Blythe McGregor, Associate Member, University of Cincinnati Law Review
Laws that prohibit speech on the basis of content are presumptively offensive to the Free Speech Clause of the First Amendment. When a law regulates speech in a space provided by the government, the method used to evaluate the speech prohibition depends on the type of forum in which the speech occurred. The Supreme Court in Perry Education Association v. Perry Local Educators’ Association provided that there are three types of public forums with corresponding methods of evaluating speech prohibitions. First, in “traditional” public forums, such as streets and parks, content-based speech prohibitions are subject to strict scrutiny. Next, when the government designates public property for use as a place for the expression of speech, this designated public forum can be limited as to speaker identity or type of speech. Finally, non-public forums are not “by tradition or designation” open for public communication. In these limited and non-public forums, regulations must be reasonable in light of the purpose of the forum and viewpoint neutral.
A content-based regulation of speech may be upheld when it burdens an entire category of speech (a subject matter regulation) but not when it imposes an unequal burden on some speakers within a particular category of speech (a viewpoint regulation). The distinction between the two is not precise. Viewpoint discrimination occurs when the rationale for the regulation of speech is the “specific motivating ideology or the opinion or perspective of the speaker.” When the expression of a speaker’s views is burdened because of what those views are, while others with different views are not burdened, the regulation is impermissible under the First Amendment regardless of forum. A subject matter regulation, on the other hand, is a restriction of an entire class of speech. This restriction may be permissible when the underlying rationale is to preserve the limits of the particular speech forum.
On September 17, 2019, the Third Circuit determined that a public bus system’s ban on religious and atheistic advertisements placed on leased spaces on public buses was unconstitutional viewpoint discrimination, regardless of the type of forum created by the leased spaces. This decision marked a split from the D.C. Circuit which, on July 31, 2018, held that the sale of advertising space on a bus created a non-public forum and a ban on placing religious advertisements in these spaces was a permissible subject matter regulation.
A trio of Supreme Court decisions guided both Circuits’ inquiry into subject matter versus viewpoint discrimination in the public transit advertising context. Part II will discuss this trio of cases and the Third Circuit and D.C. Circuit opinions. Part III will analyze the circuit split under existing Supreme Court precedent and argue that the D.C. Circuit’s narrow interpretation of the term “subject” is accordant with existing First Amendment jurisprudence.
A. A Trio of Supreme Court Precedents
The D.C. and Third Circuits were guided by three Supreme Court decisions that addressed blanket bans on religious speech in public forums. In the earliest of these cases, Lamb’s Chapel v. Center Moriches Union Free School District, a public school opened its doors after-hours for use by the public. The school subsequently adopted a permitted uses policy proposed by the state. “[R]eligious purposes” was not one of the enumerated permitted uses of the school space. When a church requested use of the space to show a religious film series about family and child rearing, the school denied the request. The Court held that the school’s refusal to allow a church onto school premises to show a religious film series was impermissible viewpoint discrimination. The Court referred to the school space as a non-public forum and stated that control over access to this forum may be based on subject matter, so long as the regulations are reasonable in light of the purpose of the forum and viewpoint neutral. The Court explained that the school allowed groups to meet on school property for social and civic purposes, and the religious film series to be shown was about family and child rearing, both of which qualified as social and civic purposes. The school was discriminating against this particular social and civic film series because of the religious perspective of the church group. The church group fell within the types of groups for which the forum was created, and the school could not disallow the church group from presenting its film series because of the religious spin on the topic presented.
In Rosenberger v. Rector and Visitors of University of Virginia, the Court considered a University of Virginia rule that denied subsidies, which were available to other student groups, to student organizations whose activities expressed any belief about “a deity or ultimate reality.” A student-run magazine that discussed college student issues from a Christian perspective challenged the rule on the grounds that it violated their right to free speech and press, to the free exercise of religion, and to equal protection of the law. Relying on Lamb’s Chapel, the Court held that, because the university funding program was a public forum and the regulation unfairly burdened the students’ views, this was an impermissible viewpoint regulation. Other student groups were free to speak about student related topics, but because faith informed the writers of this magazine in their discussion of those same topics, the school denied them access to funds to support their activities.
Lastly, in Good News Club v. Milford Central School, the Court came to the same conclusion. In a limited public forum, it was viewpoint discrimination to prohibit a religious group from using a school’s facilities to speak about “morals and character development” on the ground that it violated the policy prohibiting use for religious purposes, when the space was otherwise open to groups who wished to speak about the same topics from a nonreligious perspective. The Court noted that the restrictions in this case were “indistinguishable” from those in Rosenbergerand Lamb’s Chapel and relied on both decisions.
B. D.C. Circuit: Archdiocese of Washington v. Washington Metropolitan Transit Authority
Applying the above precedents, the D.C. Circuit upheld a regulation on religious speech. The bus line in Archdiocese of Washington v. Washington Metropolitan Transit Authority sold advertising space on its buses. The bus service implemented a policy prohibiting “issue-oriented ads” including ads that “promote[d] or oppose[d] any religion, religious practice or belief.” The Archdiocese of Washington wished to purchase space for an advertisement featuring silhouettes of three shepherds looking up at a star in the sky with the words “Find the Perfect Gift.” The advertisement also included the web address for a site promoting the Catholic Church. The advertisement was rejected because it depicted a religious scene and promoted religion. The service argued the regulation was justified based on complaints from riders, employees, and others in the community. These complaints led to concerns about safety, vandalism of property, and imposed a burden in terms of reviewing proposed ads and responding to complaints.
The court first determined the advertising space was a non-public forum. Because the bus service decided to close off its advertising space to specific topics, the advertising spaces were non-public forums designated for specific purposes not to include religious purposes. If the advertising space was a non-public forum, the bus service could restrict advertising access as long as restrictions were reasonable and were not an attempt to suppress certain viewpoints.  The D.C. Circuit discussed the utilitarian nature of buses. Buses, the court held, are different than traditional public forums like parks or sidewalks because buses are not historically venues for free expression. Buses are ways to get from place to place, not places to meet and talk.
The D.C. Circuit cited Rosenberger in holding that governments retain the right to exclude religion as subject matter. This right is consistent with forum doctrine because governments may generally exclude entire subjects in non-public forums. This holding is especially apt, the D.C. Circuit reasoned, because by prohibiting all topics relating to religion, public officials will not be making impermissible judgment calls about which advertisements are more or less offensive.
The D.C. Circuit distinguished this case from Rosenberger, Lamb’s Chapel, and Good News Club. These past cases, the D.C. Circuit held, were factually distinct because of the wide breadth of topics permitted in the forums in those cases. In Rosenberger, the university did not prohibit speech about religion, but discriminated against student journalists writing from religious viewpoints regardless of the topic of the speech by denying them access to funding that was available to speakers from non-religious viewpoints. Because the school district in Lamb’s Chapel allowed groups to meet for social or civic purposes, and the banned film series was about a social/civic topic from a religious perspective, it was viewpoint discrimination to deny them access to the forum to show the film series. In Good News Club, because the school allowed groups to meet to discuss morals and good character, they could not prohibit a religious group from speaking on the same topics. Here, the bus service’s advertising spaces did not invite advertisements on such broad topics. Instead, the policy excluded from the space all speech on the subject of religion as a whole, and the prohibited advertisement did not fall into any permitted category of speech.
The court then engaged in an analysis to determine the primary topic of the advertisement. If an advertisement was primarily about a non-religious topic that was permitted in the forum, the court surmised that regulation of this speech would be impermissible viewpoint discrimination. However, if the advertisement was primarily about a religious topic, even if other permitted topics were incorporated in the ad, the advertisement would fall within the subject matter regulation imposed by the bus line and the bus service could prohibit the primarily religious advertisement. For example, the court discussed how advertisements promoting the sale of goods during Christmastime do not primarily promote the religious celebration of the holiday; they primarily promote the sale of goods. The court concluded that the Archdiocese’s proposed advertisement was not primarily about gift-giving or hours of operation, both of which were permitted topics under the bus service’s guidelines. The court determined the ad promoted a certain religious practice which was not a permissible subject.
The D.C. Circuit held that this restriction survived the applicable level of scrutiny for non-public forums; the “distinctions drawn [were] reasonable in light of the purpose served by the forum.” Here, the prohibition of religious ads was appropriate given the bus service’s history with religious and controversial advertisements. The service’s concerns about safety were legitimate in light of past experience and were not mere post hoc rationalizations. Regardless of the justification for adopting a policy, the policy may be unreasonable if inconsistently enforced. Here, there was no evidence that the bus service was inconsistently applying the policy.
C. Third Circuit: Northeastern Pennsylvania Freethought Society v. County of Lackawanna Transit System
In Freethought, a group of atheists, agnostics, secularists, and skeptics, Pennsylvania Freethought Society (Freethought Society), attempted to purchase advertising space on the County of Lackawanna Transit System, a public bus service. The bus service leased spaces for advertisements on the inside and outside of buses. Freethought Society was organized with the goal of holding events for likeminded people. Prompted by a “God Bless America” advertisement displayed on one of the county’s buses, Freethought Society’s spokesperson decided to run an ad displaying the word “atheists” alongside Freethought Society’s web address to show other nonbelievers in the area that they were not alone and to provide a resource for these people. The advertisement was rejected on the basis that the bus service had the “sole discretion” to ban ads that were derogatory to religious and other groups or that were “generally offensive” or controversial. The advertisement was rejected again the following year and the bus service stated that it did not accept advertisements promoting beliefs about the existence of a God. The bus service had a history of running other religious ads with no complaint, such as advertisements for churches.
After twice rejecting Freethought Society, the bus service adopted a new prohibition on religious advertisements. Freethought Society once again submitted its ad and was rejected on the ground that the service wished to “provide a safe and welcoming environment” for its riders and that an ad that promotes debate about controversial issues in the “confined space” of a bus detracts from this goal. The bus service eventually accepted a Freethought Society ad that simply listed the organization’s name and website. Freethought Society sued claiming the policy violated their right to freedom of expression.
The Third Circuit disclaimed the necessity of public forum analysis, holding that a speaker who establishes viewpoint discrimination is always entitled to relief. “[N]o matter what type of property is at issue, viewpoint discrimination is out of bounds.” The court cited Rosenberger and Lamb’s Chapel in holding that it did not matter if speech from both theistic and atheistic perspectives was prohibited. If the prohibited message discussed topics that are permitted by policy from a religious perspective, the prohibition is of the religious (or non-religious) viewpoint of a permitted topic, not of religion as a whole. In this case, nothing in the policy would prohibit secular organizations from running ads with the goal of letting others know of the organization’s existence and inviting others to join. But because Freethought did so from an atheistic point of view, the ad was banned.
The Third Circuit conceded the factual differences between this case and Archdiocese, and expressed disagreement with the D.C. Circuit’s holding in that case. The Third Circuit chastised the D.C. Circuit’s forum analysis, holding that viewpoint discrimination is impermissible in any forum. The Third Circuit also said that despite the D.C. Circuit’s concerns, no prerogative to exclude religion as a subject matter in any non-public forum can justify viewpoint discrimination. The Third Circuit then described religion as more than a subject, implying that there can be no subject matter regulation if religion is involved. In doing so, the Third Circuit rebuked the D.C. Circuit’s primary topic analysis. The Freethought court held that the ratio of secular to non-secular content of the speech was irrelevant. Whether the prohibited viewpoint is central or incidental to the message conveyed, the prohibition of the message based on viewpoint is unconstitutional.
Finally, the Freethought court noted that even if the bus service’s regulation was viewpoint neutral, the prohibition would never survive scrutiny as a content-based restriction, which requires, at a minimum, reasonableness “in light of the purpose of the forum and all the surrounding circumstances.” The court said that the bus service’s proffered “avoiding disruption” justification was not reasonable because the bus service never cited a debate that occurred on one of its buses and there was no evidence to show a disruption was ever threatened. The service had never received a complaint about an ad. Bus riders were not a “captive audience” because most of the ads were on the outside of the bus. The service also inconsistently looked into the organizations and websites that applied for advertisement, and may more often look into those groups who are deemed to be “disfavored.” The blanket ban on religious messages does not promote an interest in appearing neutral. Bus service officials distinguishing which ads are disruptive and which ads are “about” religion is not a reasonable distinction for these officials to make, according to the Third Circuit. For these reasons, the court concluded that the bus service did not prove the reasonableness of its religious ad ban.
The interpretations of precedent conducted by the Third Circuit and the D.C. Circuit resulted in varying analyses and opposite conclusions stemming from similar, but not identical, facts. The D.C. Circuit analyzed the Archdiocese’s First Amendment claim using forum doctrine. As discussed in Part II, the Supreme Court applied forum doctrine in Rosenberger, Lamb’s Chapel, and Good News Club. Although viewpoint discrimination may be unconstitutional no matter the forum, the D.C. Circuit clarified the exact test that should be applied. The court started its analysis by breaking down the standards that apply to each type of forum and applied the reasonableness standard for a non-public forum throughout the rest of the opinion.
The Third Circuit did not address forum doctrine and in fact openly rejected such an analysis. This is inconsistent with the fact that the Third Circuit repeatedly cited from cases in which the Court did analyze a First Amendment claim using forum doctrine. This seems to be a rejection of the analysis established by the Supreme Court where the categorization of the type of forum is one of the initial considerations when evaluating a content-based speech prohibition. However, the Freethought outcome likely would have been the same if forum doctrine had been addressed. The court determined that the policy was not “reasonable ‘in the light of the purpose of the forum,’” using the standard applied to limited public forums and non-public forums. Because the above standard is the minimum standard for reasonableness under public forum doctrine, the court also would have determined that the policy was unreasonable under the heightened strict scrutiny standard if the advertising spaces had been categorized as unlimited or traditional public forums.
If reasonableness was the only issue at stake here, it would be unfair to characterize this as a circuit split. Although each case deals with a policy prohibiting religious ads on buses, each court was presented with different facts that undoubtedly had an impact on whether the bus line’s policy was deemed reasonable to preserve the purpose of the particular forum. The Archdiocese bus line had a history of complaints about religious ads and concerns about safety and vandalism. The Freethought bus line had never dealt with such complaints and there was no evidence of a threat of disruption. The outcome of these cases likely would not change regardless of whether the court characterized the policy as a subject matter or viewpoint regulation because of these contrasting facts.
An additional hurdle exists with the impermissibility of viewpoint regulation, however. The major reason these two courts decided the issue differently is because of each court’s definition of “subject.” While the D.C. Circuit argued that religious ads were a subject that did not overlap with any other subjects allowed in the bus advertisement forum, the Third Circuit thought otherwise. The subject in Freethought, according to the Third Circuit, was the act of informing others of the existence of an organization and inviting others to join. This is an abstract view of a subject and is one that would apply to many advertisements looking to spread awareness about a company, group, or brand. The D.C. Circuit viewed subject much more narrowly, classifying a religious group differently than, for example, a fitness group, even if both were advertising with the goal of spreading awareness of their particular group. These circuits elucidated the fine line between subject of speech and purpose of speech. It is this area in which First Amendment law requires Supreme Court clarification.
The legal issue is the scope of a subject, as the term is used to determine whether or not a regulation of speech is subject matter regulation or viewpoint discrimination. The Supreme Court has construed “subject” more narrowly in the past, such as the “social and civic values” subjects from Rosenberger, and the term should continue to be construed narrowly in the context of advertisements. The vast majority of ads are created with the purpose of spreading awareness and promoting a group, company, or brand. If no such ads can be prohibited, even if all ads with a particular subject are banned, the state would be deprived of its prerogative to reserve a forum “for its intended purposes.”  The Supreme Court must clarify this issue to ensure stable interpretation of First Amendment doctrine, especially because this is an issue that will arise in a variety of advertising spaces, beyond bus lines, in the future.
Reed v. Town of Gilbert, Ariz., 576 U.S. ____, 135 S. Ct. 2218, 2226 (2015).
Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45-46 (1983).
Id. at 45.
Id. at 46.
Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S. 819, 829-30 (1995).
Id. at 831.
Id. at 829.
Id. at 830.
Ne. Pennsylvania Freethought Soc’y v. Cty. of Lackawanna Transit Sys., 938 F.3d 424, 428 (3d Cir. 2019).
Archdiocese of Washington v. Washington Metro. Area Transit Auth., 897 F.3d 314, 335 (D.C. Cir. 2018).
Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384 (1993).
Id. at 387.
Id. at 386-87.
Id. at 388-89.
Id. at 393-94.
Id. at 392-93.
Id. at 393.
Id. at 394.
Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S. 819 (1995).
Good News Club v. Milford Cent. Sch., 533 U.S. 98 (2001).
Id. at 102.
Id. at 108-09.
Id. at 107.
Archdiocese of Washington v. Washington Metro. Area Transit Auth., 897 F.3d 314 (D.C. Cir. 2018).
Id. at 318.
Id. at 318-19.
Id. at 320.
Id. at 319.
Id. at 320.
Id. at 322-23.
Id. at 323.
Id. at 322.
Id. at 324.
Id. See Lehman v. City of Shaker Heights, 418 U.S. 298 (1974) (holding advertising space on a transit system car card was not a forum for First Amendment purposes).
Archdiocese of Washington, 897 F.3d at 325.
Id. at 326.
Id. at 326-27.
Id. at 327.
Id. at 329.
Id. (quoting Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 806 (1985)).
Id. at 330.
Ne. Pennsylvania Freethought Soc’y v. Cty. of Lackawanna Transit Sys., 938 F.3d 424 (3d Cir. 2019).
Id. at 428.
Id. at 428-29.
Id. at 429.
Id. at 430.
Id. at 436.
Id. at 432.
Id. at 432-33.
Id. at 434.
Id. at 434-35.
Id. at 435.
Id. at 436.
Id. (quoting Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 809 (1985)).
Id. at 439.
Id. at 439-40.
Id. at 440-41.
Id. at 441.
Id. at 442.
Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S. 819, 829 (1995).
Archdiocese of Washington v. Washington Metro. Area Transit Auth., 897 F.3d 314, 322 (D.C. Cir. 2018).
Id. at 322-24.
Northeastern Pennsylvania Freethought Society, 938 F.3d at 436.
Id. at 438.
SeeGood News Club v. Milford Cent. Sch., 533 U.S. 98, 106 (2001).
Northeastern Pennsylvania Freethought Society, 938 F.3d at 437-41.
Archdiocese of Washington, 897 F.3d at 329.
Northeastern Pennsylvania Freethought Society, 938 F.3d at 436-35.
Id. at 435.
Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46 (1983).