Northeastern Pennsylvania Freethought Society v. County of Lackawanna Transit System(COLTS)

Filing 53

MEMORANDUM (Order to follow as separate docket entry) re 32 First MOTION for Summary Judgment filed by Northeastern Pennsylvania Freethought Society, 30 MOTION for Summary Judgment filed by County of Lackawanna Transit System(COLTS).Signed by Honorable Malachy E Mannion on 4/10/17. (bs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
NORTHEASTERN PENNSYLVANIA :
FREETHOUGHT SOCIETY,
: CIVIL ACTION NO. 3:15-0833
Plaintiff

:

v.

:

COUNTY OF LACKAWANNA
TRANSIT SYSTEM,
Defendant

(JUDGE MANNION)

:
:

MEMORANDUM
Pending before the court are the cross-motions for summary judgment
regarding the plaintiff’s civil rights complaint under 42 U.S.C. §1983, (Doc. 1),
filed by defendant County of Lackawanna Transit System (“COLTS”), (Doc.
30), and by plaintiff Northeastern Pennsylvania Freethought Society, (Doc.
32). Plaintiff alleges that COLTS’ policies regarding advertisements on its
buses and its refusal to run ads containing the word “Atheist” violated
plaintiff’s right to freedom of speech under the First and Fourteenth
Amendments. For the reasons that follow, COLTS’ motion for summary
judgment will be DENIED and plaintiff’s motion will be DENIED.

I.

PROCEDURAL BACKGROUND
Plaintiff filed a complaint on April 28, 2015, alleging a violation of its

First Amendment right to freedom of speech. (Doc. 1). Specifically, Count I of
the complaint raises claims under the First and Fourteenth Amendments
1

pursuant to 42 U.S.C. §1983 and alleges that COLTS’ advertising policy
violates plaintiff’s free speech right. Specifically, plaintiff alleges that COLTS’
refusal to run its ads with the word “Atheists” in them is an impermissible
content and viewpoint based restriction on its rights under the free speech
clause of the First Amendment. Plaintiff requests both declaratory and
injunctive relief to remedy alleged ongoing violations of its constitutional
rights. In particular, plaintiff seeks a declaration that COLTS’ rejection of its
ads violated the First Amendment and a declaration that COLTS’ 2013 policy
continues to violate the First Amendment.1 Plaintiff also seeks a permanent
injunction prohibiting COLTS from enforcing its 2013 policy. Further, plaintiff
requests costs and attorney’s fees under 42 U.S.C. §1988.
On June 25, 2015, COLTS filed a motion to dismiss for failure to state
a claim upon which relief may be granted under Fed. R. Civ. P. 12(b)(6), (Doc.
6), and a brief in support, (Doc. 7). Plaintiff filed its brief in opposition to the
motion on July 27, 2015. (Doc. 10). COLTS filed its reply brief on August 10,
2015. (Doc. 11). On January 27, 2016, the court issued a memorandum and
order denying COLTS’ motion to dismiss. (Doc. 20, Doc. 21). See also 158
F.Supp.3d 247 (2016).
On February 8, 2016, COLTS filed its answer to the complaint with
affirmative defenses. (Doc. 22).

1

Plaintiff cannot seek declaratory relief insofar as it seeks this relief for
alleged past constitutional violations. See Blakeney v. Marsico, 340 Fed.Appx.
778, 780 (3d Cir. 2009).
2

Discovery was then conducted and extensions of time to complete
discovery were granted. (Doc. 25, Doc. 29).
On July 18, 2016, COLTS filed a motion for summary judgment and its
statement of material facts with exhibits. (Doc. 30, Doc. 31). Also, on July 18,
2016, plaintiff filed a motion for summary judgment and its statement of
material facts with exhibits. (Doc. 32, Doc. 33). The parties then fully briefed
both motions and responded to each other’s statement of material facts. (Doc.
34, Doc. 36, Doc. 39, Doc. 40, Doc. 41, Doc. 44, Doc. 46, Doc. 48, Doc. 52).2
As such, the cross-motions for summary judgment are ripe for review.
The court has jurisdiction over this action pursuant to 28 U.S.C. §§1331
and1343(a), and venue is proper in this district since the defendant is located
here and the claims accrued here.

II.

STATEMENT OF MATERIAL FACTS3
Plaintiff is an unincorporated association, with its principal office in

Wilkes-Barre, Pennsylvania. Plaintiff’s mission is “to facilitate a social,
educational, activist, and philosophical coalition of atheists, agnostics,

2

To the extent an amended brief and an amended response to
statements of material facts were submitted, the court only considers the
amended filings. Thus, Doc. 35 and Doc. 45 are not considered.
3

The material facts are derived from the statements filed by the parties,
from their respective responses to the opponent’s statements, and from the
exhibits filed of record. Conclusions of law by the parties in their statements
are not included in the material facts. Nor are disputed facts included in the
material facts.
3

humanists, secularists, and skeptics predicated on support and community
that upholds the separation of church and state and promotes critical
thinking.” Justin Vacula is the co-organizer and the spokesperson for plaintiff.4
Plaintiff advocates for government neutrality in matters of religion and, it has
participated in protests involving separation of church and state issues and
it seeks to uphold this principle. Plaintiff also has participated in public
discussions regrading matters of religion including discussions with religious
organizations.
COLTS is a public transportation authority operating under the Municipal
Authorities Act of 1945, 53 Pa.C.S. §5607, and is headquartered in Scranton,
Pennsylvania. At all relevant times COLTS acted under color of state law.
COLTS’ mission is to “provide safe public transportation throughout
Lackawanna County.”
As of June 2008, Robert Fiume was COLTS’ Executive Director and he
supervised “the whole transportation system.” Fiume delegated to the
Advertising Manager and then to the Communications Director, Gretchen
Wintermantel, the responsibility to decide whether to accept a proposed
advertisement for the buses. Wintermantel started working for COLTS in April
2009. Wintermantel is responsible for deciding whether COLTS accepts an
advertisement proposal and interpreting COLTS’ advertising policies and, she

4

On May 12, 2016, the court approved a Stipulation indicating that
Vacula’s deposition would constitute testimony on his own behalf, as well as
a corporate designee of plaintiff. (Doc. 27).
4

consults with management and the solicitor in making these decisions.
COLTS has had a practice of leasing advertising space on the outside
of its buses dating back to 2004. COLTS has made advertising space on its
buses available to the public for the purpose of raising revenue and not to
further any organizational policy or goal. COLTS’ advertising revenue
comprises less than 2% of COLTS’ yearly revenue.
Prior to 2011, COLTS did not have an advertising policy but it had a
sentence in its advertising contract that provided COLTS had the right to
reject any ads that it deemed objectionable or controversial. Prior to April
2009, Wintermantel was not aware of any instance in which COLTS rejected
a request for an advertisement. However, after she started with COLTS, she
rejected a “Judgment Day” ad. Additionally, in 2009, COLTS ran an
advertisement for a website called “The Old Forge Times News” which had
the URL address for an internet blog that contained links to anti-Semitic
websites, holocaust denial websites and white supremacist websites.
However, the content of the blog and the links contained in the blog were not
visible from the ad. (Doc. 31, Exs. F & G).
COLTS also ran advertisements for the following:
a. a beer distributor called “Brewers Outlet”;
b. St. Mary’s Byzantine Catholic Church;
c. the Evangelism and Socialism Ministry of St. Matthew’s
Lutheran Church;
d. Hope Church;
e. the Office of Catholic Schools;
f. the St. Stanislaus School’s Polish Food Festival;
g. the Diocese of Scranton’s “Adoption for Life” campaign; and
5

h. school board candidate Patrick O’Malley.
COLTS did not receive any complaints about the above advertisements.
Prior to adopting the advertising policy in 2011, COLTS never received a
complaint about any advertisement than ran on a COLTS bus. Nor was
COLTS aware of any disruption on a COLTS bus caused by an advertisement
it displayed or caused by any passengers which occurred before COLTS
adopted an advertising policy.
COLTS has never placed any restrictions regarding what passengers
are allowed to say or debate while riding its buses. Nor does COLTS have any
rules “with respect to what people [on the buses] can and cannot speak
about.”
In May 2011, COLTS’ employee Jim Smith received a phone call from
a man who wanted to run an ad that said “Judgment Day is Coming in May.”
Smith and Wintermantel were alarmed by the proposed “Judgment Day”
advertisement since it “seem[ed] religious.” Wintermantel then reviewed the
website affiliated with the advertisement and discovered that it was religious
in nature. Thus, they went to Fiume and to the COLTS’ solicitors and it was
decided since the ad was religious, “it could be controversial, and we didn’t
want anything happening inside our buses, any debates or arguments.” Even
though COLTS had never “informed a potential advertiser that [it] would not
run their ad,” COLTS contacted the person who requested the “Judgment
Day” advertisement and told him that his ad would not be allowed on the
buses. COLTS based its denial of the “Judgment Day” advertisement on the
6

fact that it was religious in nature and COLTS “didn’t want any pro or con kind
of religion being discussed on the buses . . . Ads that are religious in nature
can cause heated debates and heated arguments on either side.”
Wintermantel also stated that COLTS believed running the “Judgment Day”
advertisement was unsafe since she read about other transit agencies which
ran pro-atheist or pro-God ads which made buses places for debate and lead
to vandalism of buses in New York in one case.
Based on media reports from other states, COLTS officials became
concerned that atheist groups might also try to advertise on COLTS buses
and start a “war of words,” and that buses would become a “place for debate”
that could make riders feel unwelcome. COLTS officials also thought that this
may lead to vandalism of the buses or compromise safety.
Following the proposed “Judgment Day” advertisement, Wintermantel
suggested an advertising policy and drafted COLTS’ first formal advertising
policy. The policy was approved by COLTS’ Board of Directors on June 21,
2011 (“2011 Policy”). The 2011 Policy provided as follows:
COLTS will not accept advertising:
• for tobacco products, alcohol, and political candidates
• that is deemed in COLTS[’] sole discretion to be derogatory to any
race, color, gender, religion, ethnic background, age group, disability,
marital or parental status, or sexual preference
• that promotes the use of firearms or firearm-related products
• that are obscene or pornographic
7

• that promotes violence or sexual conduct
• that are deemed defamatory, libelous or fraudulent based solely on the
discretion of COLTS
• that are objectionable, controversial or would generally be offensive
to COLTS’ ridership based solely on the discretion of COLTS
The 2011 Policy also stated, “Finally, it is COLTS’ declared intent not
to allow its transit vehicles or property to become a public forum for
dissemination, debate, or discussion of public issues.”
The 2011 Policy was not designed to increase COLTS’ ridership. Nor
was this policy prompted by any revenue-related goals or concerns. Further,
the 2011 Policy had no effect on COLTS’ ridership. Wintermantel stated that
the policy was enacted since COLTS did not want debates or arguments on
its buses and since it was concerned with the safety of its passengers.
Specifically, COLTS did not “want people debating or arguing on our buses
in a small confined space [regarding] advertisements that may be
controversial or debatable.” Wintermantel stated that “the intent [behind the
2011 Policy] is to not allow people to start arguing over issues . . . if there’s
an ad for Donald Trump running on one of our buses you could imagine there
would be huge fights on our bus given the political atmosphere that’s out
there today.”
COLTS’ 2011 Policy had the specific goal “[of] prevent[ing] debate
inside of COLTS’ buses . . . and [the policy] had nothing to do with debate
outside the buses” despite the fact that the 2011 Policy applied to
8

advertisements on both the outside and inside of COLTS buses. Further, the
policy did not distinguish between proposed advertisements for the inside and
outside of the bus and, it applied to all advertising. COLTS acknowledged that
its passengers discuss and debate public issues during their rides, but it
admitted that “there haven’t been any . . . fights that have broken out” on the
buses. COLTS also admitted that such discussions and debates by its riders
has never effected a COLTS bus driver’s ability to do his or her job in a safe
and efficient manner.
Fiume testified he was not aware of any problems that COLTS had on
its buses based on debates amongst riders and that he was not aware if any
public issues were even debated on the buses before the 2011 Policy was
enacted.
At the time the 2011 Policy was being drafted, a gun company called
Northeast Firearms wanted to put an ad on a COLTS bus and it was not
allowed since there would be a provision banning ads promoting the use of
firearms in the policy when it was finalized.
On January 30, 2012, Vacula sent an email to Smith on behalf of
plaintiff seeking to run an advertisement on the outside of COLTS buses
containing an image of clouds and the word “Atheists” in large print above the
URL address of the plaintiff’s webpage (www.NEPAFreethought.org). (Doc.
33-1, Ex. J). This was plaintiff’s first proposed ad it submitted to COLTS.
Vacula stated that plaintiff wanted to place the ad on COLTS buses to recruit
potential members. Vacula also stated that he was aware that COLTS buses
9

displayed the message “God Bless America” on their electric head signs and
that it was a scrolling marquee-type message. After seeing the “God Bless
America” message the first time in 2012, Vacula called COLTS and asked
about the message and why it was on buses. Vacula stated that his ad was
intended to be a response to the “God Bless America” message, to challenge
COLTS’ advertising policy and to advertise his organization. Vacula contacted
the Freedom from Religion Foundation regarding the “God Bless America”
message and this organization sent a letter to COLTS complaining about the
message. While the “God Bless America” message was in the COLTS’
programming system, officials did not instruct the drivers that it was okay for
them to put it in the system. In fact, Wintermantel stated that prior to 2012,
drivers were instructed that they could not display the “God Bless America”
message. After his complaint, Vacula stopped seeing the message on COLTS
buses. Fiume stated that the “God Bless America” sign was run on an electric
sign which was controlled by the drivers and not sold to advertisers and that
this message was later removed from the bus’ software.
Subsequently, Vacula saw a ribbon on a COLTS bus that said “God
Bless America” and he emailed COLTS’ solicitor about it. The ribbon was
taken down after the email. Wintermantel stated that to her knowledge
COLTS drivers were not permitted to display such ribbons on their buses but
she did not know of any document that contained this prohibition. It is
undisputed that neither “God Bless America” message was an advertisement.
As of January 2012, COLTS was under the impression that its bus drivers
10

were told not to run head signs that contained religious messages.
Smith showed Vacula’s January 2012 email to Wintermantel to see if
COLTS would accept the ad or if it violated COLTS’ policy. Prior to receiving
the proposed ad, COLTS had never heard of plaintiff. Wintermantel went to
Fiume with the ad and to the solicitors, and she eventually went to plaintiff’s
website. She concluded that plaintiff wanted to advertise so that it could spark
debate on COLTS buses. In fact, Vacula admitted that one thing that plaintiff
did was debate the existence or nonexistence of God but that this was not its
mission. He also stated that plaintiff sought to get community support in
upholding the principle of separation of church and state, and that he believes
the government should be out of the religion business. However, he stated
that if the government gets involved with religious ads, then it should treat
other viewpoints equally.
In February 2012, COLTS decided to reject plaintiff’s proposed
advertisement because the word “Atheists” would likely cause its passengers
to engage in debates about atheism aboard the buses, and this was contrary
to COLTS’ advertising policy which was to avoid debates on its buses. The
content of plaintiff’s website “supported” COLTS’ decision to reject plaintiff’s
proposed advertisement since COLTS believed that the website showed “that
[plaintiff’s] intent was to cause debate.” Wintermantel also stated that she
thought the ad was religious in nature but not derogatory toward religion.
However, COLTS still would have rejected the proposed advertisement even
if it had not listed plaintiff’s website address since it concluded that the word
11

“Atheists” was likely to promote debate on the buses. COLTS viewed
advertisements containing particular words such as “Atheist,” “Agnostics,”
“Catholic,” “Jews,” “Muslims,” or “Hindu”, as well as any word referring to a
religion or lack of religion despite the message of the advertisements, “could
spark debate on a bus” and “be a controversial issue.” Thus, COLTS believed
that such ads should not be allowed on its buses. A few days after receiving
plaintiff’s proposed advertisement, Smith telephoned Vacula and told him that
COLTS would not run it. COLTS claimed that the advertisement violated its
2011 Policy.
Despite the fact that COLTS buses no longer displayed the message
“God Bless America,” Vacula continued to submit ads to COLTS. He indicated
in an article on plaintiff’s website that his advertisements would be a response
to the “God Bless America” message. On August 29, 2013, plaintiff submitted
a second proposed advertisement to be placed on COLTS buses. At this time,
Vacula was not aware of any more “God Bless America” messages running
on COLTS buses. The proposed advertisement stated “Atheists. NEPA
Freethought Society.” Underneath this statement was “NEPAfreethought.org.”
COLTS rejected plaintiff’s second proposed advertisement for “the same
reasons” it had rejected the first proposed advertisement, including COLTS’
beliefs that “the word ‘atheist’ would cause debate on buses” and that the
advertisement would offend or alienate its elderly bus riders.
On September 9, 2013, Wintermantel sent a letter to Vacula stating, in
part, that COLTS would not display plaintiff’s second proposed advertisement
12

because:
It is COLTS’ goal to provide a safe and welcoming environment
on its buses for the public at large. The acceptance of
advertisements that promote debate over public issues such as
abortion, gun control or the existence of God in a confined space
like the inside of a bus detracts from this goal.
(Doc. 33-1, Ex. L, Doc. 31-3, Ex. C).
The letter also stated that “COLTS does not wish to become embroiled
in a debate over your group’s viewpoints.”
Wintermantel also testified that plaintiff’s ad was rejected because the
word “atheist” suggests the nonexistence of a supreme deity which is a public
issue that she believed would promote debate on the buses.
Vacula saw comments on the Scranton Times website about an article
regarding the “God Bless America” message on COLTS buses and the
rejection of plaintiff’s advertisement and some people were upset plaintiff’s ad
was rejected and others agreed with the rejection. The plaintiff’s proposed
ads lead to general public discussion. There were other bloggers and
websites which wrote about the rejection of plaintiff’s ads and debated the
issue. Although the purpose of plaintiff’s ads was not to spark debate, Vacula
agreed that as a result of the advertisements being rejected, a discussion
occurred about the existence of God.
Other than plaintiff’s two proposed advertisements, COLTS only
rejected one other proposed advertisement under its 2011 Policy, namely, an
advertisement proposal for the “Wilkes-Barre Scranton Night Out” which
stated:
13

WBSNightOut.com
Stay Connected With Our Free Smartphone App!
“My Night Out”
Your link to everything fun!
(Doc. 33-1, Ex. M).
The above “NightOut” advertisement was rejected by COLTS in May
2012 since the website had links to bars. Wintermantel made the decision to
reject this advertisement but she admitted “[w]ould I have made the decision
again the same way, probably not, but I did at the time.”
On September 17, 2013, COLTS enacted a new advertising policy (the
“2013 Policy”) to “clarify” the 2011 Policy and to more clearly “set forth the
types of advertisements it will and will not accept[.]” COLTS’ 2013 Policy,
which is currently still in effect, provided in part:
It is COLTS’ declared intent to maintain its advertising space
on its property as a nonpublic forum and not to allow its
transit vehicles or property to become a public forum for the
dissemination, debate, or discussion of public issues or
issues that are political or religious in nature.
(Doc. 33-1, Ex. N, Doc. 31-4, Ex. D) (emphasis original). The new policy also
provided that COLTS will not accept advertisements “that promote the
existence or non-existence of a supreme deity, deities, being or beings ....”
(Id.). The policy also contained a disclaimer provision requiring ads to state

14

that the views in the ads were not those of COLTS.5
Wintermantel stated that the intent of the above provisions was “to not
allow people [on the buses] to start arguing over issues.” The 2013 Policy
applies equally to advertisements on the inside and outside of COLTS buses.
Further, COLTS has never distinguished between advertisements on the
interior and exterior of its buses regarding the approval of an advertisement.
COLTS believes that debates on buses “could be dangerous” and render the
buses “potentially unsafe.” Wintermantel testified that the 2013 Policy was not
enacted in response to Vacula and, that it was not prompted by any proposed
ad. In fact, she stated that the 2013 Policy was in the works since March
2012. Wintermantel also testified that COLTS was concerned that
advertisements that spark debate might cause a decrease in ridership among
the elderly. However, no senior citizen ever indicated to COLTS that they
would not ride the buses if certain advertisements were accepted.
In its 2013 Policy, COLTS sought to preclude issues that are “political
or religious in nature” because politics and religion are topics that people “feel
strongly about[.]” COLTS also did not allow ads dealing with firearms due to
the strong opinions that people have about guns. Since CLOTS enacted the
2013 Policy, Vacula did not know whether any ads have run on buses which
5

Since the complete 2013 Policy is found at Doc. 33-1, Ex. N and Doc.
34-1, Ex. D, the court will not repeat any other portions of it herein. Further,
this policy speaks for itself and the court will not repeat the parties’
extrapolation of its meaning as material facts. This note also applies to other
documents submitted as evidence when the parties state portions of them in
their material facts.
15

violated the policy. Nor did Wintermantel know of any ads currently running
that violated the 2013 Policy.
On July 21, 2014, plaintiff submitted a new proposed ad to COLTS
which

stated

“Atheists.

NEPA

Freethought

Society.

meetup.com/nepafreethoughtsociety.” The ad was the same as the other ads
plaintiff submitted except it contained a different URL address. This ad was
rejected the same day it was received in a letter Wintermantel sent to Vacula
pursuant to COLTS’ 2013 Policy and its prohibition on “religious”
advertisements. (Doc. 33-1, Exs. O & P). Wintermantel testified that the ad
was rejected since she believed “it addressed the nonexistence of a deity.”
She also stated that it was COLTS’ position that the word “Atheists” on the
advertisement would “promote debate over a public issue” in violation of
COLTS’ advertising policy. (Doc. 33-1, Ex. C, pp. 100-104).
Also, on July 21, 2014, plaintiff submitted another proposed ad to
COLTS, its fourth. (Doc. 1, Ex. I, Doc. 33-1, Ex. Q). This latest ad was
identical to the proposed ad rejected earlier that day but it omitted the word
“Atheists.” Wintermantel sent Vacula an email on July 22, 2014 accepting his
latest ad to run on COLTS buses since she said that it no longer violated
COLTS’ policy. Plaintiff’s fourth ad was placed on the outside of a COLTS bus
in October or November of 2014. COLTS did not receive any complaints
about this advertisement. Nor did it receive any reports of passengers
debating the advertisement on its buses.
In addition to the ad proposals received from plaintiff, COLTS received
16

ads from other groups, and some were accepted and some were rejected.
In April 2012, COLTS displayed an advertisement for “National Infant
Immunization Week” on its buses. The advertisement (Doc. 33-1, Ex. R)
contained a picture of a baby and said “Love Them, Protect Them, Immunize
Them.” COLTS interpreted this advertisement as a message “encouraging
people to vaccinate their children.” Even though COLTS was not aware of any
debates amongst its riders over this ad, COLTS indicated that if this ad were
proposed today, it would be rejected since the issue of vaccinating children
is open to public debate and too controversial.
Additionally, in 2011, COLTS accepted and displayed an advertisement
from the Diocese of Scranton’s “Adoption for Life” campaign that said
“Consider Adoption . . . It Works!” (Doc. 33-1, Ex. S). Wintermantel stated that
COLTS does not believe that a Catholic religious organization’s pro-adoption
advertisement could be construed as an “anti-abortion ad” and, that if such an
advertisement were proposed today, she would “recommend under the 2013
Policy that this ad be run.” It did not matter to COLTS that this ad was paid for
by a religious organization despite the fact that it believes religion is a
controversial issue.
At the time the 2011 Policy was enacted, COLTS was running an
advertisement for a beer distributor called “Brewers Outlet.” Despite the 2011
Policy’s ban on advertisements for alcohol, COLTS continued to run
advertisements for Brewer’s Outlet until its contract expired in April 2012
because “[Brewer’s Outlet sell[s] other things besides beer.” However, as
17

mentioned, in May 2012, COLTS rejected an advertisement for the
Wilkes-Barre Scranton “NightOut” based on the fact that the website listed on
the advertisement contained advertisements for bars.
In February 2014, COLTS rejected, under its 2013 Policy, an
advertisement proposal submitted by Lutheran Home Care & Hospice, Inc.
advertising home health care and hospice services “because of the cross in
the logo and the word Lutheran” and because COLTS thought the ad could
have initiated debates on its buses. (Doc. 33-1, Ex. T).
COLTS also admitted that under the 2013 Policy, it would have rejected
the “St. Stanislaus Polish Food Festival” ad that it previously ran since it
contained a reference to “St. Stanislaus Elementary School,” and because it
was “religious in nature and could possibly cause debate.” COLTS further
stated that the O’Malley campaign ad previously run would not be permitted
under the 2013 Policy’s prohibition on “political” advertisements.
Every year since 2013, COLTS has agreed to display advertisements
on its buses paid for by County Commissioner O’Malley for “Patrick O’Malley’s
. . . Annual Free Children’s Halloween Party” because the advertisements did
not mention his elected position or candidacy, and because COLTS believes
that a Halloween party has “no relation to politics[.]” (Doc. 33-1, Ex. U).
Additionally, these ads did not contain the disclaimer which was required by
the 2013 Policy.

18

III.

STANDARDS OF REVIEW
A. Rule 56
COLTS’ and plaintiff’s motions for summary judgment are brought

pursuant to the provisions of Fed.R.Civ.P. 56. Summary judgment is
appropriate if the “pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56©; see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986); Turner v. Schering-Plough Corp., 901
F.2d 335, 340 (3d Cir. 1990). A factual dispute is genuine if a reasonable jury
could find for the non-moving party, and is material if it will affect the outcome
of the trial under governing substantive law. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986); Aetna Casualty & Sur. Co. v. Ericksen, 903 F.
Supp. 836, 838 (M.D. Pa. 1995). At the summary judgment stage, “the judge’s
function is not himself to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for trial.” Anderson,
477 U.S. at 249; see also Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d
Cir. 2004) (a court may not weigh the evidence or make credibility
determinations). Rather, the court must consider all evidence and inferences
drawn therefrom in the light most favorable to the non-moving party. Andreoli
v. Gates, 482 F.3d 641, 647 (3d Cir. 2007).
Moreover, the Third Circuit indicated that “although the party opposing
summary judgment is entitled to ‘the benefit of all factual inferences in the
19

court’s consideration of a motion for summary judgment, the nonmoving party
must point to some evidence in the record that creates a genuine issue of
material fact,’ and ‘cannot rest solely on assertions made in the pleadings,
legal memorandum or oral argument.’” Goode v. Nash, 241 Fed. Appx. 868
(3d Cir. 2007) (citation omitted). A material factual dispute is one that may
affect the outcome of the case under applicable law. Anderson v. Liberty
Lobby, Inc., 477 U.S. at 248.
To prevail on summary judgment, the moving party must affirmatively
identify those portions of the record which demonstrate the absence of a
genuine issue of material fact. Celotex, 477 U.S. at 323-24. The moving party
can discharge the burden by showing that “on all the essential elements of its
case on which it bears the burden of proof at trial, no reasonable jury could
find for the non-moving party.” In re Bressman, 327 F.3d 229, 238 (3d Cir.
2003); see also Celotex, 477 U.S. at 325. If the moving party meets this initial
burden, the non-moving party “must do more than simply show that there is
some metaphysical doubt as to material facts,” but must show sufficient
evidence to support a jury verdict in its favor. Boyle v. County of Allegheny,
139 F.3d 386, 393 (3d Cir. 1998) (quoting Matsushita Elec. Indus. Co. v.
Zenith Radio, 475 U.S. 574, 586 (1986)). However, if the non-moving party
“fails to make a showing sufficient to establish the existence of an element
essential to [the non-movant’s] case, and on which [the non-movant] will bear
the burden of proof at trial,” Rule 56 mandates the entry of summary judgment
because such a failure “necessarily renders all other facts immaterial.”
20

Celotex Corp., 477 U.S. at 322-23; Jakimas v. Hoffman La Roche, Inc., 485
F.3d 770, 777 (3d Cir. 2007); Watson v. Eastman Kodak Co., 235 F.3d 851,
858 (3d Cir. 2000) (the non-movant must establish the existence of each
element on which it bears the burden of proof).

B. Section 1983
To state a claim under §1983, a plaintiff must meet two threshold
requirements. A plaintiff must allege: 1) that the alleged misconduct was
committed by a person acting under color of state law; and 2) that as a result,
he was deprived of rights, privileges, or immunities secured by the
Constitution or laws of the United States. West v. Atkins, 487 U.S. 42 (1988);
Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled in part on other
grounds, Daniels v. Williams, 474 U.S. 327, 330-331 (1986). If a defendant
fails to act under color of state law when engaged in the alleged misconduct,
a civil rights claim under §1983 fails as a matter of jurisdiction, Polk Cnty. v.
Dodson, 454 U.S. 312, 315 (1981), and there is no need to determine whether
a federal right has been violated. Rendell-Baker v. Kohn, 457 U.S. 830, 838
(1982).
Since COLTS is a municipal agency, the standards annunciated in
Monell apply to it. See Malles v. Lehigh County, 639 F.Supp.2d 566 (E.D.Pa.
2009). Under the Supreme Court precedent of Monell v. Dep’t. of Soc. Servs.,
436 U.S. 658, 694 (1978), a municipality can be held liable under §1983 only
if the plaintiff shows that the violation of his federally protected rights resulted
21

from the enforcement of a “policy” or “custom” of the local government. A
court may find that a municipal policy exists when a “‘decisionmaker
possess[ing] final authority to establish municipal policy with respect to the
action’ issues an official proclamation, policy, or edict.” Andrews v. City of
Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990) (quoting Pembaur v. City of
Cincinnati, 475 U.S. 469, 481 (1986)). It is also possible for a court to find the
existence of a municipal policy in “the isolated decision of an executive
municipal policymaker.” City of St. Louis v. Praprotnik, 485 U.S. 112, 139
(1988). “A course of conduct is considered to be a ‘custom’ when, though not
authorized by law, ‘such practices of state officials [are] so permanent and
well settled’ as to virtually constitute law.” Andrews, 895 F.2d at 1480
(citations omitted). There must be a “direct causal link” between the municipal
policy or custom and the alleged constitutional violation. City of Canton, Ohio
v. Harris, 489 U.S. 378, 385 (1989).

IV.

DISCUSSION
At issue are COLTS’ policies and plaintiff’s constitutional challenge to

them under the First Amendment. “The Supreme Court has outlined a
three-step analysis regarding a prima facie case of alleged First Amendment
violations.” Am. Freedom Defense Initiative v. SEPTA, 92 F.Supp.3d 314, 322
(E.D.Pa. 2015) (citing Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S.
788, 797, 105 S.Ct. 3439 (1985)). First, the court must “determine whether
the advertisement in question constitutes speech protected by the First
22

Amendment.” Second, the court must determine “the nature of the forum
created by [COLTS’] advertising space” “because the appropriate level of
scrutiny depends on the categorization of the forum.” Id. Third, the court must
exam “whether the anti-disparagement standard at issue survives the
applicable level of scrutiny.” Id.
The Supreme Court has long established that a citizen’s ability to
participate in free debate on matters of public importance is “the core value
of the Free Speech Clause of the First Amendment.” Pickering v. Bd. of
Educ., 391 U.S. 563, 573 (1968); see also Connick v. Myers, 461 U.S. 138,
145 (1983); NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913 (1982);
Am. Freedom Defense Initiative, 92 F.Supp.3d at 322 (“The proposition that
the First Amendment strongly protects the right to express opinions on public
questions has ‘long been settled’ by Supreme Court precedent.”) (citation
omitted).
Plaintiff’s ads containing the word “Atheists” in large font with an image
of clouds as a backdrop references a belief in the non-existence of a deity,
which is protected speech since it reflects plaintiff freethought organization’s
belief or view pertaining to a lack of religion. See Am. Freedom Defense
Initiative, 92 F.Supp.3d at 322 (Court held that the plaintiff’s advertisement
for SEPTA buses was protected speech involving political and religious
expression since it contained statements about foreign aid and references to
the Quran.). Thus, plaintiff’s ads are protected by the First Amendment. The
court must now determine “the nature of the forum created by [COLTS’]
23

advertising space.” Id. at 323.
“The government does not have ‘to grant access to all who wish to
exercise their right to free speech on every type of [government] property
without regard to the nature of the property or to the disruption that might be
caused by the speaker’s activities.’” Pittsburgh League of Young Voters Educ.
Fund v. Port Authority of Allegheny County, 653 F.3d 290, 295 (3d Cir. 2011)
(quoting Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S.
788, 799–800, 105 S.Ct. 3439 (1985)). “The Supreme Court has developed
a forum analysis to determine when the government’s interest in limiting the
use of its property outweighs the interest of those wishing to use the property
as a place for expressive activity.” Id. (citing Cornelius, 473 U.S. at 799–800).
The Supreme Court has found that there are three types of fora. Id.
(citing Christian Legal Soc’y v. Martinez, 561 U.S. 661, 130 S.Ct. 2971, 2984
n. 11 (2010)). The type of forum determines the level of scrutiny to which the
restrictions on speech are subjected. “In traditional public fora, content-based
restrictions on speech are subject to strict scrutiny (i.e., the restrictions must
be narrowly tailored to serve a compelling governmental interest)”. Id. (citing
Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 103 S.Ct.
948 (1983)).”The traditional public forum includes spaces which ‘have
immemorially been held in trust for the use of the public, and, time out of
mind, have been used for purposes of assembly, communicating thoughts
between citizens, and discussing public questions [such as streets and
parks].’” Am. Freedom Defense Initiative, 92 F.Supp.3d at 323 (citation
24

omitted).
“A designated public forum is public property ‘that has not traditionally
been regarded as a public forum’ but that the government has intentionally
opened up for use by the public as a place for expressive activity.” Id. (citing
Pittsburgh League of Young Voters Educ. Fund, 653 F.3d at 296); see also
Pleasant Grove City v. Summum, 555 U.S. 460, 129 S.Ct. 1125, 1132
(2009)); Christ’s Bride Ministries, 148 F.3d at 248 (the court asks whether the
government “clearly and deliberately opened its advertising space to the
public.”). In designated public fora, “content-based restrictions are subject to
strict scrutiny.” Pittsburgh League of Young Voters Educ. Fund, 653 F.3d at
296) (citing Perry, 460 U.S. at 45).
The third type of fora consists of “public property that ‘is not by tradition
or designation a forum for public communication’ [and this] constitutes a
nonpublic forum.” Id. (citing Perry, 460 U.S. at 46). “Access to a nonpublic
forum can be restricted so long as the restrictions are reasonable and
viewpoint neutral.” Id. (citing Cornelius, 473 U.S. at 800).
The relevant forum is COLTS’ advertising space on its buses, as
opposed to all of COLTS’ property, since this is the specific public property
that plaintiff is seeking to access. See Cornelius, 473 U.S. at 801. The court
must now determine the type of forum in the instant case. In Am. Freedom
Defense Initiative, 92 F.Supp.3d at 324, the court explained:
In conducting the forum analysis, courts “look to the [COLTS’]
intent with regard to the forum in question and ask whether
[COLTS] clearly and deliberately opened its advertising space to
25

the public.” Christ’s Bride Ministries, 148 F.3d at 248–49.
“[COLTS’] own statement of its intent, however, does not resolve
the public forum question.” Id. at 251. Rather, intent is gauged by
examining [COLTS’] “policies and practices in using the space
and also the nature of the property and its compatibility with
expressive activity.” Id. at 249. Restrictions on the use of the
forum “do not necessarily mean that [COLTS] has not created a
public forum. They may demonstrate instead that [COLTS]
intended to create a limited public forum, open only to certain
kinds of expression.” Id.
The court has previously found that a determination of the issue
regarding the type of forum which existed on COLTS’ buses required a
complete factual record and that record now exists. Thus, this forum analysis
shall now be addressed.
COLTS argues that the evidence fails to support plaintiff’s First
Amendment claim under §1983 since COLTS’ policies satisfy the scrutiny
applicable to a nonpublic forum. COLTS states that the evidence shows its
advertising space should be classified as a limited or nonpublic forum and,
shows that its intent was only to create such a forum.6 COLTS states that to
establish a designated public forum, plaintiff must produce “some evidence
to [show] COLTS’ intent to open the forum to the discussion of the existence
or non-existence of god.” (Doc. 46 at 2). COLTS maintains the evidence
shows that its intent was to create a nonpublic forum with respect to the
advertising space on its buses and that plaintiff has specifically failed to show
6

The Third Circuit has noted that the terms limited forum and nonpublic
forum are interchangeable and that these categories of forum are the same.
See NAACP v. City of Phila., 834 F.3d 435, 441 n. 2 (3d Cir. 2016). The court
shall use only the term nonpublic forum herein.
26

that its intent was to open the forum to the discussion of the existence or nonexistence of god. COLTS points out that it has never allowed any ads to run
discussing this issue either before or after it adopted its advertising policies.
COLTS also indicates that it did not accept any controversial public issue
advertisements which shows that it did not want to open up the space on its
buses to expressive conduct, and thus its advertising space is a nonpublic
forum.
COLTS states because the advertising space on its buses is a
nonpublic forum, access to its space can be restricted so long as the
restrictions are reasonable and viewpoint neutral. COLTS also states that
since its policy precludes all viewpoints on the issue of the existence or nonexistence of God it is viewpoint neutral. COLTS argues that the evidence
shows its intent was merely to create a nonpublic forum, open only to certain
kinds of expression and that its 2013 Policy contained viewpoint neutral
criteria for selecting content of ads on its property. COLTS states that the
evidence demonstrates that its intention was not to allow ads promoting or
attacking religion and that plaintiff was ultimately allowed to advertise the
name of its organization and its website address when it deleted the word
“Atheists” from its ad.
As such, COLTS contends that the evidence fails to show that its
advertising space was ever opened up to ads which would have created a
designated public forum on its buses. “Restrictions on speech in a non-public
forum are permissible so long as they are reasonable and viewpoint neutral.”
27

Id. at 324. COLTS states that its advertising policies are viewpoint neutral and
reasonable regulations of private advertising in a nonpublic forum.
Plaintiff argues that COLTS’ advertising space on its buses was a
designated public forum since COLTS “intentionally opened up [this space]
for use by the public as a place for expressive activity.” Plaintiff states the
evidence shows that COLTS’ adverting space on its buses is a designated
public forum since its policies and practices demonstrate that it intended to
open its spaces to speech by the general public regardless of COLTS’
contention that it did not intend to create a designated public forum. Since
COLTS’ advertising space on its buses constitutes a designated public forum,
plaintiff maintains COLTS’ policies with their content-based speech
restrictions are subject to strict scrutiny. Specifically, plaintiff contends that
COLTS’ 2013 Policy “restricts speech for the explicit purpose of suppressing
debate and discussion of public issues among bus riders, a goal that is not
a legitimate reason for government censorship.” Plaintiff also contends that
COLTS’ advertising space on its busses should be classified as a designated
public forum despite COLTS’ intent.
A determination as to whether COLTS’ advertising space is a
designated public forum requires the court to engage in a fact-specific
analysis of the forum itself. Christ’s Bride Ministries, Inc. v. Se. Pa. Transp.
Auth., 148 F.3d 242, 248-52 (3d Cir. 1998) (To determine whether the
government agency clearly and deliberately opened its advertising space to
the public, courts must examine not only the agency’s policies, but also its
28

practices in using the space, and the nature of the space and its compatibility
with expressive activity). As such, COLTS’ written policies alone are not
sufficient to determine whether COLTS has created a designated public forum
on its advertising space.
Initially, the court finds that the advertising space on COLTS’ buses is
a forum and that it is not a traditional public forum. See Am. Freedom
Defense Initiative, 92 F.Supp.3d at 324. The parties do not agree as to
whether the space on the buses is a designated public forum or a nonpublic
forum. Plaintiff argues the former while COLTS argues the latter. COLTS’
intent as to what type of forum it sought to create on its buses “is not
dispositive of the forum analysis.” Id. at 326 (citation omitted). Nor is it
dispositive that COLTS did not intend to accept the specific speech at issue
implied in plaintiff’s proposed ads, namely, the existence or non-existence of
God. Rather, the court’s focus is “on the evidence of [COLTS’s] actual policies
and practices.” Id.
The evidence shows that COLTS opened its advertising spaces on
buses for sale to the general public for the purpose of raising revenue.
Plaintiff states that “COLTS’ policies and practices with respect to its
advertising spaces—as well as the nature of advertising spaces, which are
not just compatible with expressive activity but designed for that very
purpose—reinforce the conclusion that COLTS has clearly, intentionally
created a forum for public speech.” (Doc. 52 at 8). COLTS states that its
policy prohibits political ads as well as all public issue ads from appearing on
29

its buses. It also states that its policy limits the scope of ads allowed on its
buses to only ads with uncontroversial speech and that pursuant to its policy
it does not accept public issue ads. COLTS contends that the evidence shows
that it did not intend to open the space on its buses as a forum for expression
on public issue speech.
COLTS’ 2013 Policy, (Doc. 1, Ex. F, Doc. 33-1, Ex. N), specifically
provided that COLTS will not accept advertisements: “that promote the
existence or non-existence of a supreme deity, deities, being or beings; that
address, promote, criticize or attack a religion or religions, religious beliefs or
lack of religious beliefs; that directly quote or cite scriptures, religious text or
texts involving religious beliefs or lack of religious beliefs; or are otherwise
religious in nature.” The 2013 Policy also provided that it is COLTS’ “intent to
maintain its advertising space on its property as a nonpublic forum and not to
allow its transit vehicles or property to become a public forum for the
dissemination, debate, or discussion of public issues or issues that are
political or religious in nature.” All of the enumerated prohibited ads specified
in the 2013 Policy are found at Doc. 33, ¶ 33.
However, plaintiff states that “COLTS [has] a history of running
non-commercial ads on issues of public concern, including [in 2011], the
Diocese of Scranton’s ‘Adoption for Life’ ad that said ‘Choose Adoption… It
Works!,’ an ad [in April 2012] for ‘National Infant Immunization Week,’ and
[every year since 2013] annual advertisements for a free children’s Halloween
party hosted by [County Commissioner O’Malley].” (Doc. 52 at 14). COLTS
30

explained that the O’Malley ad did not reference his political office or his
candidacy. Additionally, when COLTS’ 2011 Policy was enacted, it was
running an ad on its buses for a beer distributor called “Brewers Outlet” and
it continued to run this ad until its contract expired in April 2012 despite the
policy’s ban on alcohol related ads. COLTS indicated that the outlet sold other
items such as food, soda, and lottery tickets. After the adoption of both
policies, COLTS also rejected an ad in May 2012 for “Wilkes-Barre Scranton
NightOut” since the website on the ad contained ads for bars, and in February
2014, COLTS rejected an ad proposed by Lutheran Home Care & Hospice
since a cross was in its logo and since it contained the word Lutheran. Thus,
plaintiff also argues that COLTS’ polices have led to arbitrary results as to the
types of ads it accepts and rejects.
The evidence shows that COLTS drafted and implemented its policies
to prevent controversy and public debate on its buses and that it tried to apply
the policies in a specific, consistent, and careful manner. The advertisers had
to obtain permission from COLTS to access the space on its buses and
COLTS had a process to review proposed ads demonstrating its intent to
control access to its buses. There is no dispute that COLTS has rejected
proposed ads. Nor is there any dispute that COLTS has run non-commercial
ads on issues that could be construed as matters of public concern as plaintiff
has pointed out. However, the examples plaintiff has relied upon to show
COLTS had allowed non-commercial ads on issues of public concern does
not demonstrate that COLTS had a history of running such ads. The O’Malley
31

Halloween party ad does not even relate to an issue of public concern and the
reference to its sponsor is hardly a political endorsement. Rather, the
evidence shows that COLTS has attempted to maintain strict controls over the
types of ads it has permitted on its buses since June 21, 2011 when it
adopted its 2011 Policy and enforcement of its policies prohibiting all
controversial speech in ads has been consistent with its goals of excluding
ads that would lead to debates and arguments on its buses and, of
transporting its riders safely to their destinations.
In light of COLTS’ 2011 and 2013 written policies, which provide for the
exclusion of very specific type of ads, and based on COLTS’ practice of
permitting only limited access to the space on its buses, the court finds that
COLT did not create a designated public forum. Additionally, COLTS
deliberately chose not to create a forum that was suitable for the speech in
question, namely, the existence or non-existence of God. Rather, the space
on COLTS’ buses is a nonpublic forum. COLTS’ advertising policies and its
declared intent show that it did not open up its space on buses to become a
public forum for the dissemination, debate, or discussion of any public issues,
and show that COLTS tried to restrict access to the forum leading to the
rejection of proposed ads it deemed controversial. Indeed, COLTS’ policies
prohibit political, public issue and controversial advertisements. COLTS’
officials reviewed proposed ads to determine if they were controversial or if
they would provoke debates and arguments on the buses. In fact, when
plaintiff’s ad omitted the word “Atheists” which COLTS deemed controversial,
32

its ad was permitted on the buses. Thus, COLTS’ policies and practices show
that the space on its buses was not open to and suitable for speech
concerning public issues, and the evidence shows that COLTS did not have
a history of allowing such ads.
The court must now determine whether COLTS’ policies comport with
the prescribed level of scrutiny applicable to a nonpublic forum. As stated,
restrictions on speech in a nonpublic forum are allowed if they are reasonable
and viewpoint neutral. Perry Educ. Ass’n, 460 U.S. at 46; NAACP v. City of
Phila., 834 F.3d 435, 441 (3d Cir. 2016). A nonpublic forum has “the least
protection under the First Amendment.” NAACP, 834 F.3d at 441. “[T]he
‘Government’s decision to restrict access ... need only be reasonable; it need
not be the most reasonable or the only reasonable limitation.’” Id. (quoting
Cornelius, 473 U.S. at 808, 105 S.Ct. 3439 (emphasis in original).
Additionally, “the government’s asserted interest in drawing content-based
distinctions must be valid, but it does not have to be compelling.” Id. (citation
omitted). However, First Amendment protections still exist in a nonpublic
forum. Id. at 443.
The burden is on COLTS to show that its restrictions on the ads allowed
on its buses are reasonable. Id. at 443-44. COLTS can meet its burden in two
ways, namely, “record evidence or commonsense inferences.” Id. at 444. The
Third Circuit in the NAACP case, id. at 445, summarized how the government
can satisfy its burden as follows:
the City has a two-step burden that it can satisfy using record
33

evidence or commonsense inferences. First, given that
reasonableness “must be assessed in the light of the purpose of
the forum and all the surrounding circumstances,” Cornelius, 473
U.S. at 809, 105 S.Ct. 3439, the evidence or commonsense
inferences must allow us to grasp the purpose to which the City
has devoted the forum. See also Greer v. Spock, 424 U.S. 828,
836, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976) (“The State, no less
than a private owner of property, has power to preserve the
property under its control for the use to which it is lawfully
dedicated.”) (internal quotation marks omitted). And second, the
evidence or commonsense inferences also must provide a way of
tying the limitation on speech to the forum’s purpose. The City
need not prove that the banned speech would cause harm if
permitted, but per ISKCON it must provide a legitimate
explanation for the restriction.
No doubt that COLTS “is permitted under the right circumstances to
dedicate a limited public or nonpublic forum to controversy avoidance.” Id. at
446. However, “Supreme Court guidance cautions against readily drawing
inferences, in the absence of evidence, that controversy avoidance renders
the ban constitutional.” Id.
“Reasonableness is a case-specific inquiry” which requires the court “to
determine reasonableness on a case-by-case basis in light of the facts and
circumstances of each particular forum.” NAACP, 834 F.3d at 448. COLTS
states that the restrictions in its policies are content-neutral and reasonable
based on the forum. COLTS cites to Lehman v. City of Shaker Heights, 418
U.S. 298, 303-04, 94 S. Ct. 2714 (1974), in which the Supreme Court upheld
a policy of excluding political advertisements in public buses. COLTS states
that it will not accept ads that promote the existence or non-existence of a
supreme deity and ads that promote or criticize religion or the lack of religion.
34

It states that it did not intend to make its buses a public forum to discuss
public issues or issue that are political or religious in nature. The Lehman
case is not determinative of the reasonableness of restrictions on ads for all
cases. NAACP, 834 F.3d at 448 (citation omitted). The court must exam caseby-case the governmental interest and the nature and function (or purpose)
of the specific forum. Id. at 448-49 (citation omitted).
The evidence shows that COLTS was trying to avoid arguments and
debates amongst its riders on its buses and to restrict all public issue and
controversial ads. COLTS was concerned about potential dangerous
situations on its buses resulting from heated debates on public issues. In fact,
COLTS’ officials testified that safety of its riders was a priority. COLTS was
also concerned with its older passengers and believed that debates of public
issues on its buses would deter senior citizens from riding its buses. COLTS
does not have to show that the prohibited speech would cause harm if it was
allowed, rather it only has to show by the evidence or commonsense
inferences that it could be potentially dangerous to allow ads which may
cause heated debates on its buses. As indicated, Vacula admitted that one
of purposes of plaintiff’s ad was to start debate on the existence or nonexistence of God and that this issue was the subject of debate in other fora.
COLTS states that the purpose of its buses is to provide safe and reliable
public transportation as well as a welcoming environment on its buses for the
public, and that its intent is not to allow its buses to become a forum for
debate on controversial, political or religious issues. Thus, COLTS states that
35

the restrictions in its polices are reasonable.
Plaintiff has indicated there is no evidence that shows allowing ads that
may spark debate on buses causes any decrease in passengers. Plaintiff also
states that many of the ads banned by the 2013 Policy previously ran on
COLTS buses and that “COLTS was unaware of any disruption on a COLTS
bus caused by an ad or by debate among passengers.” (Doc. 41 at 17).
Based on the discussion above, the court finds that the evidence is
disputed as to whether COLTS’ restrictions on the ads permitted on its buses
are reasonable in terms of meeting its objective of controversy avoidance.
Plaintiff also contends the evidence shows that COLTS’ restrictions on
noncommercial content in the advertising space on its buses was not
reasonable in terms of its objective of raising revenue. Plaintiff states that
even though COLTS decided to sell advertising space on its buses for the
sole purpose of generating revenue, its 2013 Policy is “not aimed at
preserving the forum for its intended revenue-generating purpose.” (Doc. 41
at 15). Plaintiff points out that the restrictions on speech in the 2013 Policy are
not related to the goal of raising revenue and, that the restrictions actually
limit the allowable ads and reduce revenue. Additionally, the evidence does
not show that COLTS’ policies were designed to increase the number of bus
passengers. As such, plaintiff contends the evidence shows that “the speech
restrictions adopted by COLTS in 2011 and ‘clarified’ in 2013 were aimed not
at the goal of raising revenue, but rather, at the unrelated goal of suppressing
debate and discussion.” (Id. at 15-16) (emphasis original).
36

The court finds that the evidence in the record is disputed as to whether
COLTS’ restrictions in its policies are reasonably related to its goal of raising
revenue. Thus, the evidence is disputed whether it was reasonable for
COLTS to believe that allowing ads which might spark debate on its buses
would cause a decrease in ridership amongst its elderly passengers and
would create a safety concern, and the evidence is disputed whether COLTS’
restrictions are reasonably related to its revenue raising goal. Nor do
commonsense inferences allow COLTS to meet its burden to show that its
restrictions are reasonably related to either of its objectives, controversy
avoidance or revenue maximization, especially since plaintiff has presented
plausibly sufficient evidence to show that COLTS’ restrictions are not
connected to these goals. See NAACP, 834 F.3d at 446.
Thus, the evidence is disputed whether COLTS’ policies are reasonable
and whether they violate plaintiff’s First Amendment rights. See NAACP, 834
F.3d at 448. As such, both summary judgment motions will be denied on this
basis.
Finally, the court must determine whether COLTS’ 2013 Policy is
viewpoint neutral, which is the second requirement. In the NAACP case, the
Third Circuit noted that since it found the airport’s restrictions on ads in the
forum at issue were unreasonable, it did not address the viewpoint neutrality
requirement since “unreasonableness is sufficient by itself to render the policy
unconstitutional.” Id. at 449 n. 7. In the present case, the court has found that
disputed facts exist as to whether COLTS’ policies are reasonable which
37

alone is grounds to deny both summary judgment motions. However, plaintiff
has also raised a viewpoint discrimination claim which the court must now
consider since plaintiff would be entitled to relief if it establishes this claim.7
“[I]n Cornelius the [Supreme] Court suggested that a restriction will be
unconstitutional if it was ‘impermissibly motivated by a desire to suppress a
particular point of view.’” Id. (citing Cornelius, 473 U.S. at 812–13). The court
also finds that the evidence is disputed as to whether COLTS’ policies were
motivated by an animosity toward certain viewpoints, including the plaintiff’s
views.
Plaintiff argues that COLTS’ “2013 Policy is facially viewpoint
discriminatory—and

thus

unconstitutional

even

in

a

non-public

forum—because it treats religious speakers differently from non-religious
speakers, and controversial speech differently from non-controversial
speech.” (Doc. 52 at 16-17). Plaintiff claims that COLTS’ rejection of its ads
mentioning the word “Atheists” was the result of viewpoint discrimination
which it states is bolstered by the fact that for several years prior to its policies
COLTS had accepted virtually all proposed ads. Plaintiff points out that
“COLTS rejected no ads at all prior to 2011 and rejected ads from only two
advertisers (including plaintiff) under the 2011 Policy.” (Doc. 52 at 15).

7

With respect to plaintiff’s viewpoint discrimination claim, it does not
matter if the advertising space on COLTS’ buses is a designated public forum
or a nonpublic forum. Regardless of the designation, plaintiff will prevail in its
case if it establishes its viewpoint discrimination claim. See Pittsburgh League
of Young Voters Educ., 653 F.3d at 296.
38

However, prior to the 2011 Policy COLTS did in fact reject the “Judgment
Day” ad. Nonetheless, plaintiff contends that COLTS’ restrictions are
motivated by a bias against its views.
COLTS states that its restrictions placed upon the advertising space on
its buses are viewpoint neutral in light of the purpose served by the forum, i.e.,
to raise revenue, and that its policy specifically stated that its intent was not
to make its property “a public forum for the dissemination, debate, or
discussion of public issues or issues that are political or religious in nature.”
As such, COLTS states that its policy was not a viewpoint restriction on
speech.
“[R]egardless of the forum’s classification, viewpoint based restrictions
are unconstitutional.” Am. Freedom Defense Initiative, 92 F.Supp.3d at 324
(citing Pittsburgh League of Young Voters Educ., 653 F.3d at 296) (“Viewpoint
discrimination is anathema to free expression and is impermissible in both
public and non-public fora.”). “A viewpoint restriction ‘targets not subject
matter, but particular views taken by speakers on a subject.’” Id. (citing
Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829, 115 S.Ct.
2510 (1995); Pittsburgh League of Young Voters Educ., 653 F.3d at 296.
Thus, “if the government allows speech on a certain subject in any forum, it
must accept all viewpoints on the subject, even those that it disfavors or finds
unpopular.” Id. (citing Pittsburgh League of Young Voters Educ., 653 F.3d at
296).
As in Pittsburgh League of Young Voters Educ., 653 F.3d at 297,
39

plaintiff offers a “comparator analysis” to support its viewpoint discrimination
claim as opposed to direct evidence of discrimination. Plaintiff has shown that
COLTS allowed religious groups to place ads on its buses as well as a beer
distributor’s ad and a political ad which were in violation of its policies. (Doc.
33, ¶ 15). Plaintiff argues that COLTS unevenly enforced its policies and it
abused its discretion by favoring certain groups, such as groups that were
religious in nature, over others groups such as its organization. Plaintiff has
presented evidence to show that COLTS did not preclude all advertisements,
regardless of their viewpoint concerning the existence or nonexistence of a
supreme deity, and that it did permit advertisements from religious groups.
Plaintiff also has shown that prior to its attempt to advertise, COLTS had an
electric sign on the front of its buses stating “God Bless America.” Further,
plaintiff has shown that up until the time that it sought to advertise, COLTS
accepted almost every ad that was presented to it, including ads that violated
its own policies. As such, plaintiff maintains that COLTS’ policies were not
enforced in a content neutral manner and that COLTS was not consistent in
its application of its policies.
COLTS presented evidence to show that it does not accept ads that are
in any way religious in nature, and ads that either promote the existence of
God or promote the non-existence of God. COLTS has also shown that it has
rejected other ads which could be construed as religious or controversial.
The court finds that it will be for the finder of fact to determine the
similarity between the comparator ads offered by plaintiff as proof of its
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viewpoint discrimination claim and plaintiff’s ad, and to consider COLTS’
evidence showing that COLTS rejected plaintiff’s ad not because of hostility
towards the ad’s message but because the ad was controversial and against
it policies of accepting ads promoting the non-existence of God. See
Pittsburgh League of Young Voters Educ., supra (district court held a trial to
determine plaintiff’s viewpoint discrimination claim).
Thus, the court finds disputed material facts regarding plaintiff’s
viewpoint discrimination claim, and both motions for summary judgment will
be denied with respect to this claim.

V.

CONCLUSION
For the foregoing reasons and based on the disputed facts in the

record, the court will DENY COLTS’ motion for summary judgment, (Doc. 30),
regarding plaintiff’s First Amendment claims. Plaintiff’s motion for summary
judgment, (Doc. 32), will also be DENIED. An appropriate order shall follow.

s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Date: April 10, 2017
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