First Amendment Implications for Transit Facilities: Speech, Advertising, and Loitering (2009)

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3 FIRST AMENDMENT IMPLICATIONS FOR TRANSIT FACILITIES: SPEECH, ADVERTISING, AND LOITERING By Joseph Van Eaton, Matthew C. Ames, and Matthew K. Schettenhelm Miller & Van Eaton, Washington, DC PURPOSE AND SCOPE Transit agencies face numerous challenges in provid- ing passengers with a safe and efficient means of travel while respecting the freedom of expression protected by the First Amendment. In May 1998, the Transportation Research Board published Transit Cooperative Re- search Program Legal Research Digest (LRD) 10, Re- strictions on Speech and Expressive Activities in Transit Terminals and Facilities (“LRD 10”)1, a survey of the relevant law and its development up to the time of pub- lication. This digest supplements LRD No. 10, summa- rizing and analyzing the status of this important area of the law in light of court decisions and other develop- ments that have arisen in subsequent years. The challenges facing transit agencies have in- creased in complexity since the release of LRD 10, and will only continue to do so in the future. New techno- logical developments—such as the ease of access to all forms of electronic media made possible by the conver- gence of wireless communications, the Internet, and portable computing devices—suggest that transit au- thorities will need to apply existing First Amendment principles in an increasing variety of new and often difficult factual circumstances. Attorneys advising tran- sit agencies about matters related to the regulation of expression in transit facilities may use this research digest as a guide in this complex environment. I. A PRIMER ON FIRST AMENDMENT ANALYSIS The courts have developed a series of basic tests to evaluate the legality of regulations affecting expression in a broad range of circumstances. This research digest is not intended to serve as a comprehensive study of free speech doctrine or current First Amendment law. Still, a brief review of the general principles of First Amendment jurisprudence is essential to understand- ing how the courts analyze First Amendment issues in the context of transit facilities.2 * The authors are attorneys with the Washington, D.C., law firm of Miller & Van Eaton, P.L.L.C. 1 Available at http://onlinepubs.trb.org/Onlinepubs/tcrp/tcrp_lrd_10.pdf. 2 The First Amendment provides that “Congress shall make no law…abridging the freedom of speech.” U.S. CONST. amend. I. For general background, the authors have principally relied upon RONALD D. ROTUNDA & JOHN E. NOWAK, TREATISE ON A. The State Action Doctrine The first rule of constitutional law is that the Consti- tution limits only governmental actions. If there is no “state actor,” there can be no First Amendment viola- tion.3 The courts have not developed any single test for determining what constitutes state action, particularly when the dispute involves the First Amendment.4 In- stead, the Supreme Court has looked to a variety of factors to determine whether the government should be considered “responsible” for the conduct at issue: …a challenged activity may be state action when it re- sults from the State’s exercise of “coercive power,” when the State provides “significant encouragement, either overt or covert,” or when a private actor operates as a “willful participant in joint activity with the State or its agents[.]” We have treated a nominally private entity as a state actor when it is controlled by an “agency of the State,” when it has been delegated a public function by the State, when it is “entwined with governmental poli- cies,” or when government is “entwined in [its] manage- ment or control[.]”5 A licensing relationship is generally insufficient in itself to give rise to governmental responsibility for ac- tions taken by a private licensee or tenant.6 In addition, CONSTITUTIONAL LAW: SUBSTANCE AND PROCEDURE (4th ed. 2007). 3 Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001) (“What is fairly attributable [as state action] is a matter of normative judgment, and the criteria lack rigid simplicity.”); Edmonson v. Leesville, 500 U.S. 614, 632 (1991) (O’Connor, J., dissenting); Wickersham v. City of Co- lumbia, 371 F. Supp. 2d 1061, 1076 (W.D. Mo. 2005). 4 See 2 ROTUNDA & NOWAK, supra note 2, § 16.4; see also Lee v. Katz, 276 F.3d 550, 554 (9th Cir. 2002). 5 Brentwood Acad., 531 U.S. at 296 (internal citations omit- ted); Edmonson, 500 U.S. at 632 (O’Connor, J., dissenting) (constitutional standards are invoked only when government is responsible for conduct at issue); see also Air Line Pilots Ass’n, Int’l v. Dep’t of Aviation of Chi., 45 F.3d 1144, 1149 (7th Cir. 1995). In the latter case, the Seventh Circuit found that there was “a level of interdependence” between a private company that had been awarded a contract to operate advertising dis- plays at O’Hare Airport and the City of Chicago, and concluded that the contractor’s decision not to display an ad constituted a decision of the city. Id. 6 See Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972); Gannett Satellite Info. Network v. Berger, 894 F.2d 61, 67 (3d Cir. 1990) (actions taken by concessionaires leasing space from port authority do not constitute state action, and may not be attributed to the port authority). But see Burton v. Wilmington

4 courts have recognized that owners of privately-owned shopping malls are generally free to restrict speech on their property without raising First Amendment con- cerns.7 Nonetheless, as suggested by Brentwood Acad- emy, private ownership or status as a for-profit entity is not dispositive. For example, the Supreme Court has ruled that Amtrak is a state actor for constitutional purposes, despite its original designation by Congress as a “for profit corporation,” and later as one that would be “operated and managed as a for profit corporation.”8 Accordingly, any relationship between a government- owned or -operated facility and a private party using, leasing, or managing any aspect of the facility’s prop- erty or operations may be subject to scrutiny. B. Content-Based and Content-Neutral Regulation of Speech The Supreme Court has stressed that “above all else” the First Amendment embraces one principle: the gov- ernment “has no power to restrict expression because of its message, its ideas, its subject matter, or its con- tent.”9 Consequently, “[c]ontent-based regulations are presumptively invalid.”10 Such regulations of content are allowed only in limited areas “of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”11 These areas include: 1) incitement of imminent, lawless action,12 2) fighting words,13 3) obscenity,14 4) confidential communications Parking Auth., 365 U.S. 715, 724 (1961) (finding “degree of state participation and involvement in discriminatory action” of lessee). 7 Lloyd Corp. v. Tanner, 407 U.S. 551, 567 (1972) (“[I]t must be remembered that the First and Fourteenth Amendments safeguard the rights of free speech and assembly by limitations on state action, not on action by the owner of private property used nondiscriminatorily for private purposes only.”). Note that the result may be different under state constitutions that are more protective of speech than the United States Constitution. PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 81 (1980) (Lloyd “does not ex proprio vigore limit the authority of the State to exercise its police power or its sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution.”). For exam- ple, in Robins v. Pruneyard Shopping Ctr., 592 P.2d 341, 347 (1979), the Supreme Court of California held that the Califor- nia Constitution protects certain speech and petitioning in privately owned shopping centers, even if the First Amend- ment does not. 8 See Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374, 384–85, 394 (1995). 9 Police Dep’t of Chi. v. Mosley, 408 U.S. 92, 95 (1972). 10 R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992). 11 R.A.V., 505 U.S. at 383 (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942)). 12 Brandenburg v. Ohio, 395 U.S. 444 (1969). 13 Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). 14 Miller v. California, 413 U.S. 15 (1973). (in some instances),15 5) defamation (in some in- stances),16 6) false or deceptive advertising,17 7) advertis- ing of harmful or illegal products or transactions,18 and 8) coercion (in some instances).19 In addition, as dis- cussed in Part I.C, in cases concerning whether particu- lar government property is appropriate for expressive activity, courts have permitted reasonable content- based regulation of speech in locations that have not been opened to the public for expression (nonpublic fora), provided that such regulation does not discrimi- nate based on a speaker’s viewpoint and is otherwise reasonable.20 Otherwise, the courts have generally evaluated content-based regulations of expressive ac- tivities21 under what the Supreme Court calls “strict scrutiny,” a standard under which few regulations are upheld.22 If the government regulates expressive activities on a content-neutral basis, it may establish regulations with respect to when, where, and how speech may be delivered pursuant to the “time, place, and manner doc- trine.” Under that doctrine, regulations are permissible if they “are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.”23 Courts 15 Landmark Commc’ns Inc. v. Virginia, 435 U.S. 829 (1978); N.Y. Times Co. v. United States, 403 U.S. 713, 725–27 (Bren- nan, J. concurring) (1971). 16 N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279 (1964). 17 Friedman v. Rogers, 440 U.S. 1 (1979). 18 Posadas de P.R. Assoc. v. Tourism Co., 478 U.S. 328 (1986). 19 Int’l Longshoremen’s Ass’n v. Allied Int’l, 456 U.S. 212 (1982). 20 Viewpoint discrimination occurs if a regulation targets the “underlying ideology or perspective that the speech ex- presses.” Ridley v. Mass. Bay Transp. Auth., 390 F.3d 65, 82 (1st Cir. 2004). Thus, for example, in a nonpublic forum, a gov- ernment could ban all discussion of a particular issue (a con- tent-based regulation), assuming that the ban was otherwise reasonable in such a setting; but it could not ban only com- ments in support of one position on an issue (a viewpoint-based regulation) unless it could overcome strict scrutiny. See infra pts. III.A.2, IV. 21 The Supreme Court has viewed at least some activities, such as being in a state of public nudity, as having no inherent expressive content. City of Erie v. Pap’s A.M., 529 U.S. 277, 289 (2000) (noting that “[b]eing ‘in a state of nudity’ is not an inherently expressive condition.”). 22 United States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 813 (2000). Under strict scrutiny, a regulation will only be upheld if it is “narrowly tailored to promote a compelling Gov- ernment interest.” Id. 23 United States v. Grace, 461 U.S. 171, 177 (1983) (quoting Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45). In their treatise on constitutional law, Professors Rotunda and Nowak note that the Court has stated its time, place, or manner test in a slightly different form in Members of City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 805 (1984) (quoting United States v. O’Brien, 391 U.S. 367, 377 (1968)). 5 ROTUNDA & NOWAK, supra note 2, § 20.47(a) at 459–

5 have struggled to draw the line between content- neutral and content-based regulations. In Ward v. Rock Against Racism,24 the Supreme Court noted that “Gov- ernment regulation of expressive activity is content neutral so long as it is ‘justified without reference to the content of the regulated speech.’”25 Other courts have asked whether an administrator or officer enforcing the regulation must read the substance of a message in order to decide whether it is permissible.26 The decisions on this issue can at times appear arbitrary.27 62. Rotunda and Nowak assert that, regardless of which test is used, a court is essentially engaging in a two-step analysis: First, it seeks to determine whether the regulation is in fact an attempt to suppress content because of its message.… If the regulation is not an attempt to censor content, the Court will go on to determine whether the incidental restriction on speech is outweighed by the promotion of significant governmental inter- ests…. [T]he analysis really assesses whether the regulation leaves open ample means for communication of the message and thus is not an unnecessary or gratuitous suppression of commu- nication. Id. at 460–62. See Clark v. Community for Creative Non- Violence, 468 U.S. 288 (1984) (preventing use of parks as campgrounds (or as symbolic “tent cities”) is reasonable time, place, and manner regulation). 24 491 U.S. 781 (1989). 25 Id. at 791. In certain situations, a government can regu- late nonexpressive conduct even if it has incidental effects on speech. United States v. O’Brien, 391 U.S. 367, 376–77 (1968); City of Erie v. Pap’s A.M., 529 U.S. 277, 289 (2000). 26 Forsyth County v. Nationalist Movement, 505 U.S. 123, 134 (1992). See also Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 429 (1993) (“Under the city’s newsrack policy, whether any particular newsrack falls within the ban is de- termined by the content of the publication resting inside that newsrack.”); ACLU v. City of Las Vegas, 466 F.3d 784, 796 n.12 (9th Cir. 2006) (noting limited exceptions to the “officer must read it” test). 27 For example, in Loper v. N.Y. City Police Dep’t, 999 F.2d 699, 705 (2d Cir. 1993), the Second Circuit ruled that a total ban on panhandling is not content-neutral because the court concluded that such a ban silences speech and expressive con- duct on the basis of its message. On the other hand, in People v. Barton, 861 N.E.2d 75 (N.Y. 2006), the Court of Appeals of New York held that a ban on soliciting for purposes of immedi- ately obtaining money or something else of value was content- neutral. The court relied on Ward’s teaching, supra n.24, that “regulation of expressive activity is content neutral so long as it is ‘justified without reference to the content of the regulated speech’” and found that the Council adopted the regulation “to promote the free and safe flow of traffic.” Id. at 80 (citing Ward, 491 U.S. at 791). In another case, Cinevision Corp. v. City of Burbank, 745 F.2d 560, 571–72 (9th Cir. 1984), the Ninth Cir- cuit ruled that the City Council’s exclusion of “hard rock” mu- sic at concerts in a municipally-owned amphitheater was con- tent-based. At least in theory, one could argue that this is only regulation of the manner in which music is played (e.g., volume limitations), not its content; or is independently justified be- cause of its accompanying adverse effects (e.g., attracting nar- cotics users). As a general matter, outside the realm of obscen- ity, courts have been reluctant to treat regulations as content neutral when expressed in terms of the content of speech itself C. The Public Forum Doctrine Speech is not fully protected by the First Amend- ment simply because it is delivered on government property. Only speech delivered on government prop- erty that has been traditionally reserved for or inten- tionally opened to the public for expressive activity—a public forum—is entitled to full First Amendment pro- tection. The Supreme Court has identified two types of public forum: “traditional” public fora and “designated” public fora.28 Traditional public fora are those which “have immemorially been held in trust for the use of the public and, time out of mind, have been used for pur- poses of assembly, communicating thoughts between citizens, and discussing public questions.”29 Designated public fora consist of public property “which the state has opened for use by the public as a place for expres- sive activity.”30 In these fora, the government can only enforce a content-based regulation if it survives strict scrutiny—that is, if the regulation is “necessary to serve a compelling state interest and…it is narrowly drawn to achieve that end.”31 Nonpublic fora are locations owned or controlled by the government that have not been opened to the public for expressive activity; expression in nonpublic fora is entitled to less-extensive protection. The Supreme Court has held that, like a private owner of property, a government may reserve a forum for its intended pur- poses, communicative or otherwise, “as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials op- pose the speaker’s view.”32 This reasonableness analysis requires courts to assess a forum’s “special attributes” since “the significance of the governmental interest must be assessed in light of the characteristic nature and function of the particular forum involved.”33 Courts have found that a regulation of a particular nonpublic (hard rock) as opposed to its characteristics (all music played above a certain decibel level). 28 Perry Educ. Ass’n v. Perry Local Educators’ Ass’n 460 U.S. 37, 45–46 (1983). Some decisions use the term “limited” public forum, but because this term has also been used to de- scribe a type of nonpublic forum, the term “designated public forum” is preferred. The term is also confusing because a public forum may be designated for a limited purpose such as for “use by certain groups, or for the discussion of certain subjects.” See Perry, 460 U.S. at 46 n.7 (citations omitted). 29 Id. at 45 (quoting Hague v. Comm. for Indus. Org., 307 U.S. 496, 515 (1939)). 30 Id. A government actor’s decision to allow “political or public issue” speech is often key to the analysis of whether a particular place constitutes a designated public forum. 31 Id. 32 Id. at 46. With respect to viewpoint discrimination, see supra note 20. 33 Heffron v. Int’l Soc’y for Krishna Consciousness, Inc., 452 U.S. 640, 650–51 (1981).

6 forum may be reasonable if it is supported by “common sense.”34 As discussed in later sections, the public forum doc- trine has played an especially important role with re- spect to transit facilities.35 D. The Vagueness and Overbreadth Doctrines Even in cases where the regulation of certain ex- pressive activity or speech is permissible,36 the Supreme Court has cautioned that such regulation must not be substantially vague or overbroad. Vague standards may lead to arbitrary enforcement, or cause a chilling effect on free expression.37 A statute affecting expression is unconstitutionally vague either if it does not “give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accord- ingly” or if it fails to provide “explicit standards” for its enforcement.38 The courts disapprove of statutes that are “substan- tially overbroad” for similar reasons.39 In determining whether a statute is overbroad, the courts ask whether there is a “realistic danger” that the statute will com- promise First Amendment rights,40 but they also exam- ine the restriction of free speech in relation to the le- gitimate scope of the statute.41 Nevertheless, “[t]he Government may not suppress lawful speech as the means to suppress unlawful speech.”42 The courts have relaxed the ordinary rules with respect to facial chal- lenges in this area, finding that a showing of “substan- 34 United States v. Kokinda, 497 U.S. 720, 734–35 (1990). This differs from analysis under the time, place, and manner doctrine. See infra note 157. 35 See Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 688 (1992) (finding special attributes of airport ter- minal justify regulation of face-to-face solicitation but not leaf- leting). 36 Ashcroft v. Free Speech Coal., 535 U.S. 234, 245–46 (2002) (“The freedom of speech has its limits; it does not embrace certain categories of speech, including defamation, incitement, obscenity, and pornography produced with real children.”). See supra pt. I.B. 37 Grayned v. City of Rockford, 408 U.S. 104, 109 (1972); Keyishian v. Bd. of Regents of Univ. of State of N.Y., 385 U.S. 589, 604 (1967); NAACP v. Button, 371 U.S. 415, 432–33 (1963) (“First Amendment freedoms need breathing space to survive”). 38 Grayned, 408 U.S. at 108. 39 5 ROTUNDA & NOWAK, supra note 2, § 20.9(a) at 52–53. (“The problem of vagueness in statutes regulating speech ac- tivities is based on the same rationale as the overbreadth doc- trine and the Supreme Court often speaks of them together.”). See, e.g., Dombrowski v. Pfister, 380 U.S. 479, 486 (1965); Key- ishian, 385 U.S. at 609; Button, 371 U.S. at 433; Kolender v. Lawson, 461 U.S. 352, 358 n.8 (1983). 40 Members of City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 801 (1984). 41 Virginia v. Hicks, 539 U.S. 113, 118–19 (2003) (citing Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973)). 42 Ashcroft v. Free Speech Coalition, 535 U.S. 234, 255 (2002). tial overbreadth” will suffice to invalidate all enforce- ment of the particular regulation or law in question.43 The key in an overbreadth case is whether the chal- lenged rules are structured in a way that may chill law- ful speech. The courts are particularly open to chal- lenges where criminal penalties are involved, because the chilling effect is thought to be most significant. On the other hand, some courts have been more reluctant to entertain overbreadth challenges to advertising guidelines for transit facilities, at least where the only result is temporary rejection of an advertisement.44 E. Prior Restraints on Speech The Supreme Court has also explained that a “chief purpose” of the First Amendment is to avoid prior re- straints on speech.45 In the Court’s words, “a free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand.”46 Thus, while prior restraints are not unconstitutional per se,47 any system of prior re- straints bears a “heavy presumption” against its valid- ity.48 Courts have also been concerned that permitting schemes, if not sufficiently tailored, can effectively serve as illegal prior restraints.49 As the Supreme Court has explained, “in the area of free expression a licensing statute placing unbridled discretion in the hands of a government official or agency constitutes a prior re- straint and may result in censorship.”50 In such cases, a plaintiff may bring a facial challenge to such a permit- ting scheme without first applying for, and being de- nied, a license.51 43 N.Y. State Club Ass’n v. City of New York, 487 U.S. 1, 11 (1988). The ordinary rule is that a litigant only has standing to vindicate his own constitutional rights, and that a facial challenge to a statute can only succeed if it “could never be applied in a valid manner.” Id. However, this rule does not apply with respect to overbreadth challenges. See Coates v. City of Cincinnati, 402 U.S. 611, 619–20 (1971) (“Although a statute may be neither vague, overbroad, nor otherwise invalid as applied to the conduct charged against a particular defen- dant, he is permitted to raise its vagueness or unconstitutional overbreadth as applied to others.”). 44 Ridley v. Mass. Bay Transp. Auth., 390 F.3d 65, 94 (1st Cir. 2004). 45 Near v. Minnesota, 283 U.S. 697, 713–14 (1931). 46 SE Promotions, Ltd. v. Conrad, 420 U.S. 546, 559 (1975). 47 Times Film Corp. v. City of Chicago, 365 U.S. 43, 46–47 (1961); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 n.10 (1963). 48 Bantam Books, 372 U.S. at 70. 49 City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750 (1998). 50 Id. at 757. 51 Id. at 755–56; Freedman v. Maryland, 380 U.S. 51, 56 (1965) (“In the area of freedom of expression it is well estab- lished that one has standing to challenge a statute on the ground that it delegates overly broad licensing discretion to an administrative office, whether or not his conduct could be pro- scribed by a properly drawn statute, and whether or not he