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Unreasonable restraint: Political ad ban doesn’t pass constitutional muster

Nick Hurston//June 12, 2022

Unreasonable restraint: Political ad ban doesn’t pass constitutional muster

Nick Hurston//June 12, 2022

Bus with no advertisements on the side

A public transit system had a legitimate interest in avoiding some politically charged advertisements, but its lack of a formal definition of “political” or written guidelines clarifying how its prohibition on political ads was to be applied doomed its policy as unconstitutional, the 4th U.S. Circuit Court of Appeals has held.

Judge Julius N. Richardson agreed with the Eastern District of Virginia that Greater Richmond Transit Company, or GRTC, was a state actor and that its ban on political ads was “not ‘capable of reasoned application’ and [was] therefore unconstitutionally unreasonable.”

But the judge noted the district court erred in denying facial relief.

“Even if another public-transit political advertising ban may be constitutional, this ban is incapable of reasoned, constitutional application in all circumstances,” he explained.

Chief Judge Roger L. Gregory and Judge Paul V. Niemeyer joined Richardson in the May 20 opinion in White Coat Waste Project v. Greater Richmond Transit Company (VLW 022-2-124).

GRTC’s policy

After GRTC was incorporated in 1973, the city of Richmond retained all shares of GRTC and authority to appoint all of its board members.

GRTC sells ad space on its busses and advertisers must comply with GRTC’s content policy which prohibits “all political ads” with the stated “intent not to allow any of its transit vehicles or property to become a public forum for dissemination, debate, or discussion of public issues.”

The policy, however, does not define what could constitute “political ads” or “public issues.”

According to GRTC, an ad will be deemed political if it is “not viewpoint neutral.”

GRTC also prohibits ads from “political action groups,” meaning any group that “engage[s] in a specific targeted policy advocacy that would be related to their one side of the political issue.” GRTC may review a group’s website to make that determination.

The ‘political’ ad

White Coat Waste Project, a nonprofit seeking to end taxpayer-funded animal experimentation, submitted an ad to GRTC that showed three dogs behind prison bars with the text, “Prisoners of Waste — McGuire VAMC: Stop Taxpayer-Funded Dog Experiments!” The group’s name appeared in small print at the bottom.

GRTC reviewed White Coat’s website, determined it was a political action group and rejected the ad. GRTC said it might be able to run the ad as a “public service advertisement” if White Coat partnered with the local government.

Partial summary judgment

White Coat sued GRTC under 43 U.S.C § 1983 seeking a declaratory judgment that the policy violated the First Amendment, both facially and as applied to them.

The Eastern District found that GRTC is a state actor and their policy is unconstitutional as applied to White Coat. The court enjoined GRTC from rejecting the ad, but rejected the facial challenge and granted only partial summary judgment.

Both parties appealed.

Specific government creation

Richardson cited the U.S. Supreme Court’s holding in Lebron v. Nat’l R.R. Passenger Corp. that Amtrak was a “government-created and -controlled corporation” because it was created by special law for the furtherance of governmental objectives and the government retained “permanent authority to appoint a majority of the directors of that corporation.”

Richardson rejected GRTC’s arguments that a special law must actually create the corporation and lay out its unique rules. Such an interpretation, he said, “would undermine the core principle of Lebron: that the government cannot evade the Constitution by resorting to a corporate form.”

“Created by special law,” he said, means that the government “must form the corporation under a particular grant of authority.”

Here, Richardson found the city was empowered by special law to incorporate GRTC, and they did so “not as private citizens or as ministerial approvers of a private corporation, but as agents of the state.”

‘Unreasonable means’

Since GRTC is a state actor, the permissible scope of government control over First Amendment rights depends on the nature of the government property, or forum, in question.

Unlike a traditional or a designated public forum, Richardson said ad space on GRTC busses is a nonpublic forum.

“Richmond Transit’s expressed policy is not to open its advertising space for the discussion of public issues, and paid bus advertisements are not particularly compatible with the free flow of ideas,” he explained. “Thus, as the Supreme Court and our sister circuits have concluded, transit advertising space is a nonpublic forum.”

But the government lacks complete freedom even in nonpublic forums; restrictions on speech must be reasonable and viewpoint neutral, the judge pointed out.

Reasonableness, Richardson said, is subject to “some form of so-called intermediate scrutiny, in which the government’s means and ends must both be ‘reasonable.’”

While White Coat acknowledged GRTC’s legitimate interest in avoiding some class of politically charged advertisements, the judge said “even a reasonable end must not be pursued by unreasonable means.”

Richard looked to the U.S. Supreme Court’s holding in Minn. Voters All. v. Mansky, which said that “nonpublic-forum speech restrictions must be ‘capable of reasoned application’” in order to be reasonable.

GRTC sought to ban all political ads, but has neither a formal definition of political nor written guidelines as to how the standard must be applied.

“Faced with this broad, undefined standard and the directive to keep Richmond Transit’s buses from becoming a forum to discuss ‘public issues’ (whatever that might mean), employees have done their best to flesh out a reasonable test,” the judge wrote. “But those attempts have fallen short.”

‘Murky’ scope

The judge found GRTC doesn’t rely on the plain meaning of “political,” and has consistently run ads relating to the government or politics. Though a GRTC employee said an ad is political if it isn’t “viewpoint neutral,” Richardson said that provided little clarity.

“Indeed, our need to search out alternative rationales to justify Richmond Transit’s decisions reveal that its policy, as it stands, does not provide a ‘sensible basis for distinguishing what may come in from what must stay out,’” he noted.

And even without direction on political content, GRTC may still reject an ad if they determine the advertiser is a political action group, and that rule is nowhere to be found in GRTC policy, the judge said.

“Yet that is precisely why White Coat’s advertisement was rejected. And the precise scope of this rule is murky,” he wrote.

The judge added that, “[w]hen taken together, Richmond Transit’s vaguely defined policies and even vaguer unwritten rules make it impossible for a reasonable person to identify what violates their advertising policy and what does not.”

The heart of the problem, therefore, is that GRTC’s advertising policy “does not provide ‘objective workable standards’ by which a decisionmaker or would-be advertiser can distinguish ‘what may come in from what must stay out.’”

Finally, the judge said, GRTC’s current political-advertising ban is simply not capable of reasoned application. The ruling is in line with two other federal circuits.

“Today, we join our sister circuits and conclude that Richmond Transit’s policy violates the First Amendment as an unreasonable nonpublic-forum speech restraint,” the opinion concluded. “We emphasize that our holding is limited to this specific policy prohibiting political advertising, and we pass no judgment on whether better-defined political-advertising prohibitions or policies allowing only commercial advertising may pass constitutional muster.”

Attorney comments

Matthew Strugar, a solo civil rights attorney based in Los Angeles, California, represents White Coat. Charlottesville attorney Jeffrey E. Fogel was Strugar’s pro hac sponsor.

“I was surprised by the 3-0 decision granting facial relief after Judge Niemeyer beat me up good during oral argument,” he told Lawyers Weekly. Strugar noted, however, that Chief Judge Gregory was “outraged” by the GRTC policy.

Richard E. Hill Jr. of the Richmond City Attorney’s Office did not respond to a request for comment before deadline.

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