The advertisement that the Freethought Society wished to place on Lackawanna County buses. Source: ACLU of Pennsylvania.

In a decision last month, an atheist group lost its challenge to an advertising policy promulgated by the transit system for Lackawanna County, Pennsylvania, COLTS, that prohibited, among other things, religious messages.  Following a trial, a federal district court found in favor of the transit agency, on the grounds that its advertising space was a limited public forum and the policy was viewpoint neutral.  The decision follows several recent decisions that have found transit advertising policies constitutional.

Beginning in 2012, the atheist group, the Freethought Society of Northeastern Pennsylvania, sought to place advertising on buses owned by COLTS.  The Society’s initial advertising attempt was blocked by COLTS on the ground that its advertisement was controversial, in violation of the agency’s advertising policy.  The transit agency rejected similar advertisements submitted in 2013 and 2014 as well, even after COLTS changed its advertising policy to more explicitly prohibit political or religious messages.

The court first determined that the advertising space was limited public forum, based primarily on the fact that COLTS’s policy specifically referenced the advertising space as a limited public forum.  The plaintiff argued unsuccessfully that COLTS had created a designated public forum as a result of running noncommercial advertisements on buses.  The court observed, however, that none of the advertisements that were run discussed religion or politics.

Turning to the question of whether the advertising policy was reasonable, the court noted that the purpose of the advertising policy was to increase revenue, promote safety among its riders, and encourage more ridership.  The court found it reasonable that advertisements on politics or religion would decrease ridership, to the extent controversial advertising would spark debate among passengers or discourage ridership.  Even though COLTS had not produced any evidence to demonstrate that prior political and religious advertisements caused declines in ridership, the court agreed with the commonsense notion that divisive advertising could impact ridership.

Finally, because the policy prohibited all religious speech, the court found the policy viewpoint neutral.  The plaintiff asserted that COLTS had not applied the policy in an evenhanded manner.  But even though religious organizations had been permitted to advertise on COLTS buses previously, the court noted that these advertisements were unrelated to religion, as they addressed topics such as adoption.

The court also rejected a vagueness claim by the plaintiff.

Northeastern Pa. Freethought Soc’y v. Cnty. of Lackawanna Transit Sys., No. 3:15-833, 2018 WL 3344910 (M.D. Pa. Jul. 9, 2018).

Photo of Brian J. Connolly Brian J. Connolly

Brian Connolly represents public- and private-sector clients in matters relating to zoning, planning, development entitlements and other complex regulatory issues.  Brian’s practice encompasses a broad range of land use matters including zoning compliance, rezonings and other regulatory amendments, planned-unit developments, development agreements, private covenants and restrictions, land use and zoning litigation, initiatives and referenda associated with land use approvals, and real estate transactions.  Brian additionally specializes in the First Amendment and land use issues associated with outdoor sign and advertising regulation, and fair housing matters in local planning and zoning.