June 12, 2019
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
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
A. Specht [Argued] Marshall Dennehey Warner Coleman &
Goggin Attorney for Appellee County of Lackawanna Transit
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.
HARDIMAN, CIRCUIT JUDGE.
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.
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
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.
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.
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.
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.
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
"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.
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
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.
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.
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.
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.
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.
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.
filed this timely appeal.
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).
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.
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.
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).
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.
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.
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.
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.
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
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). 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
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 ...