PHILADELPHIA (CN) — A federal judge found it constitutional Wednesday for transit officials in greater Philadelphia to block an advertising campaign that called out racial disparities in mortgage lending.
“SEPTA has shown that the challenged provisions [of its advertising standards] do not prohibit ads taking a position on ‘matters of public debate’ because of the viewpoint expressed,” U.S. District Judge Michael Baylson wrote. “Rather, SEPTA restricts all ‘political’ ads as well as ads expressing any viewpoint on "economic, political, religious, historical, or social issues."
Represented by the American Civil Liberties Union, the Center for Investigative Reporting had brought the lawsuit here in May 2018. SEPTA, which is short for the Southeastern Pennsylvania Transportation Authority, triggered the group’s ire earlier this year when it refused to accept an ad campaign promoting the center’s year-long study of racial bias in the mortgage market.
Though the center argued at a trial that the refusal of its ad amounted to viewpoint discrimination, Baylson concluded Wednesday that the agency applied its rules evenly.
SEPTA adopted its politics ban back in 2015 after its earlier policy against public-issue advertising invited a successful lawsuit by the American Freedom Defense Initiative.
An anti-Muslim activist group, the AFDI has battled with public agencies across the country for years, but in the 2015 SEPTA case it sought to run an ad featuring a photograph of Adolf Hitler speaking with a leader of Palestine in the 1940s. “Islamic Jew-Hatred: It’s in the Quran,” the advertisement said.
Unlike the public-issue policy that was found unconstitutional, Baylson said Thursday that the politics ban passed muster.
“The obvious facts of operating a transit system in a big city, as well as specific facts in this record, warrant giving SEPTA considerable discretion in adopting advertising standards that may preclude certain types of advertisements in an effort to avoid offending any particular passenger segment,” the 92-page opinion states. “The court notes, as expressed in a number of judicial decisions, that passengers on a transit bus or subway are ‘captive’ in the sense that they cannot avoid advertising media. This is opposed to consumers listening to radio or TV stations, or even reading ads in a newspaper, where the consumer can switch the station, tum the newspaper page, not buy the newspaper, or tum off the radio/TV. Advertisements in public transit vehicles are a unique advertising market and courts should refrain from supervision of rejected ads or interference with the business decisions of the transit company managers.”
Concluding that SEPTA has been evenhanded in its application of the political-ad ban, Baylson noted that the agency has fielded nearly 2,736 proposed advertisements in the past three years and found that only about a dozen of them are noncompliant.
“It clearly exerts significant control over the advertising review process,” Baylson said of SEPTA.
Baylson wrote later that the evidence also shows “SEPTA has dedicated the advertising space in its buses to revenue generation within important considerations of a safe, efficient, and comfortable customer experience.”
ACLU attorney John Stapleton has not returned a call requesting comment on the ruling. SEPTA attorney Maryellen Madden deferred all comments to SEPTA General Counsel Gino Benedetti.
When the case went to trial last month, Benedetti was the only witness to testify. The trial lasted just one day, and Judge Baylson heard closing arguments on Nov. 1.
Benedetti has not returned a call requesting comment.
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