PENNSYLVANIA–A public transportation agency violated the First Amendment by rejecting an anti-abortion advertisement for display in its stations and vehicles, the U.S. Court of Appeals in Philadelphia (3rd Cir.) ruled in late-June.
Southeastern Pennsylvania Transportation Authority “acted as a censor, limiting speech because it found it to be ‘misleading’,” Judge Jane Roth wrote for the court.
SEPTA created a designated public forum by excluding “only a very narrow category of ads” in its written policies, by accepting in practice a broad range of advertisements addressing topics including sex and family planning, and by setting a goal of raising revenue from the advertisements, the court said.
The court concluded that SEPTA’s exclusion of an advertisement asserting that “Women Who Choose Abortion Suffer More & Deadlier Breast Cancer” does not withstand the strict scrutiny that applies to speech bans in public forums. Even if the transit system were a non-public forum, the court added, the ban was not a “reasonable” speech regulation allowable in such forums. The agency acted unreasonably in removing the posters without notifying the advertiser, a group called “Christ’s Bride Ministries,” of their objections or asking them to clarify the basis on which the claims were made.
The appellate court’s decision overturned a lower court’s August 1996 ruling that SEPTA had not created a public forum because it maintained control over use of the advertising space, and that the Assistant U.S. Secretary of Health’s opinion was a reasonable basis for removing the ads.
In November 1995, the religious organization contacted SEPTA about placing posters, bold white lettering on a black background with the word ‘deadlier’ in red, in the Philadelphia area transit system. After the organization complied with a request to better identify themselves as the sponsor on the posters, SEPTA displayed 27 of the posters, charging the ministries a $3,000 per month advertising fee.
SEPTA said that they immediately began receiving “numerous” complaints about the posters, which included “rider protests” and “criticism” by “women’s health organizations” and “local government officials.” In early February 1996, SEPTA received a copy of a letter written by Dr. Philip Lee, Assistant Secretary of Health in the United States Department of Health and Human Services. The letter was addressed to the General Manager of the Washington Metropolitan Area Transit Authority, where the posters were also displayed. The letter said that the advertising copy was “unfortunately misleading, unduly alarming, and does not accurately reflect the weight of the scientific literature.” Based on Lee’s letter, SEPTA removed the posters in mid-February 1996 without contacting the religious organization.
The ministries filed suit in May 1996 against SEPTA, alleging violations of their right under the First and Fourteenth Amendments and breach of contract. SEPTA held that a clause in their contract stated they had the right to remove advertising material it found “objectionable,” but said that questions about the posters’ accuracy were at the “heart”of the decision to remove them. The district court heard testimony about SEPTA’s policies and practices regarding advertising space on SEPTA property, as well as testimony from experts about the alleged link between breast cancer and induced abortions. (Christ’s Bride Ministries Inc. v. Southeastern Pennsylvania Transportation Authority; Appellant’s Counsel: William Roberts, Philadelphia)