authority has authorized and co-sponsored are as follows:

* An advertisement from Read 365 which encouraged adults to read to children. Pl. Exh. 45;

* An advertisement from Carnegie Library which encouraged individuals to use the resources and services available at the library's new Woods Run facility. Pl. Exh. 46;

* An advertisement from Hearing and Deaf Services, Inc., which encouraged individuals to have their hearing tested. Pl. Exh. 47;

* An advertisement from United Way. Pl. Exh. 50;

* An advertisement from Tobacco Free Allegheny soliciting individuals who want to quit smoking to utilize the services of Tobacco Free Allegheny. Pl. Exh. 57;

* An advertisement from the City of Pittsburgh Police promoting their joint task force aimed at eliminating illegal video gambling in Pittsburgh bars. Pl. Exh. 58; and

* An advertisement from Allegheny County, the City of Pittsburgh, and other sponsors regarding early childhood development programs. Pl. Exh. 61.

28. Port Authority believes that a non-commercial advertisement sponsored by some entity other than Port Authority becomes "government speech" that is neither commercial nor non-commercial if Port Authority merely adds its own logo to the advertisement. Examples of advertisements that Port Authority has added its own logo and accepted as government speech are as follows:

* An advertisement from Allegheny County Department of Human Services, Family Resources, and A Child's Place at Mercy regarding child abuse and domestic violence. Pl. Exh. 65;*fn2

* An advertisement from Job Corps, a federal government program in which employers advertise job openings. Pl. Exh. 48;

* An advertisement from the Allegheny County Health Department encouraging individuals to receive immunizations for whooping cough and meningitis. Pl. Exh. 60;

* An advertisement for the Alliance for Infants and Toddlers that solicited the use of the organization's healthcare-related services. Pl. Exh. 67;*fn3

29. In early 2005, Hickton approached Hess with the idea of increasing advertising revenues by making interior bus card advertising space available for sale to other government entities. In the past, Port Authority had not accepted advertisements from government agencies unless those ads were otherwise permitted under the Advertising Policy.

30. These government agencies - including agencies created by the City of Pittsburgh, Commonwealth of Pennsylvania, Allegheny County, and the federal government -were the funding partners which provided the majority of Port Authority's intake revenues.

31. Hess prepared a legal memorandum, dated August 15, 2005, in which he concluded that such advertisements would constitute government speech that could be exempted from the Advertising Policy restrictions. Hess further concluded that Port Authority could accept advertisements about the availability of government agencies' services or programs without opening up the Port Authority advertising space to private citizens with similar messages, regardless of whether the advertisements were commercial or noncommercial. See Def. Exh. 53.

32. After Hess prepared the legal memorandum, Port Authority began to accept advertisements from government entities as permitted "government speech" under its Advertising Policy.

Just Harvest Advertisement

33. Just Harvest is a non-profit organization that works to eliminate hunger and poverty in the Pittsburgh area. In furtherance of its mission, it works to advance public policy initiatives of interest to it.

34. Through a program referred to as "Just Vote," Just Harvest is engaged in voter registration efforts and mobilization to encourage low-income individuals to vote.

35. Just Harvest also provides free income tax preparation assistance to people who meet certain eligibility criteria. Income tax returns are prepared by Just Harvest as a community service. Funding for the income tax preparation program is provided by government agencies, foundations, religious organizations, and corporate philanthropy.

36. In early 2003, Just Harvest sought to advertise its free income tax preparation program on Port Authority buses. Viacom, the entity serving as the outside advertising vendor for Port Authority at the time, rejected the proposed advertisement on the basis that it was noncommercial.

37. In late 2003, Obie Media (which had replaced Viacom) reversed the Viacom decision and agreed to run the Just Harvest advertisement. The free income tax preparation ...


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