PHILADELPHIA (CN) — An atheist organization seeking to advertise on Scranton-area buses pushed the Third Circuit on Wednesday to strike down the county’s ban against displaying controversial material.
Backed by the American Civil Liberties Union, the Northeastern Pennsylvania Freethought Society filed suit in 2015 against the County of Lackawanna Transit System after the rejection of an ad that said: “Atheists. NEPA Freethought Society. NEPAfreethought.org.”
COLTS argued that the ad may spark a debate or alienate some riders, and a federal judge ruled for the county last July after a nonjury, concluding that its advertising policy was imposed reasonable and viewpoint-neutral restrictions on speech.
Arguing Wednesday before a three-judge panel in Philadelphia, ACLU attorney Molly Tack-Hooper pressed the appeals court to reverse, saying a ban on religious words is flatly unconstitutional.
U.S. Circuit Judge Thomas Hardiman sought clarification: “They can exclude religion as long as they exclude everything else.”
Tack-Hooper agreed, noting that the NEPA Freethought Society was allowed to run its ad so long as it did not include the word “atheist,” making the policy discriminatory against viewpoints.
U.S. Circuit Judge Robert Cowen questioned Tack-Hooper on what she thought COLTS should have done to word its policy better.
“It’s not supposed to be easy to enact restrictions on free speech,” said Tack-Hooper. “It’s fundamentally unconstitutional.”
Arguing for the county meanwhile, Marshall Dennehey attorney Thomas Specht said COLTS was attempting to remain neutral on religion in an effort to not start a debate on the transits.
“We’re trying to stay out of the religious space to give our riders a safe ride,” said Specht,
Judge Hardiman pushed back, asking how excluding certain words is not discriminatory toward viewpoint.
Specht assured the panel that the ban is not an attack on viewpoints, but the subject matter. He further noted that the buses are not public forums, therefore COLTS has a reasonable basis to restrict ads.
U.S. Circuit Judge Porter questioned Specht if Chick-fil-A, which has long faced backlash for its owners’ religious beliefs, could run an ad.
“Yes,” said Specht. “Chick-fil-A is not the subject matter of religion.”
“I thought the goal was not to spark debate,” Judge Hardiman chimed in.
The COLTS policy, enacted in 2013, also prohibits words that relate to firearms and politics.