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Northeastern Pennsylvania Freethought Society v. County of Lackawanna Transit System

United States District Court, M.D. Pennsylvania

April 10, 2017



          MALACHY E. MANNION United States District Judge

         Pending before the court are the cross-motions for summary judgment regarding the plaintiff's civil rights complaint under 42 U.S.C. §1983, (Doc. 1), filed by defendant County of Lackawanna Transit System (“COLTS”), (Doc. 30), and by plaintiff Northeastern Pennsylvania Freethought Society, (Doc. 32). Plaintiff alleges that COLTS' policies regarding advertisements on its buses and its refusal to run ads containing the word “Atheist” violated plaintiff's right to freedom of speech under the First and Fourteenth Amendments. For the reasons that follow, COLTS' motion for summary judgment will be DENIED and plaintiff's motion will be DENIED.


         Plaintiff filed a complaint on April 28, 2015, alleging a violation of its First Amendment right to freedom of speech. (Doc. 1). Specifically, Count I of the complaint raises claims under the First and Fourteenth Amendments pursuant to 42 U.S.C. §1983 and alleges that COLTS' advertising policy violates plaintiff's free speech right. Specifically, plaintiff alleges that COLTS' refusal to run its ads with the word “Atheists” in them is an impermissible content and viewpoint based restriction on its rights under the free speech clause of the First Amendment. Plaintiff requests both declaratory and injunctive relief to remedy alleged ongoing violations of its constitutional rights. In particular, plaintiff seeks a declaration that COLTS' rejection of its ads violated the First Amendment and a declaration that COLTS' 2013 policy continues to violate the First Amendment.[1] Plaintiff also seeks a permanent injunction prohibiting COLTS from enforcing its 2013 policy. Further, plaintiff requests costs and attorney's fees under 42 U.S.C. §1988.

         On June 25, 2015, COLTS filed a motion to dismiss for failure to state a claim upon which relief may be granted under Fed. R. Civ. P. 12(b)(6), (Doc. 6), and a brief in support, (Doc. 7). Plaintiff filed its brief in opposition to the motion on July 27, 2015. (Doc. 10). COLTS filed its reply brief on August 10, 2015. (Doc. 11). On January 27, 2016, the court issued a memorandum and order denying COLTS' motion to dismiss. (Doc. 20, Doc. 21). See also 158 F.Supp.3d 247 (2016).

         On February 8, 2016, COLTS filed its answer to the complaint with affirmative defenses. (Doc. 22).

         Discovery was then conducted and extensions of time to complete discovery were granted. (Doc. 25, Doc. 29).

         On July 18, 2016, COLTS filed a motion for summary judgment and its statement of material facts with exhibits. (Doc. 30, Doc. 31). Also, on July 18, 2016, plaintiff filed a motion for summary judgment and its statement of material facts with exhibits. (Doc. 32, Doc. 33). The parties then fully briefed both motions and responded to each other's statement of material facts. (Doc. 34, Doc. 36, Doc. 39, Doc. 40, Doc. 41, Doc. 44, Doc. 46, Doc. 48, Doc. 52).[2]As such, the cross-motions for summary judgment are ripe for review.

         The court has jurisdiction over this action pursuant to 28 U.S.C. §§1331 and1343(a), and venue is proper in this district since the defendant is located here and the claims accrued here.


         Plaintiff is an unincorporated association, with its principal office in Wilkes-Barre, Pennsylvania. Plaintiff's mission is “to facilitate a social, educational, activist, and philosophical coalition of atheists, agnostics, humanists, secularists, and skeptics predicated on support and community that upholds the separation of church and state and promotes critical thinking.” Justin Vacula is the co-organizer and the spokesperson for plaintiff.[4]Plaintiff advocates for government neutrality in matters of religion and, it has participated in protests involving separation of church and state issues and it seeks to uphold this principle. Plaintiff also has participated in public discussions regrading matters of religion including discussions with religious organizations.

         COLTS is a public transportation authority operating under the Municipal Authorities Act of 1945, 53 Pa.C.S. §5607, and is headquartered in Scranton, Pennsylvania. At all relevant times COLTS acted under color of state law. COLTS' mission is to “provide safe public transportation throughout Lackawanna County.”

         As of June 2008, Robert Fiume was COLTS' Executive Director and he supervised “the whole transportation system.” Fiume delegated to the Advertising Manager and then to the Communications Director, Gretchen Wintermantel, the responsibility to decide whether to accept a proposed advertisement for the buses. Wintermantel started working for COLTS in April 2009. Wintermantel is responsible for deciding whether COLTS accepts an advertisement proposal and interpreting COLTS' advertising policies and, she consults with management and the solicitor in making these decisions.

         COLTS has had a practice of leasing advertising space on the outside of its buses dating back to 2004. COLTS has made advertising space on its buses available to the public for the purpose of raising revenue and not to further any organizational policy or goal. COLTS' advertising revenue comprises less than 2% of COLTS' yearly revenue.

         Prior to 2011, COLTS did not have an advertising policy but it had a sentence in its advertising contract that provided COLTS had the right to reject any ads that it deemed objectionable or controversial. Prior to April 2009, Wintermantel was not aware of any instance in which COLTS rejected a request for an advertisement. However, after she started with COLTS, she rejected a “Judgment Day” ad. Additionally, in 2009, COLTS ran an advertisement for a website called “The Old Forge Times News” which had the URL address for an internet blog that contained links to anti-Semitic websites, holocaust denial websites and white supremacist websites. However, the content of the blog and the links contained in the blog were not visible from the ad. (Doc. 31, Exs. F & G).

         COLTS also ran advertisements for the following:

a. a beer distributor called “Brewers Outlet”;
b. St. Mary's Byzantine Catholic Church;
c. the Evangelism and Socialism Ministry of St. Matthew's Lutheran Church;
d. Hope Church;
e. the Office of Catholic Schools;
f. the St. Stanislaus School's Polish Food Festival;
g. the Diocese of Scranton's “Adoption for Life” campaign; and
h. school board candidate Patrick O'Malley.

         COLTS did not receive any complaints about the above advertisements. Prior to adopting the advertising policy in 2011, COLTS never received a complaint about any advertisement than ran on a COLTS bus. Nor was COLTS aware of any disruption on a COLTS bus caused by an advertisement it displayed or caused by any passengers which occurred before COLTS adopted an advertising policy.

         COLTS has never placed any restrictions regarding what passengers are allowed to say or debate while riding its buses. Nor does COLTS have any rules “with respect to what people [on the buses] can and cannot speak about.”

         In May 2011, COLTS' employee Jim Smith received a phone call from a man who wanted to run an ad that said “Judgment Day is Coming in May.” Smith and Wintermantel were alarmed by the proposed “Judgment Day” advertisement since it “seem[ed] religious.” Wintermantel then reviewed the website affiliated with the advertisement and discovered that it was religious in nature. Thus, they went to Fiume and to the COLTS' solicitors and it was decided since the ad was religious, “it could be controversial, and we didn't want anything happening inside our buses, any debates or arguments.” Even though COLTS had never “informed a potential advertiser that [it] would not run their ad, ” COLTS contacted the person who requested the “Judgment Day” advertisement and told him that his ad would not be allowed on the buses. COLTS based its denial of the “Judgment Day” advertisement on the fact that it was religious in nature and COLTS “didn't want any pro or con kind of religion being discussed on the buses . . . Ads that are religious in nature can cause heated debates and heated arguments on either side.” Wintermantel also stated that COLTS believed running the “Judgment Day” advertisement was unsafe since she read about other transit agencies which ran pro-atheist or pro-God ads which made buses places for debate and lead to vandalism of buses in New York in one case.

         Based on media reports from other states, COLTS officials became concerned that atheist groups might also try to advertise on COLTS buses and start a “war of words, ” and that buses would become a “place for debate” that could make riders feel unwelcome. COLTS officials also thought that this may lead to vandalism of the buses or compromise safety.

         Following the proposed “Judgment Day” advertisement, Wintermantel suggested an advertising policy and drafted COLTS' first formal advertising policy. The policy was approved by COLTS' Board of Directors on June 21, 2011 (“2011 Policy”). The 2011 Policy provided as follows:

         COLTS will not accept advertising:

• for tobacco products, alcohol, and political candidates
• that is deemed in COLTS['] sole discretion to be derogatory to any race, color, gender, religion, ethnic background, age group, disability, marital or parental status, or sexual preference
• that promotes the use of firearms or firearm-related products
• that are obscene or pornographic • that promotes violence or sexual conduct
• that are deemed defamatory, libelous or fraudulent based solely on the discretion of COLTS
• that are objectionable, controversial or would generally be offensive to COLTS' ridership based solely on the discretion of COLTS

         The 2011 Policy also stated, “Finally, it is COLTS' declared intent not to allow its transit vehicles or property to become a public forum for dissemination, debate, or discussion of public issues.”

         The 2011 Policy was not designed to increase COLTS' ridership. Nor was this policy prompted by any revenue-related goals or concerns. Further, the 2011 Policy had no effect on COLTS' ridership. Wintermantel stated that the policy was enacted since COLTS did not want debates or arguments on its buses and since it was concerned with the safety of its passengers. Specifically, COLTS did not “want people debating or arguing on our buses in a small confined space [regarding] advertisements that may be controversial or debatable.” Wintermantel stated that “the intent [behind the 2011 Policy] is to not allow people to start arguing over issues . . . if there's an ad for Donald Trump running on one of our buses you could imagine there would be huge fights on our bus given the political atmosphere that's out there today.”

         COLTS' 2011 Policy had the specific goal “[of] prevent[ing] debate inside of COLTS' buses . . . and [the policy] had nothing to do with debate outside the buses” despite the fact that the 2011 Policy applied to advertisements on both the outside and inside of COLTS buses. Further, the policy did not distinguish between proposed advertisements for the inside and outside of the bus and, it applied to all advertising. COLTS acknowledged that its passengers discuss and debate public issues during their rides, but it admitted that “there haven't been any . . . fights that have broken out” on the buses. COLTS also admitted that such discussions and debates by its riders has never effected a COLTS bus driver's ability to do his or her job in a safe and efficient manner.

         Fiume testified he was not aware of any problems that COLTS had on its buses based on debates amongst riders and that he was not aware if any public issues were even ...

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