The United States Court of Appeals for the Fourth Circuit addressed two appeals related to the White Coat Waste Project and the Greater Richmond Transit Company (GRTC). The central issue arose when GRTC denied a political advertisement from White Coat, leading to a lawsuit claiming a violation of First Amendment rights. GRTC argued that it, as a private entity, was not bound by the First Amendment and that its policy restricting political ads was lawful as it governed a nonpublic forum. However, the district court ruled that GRTC is a state actor and found its advertising policy unconstitutional for violating free speech rights.
The district court granted partial summary judgment to White Coat, stating that while some political-advertising bans may be constitutional, GRTC's policy was unreasonably applied and thus unconstitutional. The appellate court affirmed the lower court's identification of GRTC as a state actor and determined its advertising policy lacked a reasonable application, rendering it facially unconstitutional. Consequently, the appellate court reversed the district court’s denial of facial relief, concluding that the policy was incapable of constitutional application in all circumstances.
The case emphasizes the interplay between state action and First Amendment protections in the context of public transit advertising policies.
Richmond Transit, after acquiring the assets of Virginia Transit Company, initially retained full ownership and control of its Board of Directors, later transferring half of its ownership and three board seats to Chesterfield County. The agency generates revenue by selling advertising space on its buses, governed by a policy that prohibits various types of ads, including alcohol, tobacco, pornography, vulgarity, and notably, political advertisements. The policy explicitly aims to avoid turning transit vehicles into forums for public debate, but it lacks definitions for "political ads" and "public issues." An outside contractor manages ad sales and must submit potentially violating ads to Richmond Transit for review by the Director of Communications, Carrie Rose Pace, who rejects ads deemed "not viewpoint neutral" and those from "political action groups."
Richmond Transit has accepted ads related to civic events while rejecting those advocating political viewpoints, including a campaign from the Physicians Committee for Responsible Medicine. White Coat, a nonprofit focused on ending taxpayer-funded animal experimentation, sought to place an ad criticizing the local Veterans Affairs Medical Center, which Pace deemed political based on her review of White Coat's website. White Coat was informed that the ad could be accepted if presented as a "public service advertisement" in partnership with local government. Subsequently, White Coat sued Richmond Transit under 42 U.S.C. §1983, claiming the political ad ban violated its First Amendment rights. The district court found that Richmond Transit acted under state law and ruled the advertising policy unconstitutional as applied to White Coat, granting an injunction against its enforcement.
The court granted partial summary judgment to Richmond Transit, rejecting a facial challenge in White Coat Waste Project v. Greater Richmond Transit Co., 463 F. Supp. 3d 661, 713 (E.D. Va. 2020), and the parties subsequently cross-appealed, with jurisdiction established under 28 U.S.C. §1291. The court determined that Richmond Transit operates as a state actor "under color of state law," making it liable under §1983. It concluded that Richmond Transit’s political advertisement ban infringes on the First Amendment.
The discussion emphasizes the distinction between governmental and private abridgment of speech, highlighting that constitutional standards apply only when the state is responsible for the conduct in question. The court examined the "state action" requirement, noting that §1983 applies to those acting under state law who deprive individuals of rights. A person, including a corporation, acts "under color of" state law when exercising power granted by state authority. The analysis indicates that while constitutional state action and statutory color-of-law requirements are distinct, they are treated similarly in practice. The inquiry focuses on whether the alleged infringement of rights can be attributed to the state, often considering the closeness of the government’s involvement with the challenged conduct. Clarifications are made regarding what constitutes the government, with examples indicating that while certain entities like the military or municipal boards are definitively governmental, private corporations generally are not.
The Supreme Court in Lebron identified a category of corporate entities—government-created and -controlled corporations—that, despite their private appearance, are considered part of the government for First Amendment purposes. In this case, Amtrak's refusal to display a political advertisement led to a First Amendment challenge, with Amtrak claiming it was not bound by the First Amendment as a corporation. The Court rejected this argument, asserting that Amtrak is a government entity, emphasizing that the government cannot escape constitutional obligations by adopting a corporate structure.
The Court established three criteria for determining whether a corporation is part of the government: (1) it must be created by a "special law," (2) the creation must serve governmental objectives, and (3) the government must retain the authority to appoint a majority of the corporation's directors. Richmond Transit meets these criteria. The "special law" requirement refers to any law that authorizes the creation of a corporation, even if it does not explicitly charter it. In Amtrak’s case, the Rail Passenger Service Act of 1970, which allowed the executive branch to form Amtrak, was deemed a "special law." Richmond Transit incorrectly contends that a "special law" must directly charter the corporation; however, under Lebron, such explicit chartering is not necessary. Additionally, Richmond Transit argues that a "special law" should set unique operational rules for the corporation, but this has not been established as a requirement in the context of Lebron.
Richmond Transit argues that its creation was not governed by a special law because the resolution authorizing it relied on Virginia's default corporate law. This interpretation is rejected for two main reasons. Firstly, allowing such an interpretation would contradict the principle established in Lebron, which asserts that the government cannot avoid constitutional obligations by adopting a corporate structure. Lebron emphasizes the substance of government actions over formal corporate structures. Secondly, Richmond Transit’s definition of 'special law' as one that provides detailed rules is flawed; a law’s specificity does not inherently qualify it as 'special.' Instead, 'created by special law' means that the corporation must be formed under a specific legal authority that serves a particular governmental purpose. This interpretation clarifies that the Lebron precedent applies only to corporations formed under specific governmental authority. The text references Kerpen v. Metropolitan Washington Airport Authority as a contrasting example, where no special law existed to authorize the corporation's formation, which led to the conclusion that it was not part of the federal government.
The Airport Authority was established through reciprocal laws passed by Virginia and the District of Columbia in 1985, predating the 1986 Transfer Act (49 U.S.C. §49106), which merely outlined the powers necessary for the Airport Authority to lease Dulles and National airports. Federal law did not authorize the Airport Authority's creation. Virginia's legislation allowed Richmond to create and operate a public transportation system, leading to the incorporation of Richmond Transit in April 1973. This incorporation was authorized by a resolution that empowered designated agents to form the Greater Richmond Transit Company as a public service corporation. Richmond Transit is therefore based on specific state laws that enabled its creation, contrasting with the situation in Philips v. Pitt County Memorial Hospital, where the hospital corporation lacked explicit authorization from Pitt County. In Philips, the hospital was presumably formed under general nonprofit incorporation statutes without clear state delegation, differentiating it from the authorized formation of Richmond Transit, which meets the 'special law' requirement established in Lebron.
Richmond Transit was established through special legislation to further governmental objectives, specifically the operation of a public transportation system, as authorized by Virginia's statutory grant and Richmond's resolution. Public transportation is recognized as a governmental objective, confirming that Richmond Transit serves to advance such goals. Furthermore, Richmond Transit meets the criteria from the Lebron case, which stipulates that the government must retain the authority to appoint a majority of the corporation's directors. The City of Richmond and Chesterfield County each appoint half of the board, ensuring government control over all directors, who manage the corporation's operations and policies.
Richmond Transit contends that its directors are not "policymakers," citing Lebron's distinction between government control as a creditor versus as a policymaker. However, Richmond Transit’s bylaws indicate that the appointed directors exercise full authority over the corporation’s affairs, directly engaging in policy decisions, including the controversial advertising policy. The reliance on Philips is misplaced, as that case did not address control in the context of the Lebron test but rather involved different legal inquiries. Ultimately, since all elements of the Lebron test are met, Richmond Transit is deemed a governmental entity for constitutional purposes and acts under the color of state law, which supports actions under §1983.
Richmond Transit’s political-advertising ban is challenged by White Coat as a violation of its First Amendment right to free speech. The First Amendment prohibits laws that abridge free speech and limits government regulation of speech on public property. However, protected speech is not uniformly permitted in all locations and times. The government, like private property owners, can regulate its property to maintain its intended use. The context and nature of the property (or "forum") dictate the extent of permissible government control.
There are three recognized types of government forums:
1. **Traditional Public Forums**: Areas historically linked to expressive activities (e.g., streets, sidewalks) with minimal restrictions on speech.
2. **Designated Public Forums**: Government property that is intentionally opened for expressive activity, treated similarly to traditional public forums.
3. **Nonpublic Forums**: Property that is not traditionally or designated as a space for public communication, allowing the government broader discretion to limit speech. Restrictions in nonpublic forums need only be reasonable and viewpoint-neutral.
Bus advertising space is classified as a nonpublic forum since it lacks a historical basis for free speech. Although there was some initial disagreement on whether it should be treated as a designated public forum, White Coat seems to accept the nonpublic classification on appeal. The determination of forum type involves analyzing government policy and the property’s intended use. Confusion exists regarding whether "limited public forum" is a subtype of "designated public forum," a synonym for "nonpublic forum," or a distinct category. Generally, three types of forums are recognized: traditional public, designated public, and nonpublic.
Designated public forums can be classified as limited or unlimited. A limited public forum is created when the government intentionally opens a nontraditional space for public discourse. If a government entity, such as Richmond Transit, does not intentionally open its advertising space for public discussion, that space is categorized as a nonpublic forum. Richmond Transit’s policy explicitly states that its advertising space is not intended for public discourse, and paid advertisements are not conducive to the free exchange of ideas. Consequently, established case law, including Supreme Court rulings, confirms that transit advertising space is a nonpublic forum.
Transit advertising does not represent "government speech" as it is traditionally reserved for private expression, lacking indications that the government owns or conveys the speech. Historical context and public perception further support that transit advertising does not primarily convey governmental messages. Although Richmond Transit exercises some editorial control over advertisements, this does not alter the perception or history indicating that such spaces are for private speech.
Government entities are permitted to maintain properties for specific uses without allowing unrestricted expression. This includes the right to impose content-based restrictions on access, particularly in nonpublic forums, where distinctions can be made based on subject matter and speaker identity. However, any restrictions must be reasonable and cannot simply be an effort to suppress opposing viewpoints.
Speech restrictions in nonpublic forums must meet two criteria: they must be reasonable and viewpoint-neutral. In the case at hand, White Coat contends that Richmond Transit’s policy fails both tests. The reasonableness of such restrictions requires more than a mere rational basis; it must demonstrate a reasonable relationship to a legitimate governmental interest, without needing to meet strict scrutiny standards. The government is not required to narrowly tailor its restrictions or show that its interests are compelling.
White Coat does not dispute the legitimacy of Richmond Transit’s aim to avoid politically charged advertisements. The precedent set in Lehman v. City of Shaker Heights supports this view, where the Supreme Court upheld a city transit system's ban on political advertising, determining that the transit advertising space was not a public forum but part of a commercial venture aimed at providing efficient service. The Court found that the prohibition served reasonable legislative objectives, minimizing the risks of favoritism and the imposition on a captive audience.
However, even reasonable ends must be pursued through reasonable means. The Supreme Court's ruling in Minnesota Voters Alliance v. Mansky emphasized that nonpublic-forum speech restrictions must allow for reasoned application. In that case, a Minnesota statute banning political apparel in polling places was found to lack clarity and thus was deemed incapable of reasoned application, which undermined its reasonableness.
The Court determined that the State must provide a reasonable basis for distinguishing between acceptable and unacceptable advertising without necessitating narrow tailoring. Justice Douglas, in his concurring opinion, argued that transit advertisers lack a First Amendment interest, emphasizing that while individuals have the right to express their views, they cannot impose their messages on a captive audience. He contended that allowing advertisements on public transit could infringe upon passengers' constitutional rights to privacy. Justice Blackmun's plurality opinion, which set the controlling standard, stated that while not all bans on political speech in nonpublic forums are problematic, Minnesota's approach was insufficient. Specifically, Richmond Transit’s ban on political ads lacked a clear definition and objective guidelines, making it difficult to apply consistently. The term "political" was noted to be broadly defined, encompassing various aspects of government affairs. Richmond Transit inconsistently applied its policy, permitting certain ads related to government while classifying others, such as calls for boycotts, as political based on whether they were "viewpoint neutral." Thus, the organization's standards for determining political content were unclear and inadequately defined.
Richmond Transit’s advertising policy is critiqued for its lack of clarity and potential First Amendment violations. The policy, defined as “expressing a viewpoint,” fails to provide a clear standard for distinguishing acceptable from unacceptable advertisements. For instance, a McDonald’s ad promoting its products might be accepted, while an opposing view from an animal rights group may be rejected as political. This inconsistency raises questions about what constitutes a viewpoint and whether the distinction between commercial and non-commercial content is a valid justification for Richmond Transit’s decisions. Previous practices show that advertisements promoting services were accepted, while similar messages without a product tie-in were rejected, yet this rationale is not explicitly stated in the policy. Furthermore, the ambiguity extends to the handling of URLs in ads; Richmond Transit can reject advertisements based on the political content of linked websites, expanding its regulatory scope beyond what is apparent in the written policy. Additionally, even non-political ads can be denied if the advertiser is deemed a “political action group” or individual, further complicating the policy’s application and enforcement.
Richmond Transit's advertising policy lacks clarity regarding its prohibition on advertisements related to specific political advocacy. The rejection of White Coat's advertisement illustrates this ambiguity, as it was unclear whether partnering with a local government would allow the ad. An example involving a Christian organization highlights the issue: an advertisement linking to a webpage without religious content was denied due to its connection to a religious site. The vague definitions and unwritten rules of Richmond Transit create confusion about what constitutes a policy violation, making it challenging for potential advertisers to navigate. This situation echoes the concerns raised in the Mansky case, where the lack of “objective, workable standards” prevents a clear distinction between permissible and impermissible content. Richmond Transit contends that Mansky is inapplicable to public transportation ads, but the reasoning in Mansky suggests that the government's discretion is even more limited outside of polling places. The court emphasized that the unique context of polling places does not extend to other forums, indicating a broader applicability of its standards.
The Court finds a compelling interest in imposing speech restrictions in transit settings, contrasting it with prior cases like Board of Airport Commissioners of L.A. v. Jews for Jesus, Inc., where speech restrictions were deemed overbroad. There is a belief among Richmond Transit and the district court that Lehman and Mansky conflict, suggesting that expanding Mansky overrules Lehman. However, the Court disagrees, clarifying that Lehman addressed whether a transit operator could prohibit political advertising, while Mansky delineated how such prohibitions should be implemented. Lehman established that the City’s ban on political advertising had been consistently applied for 26 years, suggesting a reasoned application of policy. Mansky reaffirms that reasonable political speech restrictions are permissible, requiring that any bans must provide clear standards. The Court concludes that Richmond Transit can enact a political-advertising ban, but it must be reasoned and clear, which the current ban fails to be. This conclusion aligns with rulings from other circuits, such as the Sixth Circuit's decision in American Freedom Defense Initiative v. Suburban Mobility Authority for Regional Transportation, which struck down a similar ban for lacking objective standards and definitions. The court highlighted that the subjective definition of "political" was overly broad, as it could encompass a wide array of advertisements, including non-political ones like sports ads. The Third Circuit also invalidated a prohibition on transit advertisements with political messages, reinforcing the need for clearly defined standards in such policies.
Mansky's decision is directly applicable to the case at hand, as confirmed by the court's analysis. While it did not specify the limits of state prohibitions, it also did not confine its interpretation to polling locations. The court found that the absence of structured and clear policies in Richmond Transit’s advertising policy poses a risk of arbitrary enforcement, which aligns with concerns raised in Mansky. The Ninth Circuit has similarly rejected vague prohibitions on public issue advertising, asserting that such broad definitions are unreasonable. In contrast, the D.C. Circuit upheld a narrower prohibition on religious advertising, applying the Mansky test and demonstrating that a more precise restriction can be constitutional. The D.C. Circuit also invalidated a broader ban on political content in another case, reinforcing Mansky's applicability beyond voting contexts.
The conclusion reached is that Richmond Transit’s policy against political advertising violates the First Amendment as an unreasonable restriction on speech in a nonpublic forum. This ruling is specifically focused on the political advertising policy and does not extend to other, potentially more narrowly defined advertising prohibitions. The discussion also addresses the distinction between facial and as-applied challenges to the policy. A facial challenge can be established if no valid circumstances exist for the law or if it is deemed overbroad, with substantial unconstitutional applications relative to its legitimate scope.
The court remanded the case with instructions to assess whether the prohibition on “political” transit advertising violates the principles established in Mansky. The policy was deemed unreasonable, negating the need to evaluate its viewpoint neutrality. The case references the standard that a facial challenge to a legislative act is particularly stringent, requiring proof that there is no circumstance under which the law could be valid. Although a similar ban was found constitutional in Lehman, this did not undermine the facial challenge at hand, as the particular prohibition in question was ruled as lacking any legitimate application.
The Richmond Transit policy extends beyond a mere written prohibition, incorporating a broad interpretation that excludes advertisements deemed “not viewpoint neutral” or those from groups engaging in targeted political advocacy. The court concluded that because the policy is not capable of reasonable application, it inherently lacks any legitimate sweep. This is essential as nonpublic-forum speech restrictions must allow for reasonable application; thus, a policy that cannot be reasonably applied fails to meet this requirement. The implications of the policy's unconstitutionality were explored, noting that while a successful as-applied challenge hinges on the plaintiff's circumstances, a facial challenge can be assessed independently of such factors.
The court determined that Richmond Transit’s political advertising policy is facially unconstitutional due to its vagueness and lack of clear guidelines, rendering it incapable of reasoned application. This conclusion is independent of the specific circumstances related to White Coat or any hypothetical advertiser, such as Black Jacket, who could similarly challenge the policy. The ruling emphasizes that while transit companies can prohibit political advertising, they must implement a neutral and clear policy to avoid infringing on freedom of speech under the First Amendment. Consequently, the court affirmed the district court's partial grant of summary judgment to White Coat, reversed its grant to Richmond Transit, and remanded for the entry of summary judgment in favor of White Coat.
