Richmond’s Limits on Ads on City Buses Struck Down as Unreasonably Vague
From White Coat Waste Project v. Greater Richmond Transit Co., decided today (quite correctly, I think) by the Fourth Circuit (Judge Julius Richardson, joined by Chief Judge Roger Gregory and Judge Paul Niemeyer):
When White Coat Waste Project tried to run an advertisement denouncing animal experimentation with the Greater Richmond Transit Company, the ad was denied for being impermissibly “political.” So White Coat sued, challenging that denial as a violation of its First Amendment rights. Richmond Transit responds that, as a private company, it is not bound by the First Amendment, and even if it were, its policy passes constitutional muster because it only restrains speech in a nonpublic forum….
The court concluded that Richmond Transit is a government actor; though it’s formally organized as a corporation, it’s a “[g]overnment-created and -controlled corporation[]” (such as, for instance, Amtrak), created by the government for a government function and run by the government: “The City of Richmond appoints half of Richmond Transit’s board, with Chesterfield County appointing the other half.”
The court then concluded that the ad space on Richmond Transit buses wasn’t a place for the government’s own speech, but rather a “nonpublic forum,” so the government can constrain speech there but only through restrictions that are viewpoint-based and reasonable. (I should note that other courts might have said it was a “limited public forum,” but in any event the rule for the two is generally the same.) And it concluded that this restriction was not reasonable:
Reasonableness demands more than a rational basis for the rule: “[I]t isn’t enough simply to establish that the regulation is rationally related to a legitimate governmental objective, as might be the case for a typical exercise of the government’s police power.” But, on the other hand, the government need not satisfy strict scrutiny: there is no “requirement that the restriction be narrowly tailored or that the Government’s interest be compelling.” So reasonableness is akin to some form of so-called intermediate scrutiny, in which the government’s means and ends must both be “reasonable.”
White Coat does not appear to challenge Richmond Transit’s ends, accepting there is a legitimate interest in avoiding some class of politically charged advertisements. Nor could they. In Lehman v. City of Shaker Heights (1974), the Supreme Court [upheld] … a city-owned public transit system[‘s prohibition on] “political advertising” on its vehicles….
But even a reasonable end must not be pursued by unreasonable means. In Minnesota Voters Alliance v. Mansky (2018), the Supreme Court recently held that to be reasonable, nonpublic-forum speech restrictions must be “capable of reasoned application.” The Minnesota statute in Mansky prohibited political apparel in polling places. The prohibition covered not only apparel identifying a candidate in the election, but any apparel bearing a “political” insignia. Minnesota had advanced various interpretations of the restriction, but eventually settled on a definition that included “words and symbols that an objectively reasonable observer would perceive as conveying a message about the electoral choices at issue in the polling place” or symbols “promoting a group with recognizable political views about the issues confronting voters in a given election.”
The Court held that restriction was incapable of reasoned application. Without requiring narrow tailoring, the Court held “the State must be able to articulate some sensible basis f
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