Riding Free From Controversy: Freedom of Speech Guarantee and Public Transit Systems

BACKGROUND

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).

THE ISSUE

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 SPLIT

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.”

LOOKING FORWARD

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.

Professional Speech and the First Amendment

In an economy that is dominated by service professionals, one would logically assume that professionals (e.g. doctors, lawyers, psychiatrists, etc.) are vested with free speech rights under the First Amendment. If political speech, speech about public controversies, and the right to not salute the flag are protected under the First Amendment, it would seem natural that professionals would have this same protection when they give prospective clients and patients certain recommendations and advice. However, SCOTUS has not directly addressed this specific issue, resulting in circuit courts being split on the best way to handle professional speech and the protection it should be given under the First Amendment.

Hines v. Alldredge

In Hines v. Alldredge (2015), the Fifth Circuit upheld a Texas licensing requirement against a First Amendment challenge. In this case, Hines, a retired veterinarian, had given advice via phone and email to specific pet owners without physically examining the animals. The state licensing requirement prohibited veterinarians from providing veterinary care unless they had physically examined the animal. Hines’ communications with specific pet owners were considered “care,” and the state fined him and suspended his license. Hines alleged that this was a violation of his free speech rights.

The Fifth Circuit upheld the licensing requirement as a constitutionally permissible restriction, applying a rational basis standard of review. Blurring the lines between conduct and speech, the court found that the restriction did not fall within the scope of the First Amendment, but instead was comfortably within the “broad power [of states] to establish standards for licensing practitioners and regulating the practice of professions.” Id. The state, according to the Fifth Circuit could restrict professional speech virtually without limit.

Hines appealed to the Supreme Court. Ultimately, the Supreme Court declined to hear the case, refusing to clarify the constitutional mess that has split the circuit courts, and leaving the following question open to the circuits’ contradictory interpretations: Does the licensing power of the states outweigh a professional’s freedom of speech?

The Split

Speech or Conduct?

The source of confusion partly stems from courts’ inability to determine whether the activity and practice of professionals should be considered “speech” or “conduct”. Different courts have upheld similar restrictions on professionals both as a regulation of conduct and also as a permissible regulation of speech.

The Third Circuit in King v. Governor of N.J. (2014) upheld a regulation prohibiting mental health providers from engaging in sexual orientation change efforts as a permissible regulation of speech, explaining, “Verbal or written communications, even those that function as vehicles for delivering professional services, are ‘speech’ for purposes of the First Amendment.” Id. The court applied a lesser form of scrutiny, opting for intermediate scrutiny instead of strict, but nonetheless deemed the treatment speech that implicates the First Amendment. “Simply put, speech is speech, and it must be analyzed as such for purposes of the First Amendment,” the court held. Id.

The Ninth Circuit, on the other hand, in Pickup v. Brown (2013) upheld a very similar regulation on entirely different grounds. They found the treatment to be conduct, and regulation of conduct is outside the scope of the First Amendment, even though it may have an incidental effect on speech. The court said, “Pursuant to its police power, California has authority to regulate licensed mental health providers’ administration of therapies that the legislature has deemed harmful … [T]he fact that speech may be used to carry out those therapies does not turn the regulation of conduct into a regulation of speech.” Id.

What Standard?

The next step is to determine the appropriate standard of review. Courts again disagree on the standard.

In very similar cases about regulation of fortune tellers, the Eighth Circuit and Fourth Circuit arrived at entirely different conclusions. Both agreed that the fortunetellers’ speech was not commercial speech (which would entitle it to intermediate scrutiny). However, the Eighth Circuit in Argello v. City of Lincoln (1998) subsequently found it was entitled to the full protection of the First Amendment. The Fourth Circuit, on the other hand, in Moore-King v. County of Chesterfield (2013) found that the regulation raised no First Amendment problem at all.

On the contrary, the Third Circuit has applied intermediate scrutiny. In King v. Governor of N.J. (2014), the Court applied intermediate scrutiny, emphasizing the similarities between professional speech and commercial speech, in direct contrast to the Eighth and Fourth Circuits. The Third Circuit explained the use of intermediate scrutiny in King:

We believe that commercial and professional speech share important qualities and, thus, that intermediate scrutiny is the appropriate standard of review for prohibitions aimed at either category. Like commercial speech, professional speech is valuable to listeners and, by extension, to society as a whole because of the “informational function” it serves…. [P]rofessionals have access to a body of specialized knowledge to which laypersons have little or no exposure. Although this information may reach non-professionals through other means, such as journal articles or public speeches, it will often be communicated to them directly by a licensed professional during the course of a professional relationship. Thus, professional speech, like commercial speech, serves as an important channel for the communication of information that might otherwise never reach the public. Id.

In the case of the Fifth Circuit, the court has applied rational basis review in which the court asks whether the governmental regulation of the professional expression is rationally related to a legitimate government interest. Accordingly, nearly all licensing requirements are upheld under rational basis review, regardless of any speech implications.

The Ninth Circuit, in Pickup v. Brown (2013) laid out a system in which it would sometimes apply the full-strength strict scrutiny of the First Amendment and at other times only apply rational basis review. The system is far from clear, but the court explains:

At one end of the continuum, where a professional is engaged in a public dialogue, First Amendment protection is at its greatest. Thus, for example, a doctor who publicly advocates a treatment that the medical establishment considers outside the mainstream, or even dangerous, is entitled to robust protection under the First Amendment—just as any person is—even though the state has the power to regulate medicine. … At the midpoint of the continuum, within the confines of a professional relationship, First Amendment protection of a professional’s speech is somewhat diminished. … At the other end of the continuum, and where we conclude that SB 1172 lands, is the regulation of professional conduct, where the state’s power is great, even though such regulation may have an incidental effect on speech. Id.

The Circuits are divided on whether the First Amendment should apply fully all the time, not at all, or only sometimes. Confusion exists both across the circuits and within circuits themselves. For instance, the Fourth Circuit upheld restrictions on fortunetellers’ speech, but struck down an abridgement of abortion providers’ free expression. Conversely, the Eighth Circuit struck down restrictions on fortuneteller’s speech, but upheld a regulation of abortion doctor’s speech. On different matters, the Fifth Circuit upheld laws restricting tour guide’s expression while the D.C. Circuit struck down similar tour guide regulations.

Looking Forward

Lawyers, doctors, and the like constitute a significant part of our society—much more now than ever before. They provide valuable services to society, and the Supreme Court, by ducking cases involving these matters and avoiding the chance to provide much needed clarity to lower courts, is adding to the confusion surrounding professional communications. Eventually, the high court will have to address whether the activities of professionals should be considered conduct or speech. If it is deemed to be speech, the Court must then determine the appropriate level of scrutiny.