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Legal Research Digest 29 TRansiT CoopeRaTive ReseaRCh pRogRam sponsored by the Federal Transit administration June 2009 Subject Areas: IA Planning and Administration; IC Transportation Law; VI Public Transit TRanspoRTaTion ReseaRCh BoaRD OF THE NATIONAL ACADEMIES fIrST AmendmenT ImPLICATIonS for TrAnSIT fACILITIeS: SPeeCh, AdVerTISIng, And LoITerIng This report was prepared under TCRp project J-5, âLegal aspects of Transit and intermodal Transportation programs,â for which the Transportation Research Board is the agency coordinating the research. The report was prepared by Joseph van eaton, matthew C. ames, and matthew K. schettenhelm, miller & van eaton. James B. mcDaniel, TRB Counsel for Legal Research projects, was the principal investigator and content editor. The Problem and Its Solution The nationâs 6,000 plus transit agencies need to have access to a program that can provide authori- tatively researched, specific, limited-scope studies of legal issues and problems having national signifi- cance and application to their business. Some transit programs involve legal problems and issues that are not shared with other modes; as, for example, com- pliance with transit-equipment and operations guide- lines, FTA financing initiatives, private-sector pro- grams, and labor or environmental standards relating to transit operations. Also, much of the information that is needed by transit attorneys to address legal concerns is scattered and fragmented. Consequently, it would be helpful to the transit lawyer to have well- resourced and well-documented reports on specific legal topics available to the transit legal community. The Legal Research Digests (LRDs) are devel- oped to assist transit attorneys in dealing with the myriad of initiatives and problems associated with transit start-up and operations, as well as with day- to-day legal work. The LRDs address such issues as eminent domain, civil rights, constitutional rights, contracting, environmental concerns, labor, procure- ment, risk management, security, tort liability, and zoning. The transit legal research, when conducted through the TRBâs legal studies process, either col- lects primary data that generally are not available elsewhere or performs analysis of existing literature. Applications Transit agencies face many challenges in balanc- ing the obligation to provide passengers with a free- flowing and efficient means of travel against the free- dom of expression guaranteed by the Constitution to commercial, charitable, and other organizations or persons who take advantage of the public-like forum of most transit facilities to engage in free speech and expressive behavior. TCRP Legal Research Digest 10: Restrictions on Speech and Expressive Activities in Transit Terminals and Facilities addressed these issues more than 10 years ago. That publication is a primer and comprehensive study of the history and state of the relevant law up to the time of publication. Since then, however, changes in society suggest that this area of transportation law should be reexamined. In recent years, there has been increased interest in banning or placing restrictions on speech, advertis- ing, loitering, and panhandling. Specifically, this digest provides an analytical le- gal synthesis of available regulations, statutes, poli- cies, and case decisions pertaining to permissible and impermissible restrictions on speech and expressive behavior at transit facilities and aboard transit vehi- cles; a clear discussion pertaining to sidewalks and transit facilities as public fora; attempts to regulate advertising on public property; and a discussion of the enforcement of anti-loitering and anti-panhan- dling regulations on or near transit facilities. This digest should be useful to attorneys, state and local transportation administrators, researchers, legislators, and others who are in need of an updated discussion of these issues. responsible Senior Program officer: gwen Chisholm Smith CONTENTS Purpose and Scope 3 I. A Primer on First Amendment Analysis 3 A. The State Action Doctrine 3 B. Content-Based and Content-Neutral Regulation of Speech 4 C. The Public Forum Doctrine 5 D. The Vagueness and Overbreadth Doctrines 6 E. Prior Restraints on Speech 6 F. The Commercial Speech Doctrine 7 II. The Public Forum Doctrine: Application to Transit Facilities 7 A. The Classification of Airport Terminals 9 B. The Classification of Bus, Subway, and Train Stations 10 C. The Classification of Advertising Displays at Transit Facilities 11 D. The Classification of Physical Space Within Transit Vehicles 13 E. The Classification of Other Transit-Related Areas 13
III. The Scope of Permissible Regulation 14 A. Legal Analysis After Forum Classification 15 B. The Courts May Apply Other Doctrines to Strike Down Specific Regulations, Regardless of the Nature of the Forum 16 C. Permissible Forms of Regulation of Expressive Activities 17 IV. The Regulation of Specific Forms of Expressive Activity In and Around Transit Facilities 19 A. The Regulation of Advertising 19 B. The Regulation of the Placement of Newsracks 23 C. The Regulation of Organized Charitable Solicitation 26 D. The Regulation of Leafleting 28 E. The Regulation of Panhandling 30 F. The Regulation of Loitering 33 G. The Regulation of Musicians and Amplification 33 H. The Regulation of Media Access 34 V. Key Principles and a Note on the Future 35 A. Regulations Should Be Tailored to Important (or Compelling) Governmental Interests 35 B. Regulations Should Be Properly Enforced 35 C. A Note on the Future: Issues Arising from the Regulation of New Technologies in Transit Facilities 36 VI. Conclusion 36 Appendix A 38 ConTenTs (contâd)