Update: On Sept. 17, 2019, the U.S. Court of Appeals for the Third Circuit ruled that the County of Lackawanna Transit System’s ad policy discriminates based on viewpoint, and therefore violates the First Amendment. The decision reversed the district court’s judgment and instructed the district court to grant declaratory relief and issue an injunction barring enforcement of the policy’s religious speech ban. On Sept. 14, 2020, the Third Circuit issued a precedential opinion in Center for Investigative Reporting v. Southeastern Pennsylvania Transportation Authority, holding that two provisions of SEPTA’s advertising policy violate the First Amendment because they are incapable of reasoned application. The Court therefore reversed and instructed the district court to grant declaratory relief and issue a permanent injunction preventing SEPTA from enforcing the challenged provisions to exclude the Center for Investigative Reporting’s advertisement.
The Reporters Committee for Freedom of the Press is supporting two cases opposing the policies of Pennsylvania public transit systems that ban advertisements based on their content.
In a friend-of-the-court brief filed on May 14, a coalition of 21 media organizations — led by the Reporters Committee — argues that a Southeastern Pennsylvania Transportation Authority policy prohibiting political advertisements and advertisements that express or advocate an opinion, position or viewpoint on economic, political, religious, historical or social issues on its buses unconstitutionally infringes First Amendment rights and that the Third Circuit Court of Appeals should reverse a lower court ruling that upheld a revised version of SEPTA’s original policy. The Reporters Committee argues that both versions of the policy unlawfully restrict free expression and are “constitutionally problematic.”
The Reporters Committee is supporting the Center for Investigative Reporting, which sued SEPTA after it rejected their advertisement highlighting their reporting on racial disparities in mortgage lending.
In its brief, the coalition raises concerns that the policy, which bans all ads “advocating an opinion” on “economic, political, religious, historical, or social issues,” could be used to restrict newspapers seeking to enhance the visibility of their stories amidst shrinking newspaper circulation and declining trust in media nationwide. Under its current policy, for instance, SEPTA could potentially prohibit The Boston Globe from advertising its Pulitzer Prize-winning “Spotlight” series on child sexual abuse in the Catholic church on the transit system.
“The news necessarily focuses on political, cultural, religious, and societal issues of the day,” the brief reads, emphasizing that the very purpose of the First Amendment is to encourage discussion on the kinds of categories that the advertising policy prohibits.
The policy places a “heavy burden” even on news organizations who hope to use advertising to affirm the importance of the free press more generally, the coalition argues. Pushing back against politicians’ anti-press rhetoric, news organizations such as The New York Times and The Wall Street Journal have launched ad campaigns centered around the value of rigorous, truth-seeking reporting.
“Even a message as innocuous as ‘The truth is hard’ could be swept into the broad categories of speech prohibited by the SEPTA policy,” attorneys stated in the brief, referencing The Times’ ad campaign.
Bans on controversial advertising — which dangerously undercut free expression — transcend the SEPTA case. The Reporters Committee also led a separate coalition of 18 media organizations in opposing a County of Lackawanna Transit System policy that similarly bans religious advertisements. In a separate brief filed in Dec. 2018 in the same court, the coalition raised arguments at the forefront of the SEPTA case.
The Reporters Committee’s attorneys argue that transit policies seeking to avoid controversial speech are imprecise and therefore are unconstitutionally vague. Words like “political” and “religious,” according to the Reporters Committee’s briefs, are expansive — they can respectively apply to any issue related to government affairs or spiritual belief.
“The imprecise terms used in both the original and amended … policies vests too much authority in the hands of government officials to determine which ads are forbidden or permitted,” the Reporters Committee’s brief opposing the SEPTA policy argues.
In addition, both coalitions argue that the SEPTA and COLTS policies amount to a “heckler’s veto”: a government’s suppression of political speech to prevent a third party’s negative reaction to that expression. The transit companies say they fear that “controversial” advertisements could spark heated debate and offend passengers, leading to a potential decline in ridership — which COLTS and SEPTA have not proven directly. Court precedent has repeatedly affirmed that this line of reasoning cannot be the basis of free speech restrictions.