PHILADELPHIA (CN) — Resurrecting a nonprofit’s redlining-awareness campaign, the Third Circuit dropped the hammer Monday on bus advertising rules that bar topics considered political or otherwise inflammatory.
The Center for Investigative Reporting, backed by the American Civil Liberties Union, brought the challenge here in May 2018 after SEPTA, short for the Southeastern Pennsylvania Transport Authority, turned down an ad that promoted the center’s yearlong study of racial bias in the housing market.
SEPTA rejected the advertisement citing two provisions of its 2015 policy prohibiting advertisements that are “political in nature” or “discuss matters of public debate.” Though U.S. District Judge Michael Baylson found the policy evenly enforced and thus constitutional in November 2018, the Third Circuit reversed Monday, almost a year after the appeals court heard oral arguments.
“The current advertising standards are an impermissible subject matter restriction on speech,” U.S. Circuit Judge Joseph Greenway Jr., an Obama appointee, wrote for a three-judge panel.
Directing the lower court to enjoin SEPTA’s policy, Greenway critiqued how SEPTA determines whether an advertisement was political — a system that involves the agency’s General Counsel Gino Benedetti, and sometimes other lawyers, reviewing submissions. Benedetti was the only witness to testify before the District Court.
Greenaway wrote that this system allows Benedetti’s “own politics [to] shape his views on what counts as ‘political.’” The court further noted that SEPTA, by its own admission, has not applied the policy uniformly.
“In fact, in its post-trial brief, SEPTA conceded that it should have rejected a union advertisement supporting the DNC,” the 32-page opinion states. “SEPTA also accepted an advertisement that included a Black youth wearing a T-shirt that says ‘My Life Matters.’ Although such a statement arguably should not be ‘political,’ the phrasing ‘My Life Matters’ clearly alludes to the Black Lives Matter movement, which campaigns against violence aimed at Black people and which has become a lightning rod in the media. To many, such an advertisement would clearly be prohibited under the advertising standards, even as revised by the District Court. Yet Benedetti determined that it was not.”
For Greenway, the agency’s inconsistency on this front made its denial of the redlining advertisement a First Amendment violation.
“The lack of structure and clear policies governing the decision-making process creates a real risk that it may be arbitrarily applied,” Greenway said. “And CIR has amply demonstrated that at least on a few occasions that risk has become a reality.”
ACLU attorney Molly Tack-Hooper said the decision is one that upholds democracy.
“We’ve seen far too many ad policies that give the government discretion to decide what’s controversial and prohibit it, cutting off speech on important topics,” Tack-Hooper said Monday. “I’m very happy that the Center for Investigative Reporting will now have more avenues to advertise their groundbreaking and relevant work, exposing systemic racism in the home mortgage market.”
Monday’s ruling is unanimous, with U.S. Circuit Judges Morton Greenberg, a Reagan appointee, and David Porter, a Trump appointee, concurring.
SEPTA attorney Maryellen Madden did not return a request for comment Monday.
The report the CIR sought to advertise was published in February 2019 and indicated that applicants of color were more likely to be denied conventional home purchase mortgages in the 61 metropolitan areas it studied.