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In theory, the First Amendment prevents the government from banning speech based on viewpoint. But courts across the country have applied that principle in widely divergent ways in recent years, at least regarding religious advertising bans by local transit authorities.

In Pennsylvania, an atheist organization could post a bus ad saying “Atheist” along with its organizational name and website. In Florida, a Jewish organization could display a bus ad for “Chanukah on Ice.” In Washington DC, a Christian educational nonprofit could post an ad saying, “Christian? To Learn More About the Faith of Our Founders, visit WallBuilders.com,” yet the local Catholic parish could not advertise to “Find the Perfect Gift” in the lead-up to Christmas. Each of these cases involved similar local transit advertising policies against ads promoting or opposing religion. The disparate outcomes make little sense and reflect an open circuit split regarding religious advertising in a non-public forum.

As Justice Gorsuch recently pointed out, religious advertising cases are ripe for judicial resolution. But so far, the Supreme Court has not agreed to hear any of these cases. That could change in the next term, as the Jewish plaintiffs in Florida recently filed a petition for review.

With the possibility that the Court may address these questions in the upcoming term, it’s worth reviewing the First Amendment principles undergirding these cases and the current lay of the land in the lower courts. As a general matter, advertising policies that restrict speech in non-public forums can only survive First Amendment scrutiny if they are both viewpoint-neutral and reasonable. Recent religious advertising cases have typically resolved on one of those bases.

Viewpoint discrimination by a transit authority is presumptively unconstitutional because it is an “egregious form of content discrimination.” In the religious advertising cases, most plaintiffs have argued that religious advertising bans single out religious speech for special disfavor. They argue that while the government can limit categories of content in non-public fora, it cannot prohibit specific viewpoints within allowed categories.

Circuit courts have taken different approaches in resolving these claims. On the one hand, in Northeastern Pennsylvania Freethought Society v. County of Lackawanna Transit System, the Third Circuit found in favor of plaintiffs who sought to place a religiously based ad, holding that impermissible viewpoint discrimination occurs where secular associations can advertise “organizational philosophy” but “atheistic and religious associations are banned from saying the same thing because of the character of their speech.” In that case, the Northeastern Pennsylvania Freethought Society wanted to post an ad displaying the word “Atheists” along with its group name and website. But the county transit authority rejected the ad under its policy of excluding ads that promote or attack a religion or religious beliefs. Writing for the panel, Judge Hardiman summarily rejected the transit authority’s argument, explaining that “[t]he censorship of messages because they are controversial is viewpoint discrimination.” The policy was not content-based, but rather viewpoint-based, because it filtered out ads based on their underlying views about religion.

On the other hand, the DC Circuit found that a similar religious ad ban did not impermissibly discriminate based on viewpoint in Archdiocese of Washington v. Washington Metropolitan Area Transit Authority. There, the Archdiocese of Washington tried to place an ad saying “Find the Perfect Gift,” linking to information about the parish and worship times during Advent. The Archdiocese pointed out that if Macy’s posted the exact same Christmas-themed ad, it would be permitted. It argued that the transit authority rejected its ad because it promotes religion, which necessarily includes a pro-religious viewpoint. The DC Circuit disagreed. It reasoned that WMATA, the transit authority, could exclude religion as a subject matter from its advertising spaces. It held that WMATA’s policy against ads that promote or oppose religion constituted a content-based restriction, not a viewpoint-based one. And, importantly, if the Archdiocese were to prevail, the court explained, “WMATA (and other transit systems) would have to accept all types of advertisements to maintain viewpoint-neutrality, including ads criticizing and disparaging religion and religious tenets or practices.” The DC Circuit rejected a request to hear the case en banc, over Judge Griffith’s dissent, and the Supreme Court denied the petition for certiorari.

Numerous plaintiffs are challenging religious ad bans across the country. Young Israel is the group that is currently seeking Supreme Court review of its viewpoint discrimination claim. WallBuilders is asking the D.C. District Court to reconsider the validity of the local religious advertising ban based on a more extensive record than was available in Archdiocese.

Yet while these cases are increasingly common, the circuit split on the viewpoint discrimination issue has not widened. Earlier this year, the Eleventh Circuit declined to evaluate a viewpoint discrimination claim in Young Israel of Tampa, Inc. v. Hillsborough Area Regional Transit Authority and instead resolved that appeal on an alternative constitutional ground—whether the religious advertising ban was reasonable.

The Eleventh Circuit joined the Third, Fourth, Sixth, and Ninth Circuits in finding transit ad bans unconstitutionally unreasonable under Minnesota Voters Alliance v. Mansky. Under Mansky, any speech restriction in a non-public forum must be reasonable, that is, it must be “capable of reasoned application” and provide “objective, workable standards.” Said differently, the rule must set sensible standards for what ads are allowed and what are not. This rule stems from a concern that “when arbitrary discretion is vested in some governmental authority,” it may result in covert discrimination against the speech at issue. So courts have reasoned in Freethought Society, Young Israel, and WallBuilders that when transit authorities’ ad bans lack sufficiently clear standards to guide enforcement (resulting in inconsistent application), the ad bans themselves are unconstitutionally unreasonable. Federal courts have been fairly uniform in applying Mansky to hold facially invalid unworkable advertising bans.

Young Israel presents an important question regarding viewpoint discrimination. It is possible that, because the Eleventh Circuit declined to consider the viewpoint discrimination claim and granted relief for petitioners in that case on reasonableness grounds instead, the Supreme Court may not find it an appealing vehicle for consideration of the viewpoint discrimination question.

Until the Supreme Court clarifies the law on viewpoint discrimination in public transit forums, plaintiffs whose ads are rejected will likely continue to file these kinds of cases until they receive sufficient clarification. Indeed, similar viewpoint discrimination claims have been filed by non-religious entities against similar transit policies that ban advertisements that promote views on controversial issues. The viewpoint discrimination issue is ready for resolution, and the ball is in the Supreme Court.