Ridden with Controversy: Applying the Public Forum Doctrine to

William & Mary Bill of Rights Journal William & Mary Bill of Rights Journal

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Article 11

12-2021

Ridden with Controversy: Applying the Public Forum Doctrine to Ridden with Controversy: Applying the Public Forum Doctrine to

Public Transit Advertising Public Transit Advertising

Remy T. B. Oliver

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Remy T. B. Oliver,

Ridden with Controversy: Applying the Public Forum Doctrine to Public Transit

Advertising

, 30 Wm. & Mary Bill Rts. J. 467 (2021), https://scholarship.law.wm.edu/wmborj/

vol30/iss2/11

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RIDDEN WITH CONTROVERSY: APPLYING THE PUBLIC

FORUM DOCTRINE TO PUBLIC TRANSIT ADVERTISING

Remy T. B. Oliver

Public transportation is like a magnifying glass that shows you

civilization up close.

Chris Gethard



INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 468

I. THE ORIGINS AND APPLICATION OF THE PUBLIC FORUM DOCTRINE . . . . . . 470

A. Get Off Uncle Sams Lawn: The Background to the Public Forum

Doctrine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 470

B. A Judicial Straitjacket: Modern Public Forum Doctrine . . . . . . . . . . 472

II. THE MAJORITY CIRCUIT APPROACH . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 474

A. Planned Parenthood Association/Chicago Area v. Chicago Transit

Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 474

B. Family PlanningToo Controversial for the CTA? . . . . . . . . . . . . . . 475

C. Air Line Pilots Association, International v. Department of Aviation

of the City of Chicago . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 479

D. Dismantled: A Memorial Advertisement Too Offensive for the

Departmentof Aviation?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 480

E. Christs Bride Ministries, Inc. v. Southeastern Pennsylvania

Transportation Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 482

F. Fire and Brimstone: Taking It Too Far for SEPTA? . . . . . . . . . . . . . . 483

G. Four Steps to Success: The Amalgamated Majority Approach . . . . . . 485

III. THE MINORITY CIRCUIT APPROACH . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 488

A. Ridley v. Massachusetts Bay Transportation Authority . . . . . . . . . . . 489

B. A Double Hitter: The MBTA Versus Shock Advertising . . . . . . . . . . . 490

C. American Freedom Defense Initiative v. Massachusetts Bay

Transportation Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 492

* JD Candidate, William & Mary Law School, Class of 2022. BA, With Honors,

University of Virginia, Class of 2019. Thank you to everyone on the Bill of Rights Journal

for their work in preparing my Note for publication and to Professor Timothy Zick for his

insight on First Amendment jurisprudence. Finally, thank you to my parents, Jennifer

Barlament and Ray Oliver, and my partner Glenn, for their support and ample provision of

refreshments.

 Chris Gethard, Learning About Humanity on Public Transportation, VICE (June 23,

2013), https://www.vice.com/en/article/5gw7nb/learning-about-humanity-on-public-transpor

tation.

467

468 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 30:467

D. Back for Round Two: The MBTA Doubles Down . . . . . . . . . . . . . . . . 492

E. Fundamentally Inconsistent: The Amalgamated Minority

Approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 494

IV. GOVERNMENT SPEECH . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 494

A. Government Speech Generally. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 494

B. Government Speech and Public Transit Advertising . . . . . . . . . . . . . . 496

V. THE CAPTIVITY ISSUE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 498

A. Captivity Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 498

B. Captivity and Public Transit Advertising. . . . . . . . . . . . . . . . . . . . . . . 498

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 501

INTRODUCTION

Judgment Day is Coming in May.

Choose Adoption . . . It Works!

I didnt serve my country to stab goats.

Department of Defense: End Live Tissue Training above an image

of a soldier in fatigues.

These three examples are among the controversial advertisements subjected to

First Amendment litigation in the past decade. The reactions of the general public upon

viewing controversial advertisements can often be intense.

In 2010, the Washington

Metro Area Transit Authority (WMATA) received hundreds of angry phone calls

and letters complaining about advertisements that were critical of the Catholic

Churchs position on condom usage.

The situation eventually devolved to the point

where WMATA security personnel feared that certain ads would, due to world

events, incite individuals to violence on the system.

While an often overlooked

subject in free speech jurisprudence, it is clear that tensions can run high when buses

and subway trains are involved.

See Ne. Pa. Freethought Socy v. Cnty. of Lackawanna Transit Sys., 327 F. Supp. 3d 767,

772 (M.D. Pa. 2018).

See id. at 780.

PETA, PETA Files Suit After D.C. Metro Outrageously Refuses to Run Ads, Violating the

First Amendment (Aug. 10, 2017), https://www.peta.org/blog/peta-sues-transit-agency-for-re

jecting-ads/ [https://perma.cc/9F5T-9Y9R].

See Archdiocese of Wash. v. Wash. Metro. Area Transit Auth., 897 F.3d 314, 319 (D.C.

Cir. 2018) (citing a survey where 58% of respondents opposed issue-oriented ads and 46%

of respondents were extremely opposed to issue-oriented ads).

See id.

See id. (internal quotation omitted) (referencing a proposed advertisement featuring a

drawing of the Prophet Muhammad, considered gravely offensive to many faithful Muslims).

2021] RIDDEN WITH CONTROVERSY 469

This Note tackles the application of the First Amendment to public transit adver-

tising. Under the current judicial framework, the First Amendment is filtered through

the public forum doctrine when discussing the rights of citizens to utilize govern-

ment property for expressive purposes.

The Note will argue that public transit

advertising constitutes a designated public forum in most (if not all) cases.

That

characterization would force any content-based restrictions to be narrowly tailored

to serve a compelling government interest.

The natural result is a significant expan-

sion of access to public transit advertising by interested parties. If the U.S. Supreme

Court were to grant certiorari to resolve the circuit split, as it declined to do in

2016,

it should hold that most public transit systems are categorically a designated

public forum.

Part I discusses the origins of, and the basic approach to, application of the public

forum doctrine.

Part II discusses the majority approach of circuit courts, finding that

public transit systems are a designated public forum.

Part III discusses the minority

approach of circuit courts, asserting that public transit systems are a non-public

forum.

Part IV discusses the government speech doctrine in the context of public

transit advertising, including the extent to which it is applicable in that context.

Part V discusses the issue of the captive audience and potential avenues to distin-

guish controversial public transit advertising from other types of offensive content.

The Conclusion provides a clear overview of the four-part majority approach and

cleanly integrates the major issues of government speech and captivity into the

overall analysis.

This Note uses the term public transit (commonly referred to as mass transit)

to mean the transportation of large numbers of people by means of buses, subway

trains, etc., especially within urban areas and the system, vehicles, or facilities en-

gaged in such transportation.

All public transit is presumed to be subject to the

See generally Greer v. Spock, 424 U.S. 828 (1976).

See generally Planned Parenthood Assn/Chi. Area v. Chicago Transit Auth., 767 F.2d

1225 (7th Cir. 1985); Air Line Pilots Assn v. Dept of Aviation of Chi., 45 F.3d 1144 (7th Cir.

1995); Christs Bride Ministries, Inc. v. Se. Pa. Transp. Auth., 148 F.3d 242 (3d Cir. 1998).

See Greer, 424 U.S. at 847 (Powell, J., concurring).

See American Freedom Def. Initiative v. King Cnty., 136 S. Ct. 1022, 1025 (2016)

(Thomas, J., dissenting from denial of certiorari) (arguing that transit authorities that open

their ad spaces to political messages must provide compelling justifications for restricting ads,

and must narrowly tailor any restrictions to those justifications).

See discussion infra Part II.

See discussion infra Part I.

See discussion infra Part II.

See discussion infra Part III.

See discussion infra Part IV.

See discussion infra Part V.

See discussion infra Conclusion.

Mass Transit, MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary/mass

%20transit [https://perma.cc/9CX2-FA5N] (last visited Dec. 13, 2021).

470 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 30:467

First Amendment, either via direct ownership by a government, or a close relation-

ship creating state action on the part of a private actor.

I. THE ORIGINS AND APPLICATION OF THE PUBLIC FORUM DOCTRINE

A. Get Off Uncle Sams Lawn: The Background to the Public Forum Doctrine

The First Amendment to the U.S. Constitution states that Congress shall make

no law . . . abridging the freedom of speech.

While the text itself is clear, courts

since the late 1960s have artificially constrained the freedom of speech within a

judicial straitjacket known as the public forum doctrine.

This doctrine is an analytical

tool used to determine the constitutionality of speech restrictions implemented on

government property and, thus, whether groups have the right to engage in expres-

sive activities on such property.

It is a complicated prism of judicial analysis that

requires background knowledge of First Amendment jurisprudence.

Until the 1939 decision Hague v. Committee for Industrial Organization, the

Supreme Court had expressed skepticism that citizens had any right whatsoever to

the use of government property, likening the government to a private landowner.

In Davis v. Massachusetts, the Supreme Court adopted the logic of Justice Holmes

when it affirmed the decision of the Massachusetts Supreme Court.

In Holmes

view: [f]or the legislature absolutely or conditionally to forbid public speaking in

a highway or public park is no more an infringement of the rights of a member of

the public than for the owner of a private house to forbid it in his house.

In other

words, Uncle Sam could tell private citizens to get off his lawn at his pleasure.

Hague was a seminal decision; for the first time, the Court recognized some right

of citizens collectively to enjoy government property.

Justice Roberts succinctly

enumerated this principle when, in dictum in Hague, he famously wrote:

Wherever the title of street and parks may rest, they have imme-

morially been held in trust for the use of the public and, time out

See Burton v. Wilmington Parking Auth., 365 U.S. 715, 715 (1961).

See U.S. CONST. amend. I.

See generally Robert C. Post, Between Governance and Management: The History and

Theory of the Public Forum, 34 UCLA L. REV. 1713 (1987).

See David L. Hudson, Jr., Public Forum Doctrine, THE FIRST AMENDMENT ENCYCLOPE-

DIA (Jan. 8, 2020), https://www.mtsu.edu/first-amendment/article/824/public-forum-doctrine

[https://perma.cc/FQM2-MG92].

See generally Post, supra note 21.

307 U.S. 496, 514 (1939).

See generally 167 U.S. 43 (1897).

See Commonwealth v. Davis, 39 N.E. 113, 113 (Mass. 1895).

See id.

See Hague, 307 U.S. at 514.

2021] RIDDEN WITH CONTROVERSY 471

of mind, have been used for purposes of assembly, communicating

thoughts between citizens, and discussing public questions. Such

use of the streets and public places has, from ancient times, been a

part of the privileges, immunities, rights, and liberties of citizens.

This idea was supported, in less enthusiastic language, by later decisions in Jamison v.

Texas

and Niemotko v. Maryland.

The revolution in public forum doctrine occurred

during the turmoil of the 1960s Civil Rights movement, when the right of the public

to peaceably assemble on government property became a major judicial flashpoint.

Edwards v. South Carolina

and Cox v. Louisiana

laid the groundwork for the

public forum doctrine, with Harry Kalven Jr., a legal scholar, coining the term public

forum shortly after the two decisions were laid down.

Kalven endorsed the idea

that in an open democratic society the streets, the parks, and other public places are

an important facility for public discussion and political process. They are . . . a public

forum that the citizen can commandeer. . . .

This idea was gradually adopted by

the Supreme Court, albeit in fits and starts.

Through the 1960s and early 1970s, the

Court debated the extent to which the government could restrict expressive activity,

especially when weighty public policy concerns were in the mix.

In 1976, how-

ever, the Supreme Court resolved this debate by finalizing the modern form of

public forum doctrine in Greer v. Spock.

Id. at 515.

318 U.S. 413, 416 (1943) (But one who is rightfully on a street . . . carries with him

there as elsewhere the constitutional right to express his views in an orderly fashion . . .

extend[ing] to the communication of ideas by handbills and literature as well as by the

spoken word.).

340 U.S. 268, 276 (1951) (Stating that the issue before the Court is [h]ow to reconcile

the interest in allowing free expression of ideas in public places with the protection of . . . the

primary uses of streets and parks).

See generally Schneider v. State, 308 U.S. 147 (1939); Valentine v. Chrestensen, 316

U.S. 52 (1942); Talley v. California, 362 U.S. 60 (1960); see also Harry Kalven, Jr., The Concept

of the Public Forum: Cox v. Louisiana, 1965 SUP. CT. REV. 1, 2.

372 U.S. 229 (1963).

379 U.S. 559 (1964).

See Kalven, supra note 32, at 10.

Id. at 1112.

See Adderley v. Florida, 385 U.S. 39, 47 (1966) (The State, no less than a private owner

of property, has power to preserve the property under its control for the use to which it is

lawfully dedicated.); Grayned v. City of Rockford, 408 U.S. 104, 115 (1972) (The right

to use a public place for expressive activity may be restricted only for weighty reasons.);

Police Dept of Chi. v. Mosley, 408 U.S. 92, 96 (1972) (Once a forum is opened up to assembly

or speaking by some groups, government may not prohibit others from assembling or speak-

ing on the basis of what they intend to say.).

See Mosley, 408 U.S. at 96.

See generally 424 U.S. 828 (1976).

472 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 30:467

B. A Judicial Straitjacket: Modern Public Forum Doctrine

In Greer, the Court began to outline what has become a three-tiered system

which would go on to form the doctrinal framework for public forum analysis.

The

public forum doctrine divides government property into three distinct categories: (1)

quintessential public forums (i.e., public streets and parks); (2) designated public

forums (i.e., municipal theaters, school board meetings, and university meeting facili-

ties); and (3) non-public forums (i.e., military bases).

Quintessential public forums

permit the most expressive activity, while non-public forums permit the least.

Quintessential public forums are places long devoted to assembly and debate,

or which have immemorially been held in trust for expressive purposes.

In a quint-

essential public forum, the government may not ban all communicative activity

because there is a First Amendment right of guaranteed access by members of the pub-

lic.

Content-based regulations of speech must be narrowly drawn to serve a compel-

ling state interest and any content-neutral time, place, and manner restrictions are

permissible only if they are narrowly tailored with ample alternative channels for

expressive activity.

Designated, sometimes called limited, public forums are places that the govern-

ment has opened to the public to use for expressive purposes.

The government is

not constitutionally required to open such places, and can close them to expressive

activity at any time.

In practice, a designated public forum may be opened to the

public as a whole, therefore operating no differently than a traditional public fo-

rum.

Proscribed use of the designated public forum may also be more limited in

scope, open only to certain groups or the discussion of certain subjects.

Content-

based regulations of speech must be narrowly drawn to meet a compelling state

See generally id.

Perry Educ. Assn v. Perry Loc. Educators Assn, 460 U.S. 37, 4546 (1983).

See id. at 37, 46.

Id. at 45 (quoting Hague v. Comm. for Indus. Org., 307 U.S. 496, 515 (1939)). See also

Lyrissa Barnett Lidsky, Government Sponsored Social Media and Public Forum Doctrine

Under the First Amendment: Perils and Pitfalls, 19 PUB. LAW. 2, 4 (2011).

See Perry, 460 U.S. at 45.

See Post, supra note 21, at 1760 (citing United States v. Grace, 461 U.S. 171, 177 (1983)).

See Lidsky, supra note 43, at 4; see also Cornelius v. NAACP Legal Def. & Educ.

Fund, Inc., 473 U.S. 788, 802 (1985) (citing Perry, 460 U.S. at 4546 n.7).

See Greer v. Spock, 424 U.S. 828, 836 (1976).

See Lidsky, supra note 43, at 4.

See id. (citing Perry, 460 U.S. at 46 n.7). But see generally Widmar v. Vincent, 454

U.S. 263 (1981) (striking down a schools exclusion of religious groups from facilities open

to all other student groups); City of Madison Joint Sch. Dist. v. Wis. Pub. Empt Rels.

Commn, 429 U.S. 167 (1976) (allowing a non-union teacher to speak at a public meeting

of the school board opposing a demand by the teachers union).

2021] RIDDEN WITH CONTROVERSY 473

interest, and content-neutral regulations are permissible if assessed to be reasonable

by a court.

Non-public forums are places that are neither traditional nor designated public

forums.

The government in a non-public forum is essentially in the position of a

private property owner relative to the general public.

Reasonable time, place, and

manner restrictions are permissible, and subject matter regulation of speech is allowed

so long as the regulation is reasonable and does not constitute an effort to suppress

speech because government officials arbitrarily oppose the speakers viewpoint.

While this framework has been both criticized

and defended,

it remains the

analytical tool federal courts use to determine which types of speech restrictions are

permissible on government property.

As many scholars note, the doctrine has a

tendency to distract courts from the first amendment values at stake in a given case.

Despite the knowledge that public forum doctrine is crude, historically ossified,

and seemingly unconnected to any thematic view of the free expression guarantee,

there has been no indication that courts are searching for an alternative framework.

This Note will not attempt to fight that particular battle. Rather, within the

existing public forum framework, this Note argues that when public transit advertis-

ing campaigns do not categorically exclude certain types of advertisements, they

create a designated public forum that prevents content-based discrimination absent

a compelling public interest.

This approach should then be adopted to resolve the

current circuit split on the issue should the Supreme Court receive a ripe appeal from

a circuit court decision.

See Post, supra note 21, at 1748.

See Lidsky, supra note 43, at 4.

See Perry Educ. Assn v. Perry Loc. Educators Assn, 460 U.S. 37, 46 (1983); Greer,

424 U.S. at 836.

See Post, supra note 21, at 1751.

See, e.g., TIMOTHY ZICK, SPEECH OUT OF DOORS: PRESERVING FIRST AMENDMENT

LIBERTIES IN PUBLIC PLACES 5556 (2009); Geoffrey R. Stone, Content-Neutral Restrictions,

54 U. CHI. L. REV. 46, 93 (1987); C. Thomas Dienes, The Trashing of the Public Forum: Prob-

lems in First Amendment Analysis, 55 GEO. WASH. L. REV. 109, 110 (1986); Daniel W. Park,

Government Speech and the Public Forum: A Clash Between Democratic and Egalitarian

Values, 45 GONZ. L. REV. 113, 11415 (2009).

See generally Lillian R. Bevier, Rehabilitating Public Forum Doctrine: In Defense of

Categories, 1992 SUP. CT. REV. 79.

See Park, supra note 54, at 114.

See Daniel A. Farber & John E. Nowak, The Misleading Nature of Public Forum

Analysis: Content and Context in First Amendment Adjudication, 70 VA. L. REV. 1219, 1224

(1984).

See Calvin Massey, Public Fora, Neutral Governments, and the Prism of Property, 50

HASTINGS L.J. 309, 310 (1999).

See discussion infra Conclusion.

474 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 30:467

II. THE MAJORITY CIRCUIT APPROACH

Under the majority circuit approach, followed by the Second, Sixth, Seventh, and

D.C. Circuits, a public transit agencys acceptance of a wide array of political and issue-

related advertisements is evidence that the government intended to create a desig-

nated (rather than limited) public forum because political advertisements . . . [are]

the hallmark of a public forum.

Any restriction on advertising content must be

supported by a compelling justification, and must be narrowly tailored to those

justifications.

What is compelling is difficult to define with precision. However,

it seems to involve cases where the interest is more than an exercise of discretion or

preference.

Cases from the Seventh and Third Circuits will be used to demonstrate

the application of the majority circuit approach.

A. Planned Parenthood Association/Chicago Area v. Chicago Transit Authority

The Planned Parenthood Association case clearly shows the dangers of allowing

potentially biased employees to serve as gatekeepers for the publics speech.

The

Chicago Transit Authority (CTA) contracted with Winston Network, Inc. (Winston)

to maintain advertising space on its properties throughout Chicago, including car

cards on the interiors of its buses and subway trains.

Commercial advertisers paid

the full rate, while non-profit organizations could advertise for a nominal fee that

covered Winstons costs in posting the advertisements.

It was Winstons policy to

accept all commercial advertising that did not raise questions of vulgarity or legality,

but Winston often sought the CTAs express approval for non-profit advertisements.

The Planned Parenthood Association of the Chicago Area (PPA) contacted

Winston about placing an advertisement on CTA buses and trains.

Winstons

See Am. Freedom Def. Initiative v. King Cnty., 136 S. Ct. 1022, 1024 (2016) (Thomas,

J., dissenting from denial of certiorari) (quoting Am. Freedom Def. Initiative v. Suburban

Mobility Auth. for Regl Transp., 698 F.3d 885, 890 (6th Cir. 2012)).

See id. at 1025 (Thomas, J., dissenting from denial of certiorari).

See generally Robert T. Miller, What is a Compelling Government Interest?, 21 J.

MKTS. & MORALITY 71 (2018); Roberts v. United States Jaycees, 468 U.S. 609 (1984) (in

the context of large impersonal organizations, promoting gender equality was a compelling

governmental interest that justified restricting freedom of association); Grutter v. Bollinger,

539 U.S. 306 (2003) (achieving a diverse student body in a public law school justified the

governments considering of race in admissions decisions).

See, e.g., Planned Parenthood Assn/Chi. Area v. Chicago Transit Auth., 767 F.2d 1225,

1232 (7th Cir. 1985); Air Line Pilots Assn, Intl v. Dept of Aviation of Chi., 45 F.3d 1144,

115455 (7th Cir. 1995); Gregoire v. Centennial Sch. Dist., 907 F.2d 1366, 1369 (3d Cir. 1990).

See generally 592 F. Supp. 544 (N.D. Ill. 1984), affd, 767 F.2d 1225 (7th Cir. 1985).

See generally 767 F.2d at 1225.

See id. at 1227.

See id.

2021] RIDDEN WITH CONTROVERSY 475

liaison with the CTA forwarded the proposed advertisementwhich mentioned the

availability of family-planning servicesto the CTA, where it was rejected.

revised advertisementwhich mentioned the availability of counseling about

prenatal care, abortion, or adoptionalso was rejected.

PPA then filed an action

against CTA, alleging a violation of the First and Fourteenth Amendments.

In its

answer, the CTA responded that it had rejected PPAs proposed advertisements by

applying its long-standing, consistently-enforced policy . . . to reject controversial

public issue advertisements.

B. Family PlanningToo Controversial for the CTA?

The CTA claimed that its property was a non-public forum rather than a desig-

nated public forum, which would severely limit the PPAs ability to bring a First

Amendment claim.

A designated public forum is government property that has

not traditionally been regarded as a public forum but that has been intentionally

opened up for that purpose by a government actor.

To create a designated public

forum, the government must intentionally open up a location or communication

channel for use by the public at large.

The scope of the relevant forum is defined

by the access sought by the speaker.

The government can claim that a limited

public forum has been establishedthus allowing substantial restrictions on speech

only if the government limits its property to use by certain groups or dedicate[s it]

solely to the discussion of certain subjects.

In analyzing the CTAs policy, both the district and appellate courts referred

back to the three-tiered approach common in public forum jurisprudence.

Citing

Perry Education Association v. Perry Local Educators Association,

the Seventh

Circuit noted that [i]f public property is a public forum, either traditionally or by

designation, the government bears a heavy burden in justifying restrictions on speech

See id.

See id. (internal quotation omitted).

Id. at 123132.

See Christian Legal Socy of Univ. of Cal. v. Martinez, 561 U.S. 661, 679 n.11 (2010)

(internal quotation omitted) (quoting City of Pleasant Grove v. Summum, 555 U.S. 460, 469

(2009)).

See Bloedorn v. Grube, 631 F.3d 1218, 1321 (11th Cir. 2011) (citing Cornelius v.

NAACP, 473 U.S. 788, 802 (1984)).

See Cornelius, 473 U.S. at 801.

See Christian Legal Socy, 561 U.S. at 679 n.11 (internal quotations omitted) (quoting

Summum, 555 U.S. at 470).

See Planned Parenthood Assn/Chi. Area, 592 F. Supp. 544, 55253 (N.D. Ill. 1984);

Planned Parenthood Assn, 767 F.2d at 123132.

460 U.S. 37 (1983).

476 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 30:467

therein.

Unfortunately for lower courts, Perry does not clearly establish guide-

lines for determining when government property has become a designated public

forum.

Rather, courts have found it helpful to consider the uses to which the

property has previously been put

as well as whether the proposed speech is in-

consistent or incompatible with the primary use of the government facility.

The

public forum analysis is therefore a fact-intensive inquiry.

First, the CTAs actions must be analyzed to see whether it intentionally

opened up its advertising to the public at large.

The Seventh Circuit noted that if

there was a policy of rejecting controversial public-issue ads, it was neither consis-

tently enforced nor applied to any issue except abortion.

Casting a skeptical eye

on the policy asserted by the CTA in the action, the district court stated that the

CTAs policy was really nonexistent and [was] contrived for this action.

The

policy [had] never been written and no guidelines exist[ed] for its application at

the time of litigation.

As a result of the policy being articulated differently by

different CTA and Winston officers and employees, the end result was a non-policy

that effectively allowed purely subjective decisions as to what advertising to accept

or reject.

Other cases demonstrate that this particular kind of inconsistent content

policy creates a designated public forum.

For further evidence of this proposition, the CTA had in the past accepted adver-

tisements from other family planning organizations, including the Illinois Family Plan-

ning Council.

While this inconsistent application was not fatal to the CTAs case, it

did weigh against the CTA.

What was more damaging to the CTA was the consistent

See Planned Parenthood Assn, 767 F.2d at 1232.

See Perry, 460 U.S. 4546.

See, e.g., Widmar v. Vincent, 454 U.S. 263, 263 (1981); Jarman v. Williams, 753 F.2d

76, 79 (8th Cir. 1985); Intl Socy for Krishna Consciousness, Inc. v. N.J. Sports & Exposition

Auth., 691 F.2d 155, 15860 (3d Cir. 1982).

See, e.g., Greer v. Spock, 424 U.S. 828, 838 (1976); Eastern Conn. Citizens Action

Grp. v. Powers, 723 F.2d 1050, 105354 (2d Cir. 1983); United States Sw. Africa/Namibia

Trade & Cultural Council v. United States, 708 F.2d 760, 764 (D.C. Cir. 1983).

See Greer, 424 U.S. at 828.

See City of Pleasant Grove v. Summum, 555 U.S. 460, 469 (2009).

See Planned Parenthood Assn/Chi. Area v. Chicago Transit Auth., 767 F.2d 1225,

1228 (7th Cir. 1985).

See Planned Parenthood Assn/Chi. Area v. Chicago Transit Auth., 592 F. Supp. 544,

549 (N.D. Ill. 1984), affd, 767 F.2d 1225 (7th Cir. 1985).

See id.

See, e.g., New York Magazine v. Metro. Transit Auth., 136 F.3d 123, 130 (2d Cir. 1998)

(Allowing political speech . . . evidences a general intent to open a space for discourse, and

a deliberate acceptance of the possibility of clashes of opinion and controversy that the Court

in Lehman recognized as inconsistent with sound commercial practice.).

See Planned Parenthood Assn, 592 F. Supp. at 550.

See Bannon v. Sch. Dist. of Palm Beach Cnty., 387 F.3d 1208, 121213 (11th Cir. 2004)

2021] RIDDEN WITH CONTROVERSY 477

acceptance of the types of advertising it claimed to prohibit over a long period of time.

The CTA claimed it had a policy of declining the subset of controversial public

issue advertising.

Despite this stated policy, the CTA entirely lacked written standards

for its officers to ascertain which advertisements were sufficiently controversial

to bar from publication.

The CTA had recorded only two prior rejections of

advertisements, one related to the Vietnam Warlater posted pursuant to a settlement

agreementand one calling for the impeachment of President Nixon, later posted

pursuant to a court order.

The PPA advertisement was denied publication despite

perhaps more controversial advertisements being approved by CTA on a regular

basis.

This was extremely damaging to the CTAs claim that it had created a non-

public forum.

100

On appeal, the Seventh Circuit held that the CTAs actions had created a

designated public forum.

101

This was the correct outcome because of the lack of

consistently enforced written policy guidelines and the acceptance of at least some

political advertising.

102

The CTA maintained no written policy on advertisements,

the only restriction being the informal directive to Winston to refuse vulgar, immoral,

or disreputable advertising.

103

As a result of the laissez-faire policy of granting

space to virtually everyone willing to pay, the CTA opened the forum to a huge

range of commercial, public-service, public-issue, and political ads.

104

Thus, the

advertisements on the CTAs buses and subway cars became a channel of communi-

cation for the general public and a designated public forum.

105

The CTAs counter-argument relied heavily on the Supreme Courts decision

in Lehman v. Shaker Heights.

106

The Court distinguished Lehman in noting that

Shaker Heights had a consistently enforced written policy of rejecting all political

(quoting Hazelwood v. Kuhlmeier, 484 U.S. 260, 267 (1988) (The government does not

create a public forum by inaction or by permitting limited discourse, but only by intentionally

opening a nontraditional forum for public discourse.)).

See Planned Parenthood Assn, 592 F. Supp. at 54951.

See Planned Parenthood Assn/Chi. Area v. Chicago Transit Auth., 767 F.2d 1225,

1229 (7th Cir. 1985).

See id. at 122930.

See Impeach Nixon Comm. v. Buck, 498 F.2d 37, 3738 (7th Cir. 1974); Planned

Parenthood Assn, 767 F.2d at 1230.

See Planned Parenthood Assn, 767 F.2d at 1230 (for example, an ad showing bombs

falling on a child had been accepted).

100

See also New York Magazine v. Metro. Transit Auth., 136 F.3d 123, 12930 (2d Cir.

1998).

101

Planned Parenthood Assn, 767 F.2d at 1232.

102

See id. at 1230; New York Magazine, 136 F.3d at 12930.

103

See Planned Parenthood Assn, 767 F.2d at 1232.

104

See id.

105

See id.; see also Coalition for Abortion Rts. & Against Sterilization Abuse v. Niagara

Frontier Transp. Auth., 584 F. Supp. 985, 989 (W.D.N.Y. 1984).

106

See generally 418 U.S. 298 (1974).

478 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 30:467

and public issue advertising.

107

Additionally, in the twenty-six years prior to the

case, Shaker Heights had not permitted any political or public issue advertising on

its vehicles.

108

As such, the Seventh Circuit noted that the Lehman decision stands

for the proposition that the interior of a transit systems cars and buses is not a

traditional public forum but not that such space may never become a public

forum.

109

Fortunately, the court in this case managed to avoid a pitfall that many

others had fallen into.

110

Another important consideration is whether the proposed speech is inconsistent

or incompatible with the primary use of the government facility.

111

Advertising was

not incompatible with the primary use(s) of the CTAs facilities because the CTA

already permits its facilities to be used for public-issue and political advertising.

112

In an era of declining local government revenue, most public agencies have an eager-

ness for additional revenue that creates a symbiotic relationship with individuals

eager to provide money in exchange for the display of advertising.

113

While the CTA

was unwilling to accept PPAs proposed ad even at the higher [commercial] rate,

they obviously stood to profit handsomely for accepting most types of advertise-

ments due to the low costs involved in posting ads.

114

Even when running political

advertisements, other transit systems had experienced only minor . . . graffiti on

some signs, which had a minimal impact on advertising-related revenue.

115

There-

fore, operating public transit advertising as a designated public forum would allow

more speech without adversely impacting its core purpose.

116

As the CTA [did] not attempt to justify its exclusion of PPAs message as a

narrowly tailored, content-neutral time, place, or manner restriction, the Seventh

Circuit held that the CTAs refusal to run PPAs advertisements was a violation of

the First Amendment.

117

The CTAs counter-arguments were unconvincing, and did

not appear to outweigh the CTAs policy of deliberately opening advertising on its

107

See id. at 301.

108

See id. at 30001.

109

See Planned Parenthood Assn, 767 F.2d at 1233; see also Gay Activists All. of Wash.,

D.C., Inc. v. Wash. Metro. Area Transit Auth., No. 78-2217, 1979 U.S. Dist. LEXIS 15415,

at *1113 (D.C. Cir. 1979) (Thus, although the interiors of Metro Buses are not a traditional

public forum . . . a city or regional transit system nevertheless may create a public forum for

the advertising [of] asocial or political speech by the acceptance of other advertisements

dealing with social or political issues.).

110

See Ridley v. Mass. Bay Transp. Auth., 390 F.3d 65, 7677 (1st Cir. 2004).

111

See Greer v. Spock, 424 U.S. 828, 843 (1976) (Powell, J., concurring).

112

Planned Parenthood Assn, 767 F.2d at 1232.

113

See CBS Outdoor, Inc. v. N.J. Transit Corp., 2007 U.S. Dist. LEXIS 64155, at *18 (D.

N.J. 2007).

114

See Planned Parenthood Assn, 767 F.2d at 1227 n.2.

115

See Planned Parenthood Assn/Chi. Area v. Chicago Transit Auth., 592 F. Supp. 544,

551 (N.D. Ill. 1984).

116

See discussion supra Section II.B.

117

See Planned Parenthood Assn, 767 F.2d at 1233.

2021] RIDDEN WITH CONTROVERSY 479

public transit system to the general public for expressive purposes.

118

The circuit

courts analysis in this particular case is a strong example of the majority approach,

and lays out the basic foundation for what other courts should ideally follow.

119

C. Air Line Pilots Association, International v. Department of Aviation of the

City of Chicago

120

The Air Line Pilots Association (ALPA) was the collective bargaining represen-

tative for the pilots of Air Wisconsin, Inc. (Air Wisconsin).

121

Air Wisconsin had its

fleet sold off in 1993, with United Airlines (UA) retaining rights to the name.

122

its representative capacity, ALPA sought to place an advertisement honoring the Air

Wisconsin pilots in a diorama display case at Chicago OHare Airport (OHare), a

municipal airport wholly owned by the City of Chicago (the City).

123

The advertise-

ment was highly critical of UA, depicting the dismantling of an Air Wisconsin plane

beneath a headline reading: It wasnt broke until they fixed it.

124

After designing the advertisement, ALPA entered into a contractworth $1,440

for a two month display periodfor a diorama of unknown content with Transporta-

tion Media Incorporated (TMI).

125

TMI controlled all advertising in OHare on

behalf of the City.

126

The City policy on advertising was that [u]se of all advertising

material is subject to approval by office of Commissioner of Aviation, City of

Chicago, and [is] subject to its orders of removal if deemed unaesthetic or objection-

able for any reason whatsoever.

127

After TMI had signed a contract with ALPA and

the installation was set to begin, a representative of the City ordered TMI not to

118

See id.

119

See discussion supra Section II.B.

120

See Air Line Pilots Assn v. Dept of Aviation of Chi., No. 93 C 6696, 1994 U.S. Dist.

LEXIS 512 (N.D. Ill. January 18, 1994), vacated and remanded, 45 F.3d 1144 (7th Cir.

1995).

121

See Air Line Pilots Assn, 45 F.3d at 1147.

122

See id.

123

See id.; CHICAGO DEPARTMENT OF AVIATION, OHare History, https://www.flychi

cago.com/business/CDA/Pages/OHare.aspx [https://perma.cc/S9HP-SK8C] (last visited

Dec. 13, 2021).

124

See Air Line Pilots Assn, 45 F.3d at 1147. The full text of the advertisement stated:

Air Wisconsin employees built their company into one of the largest re-

gional airlines in the nation, but UAL Corp. broke it into pieces and sold

parts of it to others for its own benefit. Hundreds of Air Wisconsin em-

ployees lost their jobs. This advertisement is dedicated to the workers

at Air Wisconsin and other airlines who have lost the ability to support

their families because of corporate greed and indifference.

Id.

125

See id. at 1148.

126

See id.

127

See id.

480 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 30:467

install it.

128

ALPA alleged this action was the result of pressure from UA, which paid

the City approximately $4,000,000 a year for advertising.

129

The diorama was even-

tually displayed, but was removed after a few hours, implied to be as a result of City

pressure.

130

While ALPA made numerous attempts to have the diorama displayed

including changing the headline to Dismantled, but not forgottenALPA was

unable to convince TMI to restore the diorama.

131

ALPA then brought suit against

the Department of Aviation and TMI, alleging a violation of its First and Fourteenth

Amendment rights.

132

D. Dismantled: A Memorial Advertisement Too Offensive for the Department of

Aviation?

The error of the district court in this case emphasizes the need for a thorough,

fact-specific inquiry whenever the issue of whether a space is a public forum is

raised.

133

On first impression, a district court cannot rely on sweeping categoriza-

tions in precedent to dismiss claims out of hand.

134

The district court erroneously

dismissed ALPAs claims, relying on the Supreme Courts holding in International

Society for Krishna Consciousness v. Lee.

135

The district court interpreted Krishna

as holding that airport terminals were categorically not public forums.

136

The fact that

a municipal entity allowed largely unregulated advertising displays and dioramasas

well as a host of other commercial enterprisesin the interior corridors of the

airport was considered to be irrelevant.

137

Thus, the district court ruled OHare was

a non-public forum and dismissed ALPAs claims.

138

On appeal, the Seventh Circuit reversed the district court.

139

It distinguished the

Krishna holding by noting the difference between general access and limited

128

See id.

129

See id.

130

See id.

131

See id.

132

See id.

133

See Air Line Pilots Assn v. Dept of Aviation of Chi., No. 93 C 6696, 1994 U.S. Dist.

LEXIS 512, at *45 (N.D. Ill. Jan. 18, 1994).

134

Air Line Pilots Assn, 45 F.3d at 1160. But see Air Line Pilots Assn, 1994 U.S. Dist.

LEXIS 512, at *45.

135

See Air Line Pilots Assn, 1994 U.S. Dist. LEXIS 512, at *5; Intl Socy for Krishna

Consciousness v. Lee, 505 U.S. 672, 672, 67677 (1992) (explaining that the Hare Krishnas

sought a declaratory judgment that a regulation limiting distribution of literature and solicitation

at an airport to areas outside the terminals was a violation of the First Amendment. The Su-

preme Court held that airports were not traditional public forums because their traditional

purpose was not to promote the free exchange of ideas but to facilitate air travel and, therefore,

the regulation needed only to be reasonable.).

136

See Air Line Pilots Assn, 1994 U.S. Dist. LEXIS 512, at *67.

137

See id. at *6.

138

See id. at *78.

139

See Air Line Pilots Assn, 45 F.3d at 1160.

2021] RIDDEN WITH CONTROVERSY 481

access.

140

Especially important was the very thing the district court had glossed over:

the forum at issue.

141

The relevant expressive forum was not using the concourse for

the purpose of activities like solicitation and the distribution of literature as was the case

in Krishna.

142

Rather, the relevant expressive forum was [using] one of the [terminal]

display cases to communicate [a] message.

143

The district courts error was in de-

fining the desired access too broadly.

144

It is critical for courts to closely scrutinize the

plaintiffs claims because forum should be defined in terms of the access sought

by the speaker.

145

Even if a piece of government property considered as a whole is not

a public forum, channels for public communicationor alternative foramay well

exist within [that] . . . piece of government property.

146

Hence, the error of the district

court began with this overbroad categorization of the public forum at issue.

147

With the forum at issue clarified, it became immediately clear why the Seventh

Circuit found that TMIs practices could have given rise to a designated public

forum.

148

While a public forum does not arise due to inaction, the supervising

agencys policy must be of more substance than a strategy adopted or relied upon

for the purposes of litigation.

149

While the City claimed there was a policy of ex-

cluding political advertisements, the City presented absolutely no evidence that such

a policy was ever enforced at OHare.

150

Further, it appeared that TMI [was willing

to] . . . accept the ads of all who were willing to pay the fee.

151

While the City

argued this ipso facto created a non-public forum, the Seventh Circuit plainly noted

that in allow[ing] all advertisers willing to pay its fee the indiscriminate use of its

property, [the City] cannot now argue that it maintains a policy of limited access.

152

The City countered that the charging of a fee meant that access to the display

cases [was] not unlimited and, thus, a non-public forum existed.

153

This argument was

erroneous. Charging a fee does not impact the analysis of whether the government

has designated a public forum at all.

154

So long as a party is willing to tender[] the

140

See id. at 1151.

141

See id. at 115152.

142

See id. at 1151.

143

See id. at 115152.

144

See id. at 1151.

145

See id. at 1152 (quoting Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788,

801 (1985)).

146

See id.

147

See id.

148

See id. at 1151. Instead of holding that OHares advertising was a designated public

forum, the appeals court remanded the case back to the district court for a final determination

due to the insufficiency of the record. See id.

149

See id. at 1154.

150

See id. at 1155.

151

See id.

152

See id.

153

See id.

154

See id.

482 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 30:467

same fee required of all other advertisers, it does not matter that a fee is in place in

order to generate revenue.

155

This point raises an important consideration, as most

public transit systems charge a fee to advertisers, even if it is nominal (i.e., covers

the cost of posting the advertisement sans profit).

156

It is critical that courts look closely at the facts of the case to determine the

relevant forum at issue and the type of access for expressive activity demanded by

the public.

157

The comparison between the district court and Seventh Circuit opin-

ions demonstrates the peril of discounting out of hand a plaintiffs argument that a

public forum exists.

158

Even if there appears to be Supreme Court precedent on point,

a full analysis must always be conducted.

159

E. Christs Bride Ministries, Inc. v. Southeastern Pennsylvania Transportation

Authority

160

The facts of this Third Circuit case push the boundaries of what might be con-

sidered controversial but benign advertising. However, the First Amendment does not

discriminate.

161

The Southeastern Pennsylvania Transportation Authority (SEPTA)

contracted with Transportation Displays Inc. (TDI) for the construction and sale of

advertising space in its stations, and in and on its vehicles.

162

Christs Bride Minis-

tries (CBM) sought to display a factually untrue advertisement

163

stating that

Women Who Choose Abortion Suffer More & Deadlier Breast Cancer.

164

TDI

155

See id.

156

See, e.g., Planned Parenthood Assn/Chi. Area v. Chicago Transit Auth., 767 F.2d

1225, 1227 (7th Cir. 1985).

157

See, e.g., Intl Socy for Krishna Consciousness, Inc. v. N.J. Sports & Exposition

Auth., 691 F.2d 155, 15860 (3d Cir. 1982) (racetrack was not a public forum); Stewart v.

D.C. Armory Bd., 863 F.2d 1013, 1014 (D.C. Cir. 1988) (stadium could be a public forum but

remanded for further factual investigation); United States v. Grace, 461 U.S. 171, 172 (D.C.

Cir. 1983) (sidewalk outside the United States Supreme Court Building was a public forum);

Ysleta Fedn of Tchrs. v. Ysleta Ind. Sch. Dist., 720 F.2d 1429, 1429 (5th Cir. 1983) (an

internal school mail system became a public forum once the school opened [the] mail system

to all employee organizations without distinction).

158

See Air Line Pilots Assn, 45 F.3d at 1152.

159

See discussion supra Section II.D.

160

937 F. Supp. 425 (E.D. Pa. 1996), revd, 148 F.3d 242 (3d. Cir. 1998).

161

See generally Cohen v. California, 403 U.S. 15, 15 (1971) (overturning the conviction

of a man who wore a jacket emblazoned with Fuck the Draft in a courthouse); Ronald J.

Krotoszynski, Jr., Cohen v. California: Inconsequential Cases and Larger Principles, 74

TEX. L. REV. 1251 (1995).

162

See Christs Bride Ministries, 148 F.3d at 244.

163

See PLANNED PARENTHOOD, MYTHS ABOUT ABORTION AND BREAST CANCER (2013),

https://www.plannedparenthood.org/uploads/filer_public/af/1a/af1ae95f-de81-43dd-91a3-47

0043b06dce/myths_about_abortion_and_breast_cancer.pdf [https://perma.cc/9C4W-739J];

Christs Bride Ministries, 148 F.3d at 245.

164

See Christs Bride Ministries, 148 F.3d at 245 (the advertisement was graphically

2021] RIDDEN WITH CONTROVERSY 483

initially accepted the advertisement, to be run for one year at a cost of $3,042.60 per

month.

165

The terms and conditions of the contract between CBM and TDI included

a clause that if the Transportation Facility concerned should deem such advertising

objectionable for any reason, TDI shall have the right to terminate the contract and

discontinue the service without notice.

166

After the advertisements were posted,

SEPTA received numerous complaints, including rider protest and criticism by

womens health organizations and local government officials.

167

Under pressure

from thenAssistant Secretary of Health Dr. Phillip Lee, SEPTA removed the ad-

vertisements.

168

CBM then brought suit, alleging a violation of its First and Four-

teenth Amendment rights.

169

F. Fire and Brimstone: Taking It Too Far for SEPTA?

The district courtin a manner similar to the district court in Air Line Pilots

Associationdismissed CBMs claims without a proper forum analysis.

170

An analysis

must begin with a determination of the nature of the property and the extent of its

use for speech.

171

The forum here was relatively broad, but described by the district

court as the stations in a public transit system, a public transportation system,

and SEPTAs subway and rail stations and their advertising space.

172

While the

space at issue was not a traditional public forum, that did not preclude classifica-

tion as a designated public forum.

173

The key factor is intent.

174

SEPTA and TDI

primarily intended the advertisements to be an additional source of revenue (com-

prising about 0.5% of SETPAs budget).

175

A secondary goal was to promote aware-

ness of social issues and provid[e] a catalyst for change by subsidizing the cost

designed with bold white lettering on a background of black and bright red, with the word

deadlier written in red).

165

See id.

166

See id.

167

See id.

168

See id. at 24546.

169

Id. at 246.

170

Compare id. at 244, with Air Line Pilots Assn v. Dept of Aviation of Chi., 45 F.3d

1144, 1160 (7th Cir. 1995).

171

Christs Bride Ministries, 45 F.3d at 24748.

172

See id. at 248; cf. Air Line Pilots Assn, 45 F.3d at 1151 (holding that display diorama in

airport, not entire concourse, constituted the relevant forum); Lebron v. Natl R.R. Passenger

Corp., 69 F.3d 650, 655 (holding that one billboard was the relevant forum, not the entirety

of Penn Station); New York Magazine v. Metro. Transp. Auth., 136 F.3d 123, 123, 130 (2d

Cir. 1998) (holding that because MTA allowed both commercial and political speech, the

outside walls of MTA buses constituted a designated public forum).

173

See Christs Bride Ministries, 148 F.3d at 248.

174

See id.

175

See id. at 249.

484 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 30:467

of advertisements addressing issues of public concern.

176

The advertising space

generated a profit through expressive activity, suggesting that the government

dedicated the space to expression in the form of paid advertisements.

177

On appeal, the Third Circuit dismissed SEPTAs argument that because it

retained the right in its sole discretion to reject or to remove any advertisement that

it deemed objectionable, the forum was non-public.

178

The Third Circuit emphasized

that courts should not rely on the authoritys own statement of its intent because

such statements are frequently at odds with the factual nature of the inquiry.

179

Additionally, reserving a right to reject advertisements for any reason at all does

not signify that no designated public forum has been created.

180

While arguably

arbitrary, if the category of a designated public forum is to mean anything at all,

standards for inclusion and exclusion in a limited public forum must be unambig-

uous and definite. . . .

181

SEPTA did have some restrictions in place, notably alcohol and tobacco

advertising beyond a specified limit and ads deemed libelous or obscene.

182

How-

ever, restrictions in a designated public forum are permissible so long as they are

narrowly tailored to serve a compelling government interest.

183

Generally, courts

will gloss over boilerplate restrictions, considering them as a class to be reason-

able by default.

184

Despite the reasonable restrictions in place, the viewpoint-

neutral regulations did not suddenly give rise to a non-public forum.

185

Courts must

cast a skeptical eye at the transit agencys content policy and the types of content it

permits in order to be able to accurately determine the type of forum created.

186

176

See id.

177

See id. at 250; see also Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 555 (1975)

(holding municipal theaters were public forums designed for and dedicated to expressive

activities).

178

See id. at 251.

179

See id.; see also Air Line Pilots Assn v. Dept of Aviation of Chi., 45 F.3d 1144,

115354 (7th Cir. 1995); Stewart v. D.C. Armory Bd., 863 F.2d 1013, 101617 (D.C. Cir. 1988).

180

See Christs Bride Ministries, 148 F.3d at 251; see also Gregoire v. Centennial Sch.

Dist., 907 F.2d 1366, 1374 (3d Cir. 1990) ([I]ntent, as evidenced by a governments statements,

is a factor to be considered . . . [but] the forum inquiry does not end with the governments

statement of intent.).

181

See Christs Bride Ministries, 148 F.3d at 251 (internal quotations omitted) (quoting

Gregoire, 907 F.2d at 1375); see also Denver Area Educ. Telecomms. Consortium v. Fed.

Commcns Commn, 518 U.S. 727, 801 (1996) (Kennedy, J., concurring in part and dissenting

in part) (The power to limit or redefine fora for a specific legitimate purpose does not allow

the government to exclude certain speech or speakers from them for any reason at all.).

182

See Christs Bride Ministries, 148 F.3d at 251.

183

See Post, supra note 21, at 1748.

184

Id. at 1749; Christs Bride Ministries, 148 F.3d at 24748.

185

See Christs Bride Ministries, 148 F.3d at 251.

186

See discussion supra Section II.B.

2021] RIDDEN WITH CONTROVERSY 485

G. Four Steps to Success: The Amalgamated Majority Approach

The majority circuit approach is a four-step process.

187

Through the application

of the majority approach, it is clear that public transit advertising is, in most cases,

a designated public forum.

188

The majority approach acknowledges that public

transit agencies frequently do not regulate advertising in a manner consistent with

a non-public forum.

189

The most common approach is essentially that mentioned by

the Seventh Circuit: public transit agencies take the ads of all who were willing to

pay the fee.

190

First in a courts consideration is determining which type of forum the public

transit agency and associated advertising contractor intended to create.

191

The agencys

intent, if clear, is controlling.

192

To determine the agencys intent, courts should first

look to the government entitys prior practices.

193

For instance, SETPA had previ-

ously accepted a wide range of controversial advertisements.

194

On the topic of

abortion, SEPTA had previously accepted pro-choice advertisements.

195

SEPTA in

its history had requested modification of only three advertisements, ultimately

accepting all of them in their revised forms.

196

Acceptance is strong evidence that

SEPTA had opened advertising on its property to the general public for expressive

purposes.

197

In another example, the record showed that the Chicago Transit Authority (CTA)

had only twice recorded rejections of advertisements, both of which the CTA

187

See discussion infra Section II.G.

188

See discussion supra Section II.B.

189

See discussion supra Section II.B.

190

See Air Line Pilots Assn v. Dept of Aviation of Chi., 45 F.3d 1144, 1155 (7th Cir.

1995).

191

See id. at 1151.

192

See United States v. Kokinda, 497 U.S. 720, 72526 (1990) (plurality opinion) (quoting

Lehman v. City of Shaker Heights, 418 U.S. 298, 303 (1974)).

193

See Christs Bride Ministries, Inc. v. Se. Pa. Transp. Auth., 148 F.3d 242, 251 (3d. Cir.

1998).

194

See id. (SEPTA allowed religious messages, such as Follow this bus to FREEDOM,

Christian Bible Fellowship Church; explicitly worded advertisements such as Safe Sex

Isnt and an advertisement urging readers that VirginityIts cool to keep.).

195

See id. at 252 (When Abortion Was Illegal, Women Died. My Mother Was One of

Them. Keep Abortion Legal and Safe. Support the Clara Bell Duvall Education Fund.).

196

See id. (One was the large wrap-around bus ad for Haynes hosiery, which would have

covered the entire bus with the picture of a scantily clad woman . . . . The same ad was

accepted as a smaller poster ad on the sides of buses. SEPTA also asked for modification of

an ad depicting a gun with a condom stretched over it. The text of the ad, Safe Sex Isnt,

ultimately ran without the graphics. SEPTA also requested that an advertisement for a personal

injury law firm delete references to rail accidents.).

197

See id.

486 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 30:467

ultimately ran once confronted with legal pressure.

198

The same policyor lack

thereofalso was applied to municipal airport terminals.

199

The Chicago Depart-

ment of Aviation appeared willing to accept advertisements from any party willing

to pay the fee.

200

There was no evidence in the record that any content policy

whatsoever was considered in choosing which advertisements to accept for publica-

tion.

201

Still, it is important to keep in mind that any written policy statements by the

agency are not in and of themselves determinative, and the primary factor should be

the agencys actual practices.

202

Second, the types of restrictions imposed by the public transit agency and

associated advertising contractor ought to be considered. A transit agencys policy

of permitting almost unlimited access to the forum by anyone willing to pay a

specified fee is substantial evidence that it creates a designated public forum.

203

Just

because a government entity exercises some restrictions does not mean that a

designated public forum does not exist.

204

Certain types of restrictions can be imposed

if they are narrowly drawn to meet a compelling state interest.

205

Content-neutral

regulations are permissible if they are reasonable, but the state actor cannot engage

in viewpoint discrimination.

206

Generally speaking, a state actor can reasonably refuse to accept advertisements

that are plainly obscene, graphic, or impede the purpose of public transit advertising

or the transit agency itself.

207

Allowing controversial advertising does not prevent

the transit agency from imposing certain restrictions on content that appear outside

the ambit of mere controversy.

208

In practice, this generally means courts will not

weigh restrictions of alcohol, tobacco, and pornographic advertising as strong evidence

against the creation of a designated public forum.

209

198

See Planned Parenthood Assn/Chi. Area v. Chicago Transit Auth., 767 F.2d 1225,

1230 (7th Cir. 1985).

199

See Air Line Pilots Assn v. Dept of Aviation of Chi., 45 F.3d 1144, 1155 (7th Cir.

1995).

200

See id.

201

See id.

202

See id. at 1153. But see AIDS Action Comm. of Mass. v. Mass. Bay Transp. Auth., 849

F. Supp. 79, 83 (D. Mass. 1994) (suggesting, though not holding, that the very existence of

a written policy may be a sufficient basis for finding that car interiors are not public fora).

203

See Christs Bride Ministries, Inc. v. Se. Pa. Transp. Auth., 148 F.3d 242, 253 (3d Cir.

1998).

204

See id.

205

See Post, supra note 21, at 1748 (quoting Widmar v. Vincent, 454 U.S. 263, 270 (1981)).

206

See id. at 1750.

207

See discussion infra Section III.B.

208

See generally discussion infra Part III.

209

See generally Am. Freedom Def. Initiative v. Mass. Bay Transp. Auth., 781 F. 3d 571,

580 (1st Cir. 2015); Ridley v. Mass. Bay Transp. Auth., 390 F.3d 65 (1st Cir. 2004).

2021] RIDDEN WITH CONTROVERSY 487

Third, the nature of the access demanded for expressive purposes must be analyzed,

taking special care not to draw the forum at issue too broadly. It is especially

important to distinguish prior Supreme Court cases about the forum at issue if they

involve a meaningful difference in expressive conduct.

210

As in Air Line Pilots

Assn, even when a particular place is not a quintessential public forum, it may

become a designated public forum for a particular expressive purpose.

211

If the type

of access requested is limited to commercial advertisements, then what matters is the

state actors acceptance of a broad array of commercial advertisements without any

real content policy.

212

If that requirement is satisfied, a designated public forum

will be created for that limited purpose.

213

Therefore, even if a court held that a

public transit system could be a non-public forum (i.e., for the purpose of collecting

signatures or distributing pamphlets), advertisements run on buses and trains may

well be because they involve an entirely different set of considerations.

214

Fourth, the court must undertake a holistic analysis of the prior factors. Based

on those facts, if the agency appears to have accepted almost anyone willing to pay

the feewhich is fairly often the casea designated public forum has been cre-

ated.

215

If the transit agency has seriously restricted most or all controversial adver-

tising consistently, then a designated public forum will not have been created.

216

While this is inevitably somewhat subjective, often the record on appeal can be

defective in certain critical respects. The intuitive judgments of the bench can often

be useful in directing lower courts on remand, especially as to whether a content

policy truly existed, or whether, as is often the case, it is a self-serving policy

created in anticipation of litigation.

217

As the Supreme Court has wryly observed,

common sense often makes good law.

218

Most cases also have a public policy rationale behind classifying public transit

advertising as a designated public forum.

219

Public transit advertising remains a hot

210

See Air Line Pilots Assn v. Dept of Aviation of Chi., 45 F.3d 1144, 115152 (7th Cir.

1995) (noting the critical difference between using an airport terminal for solicitation and the

distribution of literature and using an airport terminal to display advertisements on issues of

public concern).

211

See id. at 1152 (citing Perry Educ. Assn v. Perry Loc. Educators Assn, 460 U.S. 37,

45 (1983)).

212

See id. at 1155; see also Christs Bride Ministries, Inc. v. Se. Pa. Transp. Auth., 148

F.3d 242, 251 (3d. Cir. 1998); Planned Parenthood Assn/Chi. Area v. Chicago Transit Auth.,

767 F.2d 1225, 1232 (7th Cir. 1985).

213

See Planned Parenthood Assn, 767 F.2d at 123132.

214

See discussion infra Section III.E.

215

See discussion supra Part II.

216

See discussion supra Section II.D.

217

See Air Line Pilots Assn v. Dept of Aviation of Chi., 45 F.3d 1144, 1154 (7th Cir. 1995).

218

See Peak v. United States, 353 U.S. 43, 46 (1957).

219

See generally Roberts v. United States Jaycees, 468 U.S. 609 (1984) (in the context

488 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 30:467

commodity.

220

Controversial advertising frequently triggers an emotional response

in viewers.

221

The aim is not to polarize an audience; rather, it is to use the con-

troversy as an attention-grabbing technique . . . to spark conversations about certain

moral values.

222

Such advertisements are especially useful when they speak to a

companys values.

223

One recent example occurred when Nike partnered with athlete

Colin Kaepernick after Kaepernick was released from his National Football League

contract for kneeling during the National Anthem.

224

Nikes campaign was ex-

tremely successful despite its controversial nature, receiving high approval ratings

from Nikes target audience.

225

Making public transit a designated public forum

allows companies to engage actively with audiences, even when that engagement

may offend those outside the target demographics.

226

III. THE MINORITY CIRCUIT APPROACH

In the minority circuits, a transit agencys decision to allow the display of con-

troversial advertising does not in and of itself establish a designated public forum.

227

This perspective gives the transit agency far more leeway to restrict speech,

228

resulting in content policies that may ban advertisements for a variety of reasons that

of large impersonal organizations, promoting gender equality was a compelling governmental

interest that justified restricting freedom of association); Grutter v. Bollinger, 539 U.S. 306

(2003) (achieving a diverse student body in a public law school justified the governments

considering of race in admissions decisions).

220

See Nicole Perrin & Andrew Lipsman, The Renaissance of Somewhat Controversial

Public Transit Ads, EMARKETER (Sept. 9, 2019), https://www.emarketer.com/content/podcast

-the-renaissance-of-somewhat-controversial-public-transit-ads [https://perma.cc/X27P-ZR2E];

J.R. Thorpe, The 7 Most Notable Subway Ad Controversies, BUSTLE (Nov. 16, 2015), https://

www.bustle.com/articles/123328-the-7-most-notable-subway-advertisement-controversies

[https://perma.cc/E5P6-UGY3].

221

See Tom Salvat, When (and How) to Effectively Use Controversial Advertising, CON-

CURED (Feb. 25, 2019), https://www.concured.com/blog/when-and-how-to-effectively-use

-controversial-advertising [https://perma.cc/BP3M-96LU].

222

See id.

223

See id.

224

See E. J. Schultz, New Poll Lends More Evidence that Nike Scored with Kaepernick

Ad, A

DAGE (Sept. 13, 2018), https://adage.com/article/cmo-strategy/poll-shows-approval

-nike-s-kaepernick-ad/314924 [https://perma.cc/WCL6-5BY6].

225

Id.

226

See discussion supra Section II.D.

227

See Am. Freedom Def. Initiative v. Mass. Bay Transp. Auth., 781 F. 3d 571, 580 (1st

Cir. 2015).

228

See Am. Freedom Def. Initiative v. King Cnty., 136 S. Ct. 1022, 1025 (2016) (Thomas,

J., dissenting from denial of certiorari).

2021] RIDDEN WITH CONTROVERSY 489

could be deemed subjective.

229

The result is that, much like a private landowner, a

public transit system may permit or deny applications for advertising in any manner

it sees fit, so long as the regulation is reasonable and not an arbitrary suppression

of a speakers viewpoint.

230

Cases from the First Circuit will be used to demonstrate

the weaknesses of the minority circuit approach.

A. Ridley v. Massachusetts Bay Transportation Authority

231

The Ridley case involved a consolidation of two appeals, the Change the Climate

appeal

232

and the Ridley appeal.

233

Both appeals involved controversial advertise-

ments rejected by the Massachusetts Bay Transportation Authority (MBTA).

234

Similar to other public transit systems, the principal purpose of the MBTA ad-

vertising program was to generate and maximize revenue, and the MBTA was

directed to provide for the maximization of non-transportation revenues from all

sources.

235

In pursuit of this goal, the MBTA contracted with Viacom Outdoor of

Braintree (Viacom) to sell advertising space consisting of interior car card dis-

plays in buses, trains, and trolleys.

236

The Change the Climate campaign involved

three distinct advertisements, run as part of a provocative advertising campaign[]

in order to generate debate about the laws criminalizing the use of marijuana.

237

The Ridley ad involved a text display which stated in part The Bible says in Rev

12:9 And Satan which deceiveth the whole world. . . . There is only one true

religion. All the rest are false.

238

In 1992, the MBTA first adopted guidelines in an

attempt to limit the types of advertisements it would accept.

239

Both advertisements

eventually were rejected under the MBTAs 2003 guidelines.

240

229

See Am. Freedom Def. Initiative v. King Cnty., No. C13-1804RAJ, 2014 U.S. Dist.

LEXIS 11982, at *5 (W.D. Wash. 2014), affd, 2015 U.S. App. LEXIS 14098 (9th Cir. 2015).

230

See Post, supra note 21, at 1750.

231

390 F.3d 65 (1st Cir. 2004).

232

See generally Change the Climate, Inc. v. Mass. Bay Transp. Auth., 214 F. Supp. 2d

125 (D. Mass. 2002).

233

See Ridley, 390 F.3d at 70 (Ridley noted that the outcome of the forum issue in Change

the Climate would govern the Ridley case; additionally, common issues of fact and law were

present and the same lawyers represented both plaintiffs).

234

See id. at 69.

235

See id. at 72.

236

See id.

237

See id. at 7273 (for instance, [t]he first advertisement, (the Teen Ad), was a color

photograph of a teenage girl with a baseball cap on backwards, with a caption saying:

Smoking pot is not cool, but were not stupid, ya know. Marijuana is NOT cocaine or

heroin. Tell us the truth . . . .).

238

See id. at 74.

239

See id. at 72.

240

See id. at 75.

490 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 30:467

B. A Double Hitter: The MBTA Versus Shock Advertising

The First Circuit has adopted an approach distinct from that of other circuits in

determining that public transit advertising is a non-public forum.

241

The MBTAs

2003 guidelines stated that the MBTA intended that its facilities constituted non-

public forums that are subject to . . . viewpoint-neutral restrictions.

242

However,

it must be noted that a policy statement by the agency is not determinative of the

forum analysis.

243

The MBTAs initial content policy prohibited all tobacco adver-

tisements, as well as all libelous, slanderous, or obscene ads.

244

After a revision in

1992, other restrictions were implemented by the MBTA, mostly related to depic-

tions of violence, unlawful activity, or the denigration of protected classes of people.

245

The First Circuit noted that [b]y refusing to limit the advertising program solely to

commercial advertising, the MBTA was, thus, not evidencing an intent to open the

forum to all public discourse, and held the MBTA had created a non-public forum.

246

It is unclear why First Circuit assumed that the MBTAs narrow restrictions on

the types of content it would accept were decisive evidence of an intent to create a

non-public forum. Obscenity,

247

libel,

248

and slander

249

already are de jure outside

the ambit of First Amendment protection and, thus, prohibitions on them would not

be relevant to the forum analysis at all. Additionally, restrictions on the promotion

of violent speech are permitted in limited circumstances without running afoul of the

First Amendment.

250

As in Lehman, the public transit agency could place some

reasonable viewpoint-neutral restrictions on the types of content it was willing to

accept without necessarily creating a non-public forum.

251

241

See id. at 82; Am. Freedom Def. Initiative v. Mass. Bay Transp. Auth., 781 F.3d 571,

582 (1st Cir. 2015).

242

See Ridley, 390 F.3d at 77.

243

See id.; see also Christs Bride Ministries, Inc. v. Se. Pa. Transp. Auth., 148 F.3d 242,

249 (3d Cir. 1998).

244

See Ridley, 390 F.3d at 77.

245

See id. at 7778.

246

See id. at 81.

247

See generally Roth v. United States, 354 U.S. 476 (1957).

248

See N.Y. Times Co. v. Sullivan, 376 U.S. 254, 27980 (1964) (placing libel outside

the protection of the First Amendment in cases involving public figures when actual malice

is shown); Gertz v. Robert Welch, Inc., 418 U.S. 323, 350 (1974) (allowing state law to

govern libel cases if the plaintiff is a private person, with actual malice not required). See

generally Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).

249

See Gertz, 418 U.S. at 342 (interpreting the central holding from New York Times Co.).

250

See generally Brandenburg v. Ohio, 395 U.S. 444 (1969) (holding that speech which

promotes imminent lawless action is not constitutionally protected); Hess v. Indiana, 414

U.S. 105, 108 (1973) (per curiam) (affirming Brandenburg by refusing to punish speech that

advocated illegal action which may take place in the unforeseeable future).

251

See Planned Parenthood Assn/Chi. Area v. Chicago Transit Auth., 767 F.2d 1225,

1227, 1233 (7th Cir. 1985).

2021] RIDDEN WITH CONTROVERSY 491

The First Circuit seemed to misread Lehman by stating that it is indistinguish-

able from Ridley.

252

Lehman involved a categorical choice to limit car card space

to innocuous and less controversial commercial and service oriented advertising by

excluding all public interest advertising.

253

In Ridley, an erratically enforced

254

written policy was used only seventeen times total in the years prior to litigation, in

a manner that was at times contradictory.

255

The limitations did not appear to be

unambiguous and definite.

256

Additionally, the MBTA explicitly refused to limit the

forum solely to commercial advertising.

257

The General Manager of MBTA noted

that we . . . are performing a public service in another flavor rather than [solely being

a] transportation service. Were letting [the public] know about government services

or social services or not-for-profit services that might have a direct impact on their

quality of life.

258

This is the exact kind of advertising limited by the City of Shaker

Heights in the Lehman case, making the circumstances facially distinguishable.

259

As noted by the dissent in Ridley, much of the MBTAs justification for refusing

to accept the plaintiffs advertisements relied on an extremely nebulous prevailing

community standard for demeaning or disparaging expression.

260

The written policy

as applied to advertisements was simply not the type of unambiguous and definite

policy that defines a non-public forum.

261

While the erratic enforcement of a policy

would not matter if a government had not intentionally opened a forum to public

discourse, the evidence in the record showeddespite the MBTAs stated pol-

icythat the MBTA had intentionally opened the forum to the general public for

expressive purposes, including public interest advertising.

262

While convincingly

252

See Ridley v. Mass. Bay Transp. Auth., 390 F.3d 65, 78 (1st Cir. 2004).

253

See Lehman v. City of Shaker Heights, 418 U.S. 298, 304 (1974).

254

See Ridley, 390 F.3d at 78.

255

See id. at 78 n.5 (For instance, the MBTA refused to accept an advisement depicting a

couple smoking and encouraging the responsible disposal of cigarette butts, citing its guidelines

on tobacco use. Despite this, the MBTA later accepted an advertisement for the airline Al

Italia which contained a picture of a woman on a motorcycle with a cigarette in one hand.).

256

See Christs Bride Ministries, Inc. v. Se. Pa. Transp. Auth., 148 F.3d 242, 251 (3d. Cir.

1998). See generally Denver Area Educ. Telecomm. Consortium, Inc. v. FCC, 518 U.S. 727

(1996) (Kennedy, J., concurring in part and dissenting in part).

257

See Ridley, 390 F.3d at 7879.

258

See id. at 81.

259

See Lehman v. City of Shaker Heights, 418 U.S. 298, 299300 (1974) (limiting

political advertising).

260

See Ridley, 390 F.3d at 98 (Torruella, J., concurring in part and dissenting in part).

261

See Christs Bride Ministries, 148 F.3d at 251 (quoting Gregoire v. Centennial Sch.

Dist., 907 F.2d 1366, 1375 (3d Cir. 1990)).

262

See Ridley, 390 F.3d at 82 (The court still found to the contrary in analyzing the cir-

cumstances, stating that the MBTAs policy clearly evinced an intent to maintain control over

the forum, and thus the MBTA did not create a designated public forum. As a result, the

standard of review is not strict scrutiny.) (emphasis added).

492 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 30:467

written, the First Circuit decision failed to properly distinguish Lehman, and in

doing so came to an incorrect conclusion.

263

C. American Freedom Defense Initiative v. Massachusetts Bay Transportation

Authority

264

In the follow-up case to Ridley, the First Circuit affirmed Ridley and doubled

down on the premise that the MBTAs advertising was a non-public forum.

265

The

dispute revolved around a pair of advertisements, one offered by the Committee for

Peace in Israel and Palestine (Committee for Peace) in support of the Palestinian

position,

266

and another offered by the American Freedom Defense Initiative (AFDI)

in support of the Israeli position.

267

The AFDI ran its advertisement in response to

the MBTA accepting the Committee for Peaces advertisement.

268

Another pro-Israel

advertisement was accepted for publication at roughly the same time.

269

The MBTA

had not made substantial substantive changes since the Ridley case, and accepted the

Committee for Peaces advertisement at the standard commercial rate.

270

However,

citing the MBTAs prohibition on advertisement[s] contain[ing] material that

demeans or disparages an individual or group of individuals, the MBTA declined

to run the AFDIs responsive advertisement.

271

D. Back for Round Two: The MBTA Doubles Down

The First Circuit, relying on the premise that a governmental proprietor creates

a designated public forum only by intentionally opening a nontraditional forum

for public discourse, reaffirmed Ridley and struck down the AFDIs constitutional

263

See id. at 78.

264

781 F.3d 571 (1st Cir. 2015).

265

See id. at 579.

266

See id. at 574 (The advertisement depicted four maps reflecting different points in

time with the caption, Palestinian Loss of Land1946 to 2010. The advertisement also con-

tained bold text to the right of the maps stating that 4.7 Million Palestinians are Classified

by the U.N. as Refugees.).

267

See id. at 575 (The advertisement, a modified version of a quotation from the political

theorist and novelist Ayn Rand, stated: In any war between the civilized man and the savage,

support the civilized man. Support Israel. Defeat jihad.).

268

See id. at 57576.

269

See Am. Freedom Def. Initiative v. Mass. Bay Transp. Auth., 989 F. Supp. 2d 182, 185

(D. Mass. 2013) (An advertisement offered by the organization Stand With Us stated that

Jews are Indigenous to Israel and depict[ing] a series of maps that indicate[d] that Israel

is geographically smaller than the ancient Jewish Kingdom or the internationally recognized

Jewish homeland as of 1920.).

270

See Am. Freedom Def. Initiative, 781 F.3d at 57475.

271

See id. (alterations in original).

2021] RIDDEN WITH CONTROVERSY 493

claims.

272

However, the rationale for taking the position that the MBTA created a

non-public forum was even more questionable given the unflattering facts of this

particular case.

273

As noted in the dissent, [b]y opening up its advertising facilities

to controversial topics of the gravest political issues of our day, the MBTA has

created a designated public forum for speech, not a nonpublic forum.

274

Relying heavily on the precedent set by Ridley, the First Circuit stated that the

display of controversial advertising does not in and of itself establish a designated

public forum.

275

However, whether or not the advertisements were controversial was

not the relevant issue.

276

The relevant issue was instead whether the MBTA accepted

other types of political advertising, which it clearly did.

277

The MBTA, while

accepting other controversial advertisements on the Israel-Palestine issue, decided

by fiat that the advertisement the AFDI sought to run was simply too controversial

despite being willing previously to run a functionally identical advertisementjust

on the other side of the debate.

278

While the MBTA may claim to have created a

non-public forum, the existence of some restrictions does not mean that a desig-

nated public forum does not exist.

279

In Lehman, Shaker Heights had not opened up

its transit vehicles to any exchange or presentation of ideas, political or otherwise,

which was essentially a ban on all political speech.

280

The MBTA wanted to have

its cake and eat it too, which is not how public forum doctrine functions.

281

The MBTA made its facilities the modern analogue to traditional public forum

through largely hands-off content policies.

282

The First Circuit fell into a well-

criticized trap of public-forum doctrine in that it allowed the governments own self-

serving statements about its intended use for a public place to outweigh the forums

inherent attributes.

283

By giving too much weight to the governments defined

272

See id. at 57980 (quoting Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S.

788, 802 (1985)).

273

See id. at 589 (Stahl, J., dissenting).

274

See id. (Stahl, J., dissenting).

275

See id. at 580 (citing Ridley v. Mass. Bay Transp. Auth., 390 F.3d 65, 8182 (1st Cir.

2004)).

276

See id. at 581.

277

See id. at 57476.

278

See id. at 576 (A revised version of the AFDI ad the MBTA was willing to run stated:

In any war between the civilized man and those engaged in savage acts, support the

civilized man. Defeat violent jihad. Support Israel.).

279

See Christs Bride Ministries, Inc. v. Se. Pa. Transp. Auth., 148 F.3d 242, 253 (3d. Cir.

1998).

280

See Lehman v. City of Shaker Heights, N.E.2d 683, 685 (Ohio 1973).

281

See Lidsky, supra note 43, at 4; see also Perry Educ. Assn v. Perry Loc. Educators

Assn, 460 U.S. 37, 46 (1983).

282

See Ridley v. Mass. Bay Transp. Auth., 390 F.3d 65, 108 (1st Cir. 2004) (Torruella,

J., concurring in part and dissenting in part).

283

See Am. Freedom Def. Initiative, 781 F.3d at 592 (Stahl, J., dissenting). See generally

Farber & Nowak, supra note 57.

494 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 30:467

purpose for the property, the First Circuit left the MBTA with almost unlimited

authority to restrict speech on its property by doing nothing more than articulating

a non-speech-related purpose for the area. . . .

284

Similar to the airport at issue in

Lee, a public transit system is one of the few government-owned spaces where

many persons have extensive contact with other members of the public, and this

important avenue for speech should not be closed off to the general public on the

whim of a public official.

285

E. Fundamentally Inconsistent: The Amalgamated Minority Approach

The rationale underlying the minority approach seems to be that because a

public transit system has, in the past, exercised some limited amount of control over

the types of advertising content accepted for publication, this ipso facto gives rise

to a non-public forum.

286

The minority approach focuses on the principle of selec-

tive access, ignoring the issue that access does not appear to be particularly selec-

tive.

287

The MBTAs guidelines appeared primarily targeted at types of content already

beyond the protection of the First Amendment, or content which reasonably would

impair the core goal of the forum (expression in the form of paid advertisements).

288

As noted repeatedly by the dissent in American Freedom Defense Initiative, a

designated public forum arises when the governmental entity affirmatively opens

up its facilities to advertisements concerning civic or political issues. . . .

289

While

it is understandable why public transit systems are covetous of the ability to freely

pick-and-choose the advertisements they accept, the First Amendment holds them

to a high standard.

290

Once the floodgates of public interest advertising are open, the

public transit agency can no longer attempt to channel the floodwaters.

291

IV. GOVERNMENT SPEECH

A. Government Speech Generally

Public transit systems are owned by the government, and thus naturally the

advertising the transit system carries must be evaluated in the context of the government

284

See Intl Socy for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 695 (1992)

(Kennedy, J., concurring in the judgment).

285

Id. at 698 (Kennedy, J., concurring in the judgment).

286

See Ridley, 390 F.3d at 102.

287

See Am. Freedom Def. Initiative, 781 F.3d at 581.

288

See id. at 583.

289

See id. at 592 (Stahl, J., dissenting).

290

See discussion infra Part IV.

291

See discussion infra Section IV.B.

2021] RIDDEN WITH CONTROVERSY 495

speech doctrine.

292

The government speech doctrine is a body of precedent that

generally shields the governments own expression from Free Speech Clause

challenge[s] by those who object to the governments views.

293

Government speech

can be categorized broadly, but includes the collective speech of a government

agency, its representatives (like the Secretary of Defense), or an individual speaking

while backed by the governments power (like a Child Protective Services case-

worker speaking to a parent).

294

The general public has relatively little recourse

when unhappy with their governments speech; courts have deemed the ballot box

the primary remedy.

295

Therefore, if the government speech doctrine were applicable

to public transit advertising, there might arise a potential issue preventing plaintiffs

from reaching the meat of the First Amendment issues present in any given case.

296

As early as 1973, it was recognized by the Supreme Court that [g]overnment

is not restrained by the First Amendment from controlling its own expression.

297

In 1990, the Supreme Court further observed that [i]f every citizen were to have a

right to insist that no one paid by public funds express a view with which he dis-

agreed, debate over issues of great concern to the public would be limited to those

in the private sector. . . .

298

By 2005, in Johanns v. Livestock Marketing Associa-

tion, the Supreme Court rejected a private partys First Amendment claim expressly

on the grounds that the contested speech was actually the governments.

299

Johanns

was then affirmed unanimously in the 2009 decision Pleasant Grove City v. Sum-

mum.

300

Summum involved an attempt by the Summum religious group to erect a

privately funded stone monument inscribed with the Seven Aphorisms of Summum

in a public park.

301

The city of Pleasant Grove, Utah, denied the monument because

of a desire to limit monuments in the park to those that either directly related to the

history of Pleasant Grove or were donated by groups with long-standing ties to the

Pleasant Grove community.

302

Because permanent monuments displayed on public

292

See Coleman v. Ann Arbor Transp. Auth., 904 F. Supp. 2d 670, 696 (E.D. Mich. 2012).

293

See HELEN NORTON, THE GOVERNMENTS SPEECH AND THE CONSTITUTION 5 (2019). See

generally Helen Norton, The Measure of Government Speech: Identifying Expressions Source,

88 B.U. L. REV. 587 (2008); Helen Norton, Constraining Public Employee Speech: Govern-

ments Control of Its Workers Speech to Protect Its Own Expression, 59 DUKE L.J. 1 (2009).

294

See NORTON, THE GOVERNMENTS SPEECH AND THE CONSTITUTION, supra note 293,

at 3.

295

See id. at 6.

296

See generally id.

297

See CBS, Inc. v. Democratic Natl Comm., 412 U.S. 94, 140 n.7 (1973) (Stewart, J.,

concurring).

298

See Keller v. State Bar of Cal., 496 U.S. 1, 1213 (1990).

299

See 544 U.S. 550, 550 (2005).

300

See 555 U.S. 460, 460 (2009).

301

See id. at 465.

302

See id. at 46465 (The park at issue in the case contained, at the time of litigation, fifteen

permanent displays, at least eleven of which were donated by private groups or individuals.).

496 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 30:467

property typically represent government speech, the Supreme Court recognized that

Pleasant Grove could exercise discretion in accepting monuments for display in the

park and reject the display offered by Summum.

303

B. Government Speech and Public Transit Advertising

Applying Summum, the Court held in the 2015 case of Walker v. Texas Division,

Sons of Confederate Veterans that forum analysis is inappropriate in government

speech cases.

304

A government entity may exercise [its] freedom to express its views

even when it receives assistance from private sources for the purpose of delivering a

government-controlled message.

305

Because of the nature of the state-issued license

plates at issue in Walker, it was reasonable to assume the message on the plate would

be interpreted as being convey[ed] . . . on the [issuers] behalf.

306

Therefore, Texas

offering plates emblazoned with Fight Terrorism does not obligate Texas to also issue

plates promoting al-Qaida or the Muslim Brotherhood as a form of balancing

speech.

307

However, government speech should not be read too broadly. The First Cir-

cuit noted in In re Tam that, in striking down the anti-disparagement clause of the

Lanham Act, the only message [trademark registration] conveys is that a mark is

registered.

308

Thus, it is important to evaluate the following factors when evaluating

whether speech is government speech in the context of the public forum: (1) whether

the speech has the intent and effect of delivering the governments message; (2)

whether the contested speech is closely identified with the government by the public;

(3) whether the government had historically used the speech in question for its own

expressive purposes; and (4) the practical implications of denying the government

the power to control the contested speech.

309

The government speech doctrine becomes relevant to the discussion of public

transit systems because most systems operate as some form of government agency

or public-private partnership.

310

The existence of relationships between the public

transit agencies and the advertising agencies that generally run the ads are the

303

See id. at 46972.

304

See 135 S. Ct. 2239, 224647 (2015).

305

See id. at 2251 (quoting Summum, 555 U.S. at 468).

306

See id. at 2249 (quoting Summum, 555 U.S. at 471).

307

See id.

308

808 F.3d 1321, 1346 (1st Cir. 2015); see also Matal v. Tam, 137 S. Ct. 1744, 1758 (2017).

309

See generally Norton, The Measure of Government Speech: Identifying Expressions

Source, supra note 293, at 59798.

310

FEDERAL TRANSIT ADMIN., Public Transit in the United States (last updated in 2015),

https://www.transit.dot.gov/regulations-and-guidance/environmental-programs/public-transit

-united-states [https://perma.cc/B6YX-7CRZ] (last visited Dec. 13, 2021) (Fare box revenues

on average account for only 40 percent of system operating costs. Transit systems receive

funds from the Federal, state, and local levels, and private sector sources, and it remains

essentially a public service that is provided and managed locally.).

2021] RIDDEN WITH CONTROVERSY 497

quintessential state participation contemplated by cases such as Burton v.

Wilmington Parking Authority.

311

An advertising agency may also be entwined

with the government actor, another route through which state action applies.

312

However, it is clear that public transit agency advertisements are not govern-

ment speech in light of the general analysis for government speech proposed by

Helen Norton.

313

The speech is not intended to deliver the governments message;

it delivers the message of a private party.

314

The message is far more likely to be

identified with the advertised company or brand than the government.

315

The govern-

ment has not historically used public transit advertising to convey messages for its

own purposes (outside of particular wartime advertisements that were distributed

widely using every available means).

316

Finally, the implications of denying the gov-

ernment the power to control the speech seem to be limited, with existing First

Amendment exceptions sufficient to deal with most dangers.

317

A clear application of the government speech analysis can be seen in Coleman

v. Ann Arbor Transportation Authority.

318

The case involved a plaintiff attempting

to place an advertisement for display on the exterior of buses of the Ann Arbor

Transportation Authority.

319

The court noted that there is a substantial difference

between monuments located in public parks, and advertisements placed on public

buses.

320

There is no authority that indicates that the speech in ads on transit

authority buses [is] reasonably attributable to the transit authority.

321

Even if private

speech takes place on government property, that does not automatically create

government speech.

322

An additional element that could create government speech

is a long tradition of the government using the private speech to speak to the

311

See generally 365 U.S. 715 (1961) (explaining that when a state leases public property

to a private entity and forms a relationship of interdependence with that entity, the private

lessee becomes a state actor for purposes of applying constitutional law); Jackson v. Metro.

Edison Co., 419 U.S. 345 (1974); Blum v. Yaretsky, 457 U.S. 991 (1982); Rendell-Baker v.

Kohn, 457 U.S. 830 (1982).

312

See Brentwood Acad. v. Tenn. Secondary Sch. Athletic Assn, 531 U.S. 288, 296 (2001).

See generally Christopher W. Schmidt, On Doctrinal Confusion: The Case of the State

Action Doctrine, 2016 BYU L. REV. 575 (2016).

313

See Norton, The Measure of Government Speech: Identifying Expressions Source,

supra note 293, at 59798.

314

See id.

315

See id.

316

See id.

317

See id.

318

See generally 904 F. Supp. 2d 670 (E.D. Mich. 2012).

319

See id. at 675.

320

See id. at 697.

321

See id.

322

See id. at 69697; see also Miller v. City of Cincinnati, 622 F.3d 524, 53637 (6th Cir.

2010) (evaluating the City of Cincinnatis activities using the Supreme Courts Summum

analysis).

498 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 30:467

public, or the government generally dictating the overarching message with the

power to approve every word.

323

This phenomenon is not generally found in the

context of public transit advertising.

Therefore, the government speech issue is inapplicable to public transit advertis-

ing.

324

As a result, it will not bar the suits of plaintiffs aggrieved by decisions of

public transit agencies regarding what types of content to accept in advertisements.

325

V. THE CAPTIVITY ISSUE

A. Captivity Generally

Riding a bus, train, or trolley involves being stuck in a metal tube for the

duration of ones journey. Naturally, courts will look to see whether those circum-

stances are sufficient to make transit riders a captive audience.

326

The captive

audience doctrine is designed to protect recipients against being held captive to

unwanted or offensive speech.

327

This doctrine has been most often applied in the

context of private homes.

328

However, it also has been applied beyond the context

of the home to certain situations where individuals are confined for an extended

period of time.

329

B. Captivity and Public Transit Advertising

The driving concern behind the Supreme Courts decision in Lehman v. City of

Shaker Heights was that streetcar riders constituted a captive audience.

330

This view

is particularly prominent in the concurrence of Justice Douglas, who stated that if

we are to turn a bus or streetcar into either a newspaper or a park, we [must] take

great liberties with people who because of necessity become commuters and at the

323

See Coleman, 904 F. Supp. 2d at 697 (quoting ACLU of Tenn. v. Bredesen, 441 F.3d

370, 375 (6th Cir. 2006)).

324

See discussion supra Section IV.B.

325

See discussion infra Conclusion.

326

See White Coat Waste Project v. Greater Richmond Transit Co., 463 F. Supp. 3d 661,

70506 (E.D. Va. 2020); Orazio v. North Hempstead, 426 F. Supp. 1144, 1148 (E.D.N.Y. 1977).

327

See generally Patrick Garry, Captive Audience Doctrine in First Amendment Juris-

prudence (2006) (unpublished manuscript), https://papers.ssrn.com/sol3/papers.cfm?abstract

_id=2280740.

328

See, e.g., Kovacs v. Cooper, 336 U.S. 77 (1949) (upholding an ordinance prohibiting the

use of sound trucks, stating that citizens in their homes should be protected from the invasion

of loud and raucous noises beyond their control).

329

See Pub. Utils. Commn v. Pollak, 343 U.S. 451, 468 (1952) (Douglas, J., dissenting)

(The streetcar audience is a captive audience. It is there as a matter of necessity, not of

choice.).

330

See 418 U.S. 298, 304 (1974).

2021] RIDDEN WITH CONTROVERSY 499

same time captive viewers or listeners.

331

Given the nature of the audience at

issuestreetcar riders unable to feasibly choose other modes of transportation

Justice Douglas believed that an advertiser ought to have no right to force his

message upon an audience incapable of declining to receive it.

332

Lehman necessarily stands for the proposition that the right of the commuters

to be free from forced intrusions on their privacy prevents a city from deliberately

using public transit as a forum[] for the dissemination of ideas upon this captive

audience.

333

Ultimately, because streetcar riders are a captive audience, restrictions

on political advertisements played over speaker systems in public transit vehicles

were held to be constitutionally permissible.

334

The Lehman decision has been cited

in later cases involving advertising on public transit, notably by a district court in

the First Circuit.

335

As the Supreme Court has recognized previously, individuals riding public

transportation are captives and, therefore, unable to avoid objectionable speech.

336

However, the Court has noted that members of the public are often captives

outside the sanctuary of the home and subject to objectionable speech.

337

Outside

of the sacred curtilage of the home, [t]he ability of government, consonant with the

Constitution, to shut off discourse solely to protect others from hearing it is, in other

words, dependent upon a showing that substantial privacy interests are being

invaded in an essentially intolerable manner.

338

This important limitation prevents

empower[ing] a majority to silence dissidents simply as a matter of personal

predilections.

339

In the case of public transit advertising, controversial advertising need not

necessarily run afoul of the captive audience doctrine.

340

As noted by the Court, the

government cannot automatically shut off discourse solely to protect others from

hearing it.

341

Likewise, a principal function of free speech . . . is to invite dispute.

342

Indeed, speech may best serve its high purpose when it induces a condition of

unrest, creates dissatisfaction with conditions as they are, or even stirs people to

331

See id. at 30607 (Douglas, J., concurring).

332

See id. at 307 (Douglas, J., concurring).

333

See id. (Douglas, J., concurring).

334

See id. at 304.

335

See generally Change the Climate, Inc. v. Mass. Bay Transp. Auth., 214 F. Supp. 2d 125

(D. Mass. 2002) (noting that it would be unacceptable to subject captive audiences to various

sorts of graphic advertisements).

336

See Lehman, 418 U.S. at 304.

337

See Cohen v. California, 403 U.S. 15, 21 (1971).

338

See id.

339

See id.

340

See generally Garry, supra note 327.

341

Cohen, 403 U.S. at 21.

342

Texas v. Johnson, 491 U.S. 397, 408 (1989) (quoting Terminiello v. Chicago, 337 U.S.

1, 4 (1949)).

500 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 30:467

anger.

343

This is not to say that reasonable limits may not be imposed, as per FCC

v. Pacifica Foundation, because the governments ability to regulate plainly obscene

advertising in a public forum is not impeded.

344

If there is a certain threshold of

controversy too great for a public transit agencys ridership to bear, nothing prevents

a public transit agency from rejecting advertising in a matter that is narrowly

tailored to serve a compelling government interest.

345

The district court in Planned Parenthood Association v. Chicago Transit Authority

touched on the pragmatic application of the captivity issue to public transit advertis-

ing.

346

The standard employed is that the party asserting the captivity doctrine must

show that the medium is so obtrusive as to make it impossible for an unwilling

individual to avoid exposure to it.

347

While public transit vehicles are more confining

than an ordinary public street, there is nothing about the medium of advertising via

car cards and exterior advertisements that makes it impossible for an unwilling

individual to avert their eyes.

348

This option to ignore content may be contrasted

with the advertisements played over loudspeaker at issue in Public Utilities Commis-

sion v. Pollak, which were genuinely unavoidable without carrying earmuffs.

349

The

court ultimately held that it was impossible for the CTA to justify its content-based

regulation on the basis of the captivity doctrine because it was not impossible for

CTA riders to avert their eyes from the printed message PPA seeks to deliver.

350

That is not to say the ambit of the public forum doctrine is unlimited. When a

compelling state interest exists, restricting advertising obviously intended to inflame

or offend may be justified to spare the riders of public transit from hateful content.

Some balance must be struck to guard against advertisements designed simply to

troll the viewer rather than spark a spirited and civil discussion. Free speech is a

vital principle but does not occur in a vacuum. It must be balanced with other vital

principles such as diversity, tolerance, and civic unity, particularly when that speech

has the air of government sponsorship. As is said by some political commentators,

[f]ree speech doesnt mean speech free from all consequences.

351

How exactly to

construe that line, however, is beyond the scope of this Note.

343

See id. at 40809.

344

See 438 U.S. 726, 745 (1978) (holding that a broadcast of patently offensive words

dealing with sex and excretion may be regulated because of its content).

345

See Post, supra note 21, at 1750.

346

592 F. Supp. 544, 546 (N.D. Ill. 1984).

347

See id. at 555 (quoting Erznoznik v. City of Jacksonville, 422 U.S. 205, 212 (1975)).

348

See Planned Parenthood Assn, 592 F. Supp. at 555.

349

See generally 343 U.S. 451 (1952).

350

See Planned Parenthood Assn, 592 F. Supp. at 555.

351

Scott Lemieux, Free Speech Doesnt Mean Speech Free from All Consequences, Despite

What Some Conservatives Argue, NBC NEWS (July 6, 2019, 4:31 AM), https://www.nbcnews

.com/think/opinion/free-speech-doesn-t-mean-speech-free-all-consequences-despite-nc

na1026911 [https://perma.cc/PS83-LH4J].

2021] RIDDEN WITH CONTROVERSY 501

ONCLUSION

While the future of public transit ridership faces challenges due to the ongoing

COVID-19 pandemic, there is a renewed focus on increased funding for public

transit in communities across the United States.

352

This expectation that ad place-

ments will increase means it is more important than ever to ensure that courts respect

the principles of the First Amendment when evaluating the advertising polices of

public transit agencies.

353

While many public transit agencies do have self-serving

policies on the record, such policies often are enforced in inconsistent or contradic-

tory manners against individuals whose speech is unpopular.

354

This pick-and-choose

approach is plainly unconstitutional.

355

If public transit agencies allow some public

interest advertising, they lose the ability to act arbitrarily as a gatekeeper.

356

While

this view may be harsh, the Constitution demands a higher standard.

357

When public transit agencies do not have strictly enforced, written content

policies deliberately excluding public interest and other types of controversial

advertising, they create a designated public forum. In doing so, the agency loses the

ability to impose restrictions other than those that are content-neutral and are reason-

ably tailored to a compelling government interest. That is the view of the majority

of circuit courts in the United States, and it should eventually be adopted by the

Supreme Court should an opportunity for certiorari again present itself.

The majority circuit approach is best described as a four-part analysis.

358

First,

the nature of the public forum at issue must be considered, with extreme care taken

to precisely define the scope so that it is not overbroad.

359

Second, the type of access

requested by the general public should be closely scrutinized, because designated

public forums may be open to some forms of expressive activity but not others.

360

Third, the court should analyze the public transit agencys prior practices to deter-

mine its intent, keeping in mind that any written policy statements are not, in and of

352

Mary Louise Kelly & Alisa Chang, What Is the Future of Public Transit in the U.S.?,

NPR (Dec. 29, 2020, 3:51 PM), https://www.npr.org/2020/12/29/951208111/what-is-the-fu

ture-of-public-transit-in-the-u-s [https://perma.cc/9WKY-DFWW].

353

See discussion supra Section II.G.

354

See discussion supra Section II.B.

355

See discussion supra Section II.B.

356

See discussion supra Part II.

357

See also W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 647 (1943) (Frankfurter,

J., dissenting) ([Individuals are] not justified in writing [their] private notions of policy into

the Constitution, no matter how deeply [they] may cherish them or how mischievous [they]

may deem their disregard.).

358

See discussion supra Section II.G.

359

See discussion supra Section II.G.

360

See discussion supra Section II.G.

502 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 30:467

themselves, determinative of the type of forum created.

361

Fourth, based on those

facts, if the agency appears to have accepted almost anyone willing to pay the fee

almost always the case upon close scrutiny of past practicesa designated public

forum exists.

362

This organic, fact-intensive analysis calls for intense judicial

scrutiny in order to ensure that constitutional rights are given the proper deference

and respect.

363

The government speech issue does not seem to apply to public transit advertis-

ing cases.

364

Unlike in Summum or Walker, it is clear that public transit advertising

does not represent government speech.

365

In accepting the advertising, the public

transit agency merely generates revenue by conveying a message on behalf of

others.

366

Generally speaking, the speech or content in advertisements on transit

authority property is not reasonably attributable to the transit authority itself; the

advertiser itself is the party that stands to gain or lose from public discourse.

367

Further, even if private speech takes place on government property, that does not

create government speech absent other factors like the government dictating the

overarching message of the speech.

368

As this is almost never the case, the consti-

tutional issues of government speech are not applicable to public transit advertising.

369

The captivity issue may be present to an extent in public transit ridership, but

not to an extent that justifies tyrannical restrictions to protect a captive audience.

370

Controversial speech is important, and allowing free and open promotion of views

that may be unpopular is valuable to public discourse.

371

Public interest groups and

other organizations must be allowed, in a democratic society, to go where the

eyeballs are.

372

To restrict good-faith messaging stifles civic discussion necessary

to develop and maintain an informed populace.

373

So long as it is possible for public

transit riders to look away from advertising, they are not a truly captive audience.

374

Transit agencies should allow the advertising they carry to be used for a variety

of purposes. Allowing content-based restrictions potentially can prevent important

messaging that some viewers may find uncomfortable from being distributed. One

361

See discussion supra Section II.G.

362

See discussion supra Section II.G.

363

See discussion supra Section II.B.

364

See discussion supra Section IV.A.

365

See discussion supra Section IV.B.

366

See discussion supra Section IV.B.

367

See discussion supra Section IV.B.

368

See discussion supra Section IV.B.

369

See discussion supra Section IV.B.

370

See discussion supra Section V.B.

371

See discussion supra Section V.A.

372

See discussion supra Part V.

373

See discussion supra Section II.F.

374

See discussion supra Section V.A.

2021] RIDDEN WITH CONTROVERSY 503

can conceive of positions on important issues (such as allowing for same-sex

marriage or promoting condom use) that once were (and in some quarters, remain)

deeply controversial. Making public transit advertising a designated public forum

maximizes free speech without overly harming the mission of the advertising itself

(that is, to generate additional revenue to fund transit operations). In the modern era,

advertising serves an important public and civic purpose. By adopting the reasoning

of the majority of circuit courts, this Note hopes the Supreme Court can give public

transit advertising the legal recognition it deserves.