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

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35 not available to members of the general public, that he is entitled to some constitutional protection of the confiden- tiality of such sources, and that government cannot re- strain the publication of news emanating from such sources. It is quite another thing to suggest that the Con- stitution imposes upon government the affirmative duty to make available to journalists sources of information not available to members of the public generally. That proposition finds no support in the words of the Constitu- tion or in any decision of this Court.433 Thus, transit officials should not find themselves in viola- tion of the First Amendment for excluding members of the press from transit facilities, so long as such treatment is consistent with the treatment of the general public. V. KEY PRINCIPLES AND A NOTE ON THE FUTURE As Section IV demonstrates, in regulating expressive activities, transit officials have often struggled to find the proper balance between free speech rights and the governmental interests that have motivated the issu- ance of regulations in and around transit facilities. We believe the cases can be reduced to two key principles: regulation of speech should address important govern- ment interests as closely as possible without targeting particular viewpoints, and those regulations must be properly enforced. A. Regulations Should Be Tailored to Important (or Compelling) Governmental Interests This digest has discussed numerous governmental interests that can justify the regulation of expressive activity in and around transit facilities. These interests include, among others: 1. Public safety; 2. Raising revenue; 3. Avoiding passenger disruption; 4. Reducing disputes; 5. Protecting captive audiences; and 6. Managing aesthetics. The first of these interests—public safety—is worth special notice. After the events of September 11, 2001, courts are likely to be particularly deferential to transit agencies’ findings with respect to public safety. Courts may even find that this interest amounts to a “compel- ling governmental interest” that would satisfy the first prong of the “strict scrutiny” test. It follows that the same interest would also justify time, place, and man- ner regulations, as well as regulations in nonpublic fora. Nevertheless, most cases do not turn on the question of whether the government has a legitimate interest at 433 Pell v. Procunier, 417 U.S. 817, 834–35 (1974) (citations omitted); see also Saxbe v. Wash. Post, 417 U.S. 843, 850 (1974); Houchins v. KQED, 438 U.S. 1, 8-11 (1978). The Court has, however, recognized a First Amendment right to attend a criminal trial. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980). stake. Instead, most cases turn on what the courts refer to as “fit” or “tailoring”—does the regulation at issue actually serve the governmental interest without inhib- iting too much unrelated expressive activity? It bears emphasizing that regulations that target a particular viewpoint will require very precise tailoring to only the most important of governmental interests; these regula- tions are rarely upheld. However, regulations that out- law general classes of content in nonpublic fora may be upheld, provided that they are reasonable means to serve governmental interests in such a setting. Transit officials will enhance their chances of avoiding litigation and surviving judicial scrutiny by analyzing their policy goals closely and making their regulation as specific as possible so that they advance those goals without un- duly affecting other activities or interests. B. Regulations Should Be Properly Enforced Even if a transit facility has succeeded in crafting regulations that comply with the First Amendment on their face, transit officials must ensure that enforce- ment of the rules does not create constitutional prob- lems. This requires adherence to a few basic principles. First, transit officials must be consistent in their en- forcement. As shown above, inconsistent enforcement could lead a court to find that a facility is a designated public forum. Second, while a proper permitting scheme should in- clude time limits for the issuance of permits,434 transit officials must ensure that there are not lengthy delays in the issuance of permits pursuant to such regulations. Courts will view the failure to issue a permit on a timely basis as an illegal prior restraint. Third, transit officials must be careful not to dis- criminate against particular viewpoints because of the message conveyed, or to create the appearance that they have done so.435 Ridley v. Massachusetts Bay Transportation Authority, discussed above, provides a clear example.436 In that case, one of the reasons the court found a First Amendment violation was because transit officials made statements suggesting that they had rejected an ad because of their disapproval of the speaker’s viewpoint. 437 Similarly, the City of Rochester’s panhandling law was enforced against an individual that did not engage in “aggressive” conduct at all.438 The 434 FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 227 (1990) (noting that a “scheme that fails to set reasonable time limits on the decisionmaker creates the risk of indefinitely suppress- ing permissible speech.”). This case was overruled in part by City of Littleton v. Z. J. Gifts D-4, L.L.C, 541 U.S. 774, 781– 782 (U.S. 2004). 435 See, e.g., Aids Action Comm. of Mass., Inc. v. Mass. Bay Transp. Auth., 42 F.3d 1 (1st Cir. 1994). 436 Ridley v. Mass. Bay Transp. Auth., 390 F.3d 65, 88 (1st Cir. 2004). 437 Id. 438 People v. Griswold, 821 N.Y.S.2d 394, 397 (Rochester City Ct. 2006).