First Amendment Implications for Transit Facilities: Speech, Advertising, and Loitering (2009) / Chapter Skim
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Pages 7-13
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From page 7... ...
7 F The Commercial Speech Doctrine Commercial speech is "speech of any form that advertises a product or service for profit or for business purposes."52 Because governments have the power to regulate commercial transactions, the courts have allowed more rigorous regulation of speech that is "linked inextricably" to those transactions.53 While commercial speech was once entitled to no protection under the First Amendment,54 it is now protected, but not as vigorously as political speech.
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From page 8... ...
8 restriction on speech based on its content is subject to "the highest scrutiny."69 Streets, sidewalks, and parks generally qualify as traditional public fora.70 Until recently, the Court typically did not examine how a particular public street was used before concluding it was a traditional public forum.71 In United States v. Kokinda,72 however, the Court determined that "the location and purpose of a publicly owned sidewalk is critical to determining whether such a sidewalk constitutes a public forum."73 The Court found that, because a sidewalk between a post office and its parking lot was built for the sole purpose of providing access to the post office, the sidewalk did not constitute a traditional public forum.74 While Kokinda's reference to the government's "purpose" could be read to suggest that the government's intent is significant in determining whether government property is a traditional public forum, this is probably not the best reading of the case.
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From page 9... ...
9 Practice Aid -- Public Fora A court's classification of a transit facility as either a public forum or a nonpublic forum may be critical to the determination of whether a restriction on expressive activity within the facility will be deemed permissible. The Supreme Court has clarified that airport terminals ordinarily do not constitute public fora.
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From page 10... ...
10 Since Lee, courts have continued to recognize that airport terminals are not public fora.97 As one court of appeals put it, "Lee's determination that airports are not public fora was not limited to the particular airports at issue, but constituted a categorical determination about airport terminals generally."98 No case decided since Lee has held that an airport terminal is a public forum, and the law on this point now seems to be settled.
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From page 11... ...
11 through their policies or practices. For this reason, policies governing access to a terminal should be carefully crafted to align with the facility's transit-related functions.
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From page 12... ...
12 ads that were "controversial" and that were not "aesthetically pleasing" were not permitted.116 The court determined that SORTA's statement that its facilities were not public fora was not controlling because the court was required to look to both "the policy and practice" of the government.117 Turning to SORTA's practice, the court found that SORTA had accepted "a wide array of political and public-issue speech," and SORTA had thereby demonstrated its intent to create a public forum in its advertising spaces.118 The court explained, "Acceptance of political and public-issue advertisements, which by their very nature generate conflict, signals a willingness on the part of the government to open the property to controversial speech…."119 On the other hand, transit facilities that have coupled their written policies with prior practices demonstrating an intent to limit a forum have enjoyed more success. For example, the Massachusetts Bay Transportation Authority's (MBTA)
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From page 13... ...
13 Disallowing political speech, and allowing commercial speech only, indicates that making money is the main goal. Allowing political speech, conversely, evidences a general intent to open a space for discourse, and a deliberate acceptance of the possibility of clashes of opinion and controversy that the Court in Lehman recognized as inconsistent with sound commercial practice.
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