On Appeal from the United States District Court for the Western District of Pennsylvania District Court No. 2-06-cv-1064 District Judge: The Honorable Terrence F. McVerry
The opinion of the court was delivered by: Smith, Circuit Judge.
Before: SMITH, CHAGARES, and VANASKIE, Circuit Judges
Unlike many of its sister states, Pennsylvania allows felons to vote immediately upon release from prison. In an effort to correct widespread belief to the contrary, a coalition of public-interest organizations set out to run an advertisement informing ex-prisoners that they have the right to vote and encouraging them to exercise it. The coalition asked the Port Authority of Allegheny County, Pennsylvania to place the ad in its buses. The Port Authority denied the request, pointing to its written advertising policy, which prohibits "noncommercial" ads. The coalition sued, alleging a violation of the First Amendment. The case proceeded to a bench trial, where the coalition proved that despite its written advertising policy, the Port Authority had accepted many noncommercial ads in recent years, several of which bore a striking resemblance to the coalition's ad. Based mainly on this "comparator" evidence, the District Court found that the rejection of the coalition's ad amounted to viewpoint discrimination in violation of the First Amendment. We will affirm.
Many of Pennsylvania's ex-prisoners do not know they have the right to vote. Seeing a need for public education, a coalition of public-interest groups, including the ACLU and the Pittsburgh League of Young Voters Education Fund, teamed up to start the "Ex-Offender Voting Rights Project." The aims of the Project were to inform ex-prisoners that they have the right to vote, register them to vote, encourage them to vote, and-in the event ex-prisoners were denied the franchise-litigate on their behalf.
The coalition determined that running ads in public buses would be an effective way to reach its target audience, so Lisa Krebbs, an employee of the ACLU, contacted the Port Authority on the coalition's behalf. Krebbs was referred to Anthony Hickton, the Port Authority's Director of Sales. She identified herself as an ACLU employee, described the Ex-Offender Voting Rights Project, and informed Hickton that the coalition was interested in placing an ad in city buses. Although no draft had yet been prepared, she explained that the ad would inform ex-prisoners that they have the right to vote, encourage them to vote, and provide a phone number that they could call if they needed help or had questions. Hickton told Krebbs that the Port Authority would not run the ad. He explained that the ad as described did not comply with the Port Authority's written advertising policy, which prohibited "noncommercial" advertisements.
The coalition tried several times to persuade the Port Authority to reverse course. It corresponded with Hickton and the Port Authority's in-house counsel Chris Hess, explaining that its advertisement was no different from many other noncommercial ads commonly displayed in Port Authority buses. Hickton and Hess refused to budge. The coalition therefore filed this lawsuit under 42 U.S.C. § 1983, alleging a violation of the First Amendment's Free Speech Clause. The complaint asserted, first, that the Port Authority's advertising space is a public forum and that rejecting the coalition's ad thus amounted to impermissible content-based discrimination. Second, the complaint asserted that the Port Authority had rejected the coalition's ad as a result of unconstitutional viewpoint discrimination.
While the lawsuit was pending, the parties and their attorneys met to discuss a possible settlement. During the meeting, Hess asserted-for the first time-that the Port Authority had rejected the coalition's ad not just because it was "noncommercial" but also because it was "political," another subject matter banned under the advertising policy. Ultimately no settlement was reached, and the litigation proceeded apace.
After the close of discovery, the parties filed cross motions for summary judgment. The District Court denied the coalition's motion. The Court granted the Port Authority's motion on the content-based-discrimination claim, holding that the advertising space is not a public forum. But the Court denied its motion as to the viewpoint-discrimination claim, concluding that a genuine dispute existed about whether the Port Authority had rejected the coalition's ad because of hostility towards the ad's message. What remained of the § 1983 suit-the viewpoint-discrimination claim-was scheduled for a bench trial.
The trial lasted five days, and the Court heard testimony from a number of witnesses, including Hickton and Hess, the decisionmakers responsible for rejecting the coalition's ad. In support of the Port Authority's position, Hess testified that he had once rejected an "ad from the League of Women Voters that just sort of said ‗vote.'" JA 1428. Hess and Hickton, moreover, offered definitions of the terms "political" and "commercial," which are not defined in the advertising policy. Their definitions differed somewhat, but they agreed that an ad is not commercial unless it in some way promotes the monetary interests of the advertiser.
The Court also received evidence about other ads that the Port Authority has run in its buses. As it turns out, the Port Authority has not consistently adhered to the advertising policy's ban on noncommercial ads. It has run a number of noncommercial ads in recent years, including ads placed by organizations ...