Center for Investigative Reporting v. Southeastern Pennsylvania Transportation Authority, No. 18-1839 (E.D. Pa.), Final Judgment and Decree entered December 20th, 2018.  

Archdiocese of Washington v. Washington Metropolitan Transit Authority, No. 17-7171 (D.C. Cir.). Order entered December 21, 2018 denying petition for rehearing en banc.   

The United States District Court for the Eastern District of Pennsylvania recently entered a final judgment ordering the Southeastern Pennsylvania Transportation Authority (SEPTA) to revise its advertising guidelines to eliminate the “unfettered discretion” theretofore vested in SEPTA to make advertising decisions that the court found to be unconstitutionally overbroad in its November 28, 2018 Memorandum Opinion.           

Nonetheless the federal district court found SEPTA had acted reasonably in its application of its standards to the Center for investigative Reporting.  The court found SEPTA did not err in rejecting the advertisement proposed by the Center for Investigative Reporting, which sought to publicize its review of bias in housing lending

The court took it upon itself to revise SEPTA’s advertising policies to forbid political advertisements and all advertisements offering an “opinion, position, or viewpoint about “economic, political, religious, historical or social issues.” Upon rejecting an advertisement, SEPTA has been ordered to provide, on request, some form of conference with the entity proposing the advertisement deemed unsuitable.

The ability of government entities to regulate speech on transit vehicles simmers not only in the Pennsylvania district court case but also in the United States Court of Appeals for the District of Columbia Circuit, which recently rejected, with dissent, a petition for rehearing en banc of a July 31, 2018 per curiam judgment upholding rejection of a Catholic Christmas message.  

The elephant(s) in the rooms of forum analyses that undergird these decisions invite further review.  The government exclusively holds the power to regulate speech by defining places as non-public forums.  The power to regulate speech by defining the sort of forum in issue merits questioning. While this power may not be wholly unchecked, some may perceive it to be “pretty darn close.”

Less foundational but worrisome is the contemporary notion that the public must not be exposed to messages which may, in the views of government authorities, induce distress. Political or religious messages, the authorities have concluded, are exceptionally apt to cause riders to become disquieted.

As the decisions here demonstrate, speech regulation inhibiting sources of public discomfort has been endorsed by the courts.  At the same time, there exists and evolving advocacy for a ‘right’ to not meet with disfavored images: this is at the heart of litigation before the United States Supreme Court seeking to dismantle religious historic public monuments. The American Legion v. American Humanist Association, No. 17-1717, consolidated with Maryland-National Capital Parks and Planning Commission v. American Humanist Association, No. 18-18.  Oral argument scheduled for February 27, 2019.

The demand that colleges and universities shied students from exposure to unsettling ideas has been reported widely.  Lukianoff and Haidt, The Coddling of the American Mind (Penguin 2018)  When observed through the lens of current judicial consideration of the acceptability of speech restrictions, the apparent acceptability of government intrusion in determining which messages the public may see, and which they must be spared, may itself be disquieting.

2018 12 20 Center Investigative Reporting v SEPTA

2018 11 28 Ctr. for Investigative Reporting v. Se. Pa. Transp. Auth. (E.D. Pa., 2018)

2018 12 21 ADW v. WMATA denial rehearing en banc

2018 07 31 ADW v. WMATA Opinion

SCOTUSblog Case File American Legion v. American Humanist Association

SCOTUSblog Case Files Maryland-National Capital Parks and Planning v. American Humanist Association