Free Speech in Transit

Advertising's Challenges with Free Speech on Public Transit

by Leah Martins-Krasner

Leah Martins-Krasner (she/her) is a second-year Master of City Planning student with a focus on transportation planning and advocacy. Her interests include building transportation equity and supporting communities to ensure they are reflected in public spaces. Prior to graduate school, Leah worked at the Local Initiatives Support Corporation, building the capacity of
community-based organizations in New York. She holds a BA in Planning and Public Policy from Rutgers University.

[1] American Civil Liberties Union. “ACLU Sues Philadelphia Area Transit System for Banning Ads on Housing Discrimination.” ACLU, accessed November 27, 2023.

[2] Ibid.

[3]Ctr. for Investigative Reporting v. SEPTA, 337 F. Supp. 3d 562 U.S. District Court, Eastern District of Pennsylvania, 2018. Complaint for Declaratory and Injunctive Relief.

[4] American Civil Liberties Union. “Philly Public Transportation Censors Rides Along With You.” ACLU. Accessed November 20, 2023.

[5]Ctr. for Investigative Reporting v. SEPTA, 337 F

Image: CIR comic
advertisement on
discriminatory lending
policies

Source: A Stacked Deck: A visual look at discriminatory lending in the U.S.

The work of public transit agencies is far more complicated than moving people from point A to B. Agencies constantly investigate better technologies and invest in taking transportation to new heights of comfort, safety, and appeal. Planners are especially attuned to thinking innovatively about transit. Beyond planning transit routes, we ask, how should it look, and feel? How is transit designed for relaxation and security? What should people be thinking about in transit? This essay explores a related question: what is the role of advertising in public transportation and how should it be managed? Given how advertising shapes experiences in transit, it is critical to understand how advertising fits within the mission of transit agencies, what that means for advertisements posted, and how that intersects with legal issues like free speech. Examining a case in Philadelphia, Pennsylvania where the Southeastern Pennsylvania Transportation Authority (SEPTA) contends with free speech issues as a jumping off point, this paper considers how transit agencies manage issues and plan for a better future.

SEPTA v. Center for Investigate Reporting

In 2018, SEPTA received an application from the Center for Investigative Reporting (CIR), a nonprofit investigative news organization, to advertise on SEPTA’s buses [1]. After the application was rejected, CIR, in collaboration with the American Civil Liberties Union and others, contended that rejection, on the basis of SEPTA’s advertising standards, were in violation of the First Amendment of the U.S. Constitution [2, 3]. The circumstances around the rejection were the kickoff to another chapter in the long debate about restricting free speech.

Following an intense investigation, CIR found racial disparities in access to home loans in sixty-one cities, including Philadelphia. It found that African Americans and Latinos are denied mortgages more often than white applicants. CIR intended to run an ad campaign to publicize the findings using SEPTA to reach communities most impacted by the discriminatory lending practices [4]. When CIR applied, SEPTA had several advertising policies to manage over 2,500 vehicles and 200 stations. SEPTA’s process included review by a communications consultant against twenty-two categories of unacceptable topics [5]. These policies were built off existing legal precedent relating to transit advertising and potential violations of free speech. After review, if an application violated SEPTA’s policies, SEPTA’s general counsel made the final approval [6].

SEPTA denied CIR’s proposal based on the violation of two policies [7]. CIR’s proposal was said to be (1) political in nature by discussing home loan disparities, and (2) expressing or advocating an opinion related to economic or social issues, such as racial disparities. Recognizing the conflict with free speech, CIR sought an injunction to the U.S. District Court of the Eastern District of Pennsylvania [8]. CIR’s argument was centered around SEPTA’s policies violating free speech in three ways [9]. They claimed that SEPTA’s policies:

Are vague and therefore not consistently applicable
Allow SEPTA to discriminate against certain viewpoints
Were unreasonable even considering special circumstances for places like public buses

The Court decided that SEPTA had legal standing to limit free speech, however, parts of SEPTA’s policies were unconstitutional due to the lack of consistent and reasonable use in practice. The Court removed elements of SEPTA’s policy deemed problematic and sustained the application’s rejection [10]. A year later, the case was appealed and the ruling was reversed due to SEPTA’s policies are incapable of reasonable application, forcing SEPTA to accept CIR’s application [11].

Image: Advertisement showing in a SEPTA bus

Source: Leah Martins-Krasner

[6] Id.

[7] Id. at 2

[8] Ctr. for Investigative Reporting v. SEPTA, 337 F

[9] Id. at 12

[10] Ctr. for Investigative Reporting v. SEPTA, 975 F.3d 300, 2020 U.S. App. LEXIS 29034, 2020 WL 5509709 (United States Court of Appeals for the Third Circuit September 14, 2020, Filed)

[11] Ctr. for Investigative Reporting v. SEPTA, 975 F.3d

" Congress shall make no law... abridging the freedom of speech..." [12]

While simple, the First Amendment's protection of free speech is far more complicated in practice.

The First Amendment

[12] U.S. Congress. “Amendment 1 - Freedom of Religion, Press, Expression.” Constitution Annotated. Accessed November 26, 2023.

[13] Ibid.

[14] Ibid.

[15] Legal Information Institute. “Commercial Speech.” Cornell Law School. Accessed November 29, 2023.

[16] Herring, Norman, and D’Auri, Laura. 1998. “Restrictions on Speech and Expressive Activities in Transit Terminals and Facilities.” Transportation Research Board.

The First Amendment protects many kinds of speech, including several that are relevant to advertising on public transit. There is broad scrutiny on policies that restrict free speech, however, certain contexts, termed ‘nonpublic forums’ refer to government-owned property that is used for specific purposes [13]. Nonpublic forums can include public transit, like SEPTA vehicles, and restrictions on content are legal if they fit the specific purposes of the space. Additionally, the law protects against limitations on points of view, such as opinions or ideologies. Even in nonpublic forums, no law can discriminate by allowing one view and not another [14]. In this context, agencies are obligated to ensure that no viewpoints are being allowed over others, meaning views must restrict evenly across topics. Therefore, SEPTA can restrict content if it fits the purpose of the space and does not restrict anyone’s viewpoints.

Applying this framework to advertising standards adds another dimension of complexity. Advertising is considered commercial speech, which the government can restrict it if it does not pass a four-part test to ensure:[15] (1) the ad is true and not misleading; (2) there is government interest in restricting ad content; (3) the regulations address that interest; and (4) the regulation is not overly restrictive[16]. Loose interpretations of this test have led to lawsuits against agencies that now frame contemporary advertising policies. In Lehman v. Shaker Heights, the Supreme Court case decided that transportation operators can refuse political advertisements but cannot pick and choose which political opinions to restrict [17]. This precedent allows for restrictive policies, and was followed by another case detailing that policies could not be considered content neutral if too much power was given to officials in the approval process [18].

Third Circuit Court of Appeals

The Third Circuit of Appeals review of the SEPTA case presents the application of these principles. The Court found that they only need to assess if SEPTA’s policies were capable of reasoned application. While CIR contended that the policies restricted viewpoints, the Court held that viewpoint discrimination is irrelevant if a content restriction itself is illegal [19]. They site Minnesota Voters Alliance v. Mansky, which requires all content-based limitations on government-controlled property to have reasoned applicability, meaning the limitation is applied consistently, adequately, and reasonably [20]. The manner of producing a reasonable application strategy for regulations is left vague, only that it requires “sensible basis for distinguishing what may come in and what must stay out.”[21]

In their appeal, CIR argued that the policy’s phrasing is unconstitutional under Mansky. Indeed, this is evident in SEPTA’s testimony, where the phrases political and political in nature were interpreted inconsistently [22]. When discussing if something was a ‘matter of public debate’ SEPTA held that the process involves making common sense judgements based on what is being debated in society overall. However, when the Court compared CIR’s rejection to allowing an advertisement related to Black Lives Matter, it became clear that ‘matter of public debate’ was not applied consistently [23]. SEPTA still held that the policies were legal, insisting that they demonstrated clear guidelines and a robust review infrastructure.

To interpret ‘reasonable application’ the Court quotes Rosenberger v. Rector, where the word ‘reasonable’ implies regulations are “designed to confine the ‘forum to the limited and legitimate purposes for which it was created.’”[24] Thus, restrictions are only reasonable within the stated purpose of SEPTA’s advertisement program: “raise revenue… in a manner that provides for the safety, efficiency, and comfort of [its] passengers.”[25] Ultimately, the Court determined that SEPTA’s policies did not have reasonable application and reversed the lower court’s ruling. They consider that SEPTA could not apply consistent decision-making logic for hypothetical advertisements. Likewise, though SEPTA had review procedures, giving general counsel final decision-making power leaves opportunity for inconsistencies. Lastly, the District Court’s striking of problematic language from the original policies makes them functionally broader and harder to be reasonably applied [26].

[17] Ibid.

[18] Ibid.

[19] Ctr. for Investigative Reporting v. SEPTA, 975 F.3d, at 25

[20] Harvard Law Review. “Minnesota Voters Alliance v. Mansky.” Harvard Law Review.

[21] Ctr. for Investigative Reporting v. SEPTA, 975 F.3d, at 26

[22] Id.

[23] Id.

[24] Id.

[25] Id. at 25

[26] Id.

How do organizations ensure that bans on topics are not going too far? An all-out ban has legal precedent, but previous cases show that even the most
well-intentioned policies can overreach.

Analysis & Conclusion

Freedom of speech limitations have a place on public transit, but it is indeed a balancing act. This brings up a critical question for planners: what is the role of advertising on public transit? One could consider that commercial advertising has no place on public transit. After all, it is often a public service that may not have a place to support commerce. However, I believe many planners would not find this rational. Commercial language is everywhere, on people’s clothes, phones, the street, etc. Therefore, it is reasonable for agencies to leverage it for revenue. Additionally, ad space for governments or nonprofits present unique opportunities to reach wide swaths of audiences. Further, one could argue everything is political. Even innocent topics, such as animal shelters, could be steeped in politics, bringing up issues of funding, animal rights, etc. Some topics are more inflammatory than others, however, anything can be rationalized as “political in nature”.

Thus, the starting point is not necessarily whether public transit should have ads, but how planners can deal with the reality that advertisements both bring up sensitive topics and bring in significant revenue. In this context, how should advertising programs be planned? This requires answering three questions: (1) how should transit look and feel, (2) how reasonable restrictions can be designed, and (3) how to legally enforce the restrictions.

Public Transit Look & Feel

Many planners might aim for transit that feels comfortable and secure. Indeed, the advertisements you see impact that security, with topics stirring all sorts of emotions. Yet, in many ways, these are inescapable facets of daily life. Negative advertisements are simply another way in which humans experience the world and it is not necessarily a planner’s job to decided what should or should not be posted in this regard. Moreover, planners might view public transit as part of the city’s nervous system. Riders typically understand that nervous system and the larger city that lives around it. Thus, advertisements and those experiences of public transit are a facet of city life and censoring them can have legal ramifications and dampens the reality of city living, all the good and bad parts of it.

However, legal frameworks that limit speech do have a place in this story. Speech that shares opinions that people dislike or disagree with are one thing, but inflammatory or morbid speech is another. Indeed, transit being a nonpublic forum means that its purpose is to get people to where they need to go safely, which certain topics can jeopardize. Therefore, allowing content restrictions in the name of safety means agencies can do their jobs free of interruptions. Indeed, with reasonable restrictions, agencies can post ads contributing to the continued dialogue that makes cities the dynamic places that they are.

Designing Restrictions

As the case demonstrates, designing advertising policies is difficult. To plan fool-proof policies, agencies need to start by thinking about the four part test of restricting commercial speech. It is easy to ensure that advertisements are true and that they fit the space’s purpose. There is a grey area when it comes to determining if a regulation reaches no further than necessary. How do organizations ensure that bans on topics are not going too far? An all-out ban has legal precedent, but previous cases show that even the most well-intentioned policies can overreach.

Certainly, bans of ‘political’ topics are nonsensical due to the fact that anything can be perceived as political. Assuming that one does not attempt such a ban, my opinion holds that the burden of agencies is to ban topics that are morbid or incite violence. Therefore, I would not suggest implementing a blanket ban on political topics, but rather on topics with the potential for violence or that detail morbidity.

Enforcing Restrictions Legally

The meat of this discussion is choosing the mechanism for implementing restrictions. This is where SEPTA struggled and where other agencies will run into future issues. Many policies leave significant room for officials to let their opinions sway objectivity. Relying on one or two staff members is flawed. The adoption of descriptive and clear guidance should be accompanied by plurality of opinions, reflecting the diversity of transit users.

Continuing the hypothetical banning of inflammatory topics, one should rely on a committee of SEPTA employees where the general counsel is only one voice among many. This committee could assess issues more accurately and troubleshoot to avoid burdensome lawsuits that drain valuable resources. Certainly, the committee structure could also lack objectivity, but it would likely stand up better in a court, saving the agency’s time, money, and reputation.

…

As with other government agencies, transit agencies and the efforts of the individuals who run them are more than getting people from A to B. Public transit is an essential element of city life, another place where the daily positives and negatives of any city are laid bare. This does not mean that we should allow terrible things to be advertised, but that careful guidance should be put in place to respect people’s security and wellbeing in the process. The law, while complex, allows for those kinds of restrictions on public transit and, if done sensitively, transit advertising can support the long term interests of agencies and their riders.