The Seventh Circuit Court of Appeals recently ruled that a municipal transportation agency (Citilink) violated the free speech rights of a non profit organization when it refused to allow the organization's advertisement of women health care services on its buses. Women's Health Link, Inc. v. Fort Wayne Public Transportation Corp. (7th Cir., June 22, 2016).
Citilink is a municipal corporation that provides bus services in Fort Wayne, Indiana. It also has regulatory authority over advertisements both inside and outside of its buses. Women's Health Link is a non profit organization that provides health care for women in Fort Wayne. Health Link asked Citilink to post an advertisement in Citylink buses that advertised Women's Health Link as a "Free resource for women seeking health care." You can see the actual advertisement on page 2 of the court's opinion.
Citilink refused to post the ad because it claimed the ad violated its policy prohibiting ads that "express or advocate opinions or positions upon political, religious, or moral issues." According to Citilink, Health Link provides counseling to women with unplanned pregnancies, including resources about alternatives to abortion, which Citilink determined was a "moral issue." According to the opinion, Health Link is a known "pro-life" organization.
Health Link sued Citilink, alleging that Citilink's refusal to allow its ad was a violation of its First Amendment free speech and expression rights, among other allegations. The Seventh Circuit agreed with Health Link, finding that Citilink's refusal to allow Health Link's ad was an unjustifiable restriction of free speech. The court acknowledged Citilink's right to prohibit certain types of advertisements, including material that contains profane language, that "incites, describes, depicts, or represents sexual activities," and that "is libelous," among others. However, Health Link's ads violated none of these policies and, as a result, the ban of this ad could only be deemed discriminatory, according to the court.
The court concluded by stating as follows:
Once a government entity has created a facility (the ad spaces in and on its buses, in this case) for communicative activity, it 'must respect the lawful boundaries it has itself set.'
As a result, the court held that Citilink's refusal to post the ad was groundless discrimination against constitutionally protected speech, and Citilink was enjoined from refusing to post Health Link's ads.
This case should provide some guidance to local governments on how courts might view government restrictions on advertisements in public spaces - not just buses, but kiosks, bulletin boards, websites, and newsletters, among other spaces.
Post Authored by Julie Tappendorf