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

Chapter: IV. THE REGULATION OF SPECIFIC FORMS OF EXPRESSIVE ACTIVITY IN AND AROUND TRANSIT FACILITIES

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Suggested Citation:"IV. THE REGULATION OF SPECIFIC FORMS OF EXPRESSIVE ACTIVITY IN AND AROUND TRANSIT FACILITIES." National Academies of Sciences, Engineering, and Medicine. 2009. First Amendment Implications for Transit Facilities: Speech, Advertising, and Loitering. Washington, DC: The National Academies Press. doi: 10.17226/23031.
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Suggested Citation:"IV. THE REGULATION OF SPECIFIC FORMS OF EXPRESSIVE ACTIVITY IN AND AROUND TRANSIT FACILITIES." National Academies of Sciences, Engineering, and Medicine. 2009. First Amendment Implications for Transit Facilities: Speech, Advertising, and Loitering. Washington, DC: The National Academies Press. doi: 10.17226/23031.
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Suggested Citation:"IV. THE REGULATION OF SPECIFIC FORMS OF EXPRESSIVE ACTIVITY IN AND AROUND TRANSIT FACILITIES." National Academies of Sciences, Engineering, and Medicine. 2009. First Amendment Implications for Transit Facilities: Speech, Advertising, and Loitering. Washington, DC: The National Academies Press. doi: 10.17226/23031.
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Suggested Citation:"IV. THE REGULATION OF SPECIFIC FORMS OF EXPRESSIVE ACTIVITY IN AND AROUND TRANSIT FACILITIES." National Academies of Sciences, Engineering, and Medicine. 2009. First Amendment Implications for Transit Facilities: Speech, Advertising, and Loitering. Washington, DC: The National Academies Press. doi: 10.17226/23031.
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Suggested Citation:"IV. THE REGULATION OF SPECIFIC FORMS OF EXPRESSIVE ACTIVITY IN AND AROUND TRANSIT FACILITIES." National Academies of Sciences, Engineering, and Medicine. 2009. First Amendment Implications for Transit Facilities: Speech, Advertising, and Loitering. Washington, DC: The National Academies Press. doi: 10.17226/23031.
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Suggested Citation:"IV. THE REGULATION OF SPECIFIC FORMS OF EXPRESSIVE ACTIVITY IN AND AROUND TRANSIT FACILITIES." National Academies of Sciences, Engineering, and Medicine. 2009. First Amendment Implications for Transit Facilities: Speech, Advertising, and Loitering. Washington, DC: The National Academies Press. doi: 10.17226/23031.
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Suggested Citation:"IV. THE REGULATION OF SPECIFIC FORMS OF EXPRESSIVE ACTIVITY IN AND AROUND TRANSIT FACILITIES." National Academies of Sciences, Engineering, and Medicine. 2009. First Amendment Implications for Transit Facilities: Speech, Advertising, and Loitering. Washington, DC: The National Academies Press. doi: 10.17226/23031.
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Suggested Citation:"IV. THE REGULATION OF SPECIFIC FORMS OF EXPRESSIVE ACTIVITY IN AND AROUND TRANSIT FACILITIES." National Academies of Sciences, Engineering, and Medicine. 2009. First Amendment Implications for Transit Facilities: Speech, Advertising, and Loitering. Washington, DC: The National Academies Press. doi: 10.17226/23031.
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Suggested Citation:"IV. THE REGULATION OF SPECIFIC FORMS OF EXPRESSIVE ACTIVITY IN AND AROUND TRANSIT FACILITIES." National Academies of Sciences, Engineering, and Medicine. 2009. First Amendment Implications for Transit Facilities: Speech, Advertising, and Loitering. Washington, DC: The National Academies Press. doi: 10.17226/23031.
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Suggested Citation:"IV. THE REGULATION OF SPECIFIC FORMS OF EXPRESSIVE ACTIVITY IN AND AROUND TRANSIT FACILITIES." National Academies of Sciences, Engineering, and Medicine. 2009. First Amendment Implications for Transit Facilities: Speech, Advertising, and Loitering. Washington, DC: The National Academies Press. doi: 10.17226/23031.
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Suggested Citation:"IV. THE REGULATION OF SPECIFIC FORMS OF EXPRESSIVE ACTIVITY IN AND AROUND TRANSIT FACILITIES." National Academies of Sciences, Engineering, and Medicine. 2009. First Amendment Implications for Transit Facilities: Speech, Advertising, and Loitering. Washington, DC: The National Academies Press. doi: 10.17226/23031.
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Suggested Citation:"IV. THE REGULATION OF SPECIFIC FORMS OF EXPRESSIVE ACTIVITY IN AND AROUND TRANSIT FACILITIES." National Academies of Sciences, Engineering, and Medicine. 2009. First Amendment Implications for Transit Facilities: Speech, Advertising, and Loitering. Washington, DC: The National Academies Press. doi: 10.17226/23031.
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Suggested Citation:"IV. THE REGULATION OF SPECIFIC FORMS OF EXPRESSIVE ACTIVITY IN AND AROUND TRANSIT FACILITIES." National Academies of Sciences, Engineering, and Medicine. 2009. First Amendment Implications for Transit Facilities: Speech, Advertising, and Loitering. Washington, DC: The National Academies Press. doi: 10.17226/23031.
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Suggested Citation:"IV. THE REGULATION OF SPECIFIC FORMS OF EXPRESSIVE ACTIVITY IN AND AROUND TRANSIT FACILITIES." National Academies of Sciences, Engineering, and Medicine. 2009. First Amendment Implications for Transit Facilities: Speech, Advertising, and Loitering. Washington, DC: The National Academies Press. doi: 10.17226/23031.
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Suggested Citation:"IV. THE REGULATION OF SPECIFIC FORMS OF EXPRESSIVE ACTIVITY IN AND AROUND TRANSIT FACILITIES." National Academies of Sciences, Engineering, and Medicine. 2009. First Amendment Implications for Transit Facilities: Speech, Advertising, and Loitering. Washington, DC: The National Academies Press. doi: 10.17226/23031.
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Suggested Citation:"IV. THE REGULATION OF SPECIFIC FORMS OF EXPRESSIVE ACTIVITY IN AND AROUND TRANSIT FACILITIES." National Academies of Sciences, Engineering, and Medicine. 2009. First Amendment Implications for Transit Facilities: Speech, Advertising, and Loitering. Washington, DC: The National Academies Press. doi: 10.17226/23031.
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19 3. Raising Revenue Based on Expressive Activity A number of cases have allowed transit facilities to raise revenues by charging fees for expressive activities in transit facilities where special access is sought to the facility. For example, the Eleventh Circuit ruled that it was a reasonable regulation of a nonpublic forum for the Hartsfield Atlanta International Airport to charge a profit-conscious fee for use of the airport’s newsracks.209 4. Banning Certain Expressive Activity Courts have upheld total bans of some expressive ac- tivities in nonpublic fora. For example, in Lee, the court found that a total ban on solicitation was a reasonable way to deal with congestion and passenger disruption in a nonpublic forum, but concluded that banning leaf- leting was not.210 Other cases have found that bans on other activities are reasonable regulations in nonpublic fora,211 or are proper time, place, and manner regula- tions.212 Seattle’s rules requiring street performers within a public fo- rum to wear badges and secure permits as proper time, place, and manner regulations). 209 Atlanta Journal & Constitution v. Atlanta Dep’t of Avia- tion, 322 F.3d 1298, 1308 (11th Cir. 2003); see also Gannett Satellite Info. Network, Inc. v. Metro. Transp. Auth., 745 F.2d 767, 772 (2d Cir. 1984) (“[B]ecause licensing fees serve the significant governmental interest of raising revenue for the efficient, self-sufficient operation of the rail lines, we hold that they can be valid time, place and manner restrictions on Gan- nett’s right to place its newsracks in those areas.”). 210 505 U.S. 672, 690. As discussed, the Court found that leafleting does not entail the same degree of disruption as face- to-face solicitation, and therefore ruled that only the latter is incompatible with the forum in question. 211 See, e.g., United States v. Kokinda, 497 U.S. 720, 737 (1990) (banning solicitation from postal office sidewalk is per- missible regulation of nonpublic forum); Storti v. Se. Transp. Auth., No. Civ. A. 99-2159, 1999 U.S. Dist. LEXIS 14515, 1999 WL 729266 (E.D. Pa. 1999) (reasonable to ban distribution of written materials in paid areas and platforms of nonpublic forum); Children of the Rosary v. City of Phoenix, 154 F.3d 972, 979 (9th Cir. 1998) (city may ban noncommercial advertis- ing on nonpublic forum buses); Ridley v. Mass. Bay Transp. Auth., 390 F.3d 65, 93 (1st Cir. 2004) (MBTA may ban demean- ing or disparaging advertisements in nonpublic forum); Up- town Pawn & Jewelry, Inc. v. City of Hollywood, 337 F.3d 1275, 1280–81 (11th Cir. 2003) (City could ban advertisements of “less desirable” businesses on nonpublic forum bus benches); Park Shuttle N Fly, Inc. v. Norfolk Airport Auth., 352 F. Supp. 2d 688, 706 (E.D. Va. 2004) (airport could exclude competitor’s ads in nonpublic forum); Anderson v. Milwaukee County, 433 F.3d 975, 980 (7th Cir. 2006) (reasonable to ban handing out literature on nonpublic forum bus); New England Reg’l Council of Carpenters v. Kinton, 284 F.3d 9, 24–25 (1st Cir. 2002) (rea- sonable to ban leafleting on nonpublic forum pier); Hawkins v. City and County of Denver, 170 F.3d 1281, 1291 (10th Cir. 1999) (reasonable to ban leafleting and picketing in nonpublic forum walkway). 212 See, e.g., ACORN v. City of Phoenix, 798 F.2d 1260, 1268 (9th Cir. 1986) (ban on in-roadway solicitation is proper time, place, and manner regulation regardless of forum classifica- tion); ACORN v. St. Louis County, 930 F.2d 591, 594 (8th Cir. 5. Regulating the Manner of Expression Under the time, place, and manner doctrine, courts have permitted state actors to regulate the manner in which speech is expressed. For example, courts have upheld uniform color and lettering requirements on newsracks213 and sound amplification limitations.214 It bears emphasizing that these types of restrictions must be content-neutral, aimed at serving a legitimate gov- ernmental interest, and tailored to those concerns. IV. THE REGULATION OF SPECIFIC FORMS OF EXPRESSIVE ACTIVITY IN AND AROUND TRANSIT FACILITIES This part elaborates on the regulation of specific forms of expressive activity—advertising, placement of newsracks, charitable solicitation, leafleting, panhan- dling, loitering, and street performance—in and around transit facilities. Each section begins with a brief “Prac- tice Aid” summarizing the key principles emerging from the cases. In addition, Appendix A includes examples of particular ordinances and regulations adopted with the intent of regulating specific types of activity. A. The Regulation of Advertising Courts have rarely upheld the direct regulation of the content of advertising in facilities that have been determined to be public fora since the strict scrutiny test is very hard to meet.215 In nonpublic fora, however, 1991); Gresham v. Peterson, 225 F.3d 899, 906 (7th Cir. 2000) (banning aggressive panhandling is proper time, place, and manner regulation); Smith v. City of Fort Lauderdale, 177 F.3d 954, 956 (11th Cir. 1999) (banning begging on 5-mi strip of beach, a public forum, is permissible time, place, and manner regulation). 213 Gold Coast Publ’ns, Inc. v. Corrigan, 42 F.3d 1336, 1346 (11th Cir. 1994). 214 Housing Works, Inc. v. Kerik, 283 F.3d 471, 482 (2d Cir. 2002). 215 See Planned Parenthood Ass’n/Chicago Area v. Chicago Transit Auth., 767 F.2d 1225, 1233 (7th Cir. 1985) (protecting captive audience insufficient to justify rejection of entire cate- gory of advertising); United Food & Commercial Workers Un- ion v. Sw. Ohio Reg’l Transit Auth., 163 F.3d 341, 355 (6th Cir. 1998) (aesthetics and avoiding controversy not compelling state interests); Christ’s Bride Ministries, Inc. v. Se. Pa. Transp. Auth., 148 F.3d 242, 255 (3d Cir. 1998) (transit authority made no effort to argue that rejection of abortion-related advertising should survive strict scrutiny); Lebron v. Wash. Metro. Area Transit Auth., 749 F.2d 893, 896 (D.C. Cir. 1984) (rejection of ad to prevent deception impermissible because ad was not de- ceptive); Nat’l Abortion Fed’n v. Metro. Atlanta Rapid Transit Auth., 112 F. Supp. 2d 1320, 1327 (N.D. Ga. 2000) (finding compelling governmental interest in protecting employees and passengers from violence, but ruling that rejection of ad did not serve such interest); see also New York Magazine v. Metro. Transp. Auth., 136 F.3d 123, 131 (2d Cir. 1998) (actions consti- tute improper prior restraint even if speech is treated under commercial speech doctrine). While advertising in a public forum could also be subject to time, place, and manner regula- tions, see, e.g., White House Vigil for ERA Cmty. v. Clark, 746

20 courts have often upheld regulation of advertising that was reasonable in light of the purposes served by the forum, and that did not discriminate based on the view- point of the speaker. Practice Aid—Advertising Courts have upheld advertising restrictions in non- public fora that are “reasonable” and not based on the viewpoint of the speaker. The courts have recognized numerous legitimate governmental interests including: 1) raising revenue, 2) promoting an appearance of neu- trality, 3) public safety, 4) avoiding offense to patrons of the facility, and (5) avoiding the use of the facility to promote illegal activity. Transit officials should strive to align any restrictions on advertising with a legitimate governmental interest, ideally an interest that has al- ready been found legitimate by the courts. In addition, transit officials should ensure that neither their policies nor their enforcement of such policies result in dis- crimination based on the viewpoint of the speaker. The commercial speech doctrine may benefit transit officials seeking to regulate advertisements that are clearly commercial in nature. 1. Reasonableness in Light of the Purposes Served By the Forum To determine whether a regulation of advertising in a nonpublic forum is “reasonable,” a court examines the nature of the government’s interest and the nature and function of the particular forum.216 While the Supreme Court has held that the reasonableness of a restriction in a nonpublic forum may be upheld if it is justified by “common sense,” 217 a transit facility would be well ad- vised to develop a solid basis and a thorough rationale for any policy or regulation in advance of its adoption. In particular, a facility should consider whether the justification for treating a particular category of adver- tisement in one manner is consistent with treatment given to other advertising. Relying on a court’s view of “common sense” is often a risky proposition. In Lehman v. City of Shaker Heights, the Supreme Court stated that minimizing “chances of abuse, the appearance of favoritism, and the risk of imposing upon F.2d 1518, 1534 (D.C. Cir. 1984), we are not aware of any cases discussing such regulations in transit facilities. Courts have upheld ordinances regarding the placement of signs on private property along highways under the time, place, and manner doctrine. See, e.g., Tex. Dep’t of Transp. v. Barber, 111 S.W.3d 86, 105 (Tex. 2003). 216 Airline Pilots Assoc. v. Dep’t of Aviation of Chi., 45 F.3d 1144, 1159 (7th Cir. 1995). 217 United States v. Kokinda, 497 U.S. 720, 734-35 (1990); see Uptown Pawn & Jewelry Inc. v. City of Hollywood, 337 F.3d 1275, 1280 (11th Cir. 2003) (court need only ask whether rea- sonableness of regulation is “intuitively obvious or common sensical.”). See also infra. pt. I.C. a captive audience” were legitimate justifications for limits on advertising in city buses.218 The Ninth Circuit has found that each of the follow- ing governmental interests can justify a ban on non- commercial speech on city buses: 1. Maintaining a position of neutrality on political and religious messages; 2. A fear that buses and passengers could be subject to violence if advertising is not restricted; and 3. Preventing a reduction in income earned from selling advertising space because commercial advertis- ers would be dissuaded “from using the same forum commonly used by those wishing to communicate pri- marily political or religious messages[.]”219 This last point, a transit agency’s interest in raising revenue, has been recognized as legitimate in a number of cases. Indeed, the courts seem to be prepared to give transit authorities quite broad latitude, even approving restrictions that in other contexts might well be deemed unconstitutionally vague. For example, the Eleventh Circuit has ruled that a city, acting in a proprietary capacity, may “limit ‘less desirable’ business’ access to bus bench advertising in hopes that the limitation will encourage ‘more desirable’ advertisers.”220 The Eastern District of Virginia has held that an airport authority had a legitimate interest in protecting its income from operating parking lots, and thus could bar competing businesses from advertising within the airport termi- nal.221 The First Circuit has ruled that restricting “de- meaning or disparaging” ads properly serves the MBTA’s economic interests,222 because permitting offen- sive advertising may reduce ridership, which would interfere with the goal of maximizing revenue. Transit authorities must always ensure that their actions actually serve the governmental interests at stake. For example, the First Circuit has found that a transit agency has a legitimate interest in avoiding the promotion of illegal activity, especially among children, and in seeking not to offend riders.223 The court con- cluded, however, that those interests were not advanced by the rejection of ads calling for the legalization of marijuana that were not, in fact, phrased or designed so as to promote illegal drug use by children.224 On the other hand, in the same decision, the court held that the interest in avoiding offending riders was advanced 218 418 U.S. 298, 304 (1974). 219 Children of the Rosary v. City of Phoenix, 154 F.3d 972, 979 (9th Cir. 1998). 220 Uptown Pawn & Jewelry, 337 F.3d at 1281. 221 Park Shuttle N Fly, Inc. v. Norfolk Airport Auth., 352 F. Supp. 2d 688, 706 (E.D. Va. 2004). The court held that this was not viewpoint discrimination because the distinction was “based upon the identity of the speakers.” Id. 222 Ridley v. Mass. Bay Transp. Auth., 390 F.3d 65, 93 (1st Cir. 2004). 223 Id. 224 Id. at 88.

21 when MBTA rejected ads asserting certain religions were “false.”225 In another case, the Ninth Circuit struck down the California Department of Transportation’s requirement for a permit for the display of all signs and banners on highway overpasses except for American flags.226 The court found that the governmental interest in prevent- ing distractions to drivers and keeping obstacles from falling on highways was reasonable, but it was not rea- sonable to exclude only American flags from the policy’s reach.227 2. Restrictions Must Not Discriminate Based Upon Viewpoint Even if a government agency can show that it has an interest that justifies a particular regulation of adver- tising, the government cannot use that interest to sup- press the expression of particular points of view. “The bedrock principle of viewpoint neutrality demands that the state not suppress speech where the real rationale for the restriction is disagreement with the underlying ideology or perspective that the speech expresses.”228 For example, a district court recently struck down a federal transit appropriations statute because it was not viewpoint neutral.229 The statute prohibited making federal transit grants to any entity “involved directly or indirectly in any activity that promotes the legalization or medical use” of a controlled substance.230 After the Washington Metropolitan Area Transit Authority re- jected an ad advocating changes to marijuana laws be- cause it was concerned about losing federal funding, the American Civil Liberties Union challenged the statute as unconstitutional viewpoint discrimination. The court agreed: “Just as Congress could not permit advertise- ments calling for the recall of a sitting Mayor or Gover- nor while prohibiting advertisements supporting reten- tion, it cannot prohibit advertisements supporting legalization of a controlled substance while permitting those that support tougher drug sentences.”231 Moreover, the issue is not just how a regulation is written—a key issue is how the regulation is applied. The application of a regulation may be challenged even where the underlying regulation is lawful and facially neutral, and where the explanation given for rejecting an advertisement appears neutral. In Ridley v. Massa- chusetts Bay Transportation Authority,232 for example, 225 Id. at 93. 226 Brown v. Cal. Dep’t of Transp., 321 F.3d 1217 (9th Cir. 2003). 227 Id. The court also concluded that the policy was not viewpoint-neutral. Id. at 1224–25. 228 Ridley, 390 F.3d at 82. 229 ACLU v. Mineta, 319 F. Supp. 2d 69 (D.D.C. 2004). 230 Id. at 75. 231 Id. at 86. The Justice Department elected not to appeal the decision. See J. McElhatton, Metro Must Accept Pro- Marijuana Ads, THE WASH. TIMES, Jan. 28, 2005. 232 390 F.3d 65 (1st Cir. 2004). the First Circuit listed three situations in which the court would look beyond otherwise neutral justifica- tions: First, statements by government officials on the reasons for an action can indicate an improper motive. Second, where the government states that it rejects something be- cause of a certain characteristic, but other things possess- ing the same characteristic are accepted, this sort of un- derinclusiveness raises a suspicion that the stated neutral ground for action is meant to shield an impermis- sible motive. Third, suspicion arises where the viewpoint- neutral ground is not actually served very well by the specific governmental action at issue; where, in other words, the fit between means and ends is loose or non- existent.233 The court found direct evidence that the reason for rejection of three ads calling for legalization of mari- juana was not the protection of children but opposition to marijuana legalization. The court noted that the transit agency at one point had actually stated that one reason for rejecting the ads was that they promoted legalization.234 The court found this viewpoint discrimi- nation was reinforced by the General Manager’s state- ment that “he would publish…[two of the ads] if they came to the opposite conclusion—one with which he agreed—expressing viewpoints which reinforced com- pliance with, but did not question, existing laws.”235 The court also found that its “suspicion of viewpoint dis- crimination is deepened by the fact that the MBTA has run a number of ads promoting alcohol that are clearly more appealing to juveniles than the ads here.”236 In a similar case, the First Circuit had previously stressed that it was important for a transit agency to apply its regulations in a manner that will avoid the “appearance” of viewpoint discrimination.237 In that case, MBTA had refused to run seven public service advertisements that promoted the use of condoms.238 MBTA’s advertising guidelines stated: All advertising…must meet the same guidelines govern- ing broadcast and private sector advertising with respect to good taste, decency and community standards as de- termined by the Authority. That is to say, the average person applying contemporary community standards must find that the advertisement, as a whole, does not appeal to a prurient interest. The advertisement must not 233 Id. at 87 (citations and footnote omitted). 234 Id. at 88. 235 Id. 236 Id. Cf. Children of the Rosary v. City of Phoenix, 154 F.3d 972, 980 (9th Cir. 1998) (concluding city’s standard was not a façade for viewpoint discrimination). 237 Aids Action Comm. of Mass., Inc. v. Mass. Bay Transp. Auth., 42 F.3d 1 (1st Cir. 1994). 238 The ads each carried the picture of a condom and one of the following headlines: 1) “Haven’t you got enough to worry about in bed?”; 2) “Even if you don’t have one, carry one.”; 3) “Simply having one on hand won’t do any good.”; 4) “You’ve got to be putting me on.”; 5) “Tell him you don’t know how it will ever fit.”; and 6) “One of these will make you 1/1000th of an inch larger.” Id. at 4.

22 describe, in a patently offensive way, sexual conduct spe- cifically defined by the applicable state law, as written or authoritatively construed. Advertising containing mes- sages or graphic representations pertaining to sexual conduct will not be accepted.239 MBTA argued that the ads were rejected because they describe “sexual conduct in a patently offensive way and contain graphic representations pertaining to sexual conduct.”240 The court, however, noted that MBTA had previously neither rejected, nor attempted to remove, sexually suggestive movie ads.241 Thus, MBTA had created at least the appearance of viewpoint discrimination.242 The court concluded: In 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. We do not reach that question at this time. To do so constitutionally, however, it will, at the least, need to act according to neu- tral standards, and it will need to apply these standards in such a way that there is no appearance that “the [gov- ernment] is seeking to handicap the expression of particu- lar ideas.” …We recognize that this requires the govern- ment to apply its standards quite precisely. This is the burden the government assumes, however, when it un- dertakes to proscribe speech on the basis of its content.243 In light of this, it is clear that a neutral policy re- garding expressive activities in or around transit facili- ties is a necessary but not a sufficient element in order to survive First Amendment scrutiny. How the policy is implemented is just as important. Furthermore, it is equally clear that it is difficult for a transit agency to know in advance when it is crossing the line: allowing a single advertisement to appear may create a precedent that could threaten the ability to make future distinc- tions. This is not to say that a transit facility that has al- lowed certain viewpoints to be expressed on an issue is obligated to indefinitely allow further discussion of the issue. Just as courts have recognized that a transit fa- cility can close a designated public forum,244 a transit facility can close a nonpublic forum to both viewpoints on a particular issue, provided that it does so in a view- point-neutral manner. In Children of the Rosary v. City of Phoenix, 245 for example, the city had previously al- lowed noncommercial advertisements on a number of issues. After the city changed its policy to bar all non- 239 Id. at 3–4. 240 Id. at 5. 241 Id. 242 Id. at 11. 243 Id. at 13 (citations omitted); see also Metro Display Ad- ver., Inc. v. City of Victorville, 143 F.3d 1191, 1195 (9th Cir. 1998) (city could not require advertising company to remove pro-union ads). 244 See Perry Educ. Assoc. v. Perry Local Educators’ Assoc., 460 U.S. 37, 45 (1983) (“a State is not required to indefinitely retain the open character of the facility”); Storti v. Se. Transp. Auth., No. Civ. A. 99-2159, 1999 U.S. Dist. LEXIS 14515, at *17, 1999 WL 729266, at *7 (E.D. Pa. 1999). 245 154 F.3d 972 (9th Cir. 1998). commercial ads, the court upheld the enforcement of the new policy to bar a noncommercial ad because the court concluded that the city’s change was not a “façade for viewpoint discrimination.”246 The court so held de- spite the fact that the city continued to honor its preex- isting contracts for noncommercials ads.247 As the cases suggest, transit officials must exercise great care in establishing viewpoint-neutral policies, and in evaluat- ing every proposed advertisement. 3. Advertising Under the Commercial Speech Doctrine Transit officials dealing with First Amendment is- sues related to advertising should also be aware of the potential application of the commercial speech doctrine. As discussed in Part I above, the commercial speech doctrine is rooted in the notion that because the state can regulate commercial transactions with consumers, the regulation of speech connected with these commer- cial transactions should also be subject to regulation— and therefore should be subject to less exacting First Amendment scrutiny.248 However, because the regula- tion of advertising in transit facilities is not typically designed to preserve “a fair bargaining process” in the commercial interaction between consumers and adver- tisers, in practice the doctrine may not offer much pro- tection.249 Indeed, the doctrine is rarely discussed in the cases arising in such settings. The Supreme Court has characterized the doctrine as comparable to the “time, place, and manner” doctrine.250 Nevertheless, one area in which the courts have ap- plied the commercial speech doctrine is the regulation of alcohol and cigarette consumption. For example, the Fourth Circuit has concluded that a city’s regulation of outdoor advertising of alcoholic beverages may materi- ally advance the city’s interest in promoting the welfare and temperance of minors.251 In a separate decision, the court also concluded that the city could prohibit ciga- rette advertising on billboards located in designated zones.252 These cases are unique because they appear to allow “content-based” and “viewpoint-based” distinc- tions without applying strict scrutiny—the ads are 246 Id. at 980. 247 Id. 248 See supra pt. I.F. 249 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 501 (1996); see also City of Cincinnati v. Discovery Network, 507 U.S. 410 (1993), discussed infra pt. IV.B.1. 250 Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 554 (2001). 251 Anheuser-Busch v. Schmoke, 63 F.3d 1305, 1314 (4th Cir. 1995). The decision was vacated by the Supreme Court and remanded based on 44 Liquormart. 517 U.S. 1206 (1996). On remand, the Fourth Circuit again upheld the ordinance. 101 F.3d 325 (4th Cir. 1996). 252 Penn Advertising of Baltimore, Inc. v. Mayor and City Council of Baltimore, 63 F.3d 1318, 1326 (4th Cir. 1995).

23 regulated precisely because of the pro-alcohol or pro- cigarette message that they convey.253 It is unclear whether such apparently viewpoint- based distinctions will continue to be upheld in the fu- ture, especially in light of the uncertain standing of the commercial speech doctrine.254 In Lorillard Tobacco Co. v. Reilly,255 the Supreme Court considered the constitu- tionality of Massachusetts regulations restricting the sale, promotion, and labeling of tobacco products. One regulation prohibited “smokeless tobacco or cigar adver- tising within a 1,000-foot radius of a school or play- ground.”256 While the Court found that the Attorney General had ample evidence that underage use of to- bacco was a problem,257 the Court also found that there was not a “reasonable fit” between this interest and the state’s regulation.258 The Court also struck down a rule barring the indoor, point-of-sale advertising of smoke- less tobacco and cigars that was placed “lower than five feet from the floor of any retail establishment which is located within a one thousand foot radius” of any school or playground.259 The Court found that the height limit did not advance the state’s interests, because children could still look up to see ads placed above the limit, but the Court did uphold rules barring self-service displays and requiring that tobacco products be accessible only to salespersons.260 The Court ruled that these restric- tions were “narrowly tailored to prevent access to to- bacco products by minors, are unrelated to expression, and leave open alternative avenues for vendors to con- vey information about products and for would-be cus- tomers to inspect products before purchase.”261 The Third Circuit has struck down a Pennsylvania law that barred alcoholic beverage advertising in media outlets affiliated with colleges or universities.262 The court stressed that the law imposed a content-based restriction on speech, and therefore had to be analyzed 253 The cases would presumably be decided differently if they involved not a commercial transaction, but a debate on the merits of smoking policy. 254 Lorillard Tobacco, 533 U.S. at 589 (Thomas, J., concur- ring) (“In effect, they seek a ‘vice’ exception to the First Amendment. No such exception exists. See 44 Liquormart, 517 U.S. at 513–14 (opinion of Stevens, J., joined by Kennedy, Thomas, and Ginsburg, JJ)…. “[A] ‘vice’ label that is unaccom- panied by a corresponding prohibition against the commercial behavior at issue fails to provide a principled justification for the regulation of commercial speech about that activity.”). 255 533 U.S. 525 (2001). 256 533 U.S. at 556. 257 Id. at 561. 258 Id. 259 Id. at 566. 260 Id. at 567. 261 Id. at 570. Before reaching the First Amendment issues related to cigars and smokeless tobacco, the Court found that Congress had preempted state cigarette advertising regula- tions through the passage of the Federal Cigarette Labeling and Advertising Act. Id. at 551. 262 Pitt News v. Pappert, 379 F.3d 96, 113 (3d Cir. 2004). accordingly.263 Rather than apply the public forum doc- trine, the court reverted to the Central Hudson test under the commercial speech doctrine.264 The court found that the state had not shown that the statute was actually effective in meeting the governmental interest in protecting minors, and that the law was both over- and under-inclusive.265 While there is no question that recent decisions have brought the vitality of the commercial speech doctrine into question, transit officials should be aware that un- der the right circumstances the doctrine may still be used to tilt the scale of judicial scrutiny in favor of a particular regulation of commercial advertising. B. The Regulation of the Placement of Newsracks A number of cases have considered the regulation of the placement of newsracks on city streets and in or around transit facilities. Practice Aid—Newsracks Transit officials seeking to regulate the placement of newsracks in and around transit facilities should be particularly aware of three principles. First, to the ex- tent that a permitting scheme is used to regulate the placement of newsracks, transit officials must ensure that the regulation does not vest any official with un- bridled discretion to decide who may receive a permit. Instead, the permitting scheme must contain defined structural and procedural safeguards. Second, transit officials should ensure that any regulation is closely aligned with the governmental interest that it is de- signed to serve. Total bans on newsracks in transit fa- cilities will likely require the clearest demonstration between the interest and the regulation. Finally, in most cases in which a transit facility is acting in a pro- prietary capacity, courts have allowed the facility to recover a permitting fee (even one that exceeds the fa- cility’s costs), and to impose other content-neutral re- quirements under the time, place, and manner doctrine. These cases have generally not applied the public fo- rum doctrine in any detail, because the regulations in question have typically addressed the placement of newsracks in the public rights-of-way. Consequently, other First Amendment doctrines, principally the time, place, and manner doctrine, have been applied more often in this context. Cases involving airports, however, make it clear that the public forum doctrine can still be relevant.266 263 Id. at 106. 264 Id. As such, the court did not apply the public forum doc- trine. 265 Id. at 107–08. 266 See, e.g., Multimedia Publ’g Co. of S.C. v. Greenville- Spartanburg Airport Dist., 991 F.2d 154 (4th Cir. 1993); Gan- nett Satellite Info. Network, Inc. v. Metro. Transp. Auth., 745 F.2d 767 (2d Cir. 1984).

24 1. The “Unbridled Discretion” Doctrine The “unbridled discretion” doctrine has played an important role with respect to the placement of news- racks. In City of Lakewood v. Plain Dealer Publishing Co.,267 the Supreme Court considered a city ordinance that permitted the mayor to deny applications for an- nual newsrack permits for any reason, or to grant such permits on “terms and conditions deemed necessary and reasonable by the Mayor.”268 The Court rejected the no- tion that it should “presume” that the Mayor would only deny a permit for valid reasons: “The doctrine requires that the limits the city claims are implicit in its law be made explicit by textual incorporation, binding judicial or administrative construction, or well-established practice.”269 The Court thus concluded that the permit- ting scheme violated the First Amendment.270 The case is also significant because, while not ruling on the con- stitutionality of the issue, the Court recognized that it might be permissible for the city to ban newsracks from certain areas of the city altogether. 271 The fact that the newsracks could be banned altogether did not mean, however, that the city could grant or deny access selec- tively. Having established a newsrack licensing scheme, the city was obliged to apply it in a manner consistent with First Amendment principles—including the prin- ciple that the licensing decision could not be left to the unbridled discretion of an administrative official. The Eleventh Circuit has been particularly active with respect to these issues. In 1991, the court ruled that the State of Florida’s scheme for regulating the placement of newsracks at its rest areas violated the unbridled discretion doctrine.272 The court found: “[A]s it stands now in Florida, newspapers seeking permission to distribute their newspapers through newsracks at interstate rest areas appear to be subject to the com- pletely standardless and unfettered discretion of one bureaucrat working for the [Division of Blind Services] in Tallahassee.”273 The court explained that the discretion of govern- ment officials must be guided by “minimal” procedures and standards.274 Similarly, in 2003, the Eleventh Cir- cuit struck down the City of Atlanta’s fee requirement for use of newsracks in Hartsfield Atlanta International Airport, because airport personnel had broad power to 267 486 U.S. 750 (1988). 268 Id. at 769. 269 Id. at 770. 270 Id. at 772. The Court also distinguished content-neutral and viewpoint-neutral prohibitions on speech, which may be valid time, place, and manner regulations, from prior re- straints arising out of an ordinance that confers unbridled discretion on a government official. Id. at 763–64. 271 Id. at 762–66. 272 Sentinel Commc’ns Co. v. Watts, 936 F.2d 1189 (11th Cir. 1991). 273 Id. at 1199 (footnote omitted). 274 Id. cancel specific licenses for any reason.275 The court held that this amounted to the power to censor based on viewpoint.276 The court also offered possible solutions, stating: Structural and procedural safeguards can reduce the pos- sibility that an official will use her power to corrupt the protections of the First Amendment. The official charged with administering the Plan should have clear standards by which to accept or reject a publisher’s request to use the newsracks at the Airport. Perhaps a first-come, first- served system, a lottery system, or a system in which each publisher is limited to a percentage of available new- sracks would be appropriate vehicles for limiting the official’s discretion.277 On the other hand, in 1994, the Eleventh Circuit re- jected an unbridled discretion challenge to the City of Coral Gables’s ordinance regulating the placement of newspaper racks in the city’s rights-of-way.278 This ordi- nance allowed a publisher to use specific types of news- racks, as well as newsracks that were “equivalent” to those specified in the ordinance.279 The district court had ruled that the term “equivalent,” without addi- tional standards, would permit arbitrary decisionmak- ing by city officials. The court rejected this analysis. The court found that the ordinance was “qualitatively different” from licensing schemes struck down else- where and noted that, although the ordinance provided for the exercise of discretion, it also limited that discre- tion “through neutral criteria and procedural safe- guards.”280 Although courts outside the Eleventh Circuit have not addressed these issues in as much detail, the Elev- enth Circuit’s guidance seems likely to be followed elsewhere. Transit officials therefore should ensure that any permitting scheme related to the placement of newsracks contains some form of structural and proce- dural safeguards, in an effort to contain and guide the discretion of individual officials. 2. Reasonableness and Viewpoint-Neutrality Within Nonpublic Fora Transit authorities have more discretion to control the placement of newsracks in a nonpublic forum than they do in a public forum, but even then at least one court, the Fourth Circuit, has ruled that a total ban on newsracks in an airport terminal is unreasonable.281 In 275 Atlanta Journal & Constitution v. Atlanta Dep’t of Avia- tion, 322 F.3d 1298, 1311 (11th Cir. 2003) (en banc). 276 Id. 277 Id. 278 Gold Coast Publ’ns, Inc. v. Corrigan, 42 F.3d 1336, 1349 (11th Cir. 1994). 279 Id. 280 Id. For example, the public works director was required to state the “specific cause” for any denial, and the ordinance provided an opportunity for administrative appeals. 281 Multimedia Publ’g Co. of S.C. v. Greenville-Spartanburg Airport Dist., 991 F.2d 154 (4th Cir. 1993). But see City of

25 that case, the Greenville-Spartanburg Airport Commis- sion had offered four governmental interests— aesthetics, revenue, convenience and safety, and secu- rity—in support of its ban.282 The court noted that the Commission was not required to “adduce[ ] specific fac- tual evidence that its interests were advanced by the ban or that the expressive activity banned did interfere with the forum’s intended use; it was entitled to ad- vance its interests by arguments based on appeals to common sense and logic.”283 Despite this, the court ruled that the prohibition on newsracks did not advance any of the Commission’s interests.284 The court found that any aesthetic threat posed by newspapers was “unsub- stantiated.”285 The court also dismissed the Commis- sion’s argument that concessionary revenue would be reduced by the presence of newsracks because it was unsupported by the record, and because the Commis- sion had other options available to it for the recovery of such revenue.286 The court next rejected the notion that newsracks posed a threat to safety, citing the district court’s finding that newsracks could be placed in many locations within the airport, and dismissing concerns regarding traveler congestion around newsracks.287 Fi- nally, the court rejected the Commission’s reliance on its interest in airport security. The court cited the dis- trict court’s findings that “[t]he Airport has never ex- perienced a terrorist incident or had a bomb exploded in it” and “[i]n the highly unlikely event that someone would choose this Airport as the target of a bombing, it is extremely unlikely that he would place the bomb in a newsrack.”288 While there is good reason to believe that a total ban based upon security concerns might be de- cided differently today,289 the case is a reminder that transit officials should carefully survey their interests before adopting a total ban on any form of expressive activity.290 Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 773 (1988) (White, J., dissenting) (suggesting total ban permissible). 282 Multimedia Publ’g, 991 F.2d at 160. 283 Id. 284 Id. at 162. 285 Id. at 161. 286 Id. 287 Id. at 162. 288 Id. 289 We suspect that “common sense” may have shifted con- siderably on the security issue after the events of September 11, 2001. In this changed environment, if a transit facility can show any plausible connection to security concerns arising out of the placement of newsracks in a nonpublic forum, and ar- ticulate why a greater risk is presented by newsracks than is presented by the sale of newspapers and magazines at news- stands, a restriction on such placement in a nonpublic forum is much more likely to be upheld. In particular, the Fourth Cir- cuit’s reference to whether the airport had ever experienced a terrorism incident seems unlikely to be a significant factor in future comparable cases. 290 See Gold Coast Publ’ns, Inc. v. Corrigan, 42 F.3d 1336, 1346 (11th Cir. 1994) (upholding ordinance while noting that it The Supreme Court has stressed that there must be a discernible link between a regulation of newsracks and the governmental interest the regulation is de- signed to serve. In a 2003 case, the Supreme Court con- sidered the City of Cincinnati’s ban on newsracks con- taining commercial handbills.291 The ban did not extend to newsracks containing newspapers. The city justified this difference in treatment by noting the lower level of protection afforded to commercial speech.292 The city also justified the ban based on “esthetic and safety in- terests.”293 The Court ruled against the city, finding: Not only does Cincinnati’s categorical ban on commercial newsracks place too much importance on the distinction between commercial and noncommercial speech, but in this case, the distinction bears no relationship whatsoever to the particular interests that the city has asserted. It is therefore an impermissible means of responding to the city’s admittedly legitimate interests.294 The Court noted that each newsrack, whether con- taining “newspapers” or “commercial handbills,” is equally unattractive.295 In addition, the Court noted that the city was not claiming to regulate the informa- tion contained in the handbills as a way of preventing commercial harms, which is the usual justification for regulation of commercial speech.296 3. Reasonable Time, Place, and Manner Restrictions Courts have also considered the regulation of news- racks in and around transit facilities under the time, place, and manner doctrine. For example, in the Cin- cinnati case mentioned in the preceding section, the Court ruled that the time, place, and manner doctrine did not save the city’s total ban on newsracks contain- ing “commercial” speech, because the city’s distinction was not content-neutral and failed to advance legiti- mate governmental interests.297 The Eleventh Circuit has upheld a regulation requir- ing uniform color and size of lettering on newsracks on rights-of-way throughout the City of Coral Gables as a proper time, place, and manner restriction.298 The city justified the restrictions based on its interests in safety and aesthetics.299 The court noted that the regulation did not distinguish between publications based on con- tent.300 The court accepted the city’s determination that “does not completely ban newsracks from public rights-of- way”). 291 City of Cincinnati v. Discovery Network, 507 U.S. 410 (1993). 292 Id. at 415–19. 293 Id. at 419. 294 Id. at 424. 295 Id. at 425. 296 Id. at 426. 297 Id. at 427–30. 298 Gold Coast Publ’ns Inc. v. Corrigan, 42 F.3d 1336 (11th Cir. 1994). 299 Id. at 1339, 1345–46. 300 Id. at 1344.

26 the newsracks posed safety risks,301 and found that the city’s uniform color and size of lettering requirements were “not substantially broader than necessary.”302 Fi- nally, the court found that the ordinance allowed for alternative channels of communication, because there were many places in the public rights-of-way where newsracks could be placed, and the restrictions did not apply to the name and logo of the newspapers.303 The Second Circuit has upheld the use of licensing fees for the placement of newspaper racks in train sta- tions as reasonable time, place, and manner restric- tions.304 The court found that the fees were content- neutral because they applied to any newspaper that wanted to install newsracks.305 The court also found that a newspaper publisher had adequate alternatives, including the use of newsracks near the stations, peri- patetic news vendors, and existing newsstands.306 The court upheld the licensing fees because the government was acting in a proprietary, not a regulatory, capacity, and so had an interest in raising revenue: Ordinarily, a government cannot profit by imposing li- censing or permit fees on the exercise of a First Amend- ment right. Only fees that cover the administrative costs of the permit or license are permissible. In those cases in which licensing fees were prohibited, however, the gov- ernment was acting in a governmental capacity and was raising general revenue under the guise of defraying its administrative costs. In imposing licensing fees, MTA is not acting in a traditional governmental capacity…. When a government agency is engaged in a commercial enterprise, the raising of revenue is a significant inter- est…. If Gannett were to place its newsracks on privately owned business property it undoubtedly would have to pay rent to the owner of the property. The fact that the business property in question is owned by the MTA should confer no special benefit on Gannett.307 Likewise, the Eleventh Circuit has upheld the City of Atlanta’s requirement that sellers of newspapers from newsracks in the Hartsfield Atlanta International Airport pay a fee to the city, based in large part on the fact that the city operates the airport as a proprietor, not a regulator.308 An early decision in that circuit had 301 Id. at 1345. 302 Id. at 1346. 303 Id. 304 Gannett Satellite Info. Network, Inc. v. Metro. Transp. Auth., 745 F.2d 767, 773 (2d Cir. 1984). 305 Id. 306 Id. 307 Id. at 774–75 (citations omitted). 308 Atlanta Journal and Constitution v. Atlanta Dep’t. of Aviation, 322 F.3d 1298, 1308 (11th Cir. 2003) (en banc). The court noted the result might be different “if the Department set a prohibitively high fee for use of the newsracks.” Id. Here, the court did not find that charges were unreasonable. It noted also that there was a history of such regulation, and that al- ternative distribution methods were available. Id.; see also id. at 1312 (“We hold that when a government acts in a proprie- tary capacity, that is, in a role functionally indistinguishable from a private business, then commercially reasonable, profit- found that the Florida Department of Transportation was not permitted to impose an insurance requirement for the placement of newsracks at Interstate rest areas, at least where the record did not support a need to pro- tect the state from liability and operators of other types of vending machines were not required to carry liability insurance.309 The Eighth Circuit has upheld a city ordinance that required payment of a permit fee and insurance re- quirements for placement of newsracks on city prop- erty.310 The court ruled that the city “has a legitimate interest in protecting itself from liability for injuries associated with the use of its property.”311 Furthermore, the city had a policy of requiring all individuals using city property to carry insurance.312 C. The Regulation of Organized Charitable Solicitation Organized charitable solicitation is protected by the First Amendment. In Village of Schaumburg v. Citizens for a Better Environment,313 the Supreme Court wrote that “charitable appeals for funds, on the street or door to door, involve a variety of speech interests— communication of information, the dissemination and propagation of views and ideas, and the advocacy of causes—that are within the protection of the First Amendment.”314 Nevertheless, the Court recognized that such expression was subject to “reasonable regula- tion.”315 conscious contracts may be negotiated for distribution space in a non-public forum for First Amendment activities, subject to structural protections that reduce or eliminate the possibility of viewpoint discrimination.”). As discussed, supra, however, the court struck down the regulations under the “unbridled discretion” doctrine. 309 Sentinel Commc’ns Co. v. Watts, 936 F.2d 1189, 1206 (11th Cir. 1991). The decision also states that a government “may not profit by imposing licensing or permit fees on the exercise of first amendment rights….” Id. at 1205. This state- ment was effectively overturned by Atlanta Journal and Con- stitution, at least to the extent that a facility is operated by the government in its proprietary capacity. Atlanta Journal and Constitution, 322 F.3d at 1312. 310 Jacobsen v. Harris, 869 F.2d 1172 (8th Cir. 1989). 311 Id. at 1174. While “a city cannot profit from the imposi- tion of a permit fee on the exercise of a first amendment right,” the court of appeals also upheld a cost-based permit fee that covered administrative costs. Id. 312 Id. 313 444 U.S. 620 (1980). 314 Id. at 632. 315 Id.

27 Practice Aid—Charitable Solicitation The Supreme Court has clearly recognized that charitable solicitation is protected First Amendment activity. Nevertheless, numerous decisions, including International Society for Krishna Consciousness v. Lee, have recognized that solicitation may be regulated in transit facilities. Transit officials should take care to ensure that licensing schemes for solicitors do not per- mit the exercise of unbridled discretion, and that regu- lations are closely tied to the governmental interests at stake. A number of cases have elaborated on the circum- stances in which charitable solicitation may be regu- lated. In Lee, the Supreme Court found that a ban on solicitation—asking for money—in an airport terminal was reasonable because solicitation may disrupt the business of the airport.316 Accosted individuals are forced to slow down or alter their paths; consequently, solicitation impedes the flow of foot traffic.317 The Court noted that such delays could be especially costly in an airport setting since “a flight missed by only a few min- utes can result in hours worth of subsequent inconven- ience.”318 The Court also found that regulation of face-to- face solicitation is reasonable because of the risk that solicitors will target vulnerable individuals, such as the physically impaired, or those traveling with children.319 By contrast, leafleting was permitted because it does not create those problems: for example, a person handed a leaflet need not stop and immediately read the message.320 Nevertheless, courts have not upheld all regulations of solicitation. For example, the Ninth Circuit has struck down a Las Vegas ordinance that barred solicita- tion and leafleting at multiple city locations.321 The or- dinance defined “solicitation” broadly, as “ask[ing], beg[ging], solicit[ing] or plead[ing], whether orally, or in a written or printed manner, for the purpose of obtain- ing money, charity, business or patronage, or gifts of items of value for oneself or another person or organiza- 316 505 U.S. 672, 683 (1992). 317 Id. at 683–84. 318 Id. at 684. 319 Id. The Court also found that “[t]he unsavory solicitor can also commit fraud through concealment of his affiliation or through deliberate efforts to shortchange those who agree to purchase.” Id. In an earlier case, the Third Circuit had deter- mined that the New Jersey Sports and Exposition Authority’s ban on solicitation was a legitimate means of protecting pa- trons from unwanted intrusions and protecting the Authority’s own sources of income. Int’l Soc’y for Krishna Consciousness, Inc. v. N.J. Sports and Exposition Auth., 691 F.2d 155, 162 (3d Cir. 1982). 320 Id. at 690 (O’Connor, J., concurring). 321 ACLU v. City of Las Vegas, 466 F.3d 784 (9th Cir. 2006). tion.”322 The court declined to find that the regulation of handbills was a proper time, place, and manner regula- tion because it was not content-neutral: The record is crystal clear that handbills containing cer- tain language may be distributed…while those containing other language may not. In order to enforce the regula- tion, an official “must necessarily examine the content of the message that is conveyed.” Handbills with certain content pass muster; those requesting financial or other assistance do not. Even if this distinction is innocuous or eminently reasonable, it is still a content-based distinc- tion because it “singles out certain speech for differential treatment based on the idea expressed.” Although courts have held that bans on the act of solicita- tion are content-neutral, we have not found any case hold- ing that separates out words of solicitation for differential treatment is content-neutral.323 The court also noted that even if it were content- neutral, the ordinance would not be a proper time, place, and manner regulation because it was too broad. The city was concerned with “aggressive” panhandling and solicitation, but the ordinance applied to all forms of solicitation.324 The D.C. Circuit has applied similar reasoning in concluding that a complete ban on soliciting signatures on a postal sidewalk is not a proper time, place, or manner regulation.325 While the court found that the government had advanced a significant, content-neutral interest in minimizing the disruption of postal business and providing unimpeded ingress and egress from postal offices,326 the court concluded that the broad ban in that instance was not narrowly tailored.327 The court noted that while the government was concerned with problems that arose only “occasionally,” the across-the- board ban on signature solicitation had the effect of banning much solicitation that did not affect the gov- ernment’s interests.328 Furthermore, the court found that the same regulations adequately accomplished the Postal Service’s goals through prohibitions on disturb- ing patrons and employees and against impeding en- try.329 In another decision, ISKCON of Potomac, Inc. v. Kennedy,330 the D.C. Circuit considered whether regula- tions prohibiting solicitation on the National Mall com- 322 Id. at 793 (quoting LAS VEGAS MUN. CODE § 10.44.010(A)). 323 Id. at 794 (citations omitted). The court noted, however, that the “officer must read it” test is not always dispositive. See id. at 796, n.12. 324 Id. at 796, n.13. 325 Initiative and Referendum Inst. v. U.S. Postal Serv., 417 F.3d 1299, 1306–07 (D.C. Cir. 2005). The court found that it need not classify the forum, and proceeded to apply the time, place, and manner doctrine. Id. at 1306. 326 Id. at 1307. 327 Id. 328 Id. at 1307–08. 329 Id. at 1308–09. 330 61 F.3d 949 (D.C. Cir. 1995).

28 plied with the time, place, and manner doctrine.331 The Park Service required permits for groups holding dem- onstrations or special events at the Mall, and also banned solicitation at such events. The rules also re- quired permits for the sale of merchandise.332 The court concluded that, as applied, the ban on solicitation of donations was unconstitutional, because it was not nar- rowly drawn:333 [W]e cannot see how allowing in-person solicitations within the permit area will add to whatever adverse im- pact will result from the special event itself. The effects of solicitation will be confined to the permit area, and those who wish to escape them may simply steer clear of the authorized demonstration or special event.334 The court upheld the prohibition on sales under the time, place, and manner doctrine.335 Courts have also examined whether the right to so- licit includes the right to use tables. In the Las Vegas case discussed above, the Ninth Circuit found that portable tables were analogous to newsracks, and held that the city’s prohibition on erecting tables in an out- door pedestrian mall was unconstitutional as applied to plaintiffs who sought to erect a table for expressive ac- tivity.336 Courts have also addressed whether the solicitation of motorists in the streets can be regulated through time, place, and manner regulations. The Fifth Cir- cuit,337 Seventh Circuit,338 Eighth Circuit, 339 and the Ninth Circuit340 have each upheld such regulations un- der the time, place, and manner doctrine. D. The Regulation of Leafleting A handful of cases have considered the regulation of leafleting in and around transit facilities. 331 Id. at 955. 332 Id. 333 Id. at 956. 334 Id. 335 Id. at 959; see also Friends of the Vietnam Veterans Mem’l v. Kennedy, 116 F.3d 495 (D.C. Cir. 1997) (ban on sale of T-shirts on National Mall upheld since it “furthers significant interests, does not burden substantially more speech than nec- essary to achieve those interests, and leaves open ample alter- native means of communication.”) Id. at 498. 336 ACLU v. City of Las Vegas, 466 F.3d 784, 799 (9th Cir. 2006). The court also found that the tabling ordinance violated the Equal Protection Clause because it provided an exception for labor-related speech. Id. at 800. The court refused, however, to find the city’s ordinance facially unconstitutional without additional evidence. Id. 337 Int’l Soc’y for Krishna Consciousness of New Orleans, Inc. v. City of Baton Rouge, 876 F.2d 494, 498–99 (5th Cir. 1989). 338 U.S. Labor Party v. Oremus, 619 F.2d 683, 688 (7th Cir. 1980). 339 ACORN v. St. Louis County, 930 F.2d 591, 594–96 (8th Cir. 1991). 340 ACORN v. City of Phoenix, 798 F.2d 1260, 1267–71 (9th Cir. 1986). Practice Aid—Leafleting Transit agencies seeking to regulate leafleting in and around transit facilities should be aware of the Su- preme Court’s treatment of leaflets in International Society for Krishna Consciousness v. Lee. To the extent that a transit agency can demonstrate that its facility is a less appropriate setting for leaflets than an airport terminal, it may be able to ban leafleting altogether. Even in fora such as airport terminals where a total ban on leafleting is improper, leafleting can be subject to proper time, place, and manner restrictions. What is unlikely to stand is a scheme that permits some speak- ers to leaflet and not others. In addition, while permit- ting schemes with respect to leafleting have been up- held, transit officials should ensure that any regulations sufficiently limit the discretion of officials responsible for awarding or revoking permits. 1. Leafleting as Protected First Amendment Activity Since at least 1938, the Supreme Court has recog- nized that leafleting is a protected First Amendment activity: The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaf- lets…. The ordinance cannot be saved because it relates to dis- tribution and not to publication. “Liberty of circulating is as essential to that freedom as liberty of publishing; in- deed, without the circulation, the publication would be of little value.”341 The Supreme Court has also ruled that anonymous leafleting is protected speech, finding that “[a]nonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind.”342 2. Reasonableness and Viewpoint-Neutrality in Nonpublic Fora A number of courts have considered whether the First Amendment permits the regulation of leafleting in a nonpublic forum. The leading decision is Lee, in which the Court held that a ban on leafleting in an airport terminal was not reasonable in light of the purposes served by the terminal.343 Unlike the ban on solicitation 341 Lovell v. City of Griffin, 303 U.S. 444, 452 (1938) (quoting Ex parte Jackson, 96 U.S. 727, 733 (1877)); see also Hawkins v. City and County of Denver, 170 F.3d 1281, 1286 (10th Cir. 1999) (“It is well established that the picketing and leafleting at issue in this case are soundly within the scope of protected speech under the First Amendment”). 342 Talley v. California, 362 U.S. 60, 64 (1960); see also McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 341–47 (1995). 343 505 U.S. 672, 690 (1992 (O’Connor, J., concurring)). As discussed supra at note 93, there were multiple opinions in Lee, with split majorities deciding that solicitation could be banned but leafleting could not. Because Justice O’Connor’s

29 upheld in that case, handing out leaflets does not sig- nificantly disrupt the flow of pedestrian traffic.344 Fur- thermore, the Port Authority had not offered any justi- fication or record evidence to support the ban on leafleting; Justice O’Connor emphasized that the gov- ernment must be able to explain why leafleting is in- consistent with the intended use of the forum.345 In Storti v. Southeastern Pennsylvania Transporta- tion Authority,346 a district court found an adequate ex- planation for a ban on leafleting on the platforms and paid areas of SEPTA’s rail and subway stations.347 The court had little trouble finding that the ban was view- point neutral and reasonable: There can be no doubt SEPTA’s Rule fulfills both re- quirements. Obviously it is viewpoint-neutral, as any type of distribution of written material is prohibited. It is also reasonable. SEPTA has articulated and offered evi- dence to support specific and important reasons for its view that the platforms and paid areas should be dedi- cated exclusively to transit use. These include SEPTA’s interests in ensuring passenger safety and maintaining unhindered pedestrian traffic flow on the narrow and con- fined platforms, as well as its more general commercial interests in ensuring the perceived security and comfort of its customers and thus keeping and attracting new transit riders.348 The court found it significant that SEPTA allowed noncommercial leafleting in the portions of its stations to which the public had free access, which are compara- ble to the airport terminal in Lee.349 Similarly, in an unpublished 2006 decision, the Ninth Circuit upheld a permit requirement for leafleting in the Portland Air- port.350 Other courts have also ruled that the regulation of leafleting in a nonpublic forum is permissible. In a case involving a ban on leafleting on a pier,351 the First Cir- cuit distinguished Lee and accepted the Massachusetts Port Authority’s (Massport) determination that allow- ing leafleting would endanger the public safety, based on the particular characteristics of the space in ques- concurrence is the narrowest ground for the decision with re- spect to leafleting, it is the most authoritative pronouncement on the standard applicable to leafleting in a nonpublic forum. See New England Reg’l Council of Carpenters v. Kinton, 284 F.3d 9, 20, n.5 (1st Cir. 2002). 344 Lee, 505 U.S. at 690. 345 Id. at 691–92. 346 No. Civ. A. 99-2159, 1999 U.S. Dist. LEXIS 14515, 1999 WL 729266 (E.D. Pa. 1999). 347 Id., 1999 U.S. Dist. LEXIS at 25–26. 348 Id. 349 Id. at 26; see also Hotel Employees & Rest. Employees Union v. N.Y. Dep’t of Parks & Recreation, 311 F.3d 534, 554 (2d Cir. 2002) (finding that barring leafleting in plaza in front of Lincoln Center is reasonable and not viewpoint-based). 350 Jews for Jesus, Inc. v. Port of Portland, 172 F. App’x 760 (9th Cir. 2006). 351 New England Reg’l Council of Carpenters v. Kinton, 284 F.3d 9 (1st Cir. 2002). tion.352 The court of appeals noted: “What space is avail- able serves primarily as a roadway and truck turn- around. In these cramped confines, pedestrian safety and traffic flow are vital concerns…. Thus, although there are few, if any, problems intrinsic to the act of leafletting, safety is a plausible concern here.”353 The Third Circuit has suggested that it could be rea- sonable to bar leafleting on a postal sidewalk on a tem- porary basis.354 In Paff v. Kaltenbach, a police officer had arrested tax protesters, who were leafleting on April 15, for trespassing, because they were obstructing the sidewalk.355 The court of appeals explained that, unlike the permanent prohibition on leafleting in Lee, the ban in Paff was a one-time measure for an extraor- dinary situation.356 The Tenth Circuit has upheld a ban on leafleting in a large covered walkway, part of the Denver Performing Arts Complex, which the court had determined was a nonpublic forum.357 The court found that the ban was not viewpoint-based because the city consistently en- forced a ban on all leafleting and similar activities.358 The court also found that the policy was reasonable because the forum at issue had “more limited purposes” than an airport: The Galleria serves as the exclusive means of ingress to and egress from the adjacent performing arts complexes, and it also functions as an extended lobby area where pa- trons can congregate before performances and during in- termission. Additionally, the Galleria is the main evacua- tion route for the performing arts complexes in the event of an emergency.359 On the other hand, the Seventh Circuit has ruled that leafleting had to be allowed on a publicly owned pier, because there was no relevant difference between the pier and an indoor shopping mall.360 The court of appeals added, however, that leafleting could be re- stricted in some of the interior walkways of the pier, where pedestrian traffic would be obstructed.361 These cases underscore the importance of justifying any regulation of leafleting based on the specific harm that the activity would create in a particular forum. Lee concluded that leafleting did not present a traffic-flow problem in an airport, but Storti, Hawkins, and Chicago ACORN all ruled that restrictions on leafleting in other forums were justified for that reason. Courts appear to 352 Id. at 24. 353 Id. 354 Paff v. Kaltenbach, 204 F.3d 425, 433 (3d Cir. 2000). The case actually concerned civil rights claims brought against the arresting officer. 355 Id. at 428–29. 356 Id. at 433–34. 357 Hawkins v. City and County of Denver, 170 F.3d 1281, 1288–89 (10th Cir. 1999). 358 Id. 359 Id. at 1290 (citations omitted). 360 Chicago ACORN v. Metro. Pier and Exposition Auth., 150 F.3d 695, 703 (7th Cir. 1998). 361 Id. at 703–04.

30 look at the specific facts of each case and judge whether the government’s restrictions are appropriate in light of the nature of the location. Given the traditional role leafleting has played in our society, the justifications for absolute bans appear to be examined closely. 3. Time, Place, and Manner Courts have recognized that leafleting can be subject to time, place, and manner restrictions in both public and nonpublic fora. In her concurrence in Lee, Justice O’Connor expressed the view that while leafleting could not be barred from the airport terminal entirely, it could be subject to time, place, and manner restric- tions.362 As noted in the preceding section, courts have al- lowed permitting schemes for leafleting in congested areas. The First Circuit has considered whether a transportation authority’s permitting scheme for a highly congested pedestrian traffic area was a proper time, place, and manner restriction.363 Under that scheme, permits were issued automatically upon the giving of notice by the applicant, but permits could be denied or revoked before leafleting began.364 The court found this process did not burden more speech than necessary,365 and was permissible because the forum in question tended to be congested, as a result of narrow sidewalks, a high volume of pedestrian and vehicular traffic, and frequent road construction.366 Courts have stressed that any time, place, and man- ner regulation of leaflets must be content-neutral. As discussed above, the Ninth Circuit struck down the City of Las Vegas’s ban on any handbills that contained lan- guage that constituted solicitation.367 The court ruled that this was not a proper time, place, and manner re- striction in a public forum because prohibiting words of solicitation was a content-based ban.368 4. Unbridled Discretion In New England Council of Carpenters v. Kinton,369 the First Circuit considered whether Massport could impose a permitting scheme on leafleting on a side- walk.370 The plaintiffs challenged two rules under the unbridled discretion doctrine. The first gave Massport’s 362 Int’l Soc’y for Krishna Consciousness v. Lee, 505 U.S. 672, 692–93 (1992). Citing Lee, a district court has ruled that leafleting could not be banned from an airport tarmac during an air show. Wickersham v. City of Columbia, 371 F. Supp. 2d 1061, 1089–90 (D.S.C. 2005). See supra n.193. 363 New England Reg’l Council of Carpenters v. Kinton, 284 F.3d 9 (1st Cir. 2002). 364 Id. at 25. 365 Id. at 28. 366 Id. at 29. 367 ACLU v. City of Las Vegas, 466 F.3d 784, 794–97 (9th Cir. 2006); see supra text accompanying note 321. 368 Id. 369 284 F.3d 9 (1st Cir. 2002). 370 Id. at 25. director of public safety the power to deny or revoke a permit if the proposed activity would present “a danger to public safety or would impede the convenient passage of pedestrian or vehicular traffic.”371 The second author- ized Massport to bar access to an area “for purposes of construction or to ensure safe and convenient travel to an event” by issuing a specific written directive explain- ing the extent of, and justification for, the closure.372 The court held that the regulations would survive a facial challenge because the regulations could be con- strued to limit the discretion to revoke permits to cases of “substantial safety and access concerns.”373 The Ninth Circuit has ruled that the permitting scheme at the Portland airport did not violate the un- bridled discretion doctrine because permits are assigned strictly on a first-come, first-served basis.374 The Third Circuit, however, struck down the follow- ing rule at Newark Airport: 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.375 The court found that this rule was “standardless.” The court noted that the rule did not preclude content-based judgments, and established no affirmative guidelines for determining which materials could be distributed at the airport.376 E. The Regulation of Panhandling Unlike charitable solicitation and leafleting, the Su- preme Court has never clarified whether panhandling constitutes speech that is protected by the First Amendment.377 Regardless of whether panhandling is classified as speech or conduct for First Amendment purposes, most courts have allowed panhandling to be regulated through properly tailored time, place, and manner regulations. 371 Id. at 25–26. 372 Id. at 26. 373 Id. 374 Jews for Jesus, Inc. v. Port of Portland, 172 F. App’x 760, 764 (9th Cir. 2006). 375 Gannett Satellite Info. Network v. Berger, 894 F.2d 61, 69 (3d Cir. 1990). 376 Id. 377 Gresham v. Peterson, 225 F.3d 899, 903 (7th Cir. 2000) (“To this point, the Supreme Court has not resolved directly the constitutional limitations on such laws as they apply to individual beggars, but has provided clear direction on how they apply to organized charities, not-for-profits and political groups.”).

31 Practice Aid—Panhandling Transit officials seeking to regulate panhandling in and around transit facilities may do so by crafting regu- lations that satisfy the time, place, and manner doc- trine, or by adopting proper regulations within nonpub- lic fora. A number of cities have adopted “aggressive panhandling” ordinances that would appear to survive this test. 1. Panhandling as Protected First Amendment Activity Some courts have expressed skepticism about whether panhandling constitutes speech entitled to any First Amendment protection. This view is articulated most vehemently in Young v. New York City Transit Authority,378 in which the Second Circuit considered the validity of state regulations banning begging and pan- handling in the New York City subway system. The court found that begging and panhandling are more akin to conduct than speech: We initiate our discussion by expressing grave doubt as to whether begging and panhandling in the subway are suf- ficiently imbued with a communicative character to jus- tify constitutional protection. The real issue here is whether begging constitutes the kind of “expressive con- duct” protected to some extent by the First Amendment. Common sense tells us that begging is much more “con- duct” than it is “speech.”379 The court noted that panhandlers are typically not engaged in communicating political ideas, but trying to collect money.380 The court went on to find that because collecting money is the purpose of panhandling, and because what passengers experience is not an attempt at conveying a particular message, but more likely to be threats and intimidation, panhandling is not speech protected by the First Amendment.381 The court also found that there was a clear difference between solicita- tion by organized charities and begging. As the court put it: [T]he difference must be examined not from the imagi- nary heights of Mount Olympus but from the very real context of the New York City subway. While organized charities serve community interests by enhancing com- munication and disseminating ideas, the conduct of beg- ging and panhandling in the subway amounts to nothing less than a menace to the common good.382 378 903 F.2d 146 (2d Cir. 1990). 379 Id. at 153. 380 Id. 381 Id. at 154. 382 Id. at 156. A similar view was adopted by a California appellate court. See Ulmer v. Municipal Court for the Oakland- Piedmont Judicial Dist., 55 Cal. App. 3d 263, 266 (Ct. App. 1976) (“Begging and soliciting for alms do not necessarily in- volve the communication of information or opinion; therefore, approaching individuals for that purpose is not protected by the First Amendment.”). But see Church of the Soldiers of the Cross of Christ v. Riverside, 886 F. Supp. 721 (C.D. Cal. 1995). Three years later, the Second Circuit revisited this analysis in Loper v. New York City Police Department, which involved a challenge to a New York Penal Law provision that stated “a person is guilty of loitering when he…loiters, remains or wanders about in a public place for the purpose of begging….”383 The court dis- tanced itself considerably from the reasoning in Young: While we indicated in Young that begging does not al- ways involve the transmission of a particularized social or political message, it seems certain that it usually involves some communication of that nature. Begging frequently is accompanied by speech indicating the need for food, shel- ter, clothing, medical care or transportation. Even with- out particularized speech, however, the presence of an unkempt and disheveled person holding out his or her hand or a cup to receive a donation itself conveys a mes- sage of need for support and assistance. We see little dif- ference between those who solicit for organized charities and those who solicit for themselves in regard to the mes- sage conveyed. The former are communicating the needs of others while the latter are communicating their per- sonal needs. Both solicit the charity of others. The dis- tinction is not a significant one for First Amendment pur- poses.384 Other courts have also found that panhandling con- stitutes speech activity that is protected by the First Amendment. The Seventh Circuit found “little reason to distinguish between beggars and charities in terms of the First Amendment protection for their speech.”385 The court found that it could not separate a request for cash from the communication of ideas.386 Likewise, the Elev- enth Circuit, citing Loper and Schaumburg, has noted without any further analysis that “begging is speech entitled to First Amendment protection.”387 2. Time, Place, and Manner Regulation A number of courts have ruled that panhandling and begging can be regulated by proper time, place, and manner regulations. It is important, however, that bans on panhandling not extend beyond that which is neces- sary to serve the governmental interests at issue. Loper provides a good example. In that case, the Second Cir- cuit rejected a total ban on begging in the city streets because it was not a valid time, place, and manner regulation.388 First, the court found that the ban was not content-neutral, “because it serves to silence both speech and expressive conduct on the basis of the mes- 383 999 F.2d 699, 701 (2d Cir. 1993). 384 Id. at 704 (citation omitted); see also Blair v. Shanahan, 775 F. Supp. 1315, 1322 (N.D. Cal. 1991) (noting that “Young fails to recognize that begging implicates the very speech inter- ests present in charitable solicitation cases”). This decision was vacated by 919 F. Supp. 1361 (N.D. Cal. 1996). 385 Gresham v. Peterson, 225 F.3d 899, 904 (7th Cir. 2000). 386 Id. 387 Smith v. City of Fort Lauderdale, 177 F.3d 954, 956 (11th Cir. 1999). 388 Loper, 999 F.2d at 705.

32 sage.”389 Second, the court found that the ban did not advance substantial governmental interests because the city allowed solicitations by charitable organizations: “If individuals may solicit for charitable and other organi- zations, no significant governmental interest is served by prohibiting others for soliciting for themselves.”390 The court also found that the ban was broader than necessary to advance the government’s interest, be- cause other statutes aimed at more specific types of conduct already existed.391 The court seemed most con- cerned about the scope of the ban: “[T]he statute before us prohibits verbal speech as well as communicative conduct, not in the confined precincts of the subway system or in the crowded environment of a state fair, but in the open forum of the streets of the City of New York.”392 Panhandling ordinances that are more narrowly tai- lored have had more success. For example, in accor- dance with Young, panhandling continues to be banned in the New York City subway system.393 The Eleventh Circuit has upheld a rule barring begging on a portion of the City of Fort Lauderdale’s beaches.394 The plain- tiffs, a class of homeless people, did not dispute that the rule was content-neutral or that it left open ample al- ternative channels of communication. They also con- ceded that the city had a significant government inter- est in “providing a safe, pleasant environment and eliminating nuisance activity on the beach.”395 The plaintiffs only alleged that the begging restriction was 389 Id. As discussed below, other appellate courts have not decided whether a ban on panhandling is inherently a “con- tent-based” regulation. If this were true, panhandling could not be directly regulated under the time, place, and manner doc- trine. Instead, it could only be regulated within nonpublic fora, under the applicable tests for such fora. 390 Id. 391 Id. 392 Id. at 706 (citations omitted). In contrast, in Young, al- ternative channels of communication existed, because begging was prohibited only in the subway, not everywhere in the city. The Young court found that the regulation barring panhan- dling in the subway survived the test for time, place, and man- ner regulations. The regulation served an important govern- mental interest of protecting passengers because “begging in the subway often amounts to nothing less than assault, creat- ing in the passengers the apprehension of imminent dan- ger…[and] creating the potential for a serious accident in the fast-moving and crowded subway environment.” Young v. N.Y. Transit Auth., 903 F.2d 146, 158 (2d Cir. 1990). Furthermore, the court found no evidence that the prohibition was aimed at a particular idea or message. The court concluded that a com- plete ban was justified. 393 21 NYCRR pt. 1050.6(b)(2) (2005) (“No person shall pan- handle or beg upon any facility or conveyance.”); see also J. Schreiber, Begging Underground? The Constitutionality of Regulations Banning Panhandling in the New York City Sub- way System, 27 CARDOZO L. REV. 1517 (2006). 394 Smith v. City of Fort Lauderdale, 177 F.3d 954 (11th Cir. 1999). 395 Id. at 956. not narrowly tailored to serve those interests.396 The court disagreed, finding the city had the discretion to determine that begging at the beach harmed tourism, and the court refused to second-guess that judgment.397 The court also noted that, even though the rule re- stricted expression on the beach, begging was still al- lowed on streets, sidewalks, and in many other places in the city.398 Quoting Ward v. Rock Against Racism, the court ruled that the restriction was not rendered un- constitutional, simply because there were “less-speech- restrictive” alternatives available, such as restricting begging to certain parts of the beach.399 The Seventh Circuit has noted that “[c]olorable ar- guments could be made both for and against the idea that the Indianapolis [aggressive panhandling] ordi- nance is a content-neutral time, place or manner re- striction.”400 That ordinance only applied to panhandling conducted at night and in certain locations, such as at bus stops. The court stated that because both parties agreed that the regulations were content-neutral,401 it would focus only on whether the ordinance was nar- rowly tailored to achieve a significant governmental purpose and left open alternative channels of communi- cation.402 The plaintiff conceded that the city had an interest in promoting public safety, but he argued that the ordinance was broader than necessary because it banned all panhandling at night.403 The court disagreed, finding that because the ordinance applied only to cer- tain times and places in which citizens would tend to feel most insecure, the city had crafted a narrow regula- tion that did only what was needed “to promote its le- gitimate interest.”404 In the court’s view, the Indianapo- lis ordinance was “a far cry from the total citywide ban on panhandling overturned by the court in Loper, or the total ban on panhandling in a five-mile area of public beach upheld by the court in Smith.”405 The City of Rochester, New York, recently adopted an “Aggressive Panhandling Act” that was patterned after ordinances adopted in Atlanta, Baltimore, Cincin- nati, New Haven, New York City, Philadelphia, Port- land, San Francisco, Seattle, and Washington, D.C.406 396 Id. 397 Id. 398 Id. at 957. 399 Id. (quoting 491 U.S. 781, 788-89 (1989)). 400 Gresham v. Peterson, 225 F.3d 899, 905 (7th Cir. 2000). 401 Id. at 906. The court noted, however, that there could be reasons to believe the ordinance was not content-neutral: “[H]ere, whether a solicitor violates the ordinance depends on whether he asked for cash rather than for something else… . Only by determining the specific content of a solicitor’s speech could authorities determine whether they violated the ordi- nance, which would seem to be a content-based restriction.” Id. at 905. 402 Id. at 906. 403 Id. 404 Id. 405 Id. (citations omitted). 406 People v. Barton, 861 N.E.2d 75 (N.Y. 2006).

33 Section 44-4(H) of the Rochester City Code specifies that “[n]o person on a sidewalk or along a roadway shall solicit from any occupant of a motor vehicle that is on a street or other public place.” Section 44-4(B) defines “solicit” as “the spoken, written, or printed word or such other acts or bodily gestures as are conducted in fur- therance of the purposes of immediately obtaining money or any other thing of value.”407 In 2006, the New York Court of Appeals found that the ordinance was constitutional under the time, place, and manner test.408 The court ruled that the ordinance was content-neutral because the ban applied to anybody asking motorists for immediate donations.409 The court next found that the government’s stated interests in eliminating a source of distractions for motorists and promoting the free and safe flow of traffic were significant.410 Finally, the court determined that the ordinance was narrowly tailored because it focused on specific conduct within the scope of the city’s policy concern.411 Even if such panhandling ordinances are constitu- tional time, place, and manner regulations, the gov- ernment is not permitted to enforce them in an uncon- stitutional manner. In a second challenge to the City of Rochester’s panhandling law, the ordinance was en- forced against an individual that had not engaged in “aggressive” conduct; the defendant had not approached pedestrians or motorists, or impeded traffic, but simply stood on the sidewalk holding a sign.412 The court ruled that it would be unconstitutional to enforce the ordi- nance against such an individual.413 Courts have upheld ordinances banning solicitation from vehicles as reasonable time, place, and manner regulations.414 F. The Regulation of Loitering The Supreme Court has held that a regulation of loi- tering, if properly crafted, will not violate the First Amendment.415 It must be clear, however, that such a regulation does not prohibit conduct intended to convey a message. In rejecting a First Amendment claim against a Chicago loitering ordinance, the Supreme Court noted that the ordinance defined the term “loiter” as “to remain in one place with no apparent purpose.” Thus, it was clear that the ordinance did not apply to public assemblies designed to show support for or oppo- sition to any particular point of view. 407 Id. at 81. 408 Id. at 80. 409 Id. at 80. 410 Id. 411 Id. at 81. 412 People v. Griswold, 821 N.Y.S.2d 394, 402 (Rochester City Ct. 2006). 413 Id. 414 See ACORN v. City of Phoenix, 798 F.2d 1260 (9th Cir. 1986). 415 City of Chicago v. Morales, 527 U.S. 41, 52 (1999). Practice Aid—Loitering A transit facility regulation that is narrowly tailored to regulate loitering should not raise First Amendment issues because loitering is not a protected First Amendment activity. The Court noted, however, that the Due Process Clause of the Fourteenth Amendment protects “the freedom to loiter for innocent purposes.” The Court pro- ceeded to rule that the ordinance violated the Due Process Clause prohibition on criminal laws that are so vague that the public cannot be certain of what conduct is prohibited.416 The Court observed that it would be extremely difficult to apply the “apparent purpose” standard in particular cases. While this holding does not apply directly to regula- tions that are not tied to criminal penalties, transit offi- cials should nevertheless carefully define any regula- tions dealing with loitering to avoid any concerns about vagueness. For example, after the Supreme Court handed down its decision, the City of Chicago altered its definition of loitering to read: “remaining in any one place under circumstances that would warrant a rea- sonable person to believe that the purpose or effect of that behavior is to enable a criminal street gang to es- tablish control over identifiable areas, to intimidate others from entering those areas, or to conceal illegal activities.”417 G. The Regulation of Musicians and Amplification The playing of music is protected by the First Amendment.418 Practice Aid—Musicians and Amplification In a nonpublic forum, it seems likely that a transit facility could ban the playing of music, provided that it could show that such a ban served some legitimate pur- pose in light of the nature of the facility, and was not based on the viewpoint of the performer. In addition, the playing of music can be subject to time, place, and manner restrictions in and around transit facilities. As with other forms of expression, the government is not permitted to single out a particular form of music 416 Id. at 56 (quoting Giaccio v. Pennsylvania, 382 U.S. 399 (1966)). 417 CHI., ILL., MUN. CODE § 8-4-015(d)(1) (2000). For recent discussion of the issue, see J. Packebusch, Gang Loitering Or- dinances Post-Morales: Has Vagueness Been Remedied? Somer- ville, Massachusetts Says Yes, 32 NEW ENG. J. ON CRIM. & CIV. CONFINEMENT 161 (2006); M. Rossi, Striking a Balance: The Efforts of One Massachusetts City to Draft an Effective Anti- Loitering Law Within the Bounds of the Constitution, 39 SUFFOLK U. L. REV. 1069 (2006). 418 Ward v. Rock Against Racism, 491 U.S. 781, 790 (1989).

34 because of its content. The Ninth Circuit has found that the City of Burbank could not deny performers of “hard rock” access to a public forum on the basis of the city’s view that “hard rock” had the potential to create a “pub- lic nuisance.”419 The court found that such a distinction would not survive strict scrutiny.420 Under the time, place, and manner doctrine, how- ever, the Supreme Court has recognized that regulating sound amplification in a public forum can be proper.421 Likewise, the Second Circuit has ruled that a total ban on use of amplifiers by musicians in New York City subway platforms was a reasonable time, place, and manner restriction.422 The court ruled that the amplifier ban was content-neutral because it was aimed at reduc- ing noise on subway platforms, not at suppressing a particular kind of music.423 The court also ruled that the ban was narrowly tailored to serve the significant gov- ernmental interest of eliminating excessive noise.424 As the court put it: [T]he interest in eradicating excessive noise is bolstered by the serious public safety concerns posed by the noise to both the riders and employees of the subway system. In particular, appellants’ affidavits state that amplified mu- sic is usually so loud that it interferes with police com- munications, the public address system on the subway platforms and the work of track crews. Excessively loud noise, according to appellants, can drown out train whis- tles, putting train workers at risk, and can prevent pas- sengers from hearing routine and emergency announce- ments.425 The court also found that there were ample alterna- tive channels for expression; other parts of the subway system were still open to amplified music.426 In a 2002 case in which a city sought to ban the use of amplifiers, the First Circuit ruled that the restriction was not a legitimate time, place, and manner restriction because the city did not explain why it could not rely on a less- restrictive alternative, such as a decibel limit.427 The court distinguished the Second Circuit’s opinion in Carew-Reid because the practical problems and admin- istrative burdens of enforcing such a ban in a subway were not present in the record before it.428 419 Cinevision Corp. v. City of Burbank, 745 F.2d 560, 571– 72 (1984). 420 Id. at 572–73. 421 Ward, 491 U.S. at 792–93. 422 Carew-Reid v. Metro. Transp. Auth., 903 F.2d 914, 919 (2d Cir. 1990). The Second Circuit has also held that, under the time, place, and manner doctrine, the City of New York could ban the use of amplified sound on the steps, sidewalk, and plaza in front of City Hall. Housing Works v. Kerik, 283 F.3d 471, 481–82 (2d Cir. 2002). 423 Carew-Reid, 903 F.2d at 917. 424 Id. at 917–19. 425 Id. at 917. 426 Id. at 919. 427 Casey v. City of Newport, 308 F.3d 106, 115–16 (1st Cir. 2002). 428 Id. at 116. The playing of music can also be subject to permit- ting schemes, provided that such schemes do not vest decision makers with unbridled discretion.429 In a 2002 case, the Second Circuit considered whether the City of New York could require street musicians to obtain a permit before using sound amplification.430 The court ruled that the city’s guidelines and its policies for set- ting maximum volume limits were constitutional.431 H. The Regulation of Media Access Although the First Amendment is generally recog- nized as protecting the newsgathering tasks of profes- sional media organizations, the First Amendment does not grant the media any greater right of access to tran- sit facilities than that which is granted to the public. Practice Aid—The Regulation of Media Access The First Amendment does not require transit offi- cials to grant the media any greater rights of access to their facilities than that which is granted to the general public. As the Supreme Court explained in a 1972 case: It has generally been held that the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public gener- ally…. Despite the fact that news gathering may be hampered, the press is regularly excluded from grand jury proceed- ings, our own conferences, the meetings of other official bodies gathered in executive session, and the meetings of private organizations. Newsmen have no constitutional right of access to the scenes of crime or disaster when the general public is excluded….432 As the Court later added: The First and Fourteenth Amendments bar government from interfering in any way with a free press. The Consti- tution does not, however, require government to accord the press special access to information not shared by members of the public generally. It is one thing to say that a journalist is free to seek out sources of information 429 Ward v. Rock Against Racism, 491 U.S. 781, 794 (1989); Saia v. New York, 334 U.S. 558, 560 (1948) (To use a loud-speaker or amplifier one has to get a permit from the Chief of Police. There are no standards prescribed for the exercise of his discretion. The statute is not narrowly drawn to regulate the hours or places of use of loud-speakers, or the volume of sound (the decibels) to which they must be adjusted.). 430 Turley v. Police Dep’t of N.Y., 167 F.3d 757, 762 (2d Cir. 1999). 431 Id. at 762. The court also ruled that the city’s amplifier confiscation policy was constitutional. Id. at 763. See also Ber- ger 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 Seattle’s rules requiring street performers within a public fo- rum to wear badges and secure permits as proper time, place, and manner regulations). 432 Branzburg v. Hayes, 408 U.S. 665, 684–85 (1972).

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TRB’s Transit Cooperative Research Program (TCRP) Legal Research Digest 29: First Amendment Implications for Transit Facilities: Speech, Advertising, and Loitering provides an analytical legal synthesis of available regulations, statutes, policies, and case decisions pertaining to permissible and impermissible restrictions on speech and expressive behavior at transit facilities and aboard transit vehicles; 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-panhandling regulations on or near transit facilities.

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