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

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7 F. The Commercial Speech Doctrine Commercial speech is “speech of any form that ad- vertises a product or service for profit or for business purposes.”52 Because governments have the power to regulate commercial transactions, the courts have al- lowed 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 vig- orously as political speech. However, the distinction between the standards for regulation of commercial speech and other speech may be narrowing. Several Supreme Court justices, led by Justice Thomas,55 have questioned whether commercial speech regulation should be shielded from ordinary First Amendment scrutiny. For example, Justices Stevens, Kennedy, and Ginsburg have suggested that the doctrine should not automatically apply to any speech with a commercial message, but only in contexts where it is necessary to ensure a “fair bargaining process” with consumers.56 For now, the commercial speech doctrine remains in force.57 Under the current test, provided by Central Hudson Gas & Electric Corp. v. Public Service Commis- sion of New York, 58 courts will permit a total ban on commercial speech that is either misleading or that relates to unlawful activity. Beyond this, however, commercial speech may be restricted if: 1) the state ac- tor can assert a “substantial interest”; 2) the restriction “directly advance[s]” the state interest; and 3) the state interest could not be served as well by a more limited restriction on commercial speech.59 There need only be a “reasonable” fit—a “fit that is not necessarily perfect”— between the state actor’s ends and the means.60 The Court has suggested that this test is comparable to the test under the “time, place, and manner” doctrine.61 applied for a license.”). See also Lebron v. Wash. Metro. Area Transit Auth., 749 F.2d 893, 899 n.10 (D.C. Cir. 1984) (recog- nizing that administrative restraint can only be temporary). 52 5 ROTUNDA & NOWAK, supra note 2, § 20.26, at 221. 53 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 499 (1996), (citing Friedman v. Rogers, 440 U.S. 1, 10 n.9 (1979)). 54 See Valentine v. Chrestensen, 316 U.S. 52, 54 (1942). For a review of the development of the commercial speech doctrine, see 44 Liquormart, 517 U.S. at 495–505. 55 See Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 575 (2001) (Thomas, J., concurring) (stating that strict scrutiny should apply). 56 44 Liquormart, 517 U.S. at 501. 57 Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 506 (1981); see also Lorillard Tobacco, 533 U.S. at 554. It remains to be seen how the departures of Justices O’Connor and Rehnquist will affect the doctrine in the future. 58 447 U.S. 557, 563–64 (1980). 59 Id. at 564. 60 Bd. of Trustees of the State Univ. of N.Y. v. Fox, 492 U.S. 469, 477–80 (1989) (finding that the “least restrictive means” test does not apply to regulations of commercial speech). 61 Lorillard Tobacco, 533 U.S. at 554. II. THE PUBLIC FORUM DOCTRINE: APPLICATION TO TRANSIT FACILITIES This part will address the public forum doctrine in detail, with particular emphasis on the classification of transit facilities under that doctrine. The classification of a facility as a public or nonpublic forum is important because it has such a fundamental impact on the scope of permissible regulation.62 Later sections discuss the application of First Amendment principles to particular forms of speech within different types of fora. 63 The public forum doctrine evolved out of a series of cases in which the Supreme Court was faced with First Amendment issues related to specific uses of different types of property. The public forum concept was intro- duced by the Supreme Court in Hague v. Committee for Industrial Organization,64 which stated that, “The privi- lege…to use the streets and parks for communication of views on national questions may be regulated in the interest of all; …but it must not, in the guise of regula- tion, be abridged or denied.”65 The Court’s first complete elaboration of the public forum doctrine appears in Perry Education Association v. Perry Local Educators’ Association.66 Although not a transit facility case, Perry provides the analytical framework that the courts apply in such cases.67 There are several (conflicting) principles that underlie the doctrine: First, the right to speak is a right members of the public generally carry with themselves wherever they go, and the government, for its part, may not gen- erally condition access to property on an agreement to give up those rights. Second, the right to speak and assemble is illusory unless there are low-cost, accessible alternatives for all members of the public to engage in spirited public debate. On the other hand, there are some locations where public protest and debate are not appropriate, or where speech must be restricted in or- der for business to proceed (e.g., a courtroom or office building). The “public forum” analysis is the means through which the courts attempt to balance these in- terests. A traditional public forum is an area that by long tradition or by government fiat has “been devoted to assembly and debate.”68 The government may not pro- hibit all speech in a traditional public forum, and any 62 See supra pt. I.C for general discussion of the public fo- rum doctrine. 63 We emphasize that the classification of a facility under the forum doctrine is not the final step in the analysis. For example, even if a facility is classified as a nonpublic forum, regulations of expressive activity therein must be reasonable and viewpoint-neutral. See infra pts. III.A, IV. 64 307 U.S. 496 (1939). 65 Id. at 515–16. 66 460 U.S. 37, 44–47 (1983). 67 See, e.g., Int’l Soc’y for Krishna Consciousness v. Lee, 505 U.S. 672, 678 (1992). 68 Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983). See supra pt. I.C.

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 conclud- ing 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 consti- tutes 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 pub- lic forum.74 While Kokinda’s reference to the govern- ment’s “purpose” could be read to suggest that the gov- ernment’s intent is significant in determining whether government property is a traditional public forum, this is probably not the best reading of the case. According to the Ninth Circuit, the word “purpose” as used in Kokinda means “use,” not “intent.”75 The Ninth Circuit has explained why the government’s purpose can only be relevant to a very limited degree in determining whether a “traditional” public forum exists: If the government’s intent were a factor in determining the existence of a traditional public forum, any new pub- lic area, even a new street or park, could be created as a nonpublic forum as long as the government’s intent to do so were memorialized in restrictive statutes or state- ments of purpose. This result would make a mockery of the protections of the First Amendment. Rather than permit such an outcome, we clarify that government in- tent is relevant only insofar as it relates to the objective use and purpose of an area. Thus, …[the government’s specific purpose] may be relevant to forum analysis, but the government’s intent in and of itself is not a factor.76 69 Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. at 678. Speech in a public forum is also subject to proper time, place, and manner regulation. United States v. Grace, 461 U.S. 171 (1983). 70 Grace, 461 U.S. at 179. 71 See Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 925 F.2d 576, 580 (2d Cir. 1991), aff'd, 505 U.S. 672 (1992). (“Until Kokinda [United States v. Kokinda, 497 U.S. 720 (1990)] and with the exception of Greer [Greer v. Spock, 424 U.S. 828 (1976)], the Court’s decisions treated streets and sidewalks as traditional public fora without engaging in any detailed analy- sis of their particular purposes.”). 72 497 U.S. 720 (1990). 73 Id. at 728–29. 74 Id. at 728; see also id. at 727 (“[t]he mere physical charac- teristics of the property cannot dictate forum analysis”). 75 ACLU of Nevada v. City of Las Vegas, 333 F.3d 1092, 1105 (9th Cir. 2003). 76 Id. at 1105 (footnotes omitted). The Supreme Court has rejected a claim that lampposts and utility poles in the public rights-of-way constitute a traditional public forum since such space is not “by tradition…a forum for public communication.” Members of City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 813–15 (1984). Even if a forum has not been traditionally open to expressive activity, it may still constitute a public fo- rum if the government has designated it as such.77 A state actor does not create a public forum merely through inaction,78 or by allowing selective access for individual speakers rather than general access for a class of speakers.79 To create a designated public forum, the government must intentionally allow access to property that would otherwise not be a public forum, for the purpose of allowing some degree of public dis- course.80 Some examples include university meeting facilities, school board meetings, and municipal thea- ters.81 A state actor may also close a designated forum, as long as it is not closed because of hostility to the speech being expressed.82 Restrictions on speech in a designated public forum are reviewed under the same standards as would apply in a traditional public fo- rum.83 All property not classified as a traditional public fo- rum or a designated public forum is treated as a non- public forum. The government does not have an abso- lute right to prohibit any kind of speech in a nonpublic forum, but a decision to restrict speech need only be reasonable and viewpoint-neutral. Reasonableness is assessed based on the purpose of the forum and the circumstances of a particular case.84 Courts have recog- nized a number of nonpublic fora, including, among other things, U.S. mailboxes,85 school mail facilities,86 military installations,87 and certain public plazas.88 The size and scope of the relevant forum for purposes of First Amendment analysis is determined by “the access sought by the speaker.”89 77 Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983). See supra pt. I.C. 78 Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 680 (1992). 79 Ark. Educ. Television Comm’n v. Forbes, 523 U.S. 666, 679 (1998); see also Perry, 460 U.S. at 48. 80 Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 802 (1985). This is unlike the analysis of “traditional” public fora, where the government’s intent is much less impor- tant. See supra text accompanying notes 72–73. 81 See Perry, 460 U.S. at 45. 82 Id. at 46; ACLU v. Mineta, 319 F. Supp. 2d 69, 82–83 (D.D.C. 2004). In addition, a state actor may create a desig- nated forum for a limited purpose. See supra note 28. 83 Perry, 460 U.S. at 46. 84 Cornelius, 473 U.S. at 808–09. 85 U.S. Postal Serv. v. Council of Greenburgh Civic Assocs., 453 U.S. 114 (1981). 86 Perry, 460 U.S. at 48. 87 Greer v. Spock, 424 U.S. 828, 838 (1976). 88 Hotel Employees & Rest. Employees Union, Local 100 v. City of N.Y. Dep’t of Parks & Recreation, 311 F.3d 534, 552–53 (2d Cir. 2002). 89 Cornelius, 473 U.S. at 801.

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. Although the Court has suggested that other transit facilities might be treated differently, the Court has never clarified what standard applies to bus stations, railway stations, or subway stations. The courts also have recognized that there can be public fora within transit facilities, even if the terminal itself is not a public forum. This is especially true in the case of advertising. To determine whether a transit fa- cility has designated a public forum with respect to its advertising space, courts have examined a transit facil- ity’s prior practice and policy, and have sought to de- termine whether the facility has acted in a proprietary or regulatory capacity. Transit agencies that wish to avoid creating a public forum should craft policies that clearly limit access to the space in question, and should consistently enforce such policies. A court is more likely to rule that a transit agency has created a public forum through its advertising policies if the agency accepts political speech, dedicates space to public service an- nouncements on issues of public importance, or appears to be motivated by something other than the desire to raise revenue. A transit agency that wishes to open space to some messages on issues that relate to public policy may be able to do so without creating a public forum open to all issues, and while maintaining a reasonable level of con- trol over the manner in which messages are presented. The key is clear statements of policy, and clear guide- lines for content that do not vary based on the view- point expressed. A. The Classification of Airport Terminals For many years, despite a split in the circuit courts,90 the Supreme Court failed to clarify whether airport 90 See Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 677 n.2. A number of courts had previously found that airport terminals were public fora. See Chicago Area Mili- tary Project v. City of Chicago, 508 F.2d 921, 925–26 (7th Cir. 1975), cert. denied, 421 U.S. 992 (1975); Fernandes v. Limmer, 663 F.2d 619, 626 (5th Cir. 1981), cert. dismissed, 458 U.S. 1124 (1982); U.S. Sw. African/Namibia Trade & Cultural Council v. United States, 708 F.2d 760, 764 (D.C. Cir. 1983); Jamison v. City of St. Louis, 828 F.2d 1280, 1283 (8th Cir. 1987), cert. denied, 485 U.S. 987 (1988); Jews for Jesus, Inc. v. Bd. of Airport Comm’rs, 785 F.2d 791, 793–95 (9th Cir. 1986), aff’d on other grounds, 482 U.S. 569 (1987). The Court of Ap- peals for the Second Circuit questioned this conclusion. Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 925 F.2d 576, 580–82 (2d Cir. 1991). terminals constituted public fora.91 This changed in 1992 when the Court issued its most important First Amendment decision with respect to transit facilities. In International Society for Krishna Consciousness, Inc. v. Lee,92 the majority of justices on a divided Court con- cluded that public areas within an airport terminal were not a public forum.93 In Lee, the International Society for Krishna Con- sciousness, a frequent plaintiff in First Amendment cases, challenged a regulation of the New York Port Authority barring the solicitation of money or the dis- tribution of literature in three major air terminals in the greater New York City area. The Court first found that an airport terminal is not a traditional public fo- rum akin to a public sidewalk: [G]iven the lateness with which the modern air terminal has made its appearance, it hardly qualifies for the de- scription of having “immemorially…time out of mind” been held in the public trust and used for purposes of ex- pressive activity. Moreover, even within the rather short history of air transport, it is only “[i]n recent years [that] it has become a common practice for various religious and non-profit organizations to use commercial airports as a forum for the distribution of literature, the solicitation of funds, the proselytizing of new members, and other simi- lar activities.” Thus, the tradition of airport activity does not demonstrate that airports have historically been made available for speech activity.94 In addition, the Court could not find that the Port Authority’s airports, or airport terminals generally, had been intentionally opened to allow solicitation or other forms of speech.95 The Court noted that airports are commercial enterprises, whose purpose was the facilita- tion of air travel. They are not designed or operated as venues for solicitation or other expressive activities.96 91 The Supreme Court first sought to resolve the issue in 1987, but in the end the Court’s opinion failed to reach the issue. Bd. of Airport Comm’rs of L.A. v. Jews for Jesus, Inc., 482 U.S. 569 (1987). 92 505 U.S. 672 (1992). 93 Id. With respect to solicitation, Justice Rehnquist wrote an opinion for Justices White, O’Connor, Scalia, and Thomas finding that the airport terminal was a nonpublic forum and that a ban on solicitation in such a setting was reasonable. Id. at 672–84. With respect to leafleting, Justice Kennedy wrote an opinion for Justices Blackmun, Stevens, and Souter that found that leafleting could not be banned because the airport was a public forum, but also ruled that such a rule would not survive even in a nonpublic forum. Id. at 693–703. Justice O’Connor rejected Justice Kennedy’s forum classification by concluding that the terminal was a nonpublic forum, but she nevertheless served as the fifth vote for the position that leaf- leting could not be banned in such a setting. Id. at 685–93. See Lee v. Int’l Soc'y for Krishna Consciousness, Inc., 505 U.S. 830, 831 (U.S. 1992) (per curiam). 94 Lee, 505 U.S. at 680 (citations omitted). 95 Id. at 680–81. 96 Id. at 682–83. The Court added that even if it were to look beyond the intent of the Port Authority to reach the manner in which the terminals were operated, the terminals had never

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 set- tled. B. The Classification of Bus, Subway, and Train Stations In Lee, the Supreme Court was careful to distinguish airports from other “transportation nodes,”99 suggesting that different types of transportation terminals might fall into different categories under the public forum doctrine. In the years since, however, the Supreme Court has not clarified the classification of other transit facilities. Earlier cases suggested that other types of transit stations might constitute traditional or designated pub- lic fora.100 For example, long before Lee, the Second Cir- cuit held that a bus terminal is a traditional public fo- rum, by analogy to a city street.101 As the court put it: been dedicated to expression in the form sought here—the distribution of literature and the solicitation of contributions. 97 See, e.g., Multimedia Publ’g Co. of S.C. v. Greenville- Spartanburg Airport Dist., 991 F.2d 154, 158–59 (4th Cir. 1993); Atlanta Journal & Constitution v. Atlanta Dep’t of Avia- tion, 322 F.3d 1298, 1307 (11th Cir. 2003); Jews for Jesus, Inc. v. Port of Portland, 172 F. Appx. 760, 763 (9th Cir. 2006); Grutzmacher v. County of Clark, 33 F. Supp. 2d 896, 902 (D. Nev. 1999). 98 ISKCON Miami, Inc. v. Metro. Dade County, 147 F.3d 1282, 1288 (11th Cir. 1998). 99 Lee, 505 U.S. at 681–82 (“To make a category of ‘transpor- tation nodes,’ therefore, would unjustifiably elide what may prove to be critical differences of which we should rightfully take account…To blithely equate airports with other transpor- tation centers, therefore, would be a mistake.”). The principal reason for the possible distinction between airports and other types of facilities seems to be the higher level of security that has been typical of airports as compared to such other facili- ties. Id. However, the separation of those facilities from the streets and roads that are traditional public fora also appears to be an important factor. See infra note 99. 100 Lebron v. Wash. Metro. Area Transit Auth., 749 F.2d 893, 896 (D.C. Cir. 1984) (finding “WMATA has converted its subway stations into public fora”); Aids Action Comm. of Mass., Inc. v. Mass. Bay Transp. Auth., 849 F. Supp. 79, 83 (D. Mass. 1993) (“Commonwealth of Massachusetts intended to permit public discourse throughout its transit system”). But see Gan- nett Satellite Info. Network, Inc. v. Metro. Transp. Auth., 745 F.2d 767, 773 (2d Cir. 1984) (public areas of commuter rail stations are nonpublic fora); Young v. N.Y. City Transit Auth., 903 F.2d 146, 162 (2d Cir. 1990) (“TA never intended to desig- nate sections of the subway system, including platforms and mezzanines, as a place for begging and panhandling.”); Ridley v. Mass. Bay Transp. Auth., 390 F.3d 65, 80 (1st Cir. 2004). 101 Wolin v. Port of N.Y. Auth., 392 F.2d 83 (2d Cir. 1968). The terminal, with its many adjuncts, becomes something of a small city—but built indoors, with its “streets” in ef- fect set atop one another, and vehicles operating under, above, and to the side, not unlike some futuristic design for urban living. Thus, we cannot accept the argument that the mere pres- ence of a roof alters the character of the place, or makes the Terminal an inappropriate place for expression.102 Later, however, in a decision that was upheld by the Supreme Court in Lee, the Second Circuit both ques- tioned and distinguished this analysis: Wolin’s rationale regarding the right to reach particular audiences seems undermined by the Supreme Court’s analysis concerning traditional public fora, designated fora and nonpublic fora…[in] Kokinda. However, the Port Authority bus terminal, or portions thereof, contains various commercial establishments that serve non- traveling pedestrians off adjoining streets, and is argua- bly like a public street. In contrast, commercial estab- lishments in the air terminals at issue in the instant matter are not realistically used by persons not connected with air travel.103 Since Lee, the few courts to address the question have held that rail and subway stations are not tradi- tional public fora.104 As one district court recently ex- plained: WMATA subway stations are, like buses and airport ter- minals, nonpublic forums. A subway station does not have as “a principal purpose…the free exchange of ideas,” the hallmark of a traditional public forum. Nor can plain- tiffs make the argument that subway stations “have his- torically been made available for speech activity.”105 Of course, even if a bus or rail station is not a tradi- tional public forum, transit officials must act with cau- tion to ensure that they do not inadvertently designate the terminal, or a portion of it, as a public forum 102 Id. at 89. 103 Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 925 F.2d 576, 579 n.3 (2d Cir. 1991), aff’d, 505 U.S. 672 (1992) (citations omitted). The circuit court added: Like the sidewalk in Kokinda, the Port Authority’s terminals are remote from pedestrian thoroughfares and are intended solely to facilitate a particular type of transaction —air travel— unrelated to protected expression. Persons using the passage- ways in terminals are not there primarily to meet a friend for lunch, windowshop, take the air, or engage in any of the multi- tude of other purposes for which typical downtown streets are used. They are there solely as air travelers, persons connected with air travelers, or employees of businesses serving air travel- ers. Id. at 581. 104 Storti v. Se. Transp. Auth., No. Civ. A. 99-2159, 1999 U.S. Dist. LEXIS 14515, at *24, 1999 WL 729266, at *7 (E.D. Pa. 1999) (“If SEPTA ever designated the paid areas or plat- forms of its stations as public fora (which the record does not support), it has now clearly and effectively revoked that desig- nation.”); ACLU v. Mineta, 319 F. Supp. 2d 69, 82 (D.D.C. 2004); Sanders v. City of Seattle, 156 P.3d 874, 884–85 (2007) (easement providing ingress and egress to monorail platform is not public forum). 105 Mineta, 319 F. Supp. 2d at 82 (citations omitted).

11 through their policies or practices. For this reason, poli- cies governing access to a terminal should be carefully crafted to align with the facility’s transit-related func- tions. C. The Classification of Advertising Displays at Transit Facilities The fact that a terminal or station does not consti- tute a public forum does not necessarily end the analy- sis under the public forum doctrine. In fact, numerous courts have recognized that even if a transit facility or terminal itself is not a public forum, there can never- theless be public fora within such a facility. This is be- cause, in defining the relevant forum, the Supreme Court has “focused on the access sought by the speaker.”106 If a speaker only seeks access to a specific portion of a transit facility, such as its advertising space, it is only that portion of the facility to which the court will apply the public forum doctrine. For many years, the leading case on advertising in a transit system has been Lehman v. City of Shaker Heights,107 in which the Supreme Court ruled that there was no public forum in the car card space in the interior of a city bus. The City of Shaker Heights, acting through a management company, had barred political advertisements on its transit system, but accepted ad- vertising from a wide range of businesses, as well as churches and civic groups.108 When a candidate for po- litical office challenged the policy, the Court recognized that the car card space was not a traditional public fo- rum: Here, we have no open spaces, no meeting hall, park, street corner, or other public throughfare. Instead, the city is engaged in commerce. It must provide rapid, con- venient, pleasant, and inexpensive service to the com- muters of Shaker Heights. The car card space, although incidental to the provision of public transportation, is a part of the commercial venture. In much the same way that a newspaper or periodical, or even a radio or televi- sion station, need not accept every proffer of advertising from the general public, a city transit system has discre- tion to develop and make reasonable choices concerning the type of advertising that may be displayed in its vehi- cles.109 106 See, e.g., Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 801 (1985); Christ’s Bride Ministries, Inc. v. Se. Pa. Transp. Auth., 148 F.3d 242, 248 (3d Cir. 1998); Air Line Pilots Ass’n Int’l v. Dep’t of Aviation, 45 F.3d 1144, 1151 (7th Cir. 1995); Planned Parenthood Ass’n/Chicago Area v. Chicago Transit Auth., 767 F.2d 1225, 1231 (7th Cir. 1985). 107 418 U.S. 298 (1974). 108 Id. at 300. 109 Lehman, 418 U.S. at 303. One of the key reasons that the Court upheld the restriction was concern for passengers as a “captive audience.” The recognition that individuals who may not want to be subject to the exercise of free speech by others, in situations where they cannot avoid such speech, has been relied upon to uphold restrictions on speech in a variety of contexts. See, e.g., Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 768 (1994). Lehman thus stands for the principle that advertis- ing space in a transit facility does not constitute a tradi- tional public forum.110 As a result, one key question in advertising cases after Lehman has been whether the public authority has designated its advertising spaces as a public forum.111 Various decisions since Lehman have considered this question.112 To avoid such a designation, transit facili- ties must maintain a system of control over their adver- tising space. For example, the Seventh Circuit found that the Chicago Transit Authority (CTA) had created a public forum in its advertising space because it had no such controls.113 The only restriction was a provision in the CTA’s contract with its advertising agent directing the agent to refuse “vulgar, immoral, or disreputable advertising.”114 In essence, CTA had no policy, because access was effectively guaranteed to any person willing to pay for the space, and the CTA’s advertising space had been used for a wide range of ads, including politi- cal ones.115 A written policy stating that a facility is not a public forum is not sufficient in itself, however. For example, the Sixth Circuit found that the Southwest Ohio Re- gional Transit Authority (SORTA) had created a public forum on its buses, bus shelters, and billboards even though SORTA’s advertising policy explicitly stated that such locations were not public fora and that any 110 In Lehman, because the city had “not accepted or permit- ted any political or public issue advertising on its vehicles” during its 26 years of operation, the Court also found that the city had not created a “designated” public forum for political speech. 418 U.S. at 300-01. The Lehman Court concluded, “No First Amendment forum is here to be found.” 418 U.S. at 304. Note that this does not mean that the government can create a designated forum only by allowing political speech; allowing other forms of speech could result in creating a designated public forum. See supra note 30. The facts in Lehman, however, concerned the right to engage in political advertising. 111 See supra pts. I.C., II.A, and Practice Aid-Public Fora discussing stricter standard of review for speech restrictions if a facility is treated as a public forum. 112 To determine whether an airport authority has created a public forum, a court will examine the government’s intent in establishing and maintaining the property, an inquiry that considers two factors: 1) “the policy and practice of the gov- ernment with respect to the underlying property”; and 2) “the nature of the property and its compatibility with expressive activity.” Air Line Pilots, 45 F.3d at 1152 (citing Cornelius, 473 U.S. at 802–03). 113 Planned Parenthood, 767 F.2d 1225. 114 Id. at 1232. 115 Id. The court ruled that Lehman was not controlling be- cause 1) CTA did not have a blanket policy of rejecting all po- litical ads; 2) CTA actually had no policy; and 3) CTA had ac- cepted political ads. Id. at 1233. Ten years later, the Seventh Circuit revisited the issue in considering whether the Depart- ment of Aviation of the City of Chicago had created a public forum in the advertising space at its airport. Air Line Pilots, 45 F.3d 1144. The court found that it “was CTA’s willingness to accommodate all advertisers that distinguished Planned Par- enthood from Lehman….” Id. at 1153.

12 ads that were “controversial” and that were not “aes- thetically 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 prac- tice” 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, “Accep- tance 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 cou- pled their written policies with prior practices demon- strating an intent to limit a forum have enjoyed more success. For example, the Massachusetts Bay Transpor- tation Authority’s (MBTA) guidelines for its advertising space in transit facilities and vehicles expressly stated that the MBTA’s facilities constituted nonpublic fo- rums, subject to certain viewpoint-neutral restric- tions.120 While the First Circuit noted that this state- ment would not be sufficient to support a finding that the MBTA’s advertising spaces were a nonpublic forum if it were “contradicted by consistent actual policy and practice,”121 the court found that MBTA had used its policy to reject at least 17 different advertisements in the preceding 5 years.122 The court concluded that MBTA clearly intended to maintain control over the forum and, thus, had not created a public forum.123 116 United Food & Commercial Workers Union, Local 1099 v. Sw. Ohio Reg’l Transit Auth., 163 F.3d 341, 346, 352 (6th Cir. 1998). 117 Id. at 352. The court noted that were it to hold otherwise, “the government could circumvent what in practice amounts to open access simply by declaring its ‘intent’ to designate its property a nonpublic forum in order to enable itself to suppress disfavored speech.” Id. at 353; see also New York Magazine v. Metro. Transp. Auth., 136 F.3d 123, 129–30 (2d Cir. 1998) (“[I]t cannot be true that if the government excludes any category of speech from a forum through a rule or standard, that forum becomes ipso facto a non-public forum, such that we would examine the exclusion of the category only for reasonable- ness.”). However, the Ninth Circuit has recognized that a fo- rum can be considered nonpublic (limited) if it is not “open for indiscriminate use” or if it is only open to “certain groups or to certain topics.” Ariz. Life Coalition v. Stanton, 515 F.3d 956, at 970 (9th Cir. 2008) (citing Faith Ctr. Church Evangelistic Min- istries v. Glover, 480 F.3d 891, 909 (9th Cir. 2007) and Cogswell v. City of Seattle, 347 F.3d 809, 814 (9th Cir. 2003). 118 SORTA, 163 F.3d at 355. 119 Id. (citing Lehman, 418 U.S. at 303–04). 120 Ridley v. Mass. Bay Transp. Auth., 390 F.3d 65, 77 (1st Cir. 2004). Because the guidelines contained standards that had “reasonably clear meanings” describing the types of adver- tising that would be permitted, the court also concluded that the regulations were not excessively vague. Id. at 95. 121 Id. at 77. 122 Id. at 78. 123 Id. at 82. To assess a transit facility’s past practices, many courts have considered whether a transit facility has previously acted in a proprietary capacity in making choices about what advertising to allow. In cases in which the transit facility has done so by excluding speech for purposes of the facility’s own financial bene- fit, courts have often ruled that no public forum was created. For example, a recent district court decision concluded that the Norfolk Airport Authority had not created a public forum in its advertising space: The principal purpose of the advertising display cases is to generate revenue for the Authority. There is no evi- dence that the current advertisement space is geared to- wards promoting any particular type of business or ven- ture, or aimed at any particular type of traveler. Furthermore, there is no evidence that the Authority has intended to make the space available for public expres- sion, as is required to find that it is a designated public forum.124 Similarly, the Ninth Circuit determined that the Phoenix transit system had not created a designated public forum by accepting advertising on the exterior panels of buses, because the city had consistently en- forced a policy of allowing only commercial advertis- ing.125 Even if profit is a transit facility’s primary motiva- tion, however, a court may still examine whether a de- cision regarding a particular advertisement is consis- tent with the facility’s past practices in determining whether a facility is a public forum. For example, the Third Circuit found that the past practices of the Southeastern Pennsylvania Transportation Authority (SEPTA) created a public forum in its advertising space, even though the main function of the advertising space was to earn a profit, and a secondary goal was to pro- mote awareness of social issues.126 SEPTA’s written policies specifically provided for the exclusion of only a very narrow category of ads, and SEPTA had accepted a broad range of advertisements, including ads similar to those at issue.127 As a general rule, when a transit facility has permit- ted the display of political or policy issue ads in its ad- vertising space, courts tend to conclude that the transit facility has created a public forum. For example, the Second Circuit ruled that the Metropolitan Transporta- tion Authority (MTA) of the City of New York had cre- ated a public forum with respect to the advertising space on city buses based on its treatment of political speech:128 124 Park Shuttle N Fly, Inc. v. Norfolk Airport Auth., 352 F. Supp. 2d 688, 705 (E.D. Va. 2004) (citation omitted). 125 Children of the Rosary v. City of Phoenix, 154 F.3d 972, 978 (9th Cir. 1998). 126 Christ’s Bride Ministries, Inc. v. Se. Pa. Transp. Auth., 148 F.3d 242 (3d Cir. 1998). 127 Id. at 252. 128 New York Magazine v. Metro. Transp. Auth., 136 F.3d 123, 130 (2d Cir. 1998). Note, however, that the acceptance of political speech, by itself, may not be enough to create a desig-

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 delib- erate acceptance of the possibility of clashes of opinion and controversy that the Court in Lehman recognized as inconsistent with sound commercial practice. The district court thus correctly found that the advertising space on the outside of MTA buses is a designated public forum, because the MTA accepts both political and commercial advertising.129 Likewise, the D.C. Circuit has ruled that accepting political advertising in subway stations converts them into a public forum.130 And the failure of the Metropoli- tan Atlanta Rapid Transit Authority (MARTA) to en- force consistently its written policy prohibiting advertis- ing regarding “matter[s] of public controversy” was found to have created a designated public forum.131 As the court put it: The evidence shows that MARTA has accepted advertis- ing on subjects ranging from AIDS awareness to racial and religious tolerance to homosexual rights…. [I]t has permitted advertising for pregnancy counseling and adop- tion services. By permitting these various forms of public interest speech and speech by non-profit entities, MARTA has opened its advertising forum to such speech….132 D. The Classification of Physical Space Within Transit Vehicles Most recent cases hold that the physical space inside transit vehicles does not constitute a traditional or des- ignated public forum.133 Because of the Lehman deci- sion, it is unlikely that a court would rule that the physical space within a transit vehicle constitutes a traditional public forum. As the Supreme Court said in Lehman, “[A] streetcar or bus is plainly not a park or sidewalk or other meeting place for discussion, any more than is a highway….” 134 The Court further noted, nated public forum. See, e.g., Uptown Pawn & Jewelry, Inc. v. City of Hollywood, 337 F.3d 1275, 1279 (11th Cir. 2003) (find- ing nonpublic forum despite acceptance of political speech be- cause “the City has always had a policy of excluding certain categories of advertising from its bus benches.”). 129 New York Magazine, 136 F.3d at 130. 130 Lebron v. Wash. Metro. Area Transit Auth., 749 F.2d 893, 896 (D.C. Cir. 1984); see id. at 896 n.6 (distinguishing Lehman v. City of Shaker Heights, 418 U.S. 298 (1974)). A post-Lee district court decision clarified that the WMATA ad- vertising spaces are “non-public forums which WMATA over the years has chosen to designate as limited public forums.” ACLU v. Mineta, 319 F. Supp. 2d 69, 82 (D.D.C. 2004). 131 Nat’l Abortion Fed’n v. Metro. Atlanta Rapid Transit Auth., 112 F. Supp. 2d 1320, 1326 (N.D. Ga. 2000). 132 Id. 133 Mineta, 319 F. Supp. 2d at 81 (subway cars are nonpublic forum); Sanders v. City of Seattle, 156 P.3d 874, 883 (Wash. 2007) (monorail is not a public forum); Anderson v. Milwaukee County, 433 F.3d 975, 979 (7th Cir. 2006) (interior of transit vehicle is nonpublic forum). 134 Lehman, 418 U.S. at 306. “[I]f we are to turn a bus or a streetcar into either a newspaper or a park, we take great liberties with peo- ple who because of necessity become commuters and at the same time captive viewers or listeners.”135 E. The Classification of Other Transit-Related Areas The courts have classified numerous other transit- related spaces under the public forum doctrine. It is worth emphasizing, however, that the proper classifica- tion may be highly fact-specific, depending on the man- ner in which a facility is actually used, the purposes for which it was dedicated, and its physical relationship to traditional streets and parks. 1. Streets and Sidewalks The public streets are the archetype of a traditional public forum.136 Sidewalks will also generally be consid- ered public fora without further inquiry.137 The Supreme Court has ruled, however, that a sidewalk that runs only from a parking lot to a post office is not a tradi- tional public forum.138 The courts have not definitively decided whether public roadways in which there is ve- hicular traffic constitute traditional public fora.139 2. Interstate Rest Areas The Eleventh Circuit has ruled that an Interstate rest area is not a public forum.140 The court first found it clear that such areas were not “traditional” public fora: “[A]s modern phenomena, rest areas have never existed independently of the Interstate System; they are op- tional appendages that are intended, as part of the Sys- 135 Id. at 306–07. In theory, a transit agency or other state actor could “designate” the physical space in a transit vehicle as a public forum for certain speech purposes, but we are not aware of any decision discussing such a situation. 136 Frisby v. Schultz, 487 U.S. 474, 480 (1988). Although we do not discuss these here because they are not typically used for transportation purposes, public parks are another arche- type. See, e.g., Hague v. Comm. for Indus. Org., 307 U.S. 496, 515 (1939); Summum v. Pleasant Grove City, 483 F.3d 1044, 1050–51 (10th Cir. 2007). 137 United States v. Grace, 461 U.S. 171, 179 (1983). 138 United States v. Kokinda, 497 U.S. 720, 727 (1990). 139 See, e.g., ACORN v. City of Phoenix, 798 F.2d 1260, 1266–67 (9th Cir. 1986) (declining to resolve public forum issue but suggesting that “streets continually filled with pulsing vehicle traffic” may not qualify as traditional public fora); Houston Chronicle Publ’g Co. v. City of League City, 488 F.3d 613, 622 (5th Cir. 2007) (ruling, without analysis, that busy traffic intersections were public fora); ACORN v. St. Louis County, 930 F.2d 591, 594 (8th Cir. 1991) (streets constitute public fora for solicitations). As discussed, infra, even if a street with vehicular traffic does constitute a traditional public forum, solicitation and other activities in such a street may be subject to time, place, and manner regulations. 140 Sentinel Commc’ns Co. v. Watts, 936 F.2d 1189, 1203–04 (11th Cir. 1991).