Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-25-1998

Christ's Bride v. SEPTA
Precedential or Non-Precedential:

Docket 96-1829




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Recommended Citation
"Christ's Bride v. SEPTA" (1998). 1998 Decisions. Paper 145.
http://digitalcommons.law.villanova.edu/thirdcircuit_1998/145


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Filed June 25, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-1829

CHRIST'S BRIDE MINISTRIES, INC.,

       Appellant

v.

SOUTHEASTERN PENNSYLVANIA TRANSPORTATION
AUTHORITY; TRANSPORTATION DISPLAY'S INC.

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 96-cv-03631)

Argued May 21, 1997

Before: GREENBERG, ROTH and WEIS, Circuit Judges

(Opinion Filed June 25, 1998)

       Mathew D. Staver, Esq.
       Frederick H. Nelson, Esq. (Argued)
       Nicole Arfaras Kerr, Esq.
       Liberty Counsel
       1900 Summit Tower Boulevard
       Suite 560
       Orlando, FL 32810

       James T. Owens, Esq.
       25 South Church Street
       Westchester, PA 19382-3220

        Attorneys for Appellant
       William H. Roberts, Esq. (Argued)
       Jordana Cooper, Esq.
       Daniel H. Wheeler, Esq.
       Blank, Rome, Comisky & McCauley
       1200 Four Penn Center Plaza
       Philadelphia, PA 19103

       Seth Kreimer, Esq.
       3400 Chestnut Street
       Philadelphia, PA 19104

       David Rudovsky, Esq.
       Kairys & Rudovsky
       924 Cherry Street
       Fifth Floor
       Philadelphia, PA 19107

        Attorneys for Appellees

       Tina Kowalsky Haut, Esq.
       275 Madison Avenue
       New York, NY 10016

        Attorney for Appellee
        Transportation Display's Inc.

       C. Neil Peterson, Esq.
       1234 Market Street
       Philadelphia, PA 19107

        Attorney for Appellee Southeastern
        Pennsylvania Transportation
        Authority

OPINION OF THE COURT

ROTH, Circuit Judge:

Southeastern Pennsylvania Transportation Authority
(SEPTA) refused to display an advertisement stating that
"Women Who Choose Abortion Suffer More & Deadlier
Breast Cancer." We must decide in this appeal whether, in
doing so, SEPTA, a regional transportation authority,
violated the First Amendment rights of the advertiser,
Christ's Bride Ministries, Inc. (CBM). The district court

                                  2
found, after conducting a bench trial, that the First
Amendment was not violated because the advertising space
at issue did not constitute a public forum and because
SEPTA acted reasonably in removing the posters. We do not
agree with either conclusion. In light of the other
advertisements, including those relating to abortion, which
SEPTA had previously permitted to run on its property, and
in light of SEPTA's own purposes in using and leasing the
space, we have determined that SEPTA intended to create
a designated public forum. We find that SEPTA's action in
removing the posters does not survive the strict scrutiny
applied to speech within the parameters of a designated
public forum; nor does it pass the reasonableness test
applied where property of a governmental agency has not
been designated a public forum.

I. Background

SEPTA is an "agency and instrumentality" of the
Commonwealth of Pennsylvania, 74 Pa. Cons. Stat. Ann.
S 1502. It operates buses, subways, and regional rail lines
in and around the City of Philadelphia. SEPTA contracts
with a licensee, Transportation Display's Inc. (TDI), for the
construction and sale of advertising space in its stations
and in and on its vehicles. TDI and SEPTA are the
defendants in this case.

The plaintiff, CBM, began a public service campaign in
1995 to inform the public of what it believes to be the
increased risk of breast cancer for women who have had
abortions. As part of this campaign, CBM sought to display
posters in train and subway stations and on buses and at
bus stops in major urban areas, including Baltimore,
Washington, and Philadelphia.

CBM contacted SEPTA in late November 1995 about
placing posters in the Philadelphia area transit system.
SEPTA referred CBM to TDI. Bradley Thomas, president of
CBM, subsequently spoke with Robert R. Meara, Vice
President and Regional Manager at TDI. In December 1995,
Thomas sent a draft poster to TDI for review by Meara and
SEPTA. The poster stated "Women Who Choose Abortion
Suffer More & Deadlier Breast Cancer." The district court
described the poster as "graphically designed with bold

                                3
white lettering on a background of black and bright red,
except that the word `deadlier' was written in red." The
poster also included a 1-800 number for information which
connected callers not with CBM but with an organization
called the American Rights Coalition (ARC).

SEPTA requested that the poster better identify the
sponsor, CBM. CBM complied and added a description of
CBM: "Christ's Bride Ministries, Inc. is a charitable,
religious, educational, non-profit 501(c)(3) organization.
CBM, P.O. Box 22 Merrifield, VA 22116. (703) 598-2226."
SEPTA then approved the posters for display.

On January 15, 1996, the posters went up. TDI put two
of them next to overhead clocks in Suburban Station in
Philadelphia, and 24 others in subway and railroad stations
in Philadelphia and its suburbs. SEPTA immediately began
receiving what it described as "numerous" complaints about
the poster, which included "rider protest" and"criticism" by
"women's health organizations" and "local government
officials." Shortly thereafter, Robert Meara told CBM that
SEPTA wanted CBM to identify itself more prominently on
the posters. CBM accordingly added decals to the signs that
identified and described CBM with larger and bolder type.

After the posters were installed, TDI faxed to CBM a
contract, which Thomas signed and returned to TDI, also
via fax. The contract was signed by Robert Meara of TDI
and dated January 22, 1996. The contract provided that
46 x 60 posters would be displayed at 24 locations in rail
stations for one year. The contract also stated that during
that year two 21 x 62 signs would be displayed on clocks
at Suburban Station. The monthly charge for the signs on
the clocks was $642.60, while the monthly charge for the
24 other posters was $2400. There were "terms and
conditions" on the back of the contract, including one that
stated "if the Transportation Facility concerned should
deem such advertising objectionable for any reason, TDI
shall have the right to terminate the contract and
discontinue the service without notice."

In early February, SEPTA received a copy of a letter
written by Dr. Philip Lee, Assistant Secretary of Health in
the United States Department of Health and Human

                                4
Services. The letter was not addressed to anyone in SEPTA,
but instead to Lawrence Reuter, General Manager of the
Washington Metropolitan Area Transit Authority, where
CBM's posters were also displayed. Dr. Lee wrote to Reuter
that

       It has recently come to my attention that the Metro
       Transit System has posted more than 1,100 free public
       service ads from the Christ's Bride Ministries. The ad
       states: "Women who choose abortion suffer more &
       deadlier breast cancer. Information: 1-800-634-2224."
       This ad is unfortunately misleading, unduly alarming,
       and does not accurately reflect the weight of the
       scientific literature.

Dr. Lee went on to state that in his opinion the studies
showing a link between breast cancer and abortion suffered
from methodological weaknesses, that there was no
consensus on the purported relationship between breast
cancer and abortion, and that Dr. Lee knew of no evidence
supporting the claim that abortion causes "deadlier" breast
cancer. Dr. Lee also complained that callers to the 1-800
number were referred to an article in the Journal of the
National Cancer Institute, describing a study that suggested
a positive correlation between induced abortions and breast
cancer. Dr. Lee noted that although the article did appear
in the Journal, the Journal also published an editorial
stating that the results were not "conclusive." Finally, Dr.
Lee expressed concern that callers to the 1-800 number
were being asked to participate in a survey and that callers
could become confused and think that the National Cancer
Institute supported the survey, which it did not.

Based on Dr. Lee's letter, SEPTA removed the posters on
February 16, 1996. According to the testimony of Mr.
Gambaccini, SEPTA's General Manager, the "heart" of the
decision to remove them was the questions about their
accuracy. The 1-800 number concerns were an "ancillary"
consideration. It is uncontested that no one at SEPTA or
TDI conducted any other inquiry into the accuracy of the
message on the poster, or contacted CBM for information
that would support the claim made by the ad, or informed
CBM of SEPTA's objections to the ad before removing the
posters.

                               5
On March 13, 1996, nearly a month later, Meara of TDI
wrote to Thomas of CBM, explaining that the posters had
been removed on February 16. Meara stated in his letter
that the decision had been made by SEPTA as a result of "a
letter from the U.S. Department of Health and Human
Services in which it concluded that the ad was
`unfortunately misleading, unduly alarming and does not
accurately reflect the weight of the scientific literature'." TDI
included a check to CBM for $3,042.60 for the "unused
portion" of the contract. CBM had paid a total of $6,086 for
two months of advertising.

CBM filed suit on May 10, 1996, naming SEPTA and TDI
as defendants. The complaint alleged violations of CBM's
rights under the First and Fourteenth Amendments and
also alleged breach of contract. CBM sought compensatory
damages and declaratory and injunctive relief pursuant to
42 U.S.C. SS 1983, 1985(c) and 1986.1 The United States
District Court for the Eastern District of Pennsylvania
conducted a three-day bench trial in June 1996. The court
heard testimony about SEPTA's and TDI's policies and
practices regarding advertising space on SEPTA property,
as well as testimony from experts about the alleged link
between breast cancer and induced abortions.

During the trial, three experts testified that the existing
studies and research do not support the existence of a
cause and effect relationship between abortion and breast
cancer. These experts did, however, acknowledge that some
studies show a weak "association" between induced
abortions and breast cancer. One of SEPTA's experts
_________________________________________________________________

1. CBM has not appealed the district court's rejections of its claims
under 42 U.S.C. SS 1985 and 1986. CBM has, however, objected to the
district court's denial of its breach of contract claim. It argues that it
only received one page of the two page contract and that there was no
"meeting of the minds" as to the terms of the contract between it and
TDI. The complaint does not make this allegation, however. CBM also
attached both pages of the contract to the complaint and relied on
language from the allegedly missing second page in the complaint itself.
CBM also argues that the contract is "unconscionable," although the
complaint makes no such allegations. We reject these claims as being
without merit.

                               6
testified that the better studies have not been consistent
and that some studies show no link at all.

CBM's expert, on the other hand, testified that he had
analyzed 23 epidemiological studies, 12 of which, in his
opinion, showed a statistically significant increase in breast
cancer among women who had undergone induced
abortions. He argued that this risk could not be accounted
for by the presence of other variables, such as age or
family. The increased risk, CBM's expert noted, was greater
than the relative risk associated with oral contraceptives.
Because manufacturers of contraceptives alert the public as
to the possible link between their product and breast
cancer, it should not be "unduly alarming" for CBM to
report a slightly greater risk purportedly associated with
induced abortions.

The district court issued an opinion on August 16, 1996,
holding for the defendants on all counts. The court
reasoned that public transit stations do not constitute
traditional public fora and that SEPTA and TDI had not
created a public forum because they maintained control
over the use of the advertising space. The court also found
that Dr. Lee's letter was a "reasonable" basis on which to
remove the advertisement. The court commented that
"ultimately a consensus may develop" as to the link
between breast cancer and abortion but "at this time we do
not know." The court did not decide whether either SEPTA's
or CBM's experts were "right."

CBM timely appealed to this Court. We have jurisdiction
under 28 U.S.C. S 1291.

II. Standard of Review

In evaluating the claim that CBM's First Amendment
rights have been violated, we have a "constitutional duty to
conduct an independent examination of the record as a
whole, without deference to the trial court." Hurley v. Irish-
American Gay Group of Boston, 

, 2344
(1995). This independent duty does not extend to the
district court's rulings on matters of credibility, to which we
continue to defer, 

Communications,
Inc. v. Connaughton, 

, 688 (1989)), but it does
require us draw our own inferences from the factual

                                7
evidence presented. United States v. Antar, 

,
1357 (3d Cir. 1994); Swineford v. Snyder Co. Pa., 

, 1165 (3d Cir. 1994).

III. State Action and Commercial Speech

Turning to the substantive issues, we readily dispose of
two initial matters. First, the United States Constitution
guarantees freedom of expression only against infringement
by the state, not by private actors. Hurley v. Irish-American
Gay Group of Boston, 

, 2344 (1995). In this
case, however, the parties agree that SEPTA is a state
actor, as is its licensee, TDI, and that their actions are
constrained by the First and Fourteenth Amendments.

Second, the posters come within the ambit of speech fully
protected by the First Amendment. The defendants argue
that because callers to the 1-800 number listed on the
poster may receive information advertising the services of
medical malpractice attorneys, CBM's message is thereby
transformed into "commercial speech," and should receive
substantially less constitutional protection. See Bolger v.
Youngs Drug Prods. Corp., 

, 66-67 (1983). But
the speech at issue does not advertise goods or services,
nor does it refer to a specific product or service. The 1-800
number listed on the poster does not even connect callers
to CBM. Any economic motive of CBM for posting the
advertisement is very attenuated at best. See U.S.
Healthcare v. Blue Cross of Gr. Philadelphia, 

,
932-933 (3d Cir. 1990). The speech involved is accordingly
not "commercial," at least in the sense that it is afforded
less protection under the First Amendment.

IV. Public Forum

The government may, as a general rule, limit speech that
takes place on its own property without running afoul of
the First Amendment. Lamb's Chapel v. Center Moriches
Union Free School Dist., 

, 390 (1993); Perry
Educ. Ass'n. v. Perry Local Educators' Ass'n, 

,
46 (1983). Where, however, the property in question is
either a traditional public forum or a forum designated as
public by the government, the government's ability to limit
speech is impinged upon by the First Amendment. 

. In either a traditional or a designated

                               8
public forum, the government's content-based restrictions
on private speech must survive strict scrutiny to pass
constitutional muster. Id.; International Society for Krishna
Consciousness, Inc. v. Lee, 

, 678 (1992). The
government has, however, a far broader license to curtail
speech if the forum has not been opened to the type of
expression in question. In such a case, the government's
restrictions need only be viewpoint neutral and"reasonable
in light of the purpose served by the forum." Rosenberger v.
Rector and Visitors of the Univ. of Va., 

,
2516-2517 (1995) (quoting Cornelius v. NAACP Legal
Defense and Educ. Fund, Inc., 

, 806 (1985));
Kreimer v. Bureau of Police for the Town of Morristown, 

, 1262 (3d Cir. 1992).

In order to decide whether a public forum is involved
here, we must first determine the nature of the property
and the extent of its use for speech. The Supreme Court
wrestled with a similar question in Cornelius v. NAACP
Legal Defense and Educ. Fund, Inc., 

(1985),
when it considered whether legal defense funds could be
excluded from a charity drive among federal employees. The
government argued in Cornelius that the"federal
workplace" was the relevant forum. The plaintiffs on the
other hand maintained that the forum consisted only of the
charity drive itself. 

The Court defined the forum
in terms of the access sought by the plaintiff. It accordingly
rejected the view that the entire workplace was the proper
forum, because the plaintiffs sought only to join the charity
drive, not to engage in actual, face-to-face solicitation in the
workplace. 

The Court went on to conclude that
the charity drive itself did not constitute a public forum
and that the restrictions on participation were reasonable.

In this case, the district court variously defined the forum
at issue as "the stations in a public transit system," a
"public transportation system," and "SEPTA's subway and
rail stations and their advertising space." Applying the
reasoning of Cornelius, we look to the access sought by
CBM. CBM did not seek to leaflet, demonstrate, or solicit in
the rail and subway stations as a whole. Instead, it sought
access only to the advertising space leased out by SEPTA,
through TDI. The contract between the parties

                               9
contemplated advertising with posters in the stations and
next to the clocks at Suburban Station in Philadelphia. We
conclude, therefore, that the forum at issue is SEPTA's
advertising space. See, Airline Pilots Assoc. v. Dept. of
Aviation of the City of Chicago, 

, 1151 (7th Cir.
1995) (holding that display diorama in airport, not entire
concourse, constituted relevant forum); Lebron v. Nat'l. R.R.
Passenger Corp., 

, 655-656 (holding that one
billboard was the relevant forum, not the entire Penn
Station); New York Magazine v. Metropolitan Transp. Auth.,

, 130 (2d Cir. 1998) (holding that because
MTA allowed both commercial and political speech, the
outside of MTA buses is a designated public forum).2

Our next step is to decide whether SEPTA's advertising
space is a public forum. It clearly does not constitute a
"traditional" public forum, archetypal examples of which
include streets and parks. These areas have been"held in
the public trust," 

, and dedicated to
expressive activity for "time out of mind." 

Committee for Industrial Organization, 

,
515 (1939)). We agree with the district court that the
advertising space in the stations is not a traditional public
forum. We do not understand CBM to argue otherwise.

More difficult is the question whether SEPTA has created
a designated public forum by "expressly" dedicating its
advertising space to "speech activity." U.S. v. Kokinda, 

, 726-727 (1990) (plurality opinion). A designated
_________________________________________________________________

2. The parties have not argued that the relevant forum is actually just
advertising space in the stations, to the exclusion of space leased on and
inside SEPTA vehicles. Because SEPTA stated that it used different
standards in evaluating advertisements that appeared as wrap-around
bus ads, one could conclude that these types of ads are a separate
forum. See 

(one billboard, not all of the
billboards
in Penn Station, constituted the relevant forum because the billboard
was unique and the speaker sought access only to that specific
billboard), but see 

(Newman, C.J. dissenting)
(arguing that "public forum analysis cannot be so particularized as to
focus on one of several billboards on government property"). Whether we
consider the limitations on wrap-around bus ads as creating a separate
forum, or merely a particular limitation within the larger forum of
SEPTA's advertising space, our disposition of the case remains the same.

                               10
public forum is created because the government so intends.
Inaction does not make such a forum; neither does the
allowance of "limited discourse." 

.
We accordingly look to the authority's intent with regard to
the forum in question and ask whether SEPTA clearly and
deliberately opened its advertising space to the public.
Hazelwood School Dist. v. Kuhlmeier, 

, 269-
270 (1988); 

. To gauge SEPTA's intent,
we examine its policies and practices in using the space
and also the nature of the property and its compatibility
with expressive activity. Gregoire v. Centennial School
District, 

, 1371 (3d Cir. 1990) (citing

); Brody v. Sugzdinis, 

, 1117 (3d Cir. 1992). Restrictions on the use of the
forum, however, do not necessarily mean that SEPTA has
not created a public forum. They may demonstrate instead
that SEPTA intended to create a limited public forum, open
only to certain kinds of expression. See, e.g., 

(public library constituted a limited public
forum for "reading, writing and quiet contemplation," but
not for "oral and interactive" First Amendment activities);
Rosenberger v. Rector and Visitors of the Univ. of Va., 

, 2517 (1995) (student activities fund, available
to student groups meeting certain criteria, constituted
limited public forum).

       A. SEPTA's policies

We will look first at the purpose for which SEPTA uses
the space in question. The main function of the advertising
space at issue is to earn a profit for SEPTA. Although
SEPTA generates approximately 99.5% of its revenues
through the operation of the public transit system, it does
derive about one half of one percent of its operating budget
from the leasing of advertising space in its stations and in
and on its vehicles. The contract between TDI and SEPTA
states that "it is understood that it is Licensee's obligations
[sic] under the terms of this contract to produce revenues
. . .."3
_________________________________________________________________

3. That the generation of income is a goal of the advertising space is
also
reflected in the manner in which SEPTA is paid by TDI under the

                               11
The record shows that TDI and SEPTA also had a
secondary goal in using the space: promoting "awareness"
of social issues and "providing a catalyst for change." These
objectives are stated in the "TDI Cares" brochure. The "TDI
Cares" program, in which SEPTA participates, seeks to
" `give back' to the communities which[TDI] serve[s] in
many ways . . .." In this program TDI picks an issue of
public concern and then pays for the materials and labor
involved in creating the advertisements. The purpose of the
program, in TDI's words, is to assail TDI markets with
"images, both poignant and creative, which are designed to
elevate awareness and provide a catalyst for change." This
page of the brochure is headed "consciousness" and states
that the program tries to "focus consciousness on an issue
of pressing human concern." The testimony at trial was
that SEPTA participated in TDI's annual campaign by
donating unsold advertising space. SEPTA and TDI "jointly
agree" on what initiatives will run in the Philadelphia area,
but it is not clear from the record which ads ran on SEPTA
property under this program.4

SEPTA argues that where the government runs a
commercial operation, a "bright-line rule" directs that no
public forum has been created. For this proposition, SEPTA
_________________________________________________________________

contract. TDI guarantees a minimum annual payment to SEPTA, one
twelfth of which is due at the beginning of each month, but SEPTA
receives fifty-five percent of all net sales in any given month if that
amount is greater than one twelfth of the guaranteed annual payment.
In the first agreement year, the guaranteed annual payment was
$2,000,000. This rose to $2,950,000 for the fifth and final agreement
year.

4. SEPTA contends that we should not consider the TDI Cares brochure
because it is hearsay. The brochure was, however, admitted into
evidence without objection by SEPTA. Moreover, it was offered not for the
truth of the matter asserted but for the fact that the assertions were
made -- which is not hearsay. In addition, the brochure plays little role
in our decision. There is no evidence on the record of which ads actually
ran in the campaigns described in the brochure or of how much
advertising space SEPTA and/or TDI actually donated to those
campaigns. Considered with the other evidence in the record, the
brochure demonstrates, however, that the forum in question is suitable
for speech concerning social problems and issues.

                               12
cites International Society for Krishna Consciousness, Inc. v.
Lee, 

(1992). In Lee, the Court considered
restrictions on solicitation and leafleting in airport
terminals. The Court began by noting that the government
owned and operated the airport terminals and that:

       Where the government is acting as a proprietor,
       managing its internal operations, rather than acting as
       a lawmaker with the power to regulate or license, its
       actions will not be subjected to the heightened review
       to which its actions as a lawmaker may be 

(quoting United States v. Kokinda, 

, 725 (1990) (plurality opinion) (citing Cafeteria &
Restaurant Workers v. McElroy, 

, 896 (1961))).

In Lee, the Court went on, however, to apply the factors
identified in Cornelius to determine whether the airport
terminals were public fora. The Court reasoned that the
city's purpose in operating the airport was to generate a
profit by serving the air-traveling public. The goal of the
terminal was "the facilitation of passenger air travel" and
not "the promotion of 

. The
Court distinguished the restricted access in air terminals
from other "transportation nodes," such as rail and bus
stations. 

We do not read Lee, as SEPTA suggests, to mean that
every time the government runs a commercial enterprise it
has, by definition, decided not to create an open forum. To
the contrary, it is the commercial and restricted nature of
an airport concourse which suggested that the government
did not intend the concourse to be primarily a forum for
expression. See also 

.

Here, we have determined that the forum is not the
SEPTA stations, but only the advertising space within the
stations. We need not concern ourselves with solicitation or
leafletting of the public within the stations but only with
the use of the ad space itself. The nature of this forum is
partly commercial, consistent with the goal of SEPTA to
earn a profit on its advertising space and with CBM's offer
to pay the commercial rate to lease that space. See Airline
Pilots Assoc. v. Dept. of Aviation of the City of Chicago, 

, 1157 (7th Cir. 1995); Stewart v. District of

                               13
Columbia Armory Bd., 

, 1019 (D.C. Cir.
1988). However, SEPTA has also used the advertising space
to generate a profit through expressive activity. This
expressive use has not interfered with providing rail
transportation facilities to the public. Thus, the nature of
the forum suggests, but by no means establishes, see
Lehman v. City of Shaker Heights, 

, 304
(1974), that the government has dedicated the space to
expression in the form of paid advertisements. See
Southeastern Promotions, Limited v. Conrad, 

,
555 (1975) (holding municipal theaters were "public forums
designed for and dedicated to expressive activities").

With these goals in mind, we next consider SEPTA's
written policy governing permissible advertising. The
contract between TDI and SEPTA provides that "it is
SEPTA's strong preference that [TDI] concentrate on
securing advertising other than that which is tobacco and
alcohol related." The contract directs that TDI use its "best
efforts" to fill the space with other advertisements.
Recognizing that TDI's responsibility under the contract is
to "produce revenues," the contract permits the combined
sale of alcohol and tobacco advertising of up to twenty
percent of the annual dollar value of the advertising. TDI
also, however, has an obligation to "pursue qualified public
health groups, as identified by SEPTA" and to make
advertising space available to them "on a one to one ratio
to the tobacco and alcohol related advertising at that time,
subject to space availability." In addition, the contract
reserves for SEPTA the right to reject advertisements that it
does not like:

       All advertising displays at any time inserted or placed
       by the Licensee in any display devices in any vehicle
       and /or locations shall be of an appropriate character
       and quality, and the appearance of all displays shall be
       acceptable to SEPTA. No libelous, slanderous, or
       obscene advertising maybe accepted by the Licensee for
       display in the Authority's transit and railroad vehicles
       and facilities. All advertising determined by the[sic]
       SEPTA, in its sole discretion, as objectionable within
       the meaning of this subsection must not be utilized on
       any SEPTA vehicle or facility. SEPTA shall have the

                               14
       right to immediately remove any advertising material
       which has already been applied, in the event that the
       [sic] SEPTA deems material objectionable for any
       reason, at the expense of the Licensee.

SEPTA argues that because it retained the right in its
sole discretion to reject or to remove any advertisement that
it deems objectionable, it did not create a public forum of
any sort. The authority's own statement of its intent,
however, does not resolve the public forum question.
Gregoire v. Centennial School District, 

, 1374
(3d Cir. 1990) (reasoning that "intent, as evidenced by a
government's statements, is a factor to be considered," but
that "the forum inquiry does not end with the government's
statement of intent"); see also Air Line Pilots Association,
Int'l. v. Dept. of Aviation, 

, 1153-1154 (7th Cir.
1995); Stewart v. Dist. of Columbia Armory Bd., 

, 1016-1017, 1020 (D.C.Cir. 1988).

Furthermore, the fact that SEPTA has reserved for itself
the right to reject ads for any reason at all does not signify,
in and of itself alone, that no public forum has been
created. See 

. In Gregoire, we
warned that "standards for inclusion and exclusion" in a
limited public forum "must be unambiguous and definite" if
the "concept of a designated open forum is to retain any
vitality 

. We do not hold that
the government could never, pursuant to an open-ended
policy of excluding speech as it sees fit, effectively close the
forum to certain speech (or maintain an entirely closed
forum) through a consistent practice of so doing. But the
fact that the government has reserved the right to control
speech without any particular standards or goals, and
without reference to the purpose of the forum, does not
necessarily mean that it has not created a public forum. If
anything, we must scrutinize more closely the speech that
the government bans under such a protean standard. See

; 

(Stapleton, J.,
dissenting); Denver Area Educational Telecommunications
Consortium v. FCC, 

, 2414-2415 (1996)
(Kennedy, J., concurring in part and dissenting in part);

-662 (Newman, C.J., dissenting).

                               15
SEPTA's purpose in operating the forum and its written
policies governing access provide no conclusive answer as
to whether the forum is intended to be closed or open. The
goal of generating income by leasing ad space suggests that
the forum may be open to those who pay the requisite fee.
SEPTA has specified a few areas in which it will not freely
accept advertising: alcohol and tobacco advertising beyond
a specified limit and ads deemed libelous or obscene. These
restrictions do not apply to the CBM posters. Beyond these
limitations, there are no specific restrictions on the type of
advertising that SEPTA will accept. In effect, SEPTA's
reservation of the right to reject any ad for any reason does
not conclusively show that it intended to keep the forum
closed.

We turn now to SEPTA's past practice in using the
advertising space, and the suitability of the forum to the
speech in question.

       B. SEPTA's Past Practice and the Suitability of th e
       Forum for CBM's Ad

SEPTA has accepted a broad range of advertisements for
display. These include religious messages, such as"Follow
this bus to FREEDOM, Christian Bible Fellowship Church;"
an ad criticizing a political candidate; and explicitly worded
advertisements such as "Safe Sex Isn't" and an
advertisement reminding viewers that "Virginity-It's cool to
keep" and "Don't give it up to shut `em up." Indeed, many
ads address topics concerning sex, family planning, and
related topics. Other examples include a controversial ad
campaign on AIDS education and awareness, posters
stating "The Face of Adoption" "Consider Adoption" and
"Every child deserves a family," and another ad reading
"Pregnant? Scared? Confused? A.R.C. Can Help Call 1-800-
884-4004 or (215-844-1082.)"

On the topic of abortion, SEPTA has accepted two ads.
One read "Choice Hotline, For Answers to Your Questions
About: Birth Control * Pregnancy * Prenatal Care * Abortion
* Adoption * HIV/AIDS * Sexually Transmitted Diseases
(STDs) Abortion - Making A Decision, Call State Health Line
1-800-692-7254 For Free Booklet on Fetal Development,

                                16
Fetus is Latin for Little one - A Little Human is a Baby,
Confidential * Free." The other one addressed the health
benefits of legalizing abortion: "When Abortion Was Illegal,
Women Died. My Mother Was One of Them. Keep Abortion
Legal and Safe. Support the Clara Bell Duvall Education
Fund. 471-9110."

From the broad range of ads submitted, SEPTA has
requested modification of only three. One was the large
wrap-around bus ad for Haynes hosiery, which would have
covered the entire bus with the picture of a "scantily clad"
woman; it was too "risque." The same ad was accepted as
a smaller "poster" ad on the sides of buses. SEPTA also
asked for modification of an ad depicting a gun with a
condom stretched over it. The text of the ad, "Safe Sex
Isn't," ultimately ran without the graphics. SEPTA also
requested that an advertisement for a personal injury law
firm delete references to rail accidents.

We conclude then, based on SEPTA's written policies,
which specifically provide for the exclusion of only a very
narrow category of ads, based on SEPTA's goals of
generating revenues through the sale of ad space, and
based on SEPTA's practice of permitting virtually unlimited
access to the forum, that SEPTA created a designated
public forum. Moreover, it created a forum that is suitable
for the speech in question, i.e., posters which presented
messages concerning abortion and health issues. CBM paid
for advertising space which had previously been used for
ads on those topics. We need not define the precise
boundaries of the forum, particularly concerning visual
images that could be considered explicit. The topic of
abortion and its health effects were, however,
"encompassed within the purpose of the forum." 

.

SEPTA argues, however, and the district court concluded,
that the instances in which SEPTA requested modification
of ads demonstrate that SEPTA maintained "tight control"
over the forum. This reasoning is consistent with a number
of cases, holding that generally when permission is
necessary before ads are posted, the government has not
created a public forum. See 

. In this
case, however, at least 99% of all ads are posted without

                                17
objection by SEPTA. As we note above, SEPTA has
exercised control over only three ads, two of which had
graphics to which SEPTA objected, and one of which
solicited personal injury cases that could be directed
against SEPTA. In one case, the concern with the graphics
was unique to the wrap-around type bus ad -- concerns
not implicated here. In all three cases, after negotiation
with the sponsor, the ads were permitted to run with some
modification.

Because of SEPTA's policy in accepting ads, including
two on the specific topic in question, the argument that
SEPTA has "tight control" over the forum may apply to ads
which are similar to the ones for which SEPTA has required
modification. That does not mean, however, that such
control applies to subject matter over which SEPTA has
never before exercised any restrictions. Because the forum
may be limited in one way does not foreclose its status as
a public forum with respect to other categories of speech. If
it did, there would have been no limited public forum in

, or in 

. Both cases involved designated fora which excluded
non-student groups. Nor would there have been a limited
public forum in Kreimer, where the library constituted a
public forum although it was open only to certain kinds
expression.5
_________________________________________________________________

5. In Denver Area Educational Telecommunications Consortium v. FCC,

, 2388 (1996) (plurality opinion), the Court was troubled
by how to characterize the government's decision to limit a forum to
exclude certain speech. Does strict scrutiny apply, Justice Breyer asked
for the plurality, if the government "builds a band shell in the park and
dedicates it solely to classical music (but not to jazz)?" Justice Kennedy
responded that the correct analogy to the cable system at issue was "the
Government's creation of a band shell in which all types of music might
be performed except rap music," and went on to say that "the provisions
here are content-based discriminations in the strong sense of
suppressing a certain form of expression that the Government dislikes,
or otherwise wishes to exclude on account of its effects, and there is no
justification for anything by strict scrutiny 

(Justice Kennedy, concurring and dissenting). In this case, the past
practice of permitting much speech, particularly that on the topic of
abortion, makes Justice Kennedy's analogy apt.

                                18
But we reiterate that the government's exercise of some
restrictions on speech does not foreclose a public forum.
We do not hold that merely because the government may
have had a past practice of permitting some expressive
activity, it has created a public forum. Standing alone, a
past practice of permitting some expressive activities or
"limited discourse" does not mandate that the government
intended the forum as public. 

;

; 

.6 We must
look at the past practice in conjunction with the purpose of
the forum. In Cornelius, although the government permitted
speech in the forum, the "extensive" criteria for admission
to the forum and the government's purpose in creating the
forum demonstrated that the government intended the
forum to be 

; see also, 

; 

-48. Here, on the
other hand, the purpose of the forum does not suggest that
it is closed, and the breadth of permitted speech points in
the opposite direction.

Moreover, there is no evidence that SEPTA rejected the ad
pursuant to a new or previously existing policy to close the
forum to debatable or misleading speech generally, or
_________________________________________________________________

Our consideration of the similarity of the speech in question to speech
permitted in the past is related to a determination of whether the
limitation constitutes viewpoint discrimination, although here we make
that inquiry only in conjunction with the other factors in the public
forum analysis. We do not reach the viewpoint discrimination issue in
this case. Even if we concluded that no viewpoint discrimination took
place, however, this would not make the past use of the space irrelevant
in determining whether the forum is public. How the forum has been
used in the past is a core component of the public forum inquiry. See,
e.g., Cornelius at 803-805; see also Denver Area 

(Kennedy, J. concurring and dissenting) ("It contravenes the
First Amendment to give Government a general license to single out
some categories of speech for lesser protection so long as it stops short
of viewpoint discrimination.").

6. In Kokinda, only four Justices concluded that no public forum had
been created. Four Justices reached exactly the opposite exclusion -- a
limited public forum had been created -- based in large part on the past
practice of permitting speech in the forum. 

.

                               19
closed it to such speech on any particular topic of health.
To the contrary, SEPTA simply argues that the forum was
closed, and will be closed, to any speech that SEPTA wishes
to exclude for any reason. In other words, SEPTA does not
argue that the forum is closed to this particular type of
speech because SEPTA views it differently from the speech
it has permitted in the past. Instead, SEPTA claims the
forum is closed to all speech, and that short of viewpoint
discrimination, SEPTA can make any content-based
restrictions it chooses. SEPTA's prior acceptance of a broad
range of advertisements cuts particularly strongly against
this claim. Cf. 

. As Justice
Kennedy reasoned in Denver Area Consortium,"[t]he power
to limit or redefine forums for a legitimate purpose [citation
omitted] does not allow the government to exclude certain
speech or speakers from them for any reason at 

(Kennedy, J.) (concurring and dissenting).

The Seventh Circuit has also concluded, in a case similar
to this one, that a transportation authority created a
limited public forum. Planned Parenthood Ass'n v. Chicago
Transit Auth., 

(7th Cir. 1985). In Planned
Parenthood, the Chicago Transit Authority ("CTA") refused
to lease advertising space to Planned Parenthood for display
of "abortion-related" advertisements. Although CTA had
rejected an anti-Vietnam war ad (later displayed as part of
a settlement agreement), and an "Impeach Nixon" placard
(later displayed pursuant to court order), CTA had accepted
an anti-war ad depicting "large bombs falling on a child
releasing a dove with an olive branch in its 

. The court concluded that CTA had created a
limited public forum, reasoning that "CTA maintains no
system of control over the advertisements that it accepts ...
other than the general contractual directive .... to refuse
vulgar, immoral, or disreputable advertising" and that CTA
"has allowed its advertising space to be used for a wide
variety of commercial, public-service, public-issue, and
political ads." 

Noting as well that CTA
had no policy pursuant to which the ad was excluded, the
court concluded that the transportation authority had
created a public forum. We are confronted with a similar
factual situation in this case, and we reach the same
conclusion.

                               20
In arguing to the contrary, SEPTA relies primarily on
Cornelius v. NAACP Legal Defense and Education Fund , 

,902 (1985) and Student Coalition for Peace v.
Lower Merion School, 

, 436 (3d Cir. 1985). In
Cornelius, however, the government had a "consistent
policy," spanning more than two decades, of limiting the
charity drive to organizations that provided "direct health
and welfare services to individuals . . 

.
The purpose of the charity drive, moreover, was to limit the
disruptive effects of individual charity drives throughout the
year, by "lessening the amount of expressive activity
occurring on public property." 

Here, there is no
comparable "policy and practice" demonstrating that the
government intended that the forum be closed to the
speech at issue in this case. Indeed, the record points
exactly the other way. In its efforts to generate advertising
revenues, SEPTA permitted abortion-related and other
controversial advertisements concerning sexuality.

In Student Coalition for Peace v. Lower Merion School, 

, 436 (3d Cir. 1985), we considered the refusal of
a school board to permit a "Peace Fair" on the school's
athletic field or inside the boys' gymnasium. A student
organization, not sponsored by the school, which advocated
a bilateral nuclear freeze, sought to conduct the fair at the
school. The school had permitted use of the athleticfield for
a Special Olympics, for a Memorial Day service, for a "Bike
Hike," and for jogging, picnics, and similar 

. The board rejected the request pursuant to an
unwritten, but long-standing policy of reserving the athletic
field for "athletic and governmental purposes." The board
noted that use of the gym could cause damage to thefloor,
and offered the use of the auditorium, which the group
_________________________________________________________________

7. This policy was in effect from 1963 until 1982. 

. During 1982 and 1983, some legal defense funds participated in
the charity drive under court order. An Executive Order issued in 1983
limited participation to "voluntary, charitable, health and welfare
agencies that provide or support direct health and welfare services to
individuals or their families," excluding "[a]gencies that seek to
influence
the outcomes of elections or the determination of public policy through
political activity or advocacy, lobbying, or litigation on behalf of
parties
other than 

.

                               21
rejected. We concluded, because permission to use the
facilities in question was not granted "as a matter of
course" and because the nature of the property suggested
the facilities did not have as their primary purpose
expressive activities, that the government had not created a
limited public forum. 

The property at issue
here, on the other hand, has been dedicated to expressive
activity of exactly the sort in which petitioners seek to
engage. Moreover, as to the subject of abortion specifically,
and family planning issues generally, permission to post
advertisements has been granted as a "matter of course."
There is no policy, written or unwritten, pursuant to which
CBM's ads were removed.

Lehman v. City of Shaker Heights, 

(1974) is
similarly inapposite. In Lehman, the Court considered a
ban on political advertising in the city's transit vehicles. A
candidate for city council challenged the city's rejection of
his ad pursuant to the city's policy, which had been in
effect for 25 years. The card space, the Court reasoned, was
a "commercial venture," and the city was free to limit the
space to enhance commercial revenues, and to protect
riders from the "blare of political propaganda." 

304. As we have made clear, however, SEPTA has no long-
standing practice of prohibiting ads like CBM's; nor does it
have any policy pursuant to which the ads were removed.
SEPTA's past practice is, instead, to include such ads.

Because we find that SEPTA has created a designated
public forum, content-based restrictions on speech that
come within the forum must pass strict scrutiny to comport
with the First Amendment. 

. As the
Supreme Court explained in Police Dept. of the City of
Chicago v. 

, 95, "above all else, the
First Amendment means that government has no power to
restrict expression because of its message, its ideas, its
subject matter, or its content." Thus the government "may
not grant the use of a forum to people whose views it finds
acceptable, but deny use to those wishing to express less
favored or more controversial views. And it may not select
which issues are worth discussing or debating in public
facilities." 

The prohibited expression in this case,
CBM's ad, falls within the scope of the forum created by

                               22
SEPTA. Thus, SEPTA's restriction is subject to heightened
review.

SEPTA has not argued that its actions survive strict
scrutiny. Accordingly, we conclude that CBM's First
Amendment rights were violated when SEPTA removed
CBM's ads.

V. Reasonableness of SEPTA's Restrictions

Even if the speech in question had fallen outside the
limited public forum created by SEPTA, we would
nonetheless conclude that SEPTA's removal of the posters
violated the First Amendment because the removal was not
"reasonable." When reviewing a governmental agency's
limitation of speech on government property that has not
been designated a public forum, the "reasonableness" of
action limiting speech is gauged with reference to the
nature of the forum itself. As the Supreme Court explained:

       Consideration of a forum's special attributes is relevant
       to the constitutionality of a regulation since the
       significance of the governmental interest must be
       assessed in light of the characteristic nature and
       function of the particular forum involved.

United States v. Kokinda, 

, 732 (1990)
(plurality opinion) (quoting Heffron v. International Society
for Krishna Consciousness, 

(1981); see also,

. The Kokinda plurality went on to
hold that a ban on solicitation on postal premises was
reasonable, in part because the "purpose of the forum" was
"to accomplish the most efficient and effective postal
delivery system." 

Solicitation, the postal service
had decided, was "inherently disruptive" of its business. 

also make clear that the reasonableness of
the government's restriction on speech depends on the
nature and purpose of the property from which it is barred.
In Kreimer, for example, we considered whether regulations
governing the behavior of library patrons were reasonable
by evaluating to what extent the regulations were
consistent with, or promoted, the purposes to which the
library had been 

. Rules
limiting disruptive behavior were deemed reasonable

                               23
because they constituted "perhaps the clearest and most
direct way to achieve maximum library use." Id; see also,
Hazelwood School Dist. v. Kuhlmeier, 

, 273
(1988) (content-based restrictions on speech in school
newspaper constitutional "so long as [they] are reasonably
related to legitimate pedagogical concerns"); Cornelius v.
NAACP Legal Defense and Educ. Fund, Inc., 

,
806 (1985) (distinctions in non-public forum based on
"subject matter and speaker identity" are constitutional as
long they are "reasonable in light of purpose served by the
forum and are viewpoint neutral"); Lee v. Intern. Soc. for
Krishna Consciousness, Inc., 

, 685 (1992)
(O'Connor, J., concurring) (reasonableness inquiry is
"whether [the restrictions on solicitation and on distribution
of literature] are reasonably related to maintaining the
multipurpose environment that the Port Authority has
created.").

Similarly, in Lehman v. City of Shaker Heights, 

, 303 (1974), the Court considered whether the city's
refusal to accept political advertising on its rapid transit
vehicles violated the First Amendment. The Court reasoned
that

       Revenue earned from long-term commercial advertising
       could be jeopardized by a requirement that short-term
       candidacy or issue-oriented advertisements be
       displayed on car cards. Users would be subjected to
       the blare of political propaganda. There could be
       lurking doubts about political favoritism, and sticky
       administrative problems might arise in parceling out
       limited space to eager politicians. In these
       circumstances, the managerial system to limit car card
       space to innocuous and less controversial advertising
       does not rise to the dignity of a First Amendment
       

(plurality opinion). The Court thus
reasoned that, in order to maximize commercial revenue
and eliminate concerns about political favoritism, the city
could restrict the car card space to exclude political
advertisement.

In this case, the district court concluded that SEPTA
acted reasonably in relying on Dr. Lee's letter to remove the

                               24
CBM posters. However, CBM paid the commercial rate for
the advertising space, just like any other advertiser, and
submitted an advertisement on abortion and women's
health, topics that were already the subject of other
permitted advertisements. The subject of the speech, and
the manner in which it was presented, were compatible
with the purposes of the forum.

The plurality opinion in Kokinda warned against
accepting the argument that simply because the
government permitted other potentially disruptive speech
on postal property, it had to permit solicitation as well. The
Court reasoned that "whether or not the Service permits
other forms of speech, which may or may not be disruptive,
it is not unreasonable to prohibit solicitation on the ground
that it is unquestionably a particular form of speech that is
disruptive of 

.8 See also Greer v.
Spock, 

, 838 n.10 (1976). In this case,
however, unlike Kokinda and Lehman, the government has
offered no basis on which to conclude that the speech in
question would interfere with the accepted purposes of the
advertising space. See Lee v. Intern. Soc. for Krishna
Consciousness, Inc., 

, 691 (1992) (O'Connor, J.
concurring) ("because I cannot see how peaceful
pamphletting is incompatible with the multipurpose
environment of the Port Authority airports, I cannot accept
that a total ban on that activity is reasonable without an
explanation as to why such a restriction `preserves the
property' for the several uses to which it has been put.
[citation to Perry]"); Airline Pilots Assoc. v. Dept. of Aviation,

, 1161 (7th Cir. 1995) (Flaum, J. Concurring)
("...when the government decides who may speak based on
substantive criteria, it acts as a censor. The government
should not normally take on the role of deciding who may
speak on what matters, regardless of what capacity in
which it acts").
_________________________________________________________________

8. Although the four Justice plurality concluded that the restriction was
reasonable, three dissenting Justices concluded that even if the forum
was nonpublic, the restrictions were not reasonable, in large part
because the post office permitted other disruptive speech. This
"inconsistent treatment," in the eyes of the dissent, "renders the
prohibition on solicitation unreasonable." Kokinda, 

(Brennan, J. dissenting).

                                25
SEPTA argued before the district court that Gambaccini
had testified that SEPTA "closed the debate to a situation in
which there are ads or debated and dubious statements of
medical fact."9 Consistent with this statement, SEPTA could
have argued that based on Dr. Lee's letter, it viewed CBM's
ad as "debated and dubious," and accordingly excluded it.
A prohibition on "debated and dubious ads," put in place
before, or because of the concerns about CBM's ad, might
qualify as reasonable. We note, however, that SEPTA does
not have a policy of protecting riders from "debated and
dubious" speech generally, nor does SEPTA link this
purported policy to its use of the forum.

In any event, we need not reach that question.
Gambaccini did not testify to such a policy, implemented
either before or after the removal of CBM's ad. Instead,
when questioned if he would post an ad saying "women
who choose abortion live longer and have less breast
cancer," he answered "[N]ot unless there was some credible
evidence to support it." (Appendix at 354-355). This is a
different standard -- a debatable advertisement may well be
supported by credible evidence. And if this standard
controlled, SEPTA was unreasonable because it failed to
give CBM an opportunity to produce such evidence.
Moreover, Gambaccini did not explain whether this
standard applied generally, or just to ads on the topic of
abortion and cancer. Nor did he explain SEPTA's grounds
for adopting it. SEPTA has left us to guess why, in terms of
the purpose of the forum, it excluded CBM's ad, and why,
and to what extent, other ads will also be excluded. This
makes it difficult to evaluate the extent of the governmental
interest in excluding the speech from SEPTA's property.

Finally, as we have noted, SEPTA never asked CBM--
the sponsor of the ad -- to defend its accuracy, to explain
the basis for the ad, or to clarify it. Instead, SEPTA removed
the ad without contacting CBM -- even though CBM had
modified the poster in response to SEPTA's previous
requests.
_________________________________________________________________

9. SEPTA argued before us that it "determined not to devote its
advertising areas to alarming allegations regarding cancer and abortion,
given the controverted nature of the public health claim as described in
the HHS letter."

                               26
We conclude, therefore, that under the facts presented
SEPTA's actions were not reasonable. SEPTA acted as a
censor, limiting speech because it found it to be
"misleading." SEPTA argues that it cannot investigate the
accuracy of medical claims in ads. For that reason, it relied
on Dr. Lee's letter. We do not hold that SEPTA must hire its
own cadre of experts to evaluate medical claims made in
ads. It was SEPTA, however, which accepted advertising on
a permitted topic, and then decided that CBM's ad was
unacceptably misleading. Having decided to exclude the
posters on this basis, SEPTA did not act reasonably when
it failed to ask CBM to clarify the basis on which the claim
was made. This is all the more true where SEPTA has failed
to explain how its content-based distinctions are related to
preserving the advertising space for its intended use, and
where SEPTA has in place no policy, old or new, written or
unwritten, governing the display of ads making contested
claims.

VI. Conclusion

For the reasons set forth above, we will reverse district
court's order granting judgment to SEPTA, and we will
remand this case for further proceedings consistent with
this opinion.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               27