First Amendment Implications for Transit Facilities: Speech, Advertising, and Loitering (2009) / Chapter Skim
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Pages 19-34
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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.
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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 viewpoint of the speaker. Practice Aid -- Advertising Courts have upheld advertising restrictions in nonpublic fora that are "reasonable" and not based on the viewpoint of the speaker.
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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 preventing distractions to drivers and keeping obstacles from falling on highways was reasonable, but it was not reasonable 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 advertising, the government cannot use that interest to suppress the expression of particular points of view.
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22 describe, in a patently offensive way, sexual conduct specifically defined by the applicable state law, as written or authoritatively construed. Advertising containing messages 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.
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23 regulated precisely because of the pro-alcohol or procigarette message that they convey.253 It is unclear whether such apparently viewpointbased distinctions will continue to be upheld in the future, especially in light of the uncertain standing of the commercial speech doctrine.254 In Lorillard Tobacco Co.
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24 1. The "Unbridled Discretion" Doctrine The "unbridled discretion" doctrine has played an important role with respect to the placement of newsracks.
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25 that case, the Greenville-Spartanburg Airport Commission had offered four governmental interests -- aesthetics, revenue, convenience and safety, and security -- in support of its ban.282 The court noted that the Commission was not required to "adduce[ ] specific factual 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 advance 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 "unsubstantiated."285 The court also dismissed the Commission's argument that concessionary revenue would be reduced by the presence of newsracks because it was unsupported by the record, and because the Commission 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 Finally, the court rejected the Commission's reliance on its interest in airport security.
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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 Finally, 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 stations as reasonable time, place, and manner restrictions.304 The court found that the fees were contentneutral 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, peripatetic 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 licensing or permit fees on the exercise of a First Amendment right. Only fees that cover the administrative costs of the permit or license are permissible.
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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.
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28 plied with the time, place, and manner doctrine.331 The Park Service required permits for groups holding demonstrations or special events at the Mall, and also banned solicitation at such events. The rules also required 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 narrowly drawn:333 [W]
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29 upheld in that case, handing out leaflets does not significantly disrupt the flow of pedestrian traffic.344 Furthermore, the Port Authority had not offered any justification or record evidence to support the ban on leafleting; Justice O'Connor emphasized that the government must be able to explain why leafleting is inconsistent with the intended use of the forum.345 In Storti v. Southeastern Pennsylvania Transportation Authority,346 a district court found an adequate explanation 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 viewpoint neutral and reasonable: There can be no doubt SEPTA's Rule fulfills both requirements.
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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.
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31 Practice Aid -- Panhandling Transit officials seeking to regulate panhandling in and around transit facilities may do so by crafting regulations that satisfy the time, place, and manner doctrine, or by adopting proper regulations within nonpublic fora. A number of cities have adopted "aggressive panhandling" ordinances that would appear to survive this test.
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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 organizations, 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, because other statutes aimed at more specific types of conduct already existed.391 The court seemed most concerned 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 tailored have had more success.
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33 Section 44-4(H) of the Rochester City Code specifies that "[n]
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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 "public nuisance."419 The court found that such a distinction would not survive strict scrutiny.420 Under the time, place, and manner doctrine, however, 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 reducing 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 governmental interest of eliminating excessive noise.424 As the court put it: [T]
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