(CN) – The Pittsburgh Port Authority discriminated against public interest groups by blocking an advertising campaign that would inform felons of their right to vote in Pennsylvania upon release from prison, the 3rd Circuit ruled.
The groups, including the American Civil Liberties Union and the Pittsburgh League of Young Voters Education Fund, wanted to run an advertisement campaign that would educate former prisoners about their voting rights.
In contrast to some other states, Pennsylvania allows former offenders to vote after they leave prison.
Allegheny County Port Authority sales director Anthony Hickton and in-house counsel Chris Hess refused to run the ads on its buses, citing an advertising policy against “noncommercial” ads.
When the officials “refused to budge,” in the words of the opinion, the advocates filed suit under the First Amendment’s free-speech clause.
After a five-day bench trial, U.S. District Judge Terrence McVerry said the Port Authority had violated the coalition’s free-speech rights since other groups freely ran noncommercial ads on local buses.
The Philadelphia-based federal appeals court affirmed the finding that the “Port Authority’s rejection of the coalition’s ad was motivated by hostility towards the ad’s message.”
“Viewpoint discrimination is anathema to free expression and is impermissible in both public and nonpublic fora,” Judge Brooks Smith wrote for a three-judge panel. “So if the government allows speech on a certain subject, it must accept all viewpoints on the subject, even those that it disfavors or that are unpopular.”
Port Authority had argued that the ads were rejected for being political and noncommercial, as opposed to other ads it accepted by Just Harvest, the Fair Housing Partnership and Women’s Law Project, which bore little resemblance to the voting rights ad and were commercial in nature.
But the judges rejected this claim, saying it was “less than obvious” that the ad was “‘political’ in nature” or would encourage people to “vote for a specific candidate or publicly support a certain cause.”
“At most the comparator ads promoted the provision of free services, and the record is filled with evidence, including testimony from Hickton and Hess, that the Port Authority did not consider ads promoting free services to be commercial,” Smith wrote.
The similarity between the ads was “unmistakable” and provided “firm ground for the district court’s finding of viewpoint discrimination,” according to the 18-page ruling.
Smith stressed that the court is not ordering Port Authority to sanction similar ads.
“If the Port Authority were to develop more precisely phrased written guidance on the ads for which it will sell advertising space and apply the guidance in a neutral and consistent manner, it may, in the future, be able to reject ads like the one at issue,” Smith wrote.