First Amendment Implications for Transit Facilities: Speech, Advertising, and Loitering (2009)

Below is the uncorrected machine-read text of this chapter, intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text of each book. Because it is UNCORRECTED material, please consider the following text as a useful but insufficient proxy for the authoritative book pages.

14 tem, to facilitate safe and efficient travel by motorists along the System’s highways.”141 The court also rejected the claim that, because they are comparable to city parks, rest areas should be viewed as designated public fora. 142 3. Pier Owned by Government Agency The First Circuit has considered whether a pier owned by a port authority was a traditional or desig- nated public forum.143 The pier was used for commercial activities related to the receiving, storing, and shipping of fish, and was also home to a conference center, res- taurants, and several offices. The court found that the site was notable for its lack of “sidewalks or other de- sign characteristics that might be viewed as welcoming the general public.”144 The public entered the pier for a variety of purposes, but the port authority took steps to restrict access to the site. The court concluded that the pier was neither a traditional nor a designated public forum; the government’s “tolerance” of some members of the public was not tantamount to an affirmative deci- sion to designate the pier as a public forum.145 The Seventh Circuit has ruled that a renovated pier containing recreational and naval facilities also is not a public forum.146 This decision is somewhat more difficult to explain, since the pier in that case was essentially a city park, with the exception of some indoor shops and meeting facilities, and parks are generally considered to be traditional public fora. Nevertheless, the court held that the entire facility was a nonpublic forum: The pier itself is a discrete, outlying segment or projec- tion of Chicago rather than a right of way. It is its own little world of delights and in this respect it is something like a major airport, which the Supreme Court in Interna- tional Society for Krishna Consciousness, Inc. v. Lee re- fused to classify as a public forum. A major airport is both a transportation facility and a shopping mall; Navy Pier is an amusement park and a meeting and entertainment center. Whatever one calls such a complex—there doesn’t seem to be a compendious term for it—neither it nor the concourses within it are a public forum as the cases use the term.147 4. Bus Benches The Eleventh Circuit has ruled that certain city bus benches were not traditional or designated public 141 Id. at 1203. 142 Id. at 1203–04. 143 New England Reg’l Council of Carpenters v. Kinton, 284 F.3d 9 (1st Cir. 2002). 144 Id. at 22. 145 Id. at 23. 146 Chicago ACORN v. Metro. Pier and Exposition Auth., 150 F.3d 695, 700, 702 (7th Cir. 1998). The pier in this case is not primarily a transportation facility, but it is used to moor tour- ist boats. Portions of the pier were ruled to be public fora by the district court, but this finding was reversed on appeal. 147 Id. at 702 (citation omitted). fora.148 The court held the city was permitted to refuse certain categories of advertising in order to protect the city’s interest in generating revenue.149 5. Bus Shelters One court has stated that bus shelters are nonpublic fora,150 finding that such shelters are more like subway stations and airports than city streets, because they serve as entry and exit points for a mass transit system. 6. Highway Overpasses The Ninth Circuit has concluded that highway over- passes in the state of California are neither traditional public fora nor designated public fora.151 The state had not intentionally designated the overpasses as places of public discourse, and restricting access was justified as a safety measure, because messages on overpass fences would distract drivers.152 The Tenth Circuit found that highway overpasses are traditional public fora153 that are subject to time, place, and manner restrictions.154 Similarly, a Virginia district court found that a pedes- trian overpass running over a highway was a tradi- tional public forum, noting that “nothing in the record indicates that the overpass was built for anything other than for what is expected—to aid the general public in crossing over the highway, similar to a sidewalk which protects pedestrians from traffic.”155 7. Airport Tarmacs At least one district court has ruled that an airport tarmac does not constitute a traditional or designated public forum.156 III. THE SCOPE OF PERMISSIBLE REGULATION As discussed in Part II, the first step in many cases involving restrictions on speech is to apply the public 148 Uptown Pawn & Jewelry, Inc. v. City of Hollywood, 337 F.3d 1275, 1277–78 (11th Cir. 2003). The city’s ordinance pro- hibited the advertising of liquor, tobacco, X-rated movies, adult bookstores, massage parlors, pawn shops, tattoo parlors, and check cashing enterprises. Id. at 1277. 149 Id. at 1279. 150 ACLU v. Mineta, 319 F. Supp. 2d 69, 82 n.3 (D.D.C. 2004). The Ninth Circuit declined to resolve the same question in Metro Display Adver., Inc. v. City of Victorville, 143 F.3d 1191, 1195 (9th Cir. 1998). 151 Brown v. Cal. Dep’t of Transp., 321 F.3d 1217, 1222 (9th Cir. 2003). 152 Id. 153 Faustin v. City & County of Denver (“Faustin I”), 268 F.3d 942, 950 (10th Cir. 2001). 154 Faustin v. City & County of Denver, 423 F.3d 1192, 1200 (10th Cir. 2005). “At the outset, there is no dispute—as it was previously decided in Faustin I—that highway overpasses are traditional public fora….” Id. at 1200 n.9. 155 Lytle v. Brewer, 77 F. Supp. 2d 730, 736 (E.D. Va. 1999). 156 Wickersham v. City of Columbia, 371 F. Supp. 2d 1061, 1088 (W.D. Mo. 2005).

15 forum doctrine and determine what kind of forum is involved. The next step is to apply the legal standard applicable to the particular forum—but many cases involve other doctrines, and the public forum doctrine may never come into play. For example, in cases that involve permissible time, place, and manner regula- tions, the forum classification is irrelevant, because the time, place, and manner doctrine applies whether or not a forum is public. Thus, the scope or nature of a par- ticular regulation will affect the analytical model the courts will apply. This part describes the standards of review used by the courts to evaluate restrictions on speech under dif- ferent analytical approaches, and provides examples of some of the general types of regulations that the courts have upheld under these standards. A. Legal Analysis After Forum Classification 1. Regulations in a Public Forum Once a court has concluded that a particular forum is a public forum, whether traditional or designated, the next step is for the court to determine whether the regulation targets speech because of its content.157 If it does, the court will apply “strict scrutiny.” Under this test, the government must be able to show that it has a compelling state interest for regulating the speech, and that the regulation is narrowly drawn to advance that interest. In practice, as mentioned earlier, this test is rarely met.158 For example, in United Food & Commer- cial Workers Union, Local 1099 v. Southwest Ohio Re- gional Transit Authority, the transit authority had re- jected a pro-union advertisement proposed to be carried on the outside of the authority’s buses, on the grounds that it was “aesthetically unpleasant and controver- sial.”159 The court rejected this rationale without discus- sion, simply stating that it was “self-evident” that the authority’s decision did not survive strict scrutiny. 160 If a regulation of speech in a public forum does not target speech because of its content, the regulation will be analyzed under the time, place, and manner doc- trine, as discussed in Part III.B.1.161 2. Regulations In a Nonpublic Forum After a court has concluded that a particular forum is a nonpublic forum, the court will ask whether the 157 See supra pt. I.B. 158 See, e.g., Christ’s Bride Ministries, Inc. v. Se. Pa. Transp. Auth., 148 F.3d 242, 255 (3d Cir. 1998); United Food & Com- mercial Workers Union, Local 1099 v. Sw. Ohio Reg’l Transit Auth., 163 F.3d 341, 355 (6th Cir. 1998); Planned Parenthood Ass’n/Chicago Area v. Chicago Transit Auth., 767 F.2d 1225, 1233 (7th Cir. 1985). 159 103 F.3d 341, 347, 355 (6th Cir. 1998). 160 Id. at 355. 161 Thomas v. Chicago Park Dist., 534 U.S. 316, 322 (2002) (“[L]icensing scheme at issue here is not subject-matter censor- ship but content-neutral time, place, and manner regulation of the use of a public forum.”). regulation of expressive activity is reasonable and viewpoint-neutral.162 Unlike in a public forum, a regula- tion of expression in a nonpublic forum may be based on the content of speech, so long as it is not aimed at a particular viewpoint and the court concludes it is reasonable.163 To be reasonable, a regulation need only be sup- ported by “common sense,” not by record evidence.164 The International Society for Krishna Consciousness, Inc. v. Lee 165case provides an important example of this doctrine. There, the Court concluded that, because of its disruptive effects, face-to-face solicitation was “incom- patible with the airport’s functioning.”166 Alternatively, the Court could not find “any problems intrinsic to the act of leafletting that would make it naturally incom- patible with a large, multipurpose forum” such as the airport terminal at issue.167 In another example, Chil- dren of the Rosary v. City of Phoenix, 168 the court, after finding that advertising panels on buses were a non- public forum, concluded that rejecting an anti-abortion advertisement was permissible because 1) limiting ac- cess to the advertising space was reasonable for one of the following reasons—as a means of preserving a reve- nue source, maintaining a neutral stance on political and religious issues, or protecting buses and passen- gers; and 2) a policy of rejecting noncommercial adver- tisements in order to protect its interests did not dis- criminate against particular points of view. Though the time, place, and manner doctrine is also applicable to nonpublic fora, the doctrine has limited practical utility in such fora because it is less protective of regulations than the “reasonableness” standard.169 162 Davenport v. Wash. Educ. Ass’n, 551 U.S. 177, 127 S. Ct. 2372, 2381 (2007) ([I]t is…black-letter law that, when the gov- ernment permits speech on government property that is a non- public forum, it can exclude speakers on the basis of their sub- ject matter, so long as the distinctions drawn are viewpoint neutral and reasonable in light of the purpose served by the forum.). 163 See supra note 20. 164 United States v. Kokinda, 497 U.S. 720, 734–35 (1990). Nonetheless, a transit authority would be ill-advised to rely on convincing a court that common sense should prevail in the absence of record evidence. 165 505 U.S. 672 (1992). 166 Id. at 689 (O’Connor, J., concurring). 167 Id. at 690 (O’Connor, J., concurring). 168 154 F.3d 972 (9th Cir. 1998). 169 Some courts have blurred the doctrines into a single test. See, e.g., Jacobsen v. Ill. Dep’t of Transp., 419 F.3d 642, 648 (7th Cir. 2005) (“So long as the regulations are viewpoint- neutral, …the state may impose ‘reasonable’ time, place, or manner restrictions at nonpublic fora.”).

16 B. The Courts May Apply Other Doctrines to Strike Down Specific Regulations, Regardless of the Nature of the Forum Even if a particular regulation appears likely to sur- vive under forum analysis, transit authorities must consider how other doctrines might come into play. These doctrines—particularly the overbreadth, vague- ness, and unbridled discretion doctrines—tend to over- lap. Which one a court applies will depend on the facts of the case, but in essence they all stand for the proposi- tion that restrictions on speech should include clear and specific standards to both inform the public and to guide and limit the discretion of individual officials. 1. Time, Place, and Manner Regulations The aptly-named “time, place, and manner” test ad- dresses the “when,” “where,” and “how”—but never the “what”—of speech. A common type of time, place, and manner regulation is a requirement that one obtain a permit or license before engaging in expressive activity. Another example is a regulation that sets aside a por- tion of a facility for certain expressive activities. Such regulations are permissible if they “are justified without reference to the content of the regulated speech, …they are narrowly tailored to serve a significant governmen- tal interest, and…they leave open ample alternative channels for communication of the information.”170 Courts have recognized that raising revenue is a sig- nificant governmental interest, and that the First Amendment does not guarantee a right to the least ex- pensive means of expression.171 2. Regulations Should Not Be Overbroad The First Amendment prohibits restrictions that are “substantially overbroad,” which means regulations that create a realistic danger that parties not before the court will suffer harm to their free speech rights.172 A regulation may in fact be constitutional as applied against a particular plaintiff, but if the plaintiff can show that the mere existence of the restriction is likely 170 Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984) (citations omitted). Likewise, if the governmental interest at issue is unrelated to expression, the courts apply the essentially identical test under United States v. O’Brien, 391 U.S. 367, 377 (1968) ([A] government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the gov- ernmental interest is unrelated to the suppression of free ex- pression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the fur- therance of that interest.). See Clark, 468 U.S. at 308 n.6 (Marshall, J., dissenting) (“I also agree with the majority that no substantial difference distin- guishes the test applicable to time, place, and manner restric- tions and the test articulated in United States v. O’Brien.”). 171 Gannett Satellite Info. Network, Inc. v. Metro. Transp. Auth., 745 F.2d 767, 774–75 (2d Cir. 1984). 172 For a good discussion of overbreadth, see Broadrick v. Oklahoma, 413 U.S. 601, 611–18 (1973). to inhibit others from exercising their rights of free ex- pression, the court will strike down the restriction. In Board of Airport Commissioners v. Jews for Jesus, Inc., for example, the Board of Airport Commissioners for Los Angeles International Airport adopted a resolution banning all “First Amendment activities” at the air- port.173 Without ruling on the forum classification of the airport (the decision predates Lee), the Supreme Court invalidated the resolution under the overbreadth doc- trine: The resolution…does not merely reach the activity of re- spondents at LAX; it prohibits even talking and reading, or the wearing of campaign buttons or symbolic clothing. Under such a sweeping ban, virtually every individual who enters LAX may be found to violate the resolution by engaging in some “First Amendment activit[y].” We think it obvious that such a ban cannot be justified even if LAX were a nonpublic forum because no conceivable govern- mental interest would justify such an absolute prohibition of speech.174 Similarly, the Sixth Circuit struck down as over- broad a permitting scheme governing the use of the Ohio state capitol grounds that required anyone con- ducting “activity of broad public purpose” to obtain a permit.175 A regulation will not be considered overbroad, how- ever, if the court concludes that a limiting construction of the regulation is available.176 Thus, the doctrine has a certain circularity to it, and its application can be diffi- cult to predict. 3. Regulations Should Include Clear Standards Transit officials should be mindful not to adopt re- quirements that contain vague standards. Vagueness is a problem first and foremost because vague rules do not adequately inform the public of what they can and can- not do. For example, the Fifth Circuit has determined that a rule providing that “no person shall…hamper or impede the conduct of any authorized business at the airport” was “too inscrutable” to withstand scrutiny.177 The rules in that case could have been read in various ways, and the public could not be expected to tell what was intended.178 The constitutional test for vagueness is whether “a person of ordinary intelligence” can tell what conduct is permitted or proscribed.179 The second reason that vague standards are a prob- lem is that such regulations do not adequately limit the discretion of individual government officials. Strictly speaking, unconstitutional vagueness is a different 173 482 U.S. 569 (1987). 174 Id. at 574–75. 175 Parks v. Finan, 385 F.3d 694, 701 (6th Cir. 2004). 176 Broadrick, 413 U.S. at 613. 177 Int’l Soc’y for Krishna Consciousness of Atlanta v. Eaves, 601 F.2d 809, 832 (5th Cir. 1979). 178 Id. 179 United Food & Commercial Workers Union, Local 1099 v. Sw. Ohio Reg’l Transit Auth., 163 F.3d 341, 358–59 (6th Cir. 1998).

17 problem from the failure to limit official discretion, but, in practice, they may overlap.180 For example, in United Food & Commercial Workers Union, Local 1099 v. Southwest Ohio Regional Transit Authority,181 the Sixth Circuit found that a policy that forbade ads that were “controversial” and those that were not “aesthetically pleasing” was unconstitutional on vagueness grounds because the policy was an open invitation to arbitrary or discriminatory enforcement. The court found that the regulation was not saved by the fact that the ban was limited to cases in which the advertisements adversely affected the transit authority’s image or ridership, be- cause officials were free to reject ads if they “may” affect ridership even when such an effect could not be demon- strated.182 The Sixth Circuit is not alone in blending the con- cepts of vagueness and unbridled discretion. A district court in Georgia has ruled that a regulation’s vagueness was not cured by an attempt to define the term “public controversy.”183 The court ruled that many phrases within the definition—“widely reported,” “reasonably appears,” “arouses strong feelings,” and “substantial number of people”—were unconstitutionally vague and gave transit authority officials too much discretion.184 Courts have recognized, however, that “some degree of interpretation, and some reliance on concepts like ‘pre- vailing community standards’ is inevitable.”185 Vagueness and overbreadth can also heighten other concerns without being the basis for a finding of uncon- stitutionality. For example, in Aids Action Committee v. Massachusetts Bay Transportation Authority,186 the First Circuit noted that an advertising guideline that forbade messages or representations “pertaining to sex- ual conduct” was “so vague and broad that it could cover much of the clothing and movie advertising com- monly seen on billboards and in magazines.”187 The 180 Ridley v. Mass. Bay Transp. Auth., 390 F.3d 65, 94 (1st Cir. 2004). 181 163 F.3d at 359–60. See also Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972). 182 United Food & Commercial Workers Union, 163 F.3d at 360. 183 Nat’l Abortion Fed’n v. Metro. Atlanta Rapid Transit Auth., 12 F. Supp. 2d 1320, 1327 (N.D. Ga. 2000); see also Au- brey v. City of Cincinnati, 815 F. Supp. 1100, 1104 (stating that the Cincinnati Reds’ ban on banners that are not in “good taste” is unconstitutionally vague and overbroad). 184 Id. at 1327–28. The court also held that the policy reaches “too far” and noted as an example, that it could be read to allow rejection of ads promoting the Atlanta Braves, who, the court pointed out, certainly arouse strong feelings in a great number of people. Id. at 1328. 185 Ridley v. Mass. Bay Transp. Auth., 390 F.3d 65, 95 (1st Cir. 2004). 186 42 F.3d 1, 12 (1st Cir. 1994). 187 The court, as discussed, infra, proceeded to note that [i]n the end, the MBTA may well be entitled to exclude from the interiors of its cars speech containing a certain level of sexual innuendo and double entendre…. To do so constitutionally, how- ever, it will, at the least, need to act according to neutral stan- court did not hold that the rule was unconstitutionally vague or overbroad; instead, it held that the transit authority’s application of the rule amounted to content- based discrimination and added to the appearance of viewpoint discrimination. 4. Regulations Must Limit Individual Discretion Licensing schemes and other regulations can amount to illegal prior restraints on speech if they reserve “un- bridled” discretion for government officials.188 One ex- ample of a requirement that failed to survive a facial challenge is a rule prohibiting the posting of signs and distribution of other written material at the Newark airport.189 The airport’s rule stated: No person shall post, distribute or display at an air ter- minal a sign, advertisement, circular, or any printed or written matter concerning or referring to commercial ac- tivity, except pursuant to a written agreement with the Port Authority specifying the time, place and manner of, and fee or rental for, such activity. 190 In a challenge brought by a newspaper publisher, the Third Circuit noted that while the rule did not refer to the distribution of newspapers, it could be read to do so. The court overturned the rule under the unbridled discretion doctrine, noting that the rule “fails ade- quately to set forth any standards by which the Port Authority is to exercise its discretion.”191 C. Permissible Forms of Regulation of Expressive Activities Courts have recognized a number of forms of speech regulation that pass constitutional muster either as proper regulations in a nonpublic forum, or as time, place, and manner regulations in a public forum. This section discusses some general forms of regulation that courts have permitted. 1. Limiting Expressive Activity to Defined Areas or Locations Transit officials can restrict expressive activities to certain portions of a transit facility, through the appli- cation of time, place, and manner restrictions. The transit facility cases addressing this practice have all dards, and it will need to apply these standards in such a way that there is no appearance that “the [government] is seeking to handicap the expression of particular ideas.” Id. at 13 (citation omitted). 188 City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 757, 772 (1988). 189 Gannett Satellite Info. Network v. Berger, 894 F.2d 61, 68 (3d Cir. 1990). 190 Id. at 69. Another rule provided that “No person shall carry on any commercial activity at any air terminal without the consent of the Port Authority.” The court rejected an un- bridled discretion challenge to this rule after determining that the rule lacked “a close enough nexus to expression or expres- sive conduct to give rise to a substantial threat of undetectable censorship.” Id. at 68–69. 191 Id.

18 involved facilities that were determined to be nonpublic fora. First Amendment cases permitting the govern- ment to designate certain areas of a public forum for particular purposes are rare, since that would under- mine the basic concept of a public forum.192 In International Society for Krishna Consciousness v. Lee, a nonpublic forum case, Justice O’Connor noted that while leafleting could not be barred from the ter- minal entirely, it could be subject to time, place, and manner restrictions, citing the following example: [D]uring the many years that this litigation has been in progress, the Port Authority has not banned sankirtan completely from JFK International Airport, but has re- stricted it to a relatively uncongested part of the airport terminals, the same part that houses the airport chapel. In my view, that regulation meets the standards we have applied to time, place, and manner restrictions of pro- tected expression.193 The Fifth Circuit has upheld a municipal ordinance that required solicitation at a city-owned airport to oc- cur at designated solicitation booths.194 The court found that the rule properly served the airport’s interest in avoiding congestion and confusion.195 More recently, the Ninth Circuit has upheld a simi- lar permit requirement for leafleting in the Portland Airport, stating that “[t]he Port reasonably could con- clude that its safety and congestion concerns are best addressed by limiting the locations for free speech activ- ity.”196 The Eleventh Circuit has upheld Miami Interna- tional Airport’s creation of eight “First Amendment Zones.”197 Likewise, the Fifth Circuit has upheld a mu- nicipal ordinance that required solicitation at a city- owned airport to occur at designated solicitation booths.198 The court found that the rule properly served 192 The Ninth Circuit has agreed to rehear a case en banc concerning a rule confining street performances to designated areas within a public forum. Berger v. City of Seattle, 533 F.3d 1030 (9th Cir. 2008). 193 505 U.S. 672, 692–93 (1992) (citation omitted) (O’Connor, J., concurring). Citing Lee, the district court for the District of South Carolina has ruled that leafleting could not be banned from an airport tarmac during an airshow. Wickersham v. City of Columbia, 371 F. Supp. 2d 1061, 1089–90. While the court stated that leafleting could be subject to proper time, place, and manner restrictions, after examining the airport’s justifi- cations for banning leafleting at the air show, the court ruled that the leaflets could be distributed, subject to the permissible restrictions identified in the court's order. Id. at 1090-92. 194 Int’l Soc’y for Krishna Consciousness of Atlanta v. Eaves, 601 F.2d 809, 829-30 (5th Cir. 1979). 195 Id. at 829–30. 196 Jews for Jesus, Inc. v. Port of Portland, 172 F. App’x 760, 764 (9th Cir. 2006); Wilson v. Lexington-Fayette Urban County Gov’t, 201 F. App’x 317 (6th Cir. 2006) (upholding ban on ped- dling in certain areas near Rupp Arena before and after tick- eted events). 197 ISKCON Miami, Inc. v. Metro. Dade County, 147 F.3d 1282, 1290 (11th Cir. 1998). 198 Int’l Soc’y for Krishna Consciousness of Atlanta v. Eaves, 601 F.2d 809, 829 (5th Cir. 1979). the airport’s interest in avoiding congestion and confu- sion.199 2. Requiring a Permit to Engage in Expressive Activity It is well-established that the government may re- quire members of the public to obtain a license before engaging in certain types of expressive activity, such as a parade or demonstration, provided the policy justify- ing the license requirement and the procedures for ob- taining the license comply with the First Amendment.200 A permit or licensing requirement is a classic example of a time, place, and manner restriction.201 Accordingly, transit authorities may adopt regulations or policies that require individuals to obtain permits before engag- ing in certain activities. For example, in New England Regional Council of Carpenters v. Kinton,202 the court upheld regulations that allowed leafleting at a port fa- cility only after obtaining a permit. Such requirements may be permissible in any kind of forum.203 Similarly, the Ninth Circuit has upheld a permit requirement for leafleting in the Portland Airport.204 The court of ap- peals found that the policy was viewpoint-neutral be- cause it “applies equally to any party seeking to exer- cise free speech rights at the airport….”205 The court also ruled that the policy was reasonable in light of safety and congestion concerns.206 However, as the dis- cussion of Gannett Satellite Information shows,207 tran- sit officials must not reserve unbridled discretion to issue or revoke such permits.208 199 Id. 200 See, e.g., Thomas v. Chicago Park District, 534 U.S. 316 (2002). 201 See, e.g., New England Reg’l Council of Carpenters v. Kinton, 284 F.3d 9, 20 (1st Cir. 2002). 202 284 F.3d 9 (1st Cir. 2002). 203 Id. A court may analyze the scheme under the time, place, and manner doctrine, or under the test for regulations of nonpublic fora. 204 Jews for Jesus, Inc. v. Port of Portland, 172 F. App’x 760, 763 (9th Cir. 2006). 205 Id. at 764. 206 Id. 207 Satellite Info. Network v. Berger, 894 F.2d 61, 68–69 (3d Cir. 1990). 208 Various cases outside of the transit facility arena also address the use of permits involving expressive activities. For example, the Fourth Circuit ruled that a parade ordinance that required groups “as small as two or three” to secure a permit is not a proper time, place, and manner regulation because it “restrict[s] a substantial quantity of speech that does not im- pede [the City’s] permissible goals.” Cox v. City of Charleston, 416 F.3d 281, 285 (4th Cir. 2005) (quoting Cmty. for Creative Non-Violence v. Turner, 893 F.2d 1387, 1392 (D.C. Cir. 1990)). The court found that the city had failed “to explain how a small demonstration that may become inflammatory would tax its police force any differently than, for example, a street fight between two individuals, so as to justify requiring advance warning of all small demonstrations.” Id. See also Berger v. City of Seattle, 533 F.3d 1030 (9th Cir. 2008) (vacating and agreeing to hear en banc a decision that upheld the City of