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36 court ruled that it would be unconstitutional to enforce the ordinance against such an individual.439 Finally, it should go without saying that officials should ensure that the transit facility and local authori- ties are actually prepared to enforce the regulations as written. This has not always been the case.440 C. A Note on the Future: Issues Arising from the Regulation of New Technologies in Transit Facilities This digest has focused on the issues that courts have already confronted with respect to the regulation of expressive activities in and around transit facilities. But, as always, technology does not wait for the law. Transit agencies have already begun to incorporate various new technologies into their facilities and vehi- cles, including: 1) large video screens broadcasting cable and broadcast networks in terminals; 2) lenticular ad- vertising in subway systems; 3) personal video screens on passengersâ seat-backs; and 4) wireless and wired Internet access in terminals and on transit vehicles. These technologies will force courts to confront a whole host of different (though not entirely new) questions related to the First Amendment.441 A few examples will serve to illustrate the kinds of issues that may arise. It would be beyond the scope of this digest to speculate about how the courts might re- solve these issues in particular casesâif this digest can say two things with any certainty about First Amend- ment jurisprudence, they are 1) that outcomes in par- ticular cases are highly fact-dependent, and 2) the courts have a range of doctrinal tools at their disposal, and which ones a particular court chooses to apply can be difficult to predict. Nevertheless, the following illus- trations may provide food for thought. Perhaps the most obvious class of cases would con- cern efforts to restrict the images or types of material that passengers and other users of a transit facility may display on the screens of laptop computers and similar devices. Or, to put it another way, transit authorities may face pressure to protect some passengers from be- ing exposed to unwanted content introduced into the facility by other passengers. This could take various forms, including the blocking of wireless signals from specific sources, but broader and more intrusive regula- tions can easily be imagined. These problems may prove difficult to resolve. Under current law, any regulation determined to be aimed at a particular point of view is almost certain to be invalidated, even in a nonpublic forum. On the other hand, the ability to introduce po- tentially offensive video material into a public space 439 Id. 440 See, e.g., D. Helling, Police Wonât Enforce Panhandling Law, KANSAS CITY STAR, Aug. 3, 2007. 441 For example, the Supreme Court has already determined that a library does not create a public forum by providing its patrons with Internet access. United States v. Am. Library Assân, 539 U.S. 194, 205 (2003). We are not aware of any case that has extended this finding to a transit facility. (whether legally classified as a public forum or other- wise) creates a novel problem. One could see courts hav- ing a range of responses, from rejecting any controls aimed at content, to upholding restrictions based on governmental interests in protecting minors, protecting members of a captive audience, or preserving the ability to earn income. Much would depend on the precise facts at issue: who was the initial complainant or plaintiff; what was the nature of the transmission or material that was banned by the challenged rule; how effectively did the regulation serve the governmental interest compared to alternative methods; was the rule broad enough to affect other kinds of speech; did enforcement officials exercise discretion in deciding which transmis- sions to block; and so on. Another class of cases could arise out of new forms of advertising. For example, traditional billboards and wall placards are relatively unobtrusive: they may con- tain potentially offensive or controversial material, but because they are flat and attached to walls and other surrounding surfaces they are relatively easy to ignore. New forms of video-based advertising, however, may raise new questions: video is more eye catching and therefore more intrusive than still photography, and three-dimensional, high definition video or lenticular advertising confronts transit facility patrons in ways unlike traditional advertising. Thus transit authorities may face new pressuresâand perhaps be able to point to new rationalesâfor regulating advertising in their facilities. Again, outcomes would often depend on facts. Regardless of the particular problems that may arise out of these and other technologies, we are confident that the core principles discussed in this digest will help resolve them. In any event, even as the law evolves to deal with new issues, the doctrines discussed through- out the digest are the best guide we have available for how the courts may view future developments. VI. CONCLUSION Transit officials seeking to regulate expressive ac- tivities in and around transit facilities should be mind- ful of the First Amendment principles at stake. Courts have generally classified transit facilities as nonpublic fora for purposes of the First Amendment. Regulation of speech and expression in a nonpublic forum is appro- priate so long as the regulation is reasonable in light of the purposes served by the forum, and not based upon the viewpoint of speakers. A forum will be considered nonpublic, however, only so long as transit officials en- act and consistently enforce policies to ensure that a facility is not open to all speakers. If a public forum has been created, the direct regulation of content will be subject to strict scrutiny. In that event, transit officials may still enact content-neutral time, place, and manner regulations. The most important principle emerging from the cases appears to be this: transit officials must identify the important governmental interests served by the restriction at issue, and then ensure that any regula-
37 tions actually and clearly serve such interests without affecting substantial amounts of other expressive activ- ity at the same time. In all but the most exceptional cases, officials must not attempt to regulate expressive activity based on the viewpoint or message of the speaker. In addition, while permitting schemes can be appropriate time, place, and manner regulations, such schemes must be carefully crafted to ensure that they contain procedural protections that do not vest any offi- cial with unbridled discretion to award or revoke a per- mit.