PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT

                   _______________

                     No. 19-1170
                   _______________

 THE CENTER FOR INVESTIGATIVE REPORTING,

                                       Appellant

                          v.

        SOUTHEASTERN PENNSYLVANIA
         TRANSPORTATION AUTHORITY
               ______________

    On Appeal from the United States District Court
       for the Eastern District of Pennsylvania
        (D.C. Civ. Action No. 2-18-cv-01839)
      District Judge: Hon. Michael M. Baylson
                   ______________

               Argued October 23, 2019
                  ______________

Before: GREENAWAY, JR., PORTER, and GREENBERG,
                Circuit Judges.

             (Filed: September 14, 2020)




                          1
Molly M. Tack-Hooper [ARGUED]
American Civil Liberties Union of Washington Foundation
901 Fifth Avenue
Suite 630
Seattle, WA 19102

Brian M. Hauss
American Civil Liberties Union
Speech, Privacy & Technology Project
125 Broad Street
18th Floor
New York, NY 10004

John S. Stapleton
LeVan Muhic Stapleton
601 Route 73 North
Four Greentree Centre
Suite 303
Marlton, NJ 08053

Rebecca S. Melley
Robert A. Wiygul
Hangley Aronchick Segal Pudlin & Schiller
One Logan Square
18th & Cherry Streets, 27th Floor
Philadelphia, PA 19103
       Attorneys for Appellant

Stephen G. Harvey
Steve Harvey Law
1880 John F. Kennedy Boulevard
Suite 1715
Philadelphia, PA 19103




                            2
James P. Davy
2362 East Harold Street
Philadelphia, PA 19125

Bruce D. Brown
The Reporters Committee for Freedom of the Press
1156 15th Street, N.W.
Suite 1020
Washington, DC 20005
       Attorneys for Amicus Appellants

Kendra L. Baisinger
Robert E. Day, III
Maryellen Madden [ARGUED]
John J. Powell
Montgomery McCracken Walker & Rhoads
1735 Market Street
21st Floor
Philadelphia, PA 19103
        Attorneys for Appellee

Gregory J. Krock
McGuireWoods LLP
Tower Two-Sixty
260 Forbes Avenue, 18th Floor
Pittsburgh, PA 15222
       Attorney for Amicus Appellee
                     _______________

                OPINION OF THE COURT
                    _______________




                            3
GREENAWAY, JR., Circuit Judge.

       Appellant Center for Investigative Reporting (“CIR”)
seeks a permanent injunction that would require the
Southeastern     Pennsylvania     Transportation    Authority
(“SEPTA”) to run an advertisement on the inside of SEPTA
buses. The advertisement promotes CIR’s research on racial
disparities in the home mortgage lending market. SEPTA
rejected the advertisement under two provisions of its 2015
Advertising Standards, which prohibit advertisements that are
political in nature or discuss matters of public debate (the
“Challenged Provisions”). The question presented is whether
the Challenged Provisions violate the First Amendment.
Because the Challenged Provisions are incapable of reasoned
application, we answer that question yes. Accordingly, we will
reverse and instruct the District Court to grant declaratory
relief and issue a permanent injunction preventing SEPTA
from enforcing the Challenged Provisions to exclude CIR’s
advertisement.

I.    BACKGROUND

      The Parties

      SEPTA has operated Philadelphia’s mass transit
system, including buses, subways, commuter rail, light rail,
and trolley service, since 1964.1 Like many other public

      1
        This Court has found, and the parties do not dispute,
that SEPTA is a government actor “constrained by the First . .
. Amendment[.]” Christ’s Bride Ministries, Inc. v. SEPTA, 

, 247 (3d Cir. 1998).




                              4
transportation authorities, SEPTA generates revenue by
accepting advertisements that it displays in its facilities and on
its vehicles. The advertising agency Intersection (formerly
Titan Outdoor, LLC) manages SEPTA’s advertising program,
including selling advertising space and reviewing proposed
advertisements. SEPTA’s contract with Intersection includes
the Advertising Standards, which apply to all the advertising
space in or on SEPTA vehicles and facilities. When
Intersection determines that a proposed advertisement may
violate the Advertising Standards, it sends the advertisement to
Gino Benedetti, SEPTA’s General Counsel, who makes the
final decision whether to accept the advertisement.

       CIR is a California-based, nonprofit, investigative news
organization. Its mission is to advance social justice through
the dissemination of verifiable, nonpartisan facts about public
issues. CIR publishes its reporting on various platforms, such
as its news website Reveal (www.revealnews.org), national
radio show, and podcast.

       SEPTA’s Rejection of the Proposed Advertisement

       In January 2018, CIR submitted a proposed
advertisement for display on the interior of SEPTA buses. The
proposed advertisement consisted of a comic strip entitled “A
Stacked Deck,” which summarized the findings of a then-
forthcoming CIR report detailing the results of its year-long
investigation into mortgage lending trends throughout the
United States. The report, which CIR published on February
18, 2019, indicated that in 61 metropolitan areas, applicants of
color were more likely to be denied conventional home
purchase mortgages.




                                5
      The proposed advertisement consists of the following
comic strip:




                            6
7
8
9
10
11
        On February 22, 2018, SEPTA rejected CIR’s proposed
advertisement because “[d]isparate lending is a matter of
public debate and litigation.” App. 576. SEPTA included in
its rejection email a copy of the 2015 Advertising Standards,
which were operative at the time.

that it rejected the proposed advertisement “under Standards
9(b)(iv)(a) and (b)” of the 2015 Advertising Standards. App.
613. These provisions, both of which CIR challenges, read:

      Prohibited Advertising Content. Advertising is
      prohibited on transit facilities, products and
      vehicles if it or its content falls into one or more
      of the following categories –

      (a)     Advertisements promoting or opposing a
      political party, or promoting or opposing the
      election of any candidate or group of candidates
      for federal, state, judicial or local government
      offices are prohibited.             In addition,
      advertisements that are political in nature or
      contain      political    messages,     including
      advertisements involving political or judicial
      figures and/or advertisements involving an issue
      that is political in nature in that it directly or
      indirectly implicates the action, inaction,
      prospective action or policies of a government
      entity.

      (b)    Advertisements expressing or advocating
      an opinion, position or viewpoint on matters of
      public debate about economic, political,
      religious, historical or social issues.




                              

–17.

        On August 6, 2018, months after commencing the
instant action, CIR submitted a second proposed advertisement
to SEPTA. As the District Court explained, the revised
advertisement removed two panels from the original—one
showing “a white hand handing keys and stick of dynamite to
a black hand,” and another showing “African-Americans
holding signs protesting . . . and a white guy not part of the
protest.” Ctr. for Investigative Reporting v. SEPTA, 337 F.
Supp. 3d 562, 574 (E.D. Pa. 2018) (alteration in original). In
the letter accompanying this proposed advertisement, CIR
explained that it removed the two panels because they were
ones that SEPTA identified as particularly concerning.

        By letter dated September 21, 2018, SEPTA rejected
this second advertisement, explaining that it violated the same
provisions as the first. SEPTA explained that the comic “as a
whole,” as opposed to isolated elements, violated the
Advertising Standards. Dist. Ct. Dkt. 2:18-cv-01839, ECF No.
32-1 at 2. Despite its contention that the entire comic was
problematic, SEPTA highlighted various unchanged,
individual elements of the comic that continued to concern
SEPTA. These include: On panel 1, the phrase “A STACKED
DECK”; on panel 2, the words “regularly,” “DENIED,” and
“dream”; on panel 6, the sentence “This is just the latest in the
United States’ SORDID HISTORY of unequal access to
owning a home” and the accompanying image; and on panel
10, the phrase “a deck stacked against them” and the
accompanying image.

       CIR’s Allegations

        On May 2, 2018, CIR filed the Complaint, alleging that
SEPTA violated its First and Fourteenth Amendment rights by
rejecting its proposed advertisement. To vindicate these rights,
CIR seeks a declaratory judgment that the Challenged
Provisions are unconstitutional and a permanent injunction
prohibiting SEPTA from enforcing the Challenged Provisions
to exclude CIR’s proposed advertisement.

       District Court Proceedings

       On August 17, 2018, CIR filed a motion for a
preliminary injunction. The Court authorized the parties to
engage in limited discovery, including depositions, prior to the
hearing on that motion. On September 14, 2018, the District
Court held the preliminary injunction hearing.

        On September 25, 2018, the District Court denied CIR’s
motion without prejudice. In reaching this holding, the District
Court applied the familiar test for preliminary relief: “A party
seeking a preliminary injunction must show: (1) a likelihood of
success on the merits; (2) that it will suffer irreparable harm if
the injunction is denied; (3) that granting preliminary relief will
not result in even greater harm to the nonmoving party; and (4)
that the public interest favors such relief.” Kos Pharm., Inc. v.
Andrx Corp., 

, 708 (3d Cir. 2004).

       The District Court found that while CIR had shown that
it suffered an irreparable injury, none of the other factors
favored granting preliminary injunctive relief. The District
Court explained that (1) because of the scant evidence about
SEPTA’s reasons for implementing the 2015 Advertising
Standards the District Court could not determine whether CIR




                                14
was likely to succeed on the merits, and (2) neither the balance
of the equities nor the public interest clearly supported either
party. Because the bench trial was scheduled to begin in less
than one week, the District Court determined that it would
prioritize bringing the case to a final disposition. The District
Court therefore declined to enter a preliminary injunction.

        On October 1, 2018, the District Court held a bench
trial. At trial, the District Court heard live testimony from Gino
Benedetti, SEPTA’s General Counsel, and the parties
presented exhibits and stipulated facts.

        At trial, as to Subsection (a) (i.e., the political
provision), Benedetti testified on direct examination that the
terms “political” and “political in nature” were “essentially the
same to [him].” Ctr. for Investigative Reporting, 

at 577. He stated that the phrase “directly or indirectly
implicates the action, inaction, prospective action or policies
of a government entity . . . defines or connects with what’s
political in nature.”

he
testified that the terms “political” and “political in nature” have
distinct and separate meanings and that “implicate” could
mean “advocate[]” or “call[] for.”

(b) (i.e., the public debate provision),
Benedetti testified that to determine whether something is a
“matter of public debate” he performs “a mechanical type of
analysis that . . . look[s] to see what is being argued, debated
in society in general.”

he looks at “the
entire ad” and evaluates “holistically . . . the subject matter of
that ad being debated in society at large.”

to Benedetti, requires that he use “common sense”
and have discussions to determine what is a matter of public
debate.

testified that sometimes




                                15
advertisements that violate the public debate provision “could
be controversial ads” and that an advertisement can involve
politics and not violate either provision.

        At trial, as the District Court noted, Benedetti provided
inconsistent testimony regarding his process for determining
whether proposed advertisements violate the Advertising
Standards.

He stated that he did not view certain
advertisements for commercial services as political or touching
on matters of public debate.

For example, he
approved an advertisement by Fusion that depicted people of
color, one of whom was wearing a shirt that read “My Life
Matters,” and displayed the phrase “As American Ads.”

he did not view this advertisement as
“implicat[ing] any matters of public debate on social issues.”

        Yet he also admitted that sometimes a commercial
advertisement could pose a problem under the Challenged
Provisions. For example, he testified that a hypothetical
advertisement that said consumers can purchase Pepsi cheaper
in Norristown (which does not have a soda tax) than in
Philadelphia (which does have a soda tax) “could still be a
problem under sub-standard (a) or (b) . . . because the notion
of the soda tax and everything that surrounds it is being debated
in the public.”

he gives commercial
and non-commercial advertisements the same treatment. That
testimony is supported by the fact that the 2015 Advertising
Standards do not draw such a distinction. The District Court
nonetheless found that Benedetti “apparently considers the
commercial nature of certain advertisements.”

       Benedetti also failed to provide clear testimony about
the definition of the phrase “political in nature,” which appears




                               16
in the political provision. He testified that mentioning a law or
regulation could be considered political in nature, but he also
testified that an advertisement could be political in nature
without “directly or indirectly implicating the action, inaction,
prospective action or policies of a government entity.”

        During trial, the District Court also considered several
additional advertisements that CIR submitted as exhibits to
illustrate SEPTA’s allegedly discriminatory application of its
advertising restrictions.      These advertisements included
examples of both accepted and rejected applications. The
District Court described each of these exhibits in its decision.
See

       Rejected advertisements include the following: (1) an
advertisement stating “Dear Art Museum: Art is Expensive!
So is constructing new buildings! We totally get why you can’t
pay all your employees a living wage!”; and (2) an
advertisement from Bethany Christian Services saying,
“Unplanned Pregnancy? Now what? Consider adoption as an
option. You don’t have to make your decision alone.”

. 
Benedetti testified that these advertisements were
rejected because they involved the issue of a living wage and
abortion, respectively, both of which he considered to be
matters of public debate.
 Id. at 581 
nn.3–4. Other rejected
advertisements included one from the U.S. Department of
Homeland Security, which announced, “Sex trafficking,
Forced labor, Domestic Servitude. It’s happening in our
community. Get informed.”
 

. 
Benedetti could not
explain why this advertisement was rejected, and SEPTA did
not offer other evidence to shed light on this action.




                               17
       Accepted advertisements include the following: (1) an
advertisement from the Philadelphia Host Committee that
stated “Welcome [Democratic National Committee]. We are
Philadelphia’s: Union Middle Class Jobs, office cleaners,
community, neighbors, building service workers, window
washers, security officers, families, school district workers.
Road out of poverty”; (2) an advertisement for an event at the
African American Museum that featured pictures of Martin
Luther King, Jr., Cesar Chavez, and Lucretia Mott and posed,
among other things, the question: “What will you do for
Peace?”; and (3) a Facebook advertisement stating: “Fake
news is not your friend,” “Data misuse is not your friend,”
“Clickbait is not your friend,” “Fake accounts are not your
friends.”
 

–83.
        Benedetti testified that the Philadelphia Host
Committee advertisement may not actually comply with the
2015 Advertising Standards.
 Id. at 582 
n.13. He further
testified that the Peace advertisement did not violate the policy
because it did not “tak[e] a position or ask[] for action.”
 Id. at
583 
n.14.

       Other pertinent, accepted advertisements include those
from banks regarding home loans.           Several of these
advertisements bear Equal Housing Lender and/or Member
FDIC logos.
 Id. at 584. 
Relatedly, CIR identified an
advertisement from the Housing Equality Center which stated,
“Housing discrimination is illegal. Housing Equality Center
can help you understand your rights.”
 Id. Benedetti, however,
could 
not recall whether SEPTA accepted that advertisement.

       After trial, the parties submitted proposed findings of
fact and conclusions of law, and the Court heard oral argument.




                               18
       District Court Decision

       On November 28, 2018, the District Court issued
Findings of Fact and Conclusions of Law holding that portions
of the Challenged Provisions were incapable of reasoned
application. The District Court, however, struck problematic
portions from the 2015 Advertising Standards and ordered
SEPTA to revise the policy consistent with the District Court’s
decision.2 The District Court then found that with the overly

2
  As revised by the District Court, the Challenged Provisions
read:

       (a)     Advertisements promoting or opposing a
       political party, or promoting or opposing the
       election of any candidate or group of candidates
       for federal, state, judicial or local government
       offices are prohibited.             In addition,
       advertisements that are political in nature or
       contain      political    messages,     including
       advertisements involving political or judicial
       figures and/or advertisements involving an issue
       that is political in nature in that it directly or
       indirectly implicates the action, inaction,
       prospective action or policies of a government
       entity.

       (b)    Advertisements expressing or advocating
       an opinion, position or viewpoint on matters of
       public debate about economic, political,
       religious, historical or social issues.


Id. 604–05.




                              19
broad language removed, CIR’s viewpoint discrimination
challenges, both facial and as-applied, fail. The District
Court’s decision can be grouped into four principal parts.

        First, the District Court determined that the relevant
forum was the inside of SEPTA buses and that SEPTA had
sufficiently “closed the forum to public speech and debate.”

Id. at 602.
        Second, having found that the relevant forum was
nonpublic, the District Court then evaluated whether the
Challenged Provisions of the 2015 Advertising Standards were
capable of reasoned application. Applying the Supreme
Court’s decision in Minnesota Voters Alliance v. Mansky, 
138
S. Ct. 1876 
(2018), the District Court found portions of both
the political and public debate provisions to be “too broad to
pass constitutional muster under Mansky.”            Ctr. for
Investigative 
Reporting, 337 F. Supp. 3d at 604
. Instead of
invalidating the Challenged Provisions in their entirety,
however, the District Court excised portions of them. In
addition to amending the Challenged Provisions, the Court
directed SEPTA to adopt a meet-and-confer program under
which it would discuss with advertisers proposed
advertisements that SEPTA deems violative of its standards.

Id. at 605.
         Third, the District Court applied the two-step test
articulated by this Circuit in NAACP v. City of Philadelphia,
834 F.3d 435 
(3d Cir. 2016) and held that SEPTA’s
Advertising Standards, “with the stricken language removed, .
. . are now facially valid, reasonable, and constitutional.” Ctr.
for Investigative 
Reporting, 337 F. Supp. 3d at 612
.




                               20
       Fourth, the District Court found that the Challenged
Provisions, as amended by the District Court, were viewpoint
neutral on their face and as applied to CIR.
 Id. at 615–18.

II. 
   JURISDICTION AND STANDARD OF REVIEW

      The District Court had jurisdiction under 28 U.S.C.
§ 1331. This Court has appellate jurisdiction under 28 U.S.C.
§ 1291.

       “We review a district court’s legal conclusions de novo,
and ordinarily review its factual findings for clear error.”
Pittsburgh League of Young Voters Educ. Fund v. Port
Authority of Allegheny Cnty., 
653 F.3d 290
, 295 (3d Cir. 2011).
Because this case implicates the First Amendment, however,
we “make an independent examination of the whole record.”
Bose Corp. v. Consumers Union, 
466 U.S. 485
, 499 (1984).
Nonetheless, we defer to the District Court to the extent its
factual findings “concern witness credibility.” Fulton v. City
of Philadelphia, 
922 F.3d 140
, 152 (3d Cir. 2019); 
Bose, 466
U.S. at 499
, 510–11.

III.   DISCUSSION

       CIR makes two arguments why the Challenged
Provisions of the Advertising Standards, as revised by the
District Court, are unconstitutional: (1) they discriminate based
on viewpoint as applied to CIR and (2) they impose an
impermissible restriction on speech given the public nature of
the forum.3 Although these arguments implicate several First

       3
        At oral argument, counsel for CIR conceded that on
appeal CIR was not making a facial viewpoint challenge to the
Challenged Provisions, as it had below. Counsel for CIR also




                               21
Amendment doctrines, we need only address whether the
Challenged Provisions are capable of reasoned application.
Because we hold that they are not, we will reverse and remand
the case back to the District Court for further proceedings
consistent with this decision.

       Applicable Law

        The First Amendment prohibits two forms of content-
based discrimination, subject matter discrimination and
viewpoint discrimination, which is especially egregious. See
Rosenberger v. Rector & Visitors of Univ. of Va., 
515 U.S. 819
,
828–29 (1995) (“Discrimination against speech because of its
message is presumed to be unconstitutional.”). Subject matter
restrictions may be permissible depending on the nature of the
forum to which the speaker seeks access.
 Id. In those cases,
“[t]he State may not exclude speech where its [restriction] is
not ‘reasonable in light of the purpose served by the forum.’”

Id. (quoting Cornelius v. 
NAACP Legal Def. & Educ. Fund,
Inc., 
473 U.S. 788
, 804–06 (1985)). In contrast, viewpoint
restrictions are impermissible in any forum.
 Id.

       CIR brings both 
a facial and as-applied challenge to
SEPTA’s current Advertising Standards.          CIR’s facial
challenge is that the current Advertising Standards constitute
an impermissible subject matter restriction. Its as-applied
challenge is that the current Advertising Standards
discriminate against CIR’s viewpoint. Because we hold, for


noted that it is challenging how the District Court revised the
Advertising Standards, not the fact that it revised them.




                              22
the reasons set out below, that the current Advertising
Standards are an impermissible subject matter restriction on
speech, we need not “pause to consider whether [the provision]
might admit some permissible applications.” Iancu v. Brunetti,
139 S. Ct. 2294
, 2302 (2019).

        In our recent decision Northeastern Pennsylvania
Freethought Society v. County of Lackawanna Transit System,
we explained that district courts must address whether a
particular restriction is a viewpoint or subject matter restriction
before conducting the forum analysis. 
938 F.3d 424
, 431–32
(3d Cir. 2019). That is “because the type of forum sheds no
light on whether a policy or decision discriminates against a
certain viewpoint.          And viewpoint discrimination is
impermissible in any forum.”
 Id. (citations omitted).

       Freethought, 
however, differs from this case in one
important respect. The Supreme Court’s recent case Mansky,
which held that content-based restrictions on speech in
nonpublic fora are unconstitutional if they are incapable of
reasoned application, squarely resolves the issues in this 
case.
138 S. Ct. at 1892
.

        Mansky sets a baseline requirement that all forms of
content-based restrictions must be capable of reasoned
application. In other words, even if the content-based
restriction is one that merely restricts certain subjects, as
opposed to certain viewpoints, it must at the very least be
capable of reasoned application. Freethought did not foreclose
the possibility that we might find a government restriction on
speech, at the threshold, to be incapable of reasoned
application and therefore impermissible in any forum. Indeed,
such a finding would avoid wading into First Amendment
issues that need not be resolved to dispose of a case.




                                23
Accordingly, we are not required to decide in the first instance
whether the policy here is based on viewpoint or subject
matter, just as we are not required initially to decide whether
the forum at issue is public or nonpublic. At a minimum,
SEPTA’s restrictions on speech must be capable of reasoned
application.4 See 
NAACP, 834 F.3d at 449 
(“No matter the type

       4
         In the context of other content-based restrictions on
speech, such as gag orders, at least one other circuit has opined
that the condition that restraints on speech be capable of
reasoned application is a core one and is capable of being
resolved before determining whether a restriction is based on
viewpoint or subject matter. See In re Murphy-Brown, LLC,
907 F.3d 788
, 800 (4th Cir. 2018) (holding that a gag order,
which petitioner argued discriminated based on viewpoint, was
unconstitutionally vague, and therefore incapable of reasoned
application, because “it forced individuals to ‘guess at its
contours’”). In In re Murphy-Brown, the Fourth Circuit
helpfully explained:

       [t]his core requirement of clarity avoids twin
       problems. For one, “[t]he interpretive process
       itself would create an inevitable, pervasive, and
       serious risk of chilling protected speech pending
       the drawing of fine distinctions that, in the end,
       would themselves be questionable.” Vague
       restraints also pose the risk of discriminatory or
       arbitrary enforcement.


Id. (citing Citizens United 
v. 
FEC, 558 U.S. at 327 
& Gentile
v. State Bar of Nevada, 
501 U.S. 1030
, 1051 (1991)).




                               24
of forum, restrictions on speech on government property must
be reasonable.”). For the following reasons, we find that they
are not, and we conclude our First Amendment inquiry there.

       Analysis

        The question at the heart of this appeal therefore is
whether the current Advertising Standards, either in their
original form or as revised by the District Court, are capable of
reasoned application. Assuming without deciding that the
restrictions at issue are content-based and that the relevant
forum is nonpublic, the current Advertising Standards only
need to be “reasonable.” Eichenlaub v. Twp. of Ind., 
385 F.3d
274
, 279 (3d Cir. 2004). In this context, “reasonable” means
that they must be “designed to confine the ‘forum to the limited
and legitimate purposes for which it was created.’” Id.
(quoting 
Rosenberger, 515 U.S. at 829
). The government actor
bears the burden of “tying the limitation on speech to the
forum’s purpose.” 
NAACP, 834 F.3d at 445
.

        SEPTA sells advertisements to “raise revenue . . . in a
manner that provides for the safety, efficiency[,] and comfort
of [its] passengers.” App. 1083. Accordingly, we will discuss
whether the current Advertising Standards are capable of
reasoned application given these goals. Before discussing
SEPTA’s arguments detailing why the current Advertising
Standards satisfy this requirement, a discussion of Mansky,
which we find controlling here, is necessary.

       Mansky involved a challenge to a Minnesota law that
prohibited individuals from making certain statements inside
or near a polling location. The specific provision at issue
prohibited individuals from wearing a “political badge,
political button, or other political insignia . . . at or about the




                                25
polling place.” 
Mansky, 138 S. Ct. at 1883
. There, the Court
held first that a polling place in Minnesota qualifies as a
nonpublic forum.
 Id. at 1886. 
Because the provision did not
“discriminate[] on the basis of viewpoint on its face,” the
question before the Court was whether the political apparel ban
was “reasonable in light of the purpose served by the forum.”

Id. (citation omitted). The 
Court found that the interest of
protecting voters at the polling location from messages that
would distract them from “the important decisions
immediately at hand” was sufficient to permit Minnesota to
“choose to prohibit certain apparel . . . because of the message
it conveys.”
 Id. at 1888. 
The Court held, however, that the
term “political,” which was not defined in the statute and which
had been interpreted in various ways in the State’s official
guidance documents, was not “capable of reasoned
application.”
 

.
       In deciding that the term “political” as used in the
Minnesota statute was unconstitutional, the Mansky Court
considered several factors that are relevant here: whether the
terms are “indeterminate,” such as by being left undefined in
the statute or government policy at issue, and whether they
have been or are susceptible to “erratic application.” 
Mansky,
138 S. Ct. at 1889
, 1890. According to Mansky, a prohibition
on speech is unreasonable if it fails to “articulate some sensible
basis for distinguishing what may come in from what must stay
out.”
 Id. at 1888.
       CIR contends that the District Court, in attempting to
cure the constitutional deficiencies in the 2015 Advertising
Standards, erred in finding that the revised policy was capable
of reasoned application. That is so, CIR argues, because the
current Advertising Standards continue to prohibit
advertisements that “contain political messages” and those that




                               26
address “political . . . issues.” Appellant Br. 49. According to
CIR, both phrases pose the same First Amendment problems
as the portions of the 2015 Advertising Standards that the
District Court had already found unconstitutional under
Mansky.

       SEPTA disagrees and argues that the restrictions at
issue here differ from those in Mansky. Because of those
differences, SEPTA contends, we should hold that the current
Advertising Standards are capable of reasoned application and
uphold the decision of the District Court. As a threshold
matter, SEPTA questions CIR’s broad reading of Manksy
because of the Supreme Court’s earlier plurality decision in
Lehman v. City of Shaker Heights, 
418 U.S. 298 
(1974), in
which the Court upheld a prohibition on political
advertisements on city buses. SEPTA argues that the
continued vitality of Lehman, which the Supreme Court cites
favorably in Mansky, 
see 138 S. Ct. at 1885
–86, means that not
all bans on political advertisements are unconstitutional.

        SEPTA attempts to distinguish the current Advertising
Standards from the political apparel ban in Manksy in three
ways. First, Mansky presented, according to the Supreme
Court, “a particularly difficult reconciliation: the
accommodation of the right to engage in political discourse
with the right to vote.”
 Id. at 1892 
(quoting Burson v.
Freeman, 
504 U.S. 191
, 198 (1992)). Second, SEPTA argues
that the ban in Mansky was especially problematic because
Minnesota had “issued contradictory implementing
guidelines.” Appellee Br. 48. Here, in contrast, SEPTA
represents that it has not issued any such guidelines. Third, the
Minnesota law empowered temporary government employees
(i.e., county election judges) to make quick decisions about
what may or may not be a political issue. Here, again, SEPTA




                               27
contends that its practices are far more robust: SEPTA does
not impose a pressing deadline, and it requires its General
Counsel, and sometimes other lawyers, to determine whether
an advertisement falls within a prohibition.

        SEPTA’s arguments, while forceful, are ultimately
unpersuasive. Although the Supreme Court explicitly stated
that its holding in Mansky did not “set the outer limit of what a
State may 
proscribe,” 138 S. Ct. at 1891
, it did not limit its
holding to polling locations. More to the point, SEPTA does
not challenge the District Court’s holding that portions of the
Challenged Provisions were overbroad, but it fails to offer any
reason why the lingering references to advertisements that
“contain political messages” and those that address “political
issues” are any more capable of reasoned application than
those that were struck down. This is an especially important
question given that the District Court broadened the public
debate provision by eliminating the limiting phrase “matters of
public debate about.”

        In addition, when asked during oral argument whether
SEPTA would determine a series of hypothetical
advertisements to be in violation of the current Advertising
Standards, SEPTA’s counsel’s answers further highlighted the
arbitrariness of the decision-making process. For example,
when we asked whether an advertisement that depicted three
girls of different races holding hands with a message that says,
“This is how racism ends,” would be political, counsel for
SEPTA responded “no, I don’t think so.” Oral Argument at
23:33–24:04, Ctr. for Investigative Reporting v. SEPTA (No.
19-1170), https://www2.ca3.uscourts.gov/oralargument/audio/
19-1170CenterforInvestigativeReportingvSEPTA.mp3.
When the Court adjusted the hypothetical to include the same
picture with a message that says, “This is what America looks




                               28
like,” counsel for SEPTA responded by asking, “Who’s putting
the ad on?”
 Id. at 24:13–24:21. 
That response highlights the
extent to which the current Advertising Standards are
susceptible to erratic application.

        As the Mansky Court explained, while the First
Amendment does not require “[p]erfect clarity and precise
guidance,” when the “restriction[s] go beyond close calls on
borderline or fanciful cases . . . [,] that is a serious matter when
the whole point of the exercise is to prohibit the expression of
political views.”
 Id. at 1891 
(citation omitted). A policy as ill-
defined as SEPTA’s carries “[t]he opportunity for abuse,
especially where [it] has received a virtually open-ended
interpretation.” Bd. of Airport Comm’rs of L.A. v. Jews for
Jesus, Inc., 
482 U.S. 569
, 576 (1987) (citation omitted) (first
alteration in original) (second alteration added).

        Moreover, far from helping SEPTA’s case, the absence
of guidelines cabining SEPTA’s General Counsel’s discretion
in determining what constitutes a political advertisement
actually suggests that, like the Minnesota statute in Mansky,
the lack of “objective, workable standards” may allow
SEPTA’s General Counsel’s “own politics [to] shape his views
on what counts as ‘political.’” 
Mansky, 138 S. Ct. at 1891
.
That was precisely the problem at the heart of Mansky and
nothing in the District Court’s revision of the 2015 Advertising
Standards helps to ameliorate that concern here. In fact, in its
post-trial brief, SEPTA conceded that it should have rejected a
union advertisement supporting the DNC. 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




                                29
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.

       To be sure, one or two inconsistencies hardly proves
that SEPTA has arbitrarily applied its Advertising Standards,
but the lack of structure and clear policies governing the
decision-making process creates a real risk that it may be
arbitrarily applied. And CIR has amply demonstrated that at
least on a few occasions that risk has become a reality.
Accordingly, we reverse the District Court’s holding that the
current Advertising Standards are capable of reasoned
application.

      Remedy

       Having decided that the Challenged Provisions are
unconstitutional, we must now determine the appropriate
remedy. CIR contends that the District Court should have
entered final judgment completely in its favor and directed
SEPTA to run its advertisement. For the following reasons, we
find that the District Court erred in failing to order SEPTA to
run CIR’s proposed advertisements. We will therefore reverse
the District Court’s judgment and remand the case for entry of
judgment in favor of CIR.5

        Because CIR prevails on the merits, it must also show
that “it is entitled to a permanent injunction as a matter of

      5
        SEPTA, of course, is free to revise its Advertising
Standards again to cabin the decisionmaker’s discretion in
applying the ban on “political” advertisements.




                              30
discretion.” Ne. Pa. Freethought 
Soc’y, 938 F.3d at 442 
(citing
Monsanto Co. v. Geertson Seed Farms, 
561 U.S. 139
, 157
(2010); eBay Inc. v. MercExchange, LLC, 
547 U.S. 388
, 391
(2006)). To do so, CIR “must show that (1) it has suffered
irreparable injury; (2) there is no adequate remedy at law; (3)
the balance of hardships tips in its favor; and (4) granting an
injunction would not be against the public interest.”
 Id.
(citation omitted).

       Here, 
each of these elements is satisfied. First, CIR’s
advertisement has already been rejected once under the 2015
Advertising Standards. As discussed above, the current
Advertising Standards reflect only the modest revisions
imposed by the District Court, which fail to cure their
constitutional deficiencies. Second, and relatedly, no remedy
at law can cure CIR’s First Amendment injury because “[t]he
loss of First Amendment freedoms, for even minimal periods
of time, unquestionably constitutes irreparable injury.” Elrod
v. Burns, 
427 U.S. 347
, 373 (1976). The only way for CIR to
get complete relief is for the District Court to order SEPTA to
run the advertisement. Third, the only hardship to SEPTA is
the burden of redrafting the political and public debate
provisions of its current Advertising Standards, if it chooses to
do so. In contrast, the hardship to CIR is considerable in that
the current Advertising Standards impermissibly deprive it of
its, and other potential speakers’, constitutional rights to
engage in free speech. Fourth, and finally, the public interest
does not suffer by enforcing the First Amendment’s protection
against restrictions on speech that are incapable of reasoned
application.

                           *****




                               31
       The Challenged Provisions of the current Advertising
Standards are incapable of reasoned application. Accordingly,
we will reverse the judgment of the District Court and instruct
it to grant declaratory relief and issue an injunction barring
enforcement of the Challenged Provisions of the current
Advertising Standards against CIR.




                              32