Before an advertisement is displayed on a public bus, it has likely undergone an extensive vetting process, where the transit authority has deemed it acceptable to occupy this space. Each locale often has varying policies regarding which advertisements it will choose to air. Both religious and non-religious groups alike have attempted to circumvent transit authority policies in order to run advertisements with their respective viewpoints.
The First Amendment prohibits government actors from taking action that would violate a citizen’s right to free speech. In the context of monitoring public transport advertising, these violations are often seen as censorship issues — meaning a government actor is attempting to censor certain speech by not allowing a potential ad to run. First Amendment censorship claims are broken down into two categories: content-based discrimination and viewpoint discrimination. Viewpoint discrimination will target a specific view taken by a speaker, rather than disavowing an entire subject. On the other hand, content-based discrimination policies tend to be more blanketed, banning entire subject areas. There are reasonable limits that can be imposed on one’s right to freedom of speech. Thus, courts will often uphold subject-matter regulations, despite limiting one’s free speech rights, because “even protected speech is not equally permissible in all places and at all times.” Archdiocese of Washington v. Washington Metro. Area Transit Authority (2018).
With respect to public transportation, is a ban on religious advertisements considered a permissible subject-matter regulation or an impermissible viewpoint regulation under the freedom of speech guarantee of the First Amendment?
The Third Circuit and the D.C. Circuit are split on the issue. The disagreement not only lies in how the circuits answered the question, but also in their reasoning. Ultimately, in Archdiocese of Washington v. Washington Metro. Area Transit Authority (2018), the D.C. Circuit held that public transit authorities could reasonably regulate speech on their properties because buses fall under a non-public forum. Whereas in Northeastern Pennsylvania Freethought Society v. City of Lackawanna Transit System (2019), the Third Circuit found that public transit authorities could not prohibit advertisements that discriminate on the basis of viewpoint.
In Archdiocese (2018), the D.C. Circuit addressed the First Amendment question using the forum analysis, assessing whether the restrictions are warranted based on the category of forum that the buses fall under. The court distinguished between public forums and non-public forums. Public forums are places that “have been devoted to assembly and debate, such as sidewalks or parks.” Here, the government’s ability to limit speech is minimal. In contrast, non-public forums are public properties where speech can be regulated if the regulation is reasonable and is not grounded in viewpoint discrimination. The D.C. Circuit reasons that “advertising space on public transit was properly treated as a non-public forum because a ‘bus is plainly not a park or sidewalk or other meeting place for discussion’ but rather ‘only a way to get to work or back home.’” Furthermore, it discussed that the Washington Metro Area Transit Authority’s exclusions were subject-matter discrimination, prohibiting religion as subject matter rather than religious viewpoint.
In Northeastern Pennsylvania (2019), the Third Circuit does not even consider the forum analysis because this would be “putting the cart before the horse.” Instead, the Court requires an assessment of the type of discrimination to take place first, seeing no rationale for addressing the forum if the discrimination is one regarding viewpoint. In the Court’s view, advertisement policies fall within viewpoint discrimination, and are thus impermissible under the First Amendment. Under this holding, the transit authority cannot exclude speech that it considers controversial because this would be an exclusion based on one particular view. Ultimately, the Third Circuit urges that other courts construe viewpoint discrimination broadly in the pursuit of “providing greater protection to private religious speech on public property” and not relegating religious speech to a “second-class status.”
First Amendment claims, especially with regard to religious freedom, are rarely clear-cut issues for courts to tackle. However, if this circuit split is left unresolved, the gray area regarding permissible speech only expands. This uncertainty could very well expand past an advertisement on your morning commute, and could have longstanding impacts on how government actors limit speech in various public areas. To ensure that free speech rights are not infringed upon, the Supreme Court will need to address religious speech, determining the permissibility of certain expressions.