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Society v. County of Lackawanna Transit System

United States Court of Appeals, Third Circuit

September 17, 2019


          Argued June 12, 2019

          On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 3-15-cv-00833) District Judge: Hon. Malachy E. Mannion

          Molly M. Tack-Hooper [Argued] American Civil Liberties Union of Pennsylvania Brian Hauss American Civil Liberties Union Foundation Theresa E. Loscalzo Stephen J. Shapiro Schnader Harrison Segal & Lewis LLP Rachel A.H. Horton DLA Piper Benjamin D. Wanger Mullen Coughlin Attorneys for Appellant Northeastern Pennsylvania Freethought Society

          Thomas A. Specht [Argued] Marshall Dennehey Warner Coleman & Goggin Attorney for Appellee County of Lackawanna Transit System.

          Bruce D. Brown The Reporters Committee for Freedom of the Press Attorney for Amicus Reporters Committee for Freedom of the Press in Support of Appellant

          Geoffrey Blackwell American Atheists Legal Center Attorney for Amicus Curiae American Atheists and Center for Inquiry.

          Before: HARDIMAN, PORTER, and COWEN, Circuit Judges.



         This appeal arises under the First Amendment to the United States Constitution. Appellant Northeastern Pennsylvania Freethought Society (Freethought) would like to advertise on public buses in Lackawanna County, Pennsylvania. Freethought proposed an ad displaying the word "Atheists" along with the group's name and website. The County of Lackawanna Transit System (COLTS) rejected the ad under its policy which excludes religious and atheistic messages. Because that policy discriminates based on viewpoint, we hold that it violates the First Amendment.


         COLTS provides public bus service in Lackawanna County. Because its ticket revenue is negligible, COLTS is funded almost exclusively by the Pennsylvania Department of Transportation, Lackawanna County, and the federal government. COLTS leases advertising space on the inside and outside of its buses, but the revenue that generates makes up less than two percent of COLTS's budget.

         Freethought is an association of atheists, agnostics, secularists, and skeptics. Its goals are to build a community for likeminded people, to organize social and educational events, and through these events and other activism to "promot[e] critical thinking and uphold[] the separation of church and state." App. 140. Freethought advocates its view of proper church-state separation by filing complaints and protesting public religious displays.

         In 2012, Freethought organizer and spokesman Justin Vacula was a student at Marywood University in Scranton. One day during his commute to campus, Vacula noticed a "God Bless America" message on the outside of a COLTS bus. The message-which scrolled across the bus's digital route-information display when enabled by the driver-was added by the manufacturer after the terrorist attacks of September 11, 2001. Vacula complained and COLTS removed the message from its software. This upset some drivers, including one who defiantly displayed a "God Bless America" magnet on the inside of his bus. Vacula complained again, and COLTS made the driver remove it.

         Because of these expressions of religious sentiment, Freethought proposed to run a "response" advertisement to "challenge a potential church/state violation and test COLTS'[s] advertising policy." App. 1553. The proposed ad simply read "Atheists," and included Freethought's web address, superimposed on a blue sky with clouds. Vacula said the ad was meant to show local religious believers that there are atheists in the community and to provide a resource for those believers to learn about Freethought. The ad would also tell other nonbelievers in the region that they are "not alone" and that "a local organization for atheists exists." App. 1553.

         Freethought submitted its proposal in January 2012, but COLTS rejected the ad. Communications director Gretchen Wintermantel decided Freethought "wanted to advertise so that they could spark a debate on our buses." App. 1098. And the word "atheists" (or, for that matter, the words "Jews" or "Muslims") might do just that. App. 1099. In rejecting Freethought's proposal, COLTS relied on a policy it had adopted in 2011 that banned ads for tobacco products, alcohol, firearms, and political candidates. App. 686. It also banned ads that in COLTS's "sole discretion" are "derogatory" to racial, religious, and other specified groups. Id. It even prohibited ads that are "objectionable, controversial[, ] or would generally be offensive to COLTS'[s] ridership." Id.

         Before 2011 COLTS had no policy-though it reserved in its contracts the right to reject "objectionable or controversial" ads. E.g., App. 340. It never exercised that right until Wintermantel and her boss rejected an ad warning that "Judgment Day" was approaching. App. 56-57, 1051. They did so even though COLTS had routinely run religious ads in the past with no problem. That included ads for churches, the Office of Catholic Schools, and the evangelist Beverly Benton-who promised a "Saturday night miracle service" at a convention she headlined. App. 477. There is no evidence of record that those ads or any others had elicited a passenger complaint. Partisan political ads, gambling ads, and ads for alcoholic beverages all ran without incident. Even an ad for a virulently racist and anti-Semitic website was permitted without apparent complaint. COLTS nevertheless rejected the "Judgment Day" ad, believing its religious character could rile up passengers.

         The "Judgment Day" experience convinced Wintermantel it was time to implement a formal policy. She began researching other transit systems' policies and identified controversies in other cities kindled by inflammatory ad campaigns. She reviewed a New York Times article about an atheist ad campaign in Fort Worth, which had drawn competing religious ads and a pastor-led boycott. The article also noted that atheist bus ads and billboards had been vandalized in Detroit, Tampa Bay, and Sacramento. In Cincinnati, the Times reported, a landlord took an atheist ad down after receiving threats. If all that could happen, Wintermantel thought, similar ads could upset COLTS riders and cause disturbances on its buses. So she drafted the 2011 policy and the COLTS board approved it.

         COLTS rejected Freethought's first "Atheists" ad proposal in 2012 and a similar one in 2013. These rejections were based on the 2011 policy's vaguest provision. COLTS had decided, in its "sole discretion," that the "Atheists" ad would be controversial. The first rejection was by phone, but the second came by letter which stated:

COLTS does not accept advertisements that promote the belief that "there is no God" or advertisements that promote the belief that "there is a God" . . . . The existence or nonexistence of a supreme deity is a public issue. COLTS believes that your proposed advertisement may offend or alienate a segment of its ridership and thus negatively affect its revenue. COLTS does not wish to become embroiled in a debate over your group's viewpoints.

App. 701.

         About a week later, COLTS enacted a new policy to "clarify" the 2011 policy. App. 59-60. This 2013 policy is still in effect. It announced that COLTS opened its ad space "for the sole purpose of generating revenue for COLTS while at the same time maintaining or increasing its ridership." App. 687. Besides banning many of the same ads as the 2011 policy (including "disparaging" ads and ads for firearms, alcohol, and tobacco), the 2013 policy featured new prohibitions on religious and political messages. COLTS reasoned that many have strong feelings about religion and politics, so excluding those messages would help keep the peace. The religion provision barred ads:

that promote the existence or non-existence of a supreme deity, deities, being or beings; that address, promote, criticize or attack a religion or religions, religious beliefs or lack of religious beliefs; that directly quote or cite scriptures, religious text or texts involving religious beliefs or lack of religious beliefs; or [that] are otherwise religious in nature.

App. 687-88. The politics provision barred partisan and electioneering ads, and ads that "involv[e] an issue reasonably deemed by COLTS to be political in nature in that it directly or indirectly implicates the action, inaction, prospective action, or policies of a governmental entity." App. 687.

         When Freethought proposed a third "Atheists" ad, COLTS rejected it under the 2013 policy's religious speech prohibition. COLTS reiterated its position that the "existence or non-existence of a supreme deity is a public issue." App. 704. "It is COLTS'[s] goal to provide a safe and welcoming environment on its buses for the public at large," the rejection letter explained, and "[t]he acceptance of ads that promote debate over public issues such as abortion, gun control or the existence of God in a confined space like the inside of a bus detracts from this goal." Id.

         Eventually, Freethought proposed an ad that dropped the word "Atheists" and simply listed its name and web address. Wintermantel consulted COLTS's attorney, who thought it was a borderline case under the 2013 policy. "[Vacula] is being tricky," the lawyer opined, but he conceded the ad might not violate COLTS's religious or political speech prohibitions, so they needed to research the matter. App. 1528. COLTS ultimately accepted the ad. But Freethought would still like to run its thrice-rejected "Atheists" ad, which "more clearly explain[s] who its members are." Freethought Br. 19. So it sued under 42 U.S.C. § 1983.


         Freethought challenged COLTS's 2013 policy, seeking a declaratory judgment and a permanent injunction forbidding COLTS from enforcing the policy. The District Court ruled for COLTS after a one-day bench trial. The Court held COLTS's policy viewpoint neutral, reasoning that the religious speech prohibition put the entire subject of religion out of bounds. It also deemed COLTS's ad space a limited public forum, even though it had probably once been a designated public forum. The Court grounded that conclusion in COLTS's statement of intent "not to become a public forum" and its "practice of permitting only limited access to the advertising spaces on its buses." Ne. Pa. Freethought Soc'y v. Cty. of Lackawanna Transit Sys., 327 F.Supp.3d 767, 779-80 (M.D. Pa. 2018). Holding Freethought's "Atheists" ad outside the forum's bounds, the Court turned to whether that restriction was reasonable.

         The ad space was first opened, the Court found, to raise revenue. With its 2013 policy, COLTS added the purpose of "maintaining or increasing COLTS'[s] ridership." Id. at 781. The Court held the policy's restrictions were reasonably connected to those goals. First, the policy was intended to "keep COLTS neutral on matters of public concern," which the Court said is "an especially strong interest supporting the reasonableness in limiting speech." Id. at 782. Second, the Court held the policy was reasonably connected to rider safety, since threats to rider safety also threaten revenue and ridership. "Given the decrease in civil tolerance and the increase in social unrest and violence in today's society," the Court explained, allowing ads like Freethought's might provoke "a controversial discussion" which could "potentially lead to a dangerous situation for both passengers and drivers." Id. at 782-83. Finally, the Court held the 2013 policy was not unconstitutionally vague because "a person of ordinary intelligence can generally tell what types of advertisements are permitted or proscribed." Id. at 784.

         Freethought filed this timely appeal.


         The District Court had jurisdiction over Freethought's First Amendment claim under 28 U.S.C. § 1331. We have jurisdiction over this appeal under 28 U.S.C. § 1291. Where, as here, "the speaker unsuccessfully claimed a violation of free speech rights in the trial court," Pittsburgh League of Young Voters Educ. Fund v. Port Auth. of Allegheny Cty., 653 F.3d 290, 295 (3d Cir. 2011), we conduct an independent review of the record. Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 499 (1984).


         We approach this case as a facial challenge to COLTS's prohibition of religious speech. The First Amendment doctrine underlying Freethought's challenge leads ineluctably to facial invalidity-so we need not "pause to consider whether [the provision] might admit some permissible applications." Iancu v. Brunetti, 139 S.Ct. 2294, 2302 (2019); see Citizens United v. FEC, 558 U.S. 310, 331 (2010) ("[T]he distinction between facial and as-applied challenges is not so well defined that it has some automatic effect or that it must always control the pleadings and disposition in every case involving a constitutional challenge."). If the religious speech prohibition as written "'aim[s] at the suppression of' views," Brunetti, 139 S.Ct. at 2302 (quoting Matal v. Tam, 137 S.Ct. 1744, 1767 (2017) (Kennedy, J., concurring in part and concurring in the judgment)), it is invalid, see id. If instead it's an impermissible content based restriction, that too leads to facial invalidity. See Minn. Voters All. v. Mansky, 138 S.Ct. 1876, 1885, 1888 (2018); Simon & Schuster, Inc. v. Members of New York State Crime Victims Bd., 502 U.S. 105, 123 (1991) (holding statute "not narrowly tailored to advance [the government's] objective" and so "inconsistent with the First Amendment"); Ward v. Rock Against Racism, 491 U.S. 781, 801 (1989) ("[T]he validity of the regulation depends on the relation it bears to the overall problem the government seeks to correct, not on the extent to which it furthers the government's interests in an individual case."). In either case COLTS "violate[d] the Constitution when it passed the [policy]," Diop v. ICE/Homeland Sec., 656 F.3d 221, 232 n.10 (3d Cir. 2011).


         Government actors like COLTS cannot restrict speech because they "disapprov[e] of the ideas expressed." R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992). Yet not every public space is Hyde Park, so a government may sometimes impose content or speaker limitations that protect the use of its property. See Mansky, 138 S.Ct. at 1885. But no matter what kind of property is at issue, viewpoint discrimination is out of bounds.

         Viewpoint discrimination is an "egregious form of content discrimination." Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995). Rather than aiming at an entire subject, it "targets . . . particular views taken by speakers." Id. And that violates the First Amendment's most basic promise. See Texas v. Johnson, 491 U.S. 397, 414 (1989) (collecting cases). It empowers the censor to deprive the citizen of the opportunity to persuade. So in any forum, "[t]he government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction." Rosenberger, 515 U.S. at 829; see Good News Club v. Milford Cent. Sch., 533 U.S. 98, 111-12 (2001).

         Distinguishing subject matter from viewpoint can be difficult. Rosenberger, 515 U.S. at 830-31. Fortunately, "our task here is greatly simplified by a trilogy of Supreme Court decisions each addressing blanket bans on religious messages and each concluding that such bans constitute impermissible viewpoint discrimination." Byrne v. Rutledge, 623 F.3d 46, 55 (2d Cir. 2010). Those cases-Rosenberger, Lamb's Chapel, and Good News Club-govern this one.

         In Rosenberger, the University of Virginia withheld subsidies from student groups whose activities "primarily promote[d] or manifest[ed] a particular belie[f] in or about a deity or an ultimate reality." 515 U.S. at 825. An undergraduate group that published Wide Awake, a "magazine of philosophical and religious expression," challenged that policy. Id. at 825-26. Wide Awake was founded to "facilitate discussion which fosters an atmosphere of sensitivity to and tolerance of Christian viewpoints," and "to provide a unifying focus for Christians of multicultural backgrounds." Id. (citation and alterations omitted). To that end, its writers opined from a Christian perspective on issues like racism, pregnancy, and student stress. Id. at 826.

         The Court held the University had restricted viewpoint, not subject matter. "Religion may be a vast area of inquiry," the Court reasoned, "but it also provides, as it did here, a specific premise, a perspective, a standpoint from which a variety of subjects may be discussed and considered." Id. at 831. The policy was viewpoint based because it "select[ed] for disfavored treatment those student journalistic efforts with religious editorial viewpoints." Id. Student news groups could write on racism, or stress, or pregnancy-but not if their faith informed the message.

         The Rosenberger dissent argued that the restriction was based on subject matter, not viewpoint, because it applied to all religions and "agnostics and atheists as well." See Rosenberger, 515 U.S. at 895-96 (Souter, J., dissenting). COLTS makes a similar argument here. But as the Court explained in Rosenberger, that argument "reflects an insupportable assumption that all debate is bipolar and that antireligious speech is the only response to religious speech." Id. at 831. Within a given subject, "[i]t is as objectionable to exclude both a theistic and an atheistic perspective on the debate as it is to exclude one, the other, or yet another political, economic, or social viewpoint." Id.; see Brunetti, 139 S.Ct. at 2299.

         To reach its holding, the Rosenberger Court relied mainly on Lamb's Chapel. In that case, the Supreme Court invalidated a ban on the use of public-school property for "religious purposes" that had stymied a group's efforts to screen religious lectures on family issues and child rearing. Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 393 (1993). As in Rosenberger, it did not matter "[t]hat all religions and all uses for religious purposes are treated alike" because the lectures-though avowedly religious-discussed topics the policy otherwise permitted. Id.

         In short, Rosenberger "clarified the distinction between content-based and viewpoint discrimination and adopted a broad construction of the latter, providing greater protection to private religious speech on public property." Summum v. Callaghan, 130 F.3d 906, 917 (10th Cir. 1997).[1] The Court provided yet more clarity in Good News Club. It granted certiorari in that case to resolve "a conflict among the Courts of Appeals on the question whether speech can be excluded from a limited public forum on the basis of the religious nature of the speech." 533 U.S. at 105. As in Lamb's Chapel and Rosenberger, the Court answered "no."

         The Court held it was viewpoint discrimination to bar the use for religious purposes of a space otherwise available for "instruction in any branch of education, learning or the arts" and for "social, civic and recreational meetings and entertainment events, and other uses pertaining to the welfare of the community." Id. at 102. The Good News Club, which wanted to offer after-school religious instruction, must have equal access to a forum that allowed others to speak on morals and character development. Id. at ...

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