PRECEDENTIAL

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT
              _____________

             No. 09-3352 & 09-3563
                _____________

 PITTSBURGH LEAGUE OF YOUNG VOTERS
          EDUCATION FUND;
AMERICAN CIVIL LIBERTIES FOUNDATION OF
           PENNSYLVANIA,

                      Appellants in Case No. 09-3563

                       v.

PORT AUTHORITY OF ALLEGHENY COUNTY;
        ANTHONY J. HICKTON,

                     Appellants in Case No. 09-3352
                _____________

 On Appeal from the United States District Court
      for the Western District of Pennsylvania
           District Court No. 2-06-cv-1064
District Judge: The Honorable Terrence F. McVerry

              Argued May 10, 2011

                       1
      Before: SMITH, CHAGARES, and VANASKIE,
                     Circuit Judges

                  (Filed: August 5, 2011)



Gregory J. Krock (Argued)
Corrado Salvatore
Buchanan Ingersoll & Rooney PC
One Oxford Centre
301 Grant Street, 20th Floor
Pittsburgh, PA 15219

      Counsel for Appellants

Jon Pushinsky (Argued)
Law & Finance Building
Suite 1808
429 Fourth Avenue
Pittsburgh, PA 15219

Sara J. Rose
Witold J. Walczak
American Civil Liberties Union
313 Atwood Street
Pittsburgh, PA 15213

      Counsel for Appellees

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                     ________________

                         OPINION
                     ________________

SMITH, Circuit Judge.

        Unlike many of its sister states, Pennsylvania allows
felons to vote immediately upon release from prison. In an
effort to correct widespread belief to the contrary, a coalition
of public-interest organizations set out to run an
advertisement informing ex-prisoners that they have the right
to vote and encouraging them to exercise it. The coalition
asked the Port Authority of Allegheny County, Pennsylvania
to place the ad in its buses. The Port Authority denied the
request, pointing to its written advertising policy, which
prohibits ―noncommercial‖ ads. The coalition sued, alleging
a violation of the First Amendment. The case proceeded to a
bench trial, where the coalition proved that despite its written
advertising policy, the Port Authority had accepted many
noncommercial ads in recent years, several of which bore a
striking resemblance to the coalition‘s ad. Based mainly on
this ―comparator‖ evidence, the District Court found that the
rejection of the coalition‘s ad amounted to viewpoint
discrimination in violation of the First Amendment. We will
affirm.




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                      I. BACKGROUND

        Many of Pennsylvania‘s ex-prisoners do not know they
have the right to vote. Seeing a need for public education, a
coalition of public-interest groups, including the ACLU and
the Pittsburgh League of Young Voters Education Fund,
teamed up to start the ―Ex-Offender Voting Rights Project.‖
The aims of the Project were to inform ex-prisoners that they
have the right to vote, register them to vote, encourage them
to vote, and—in the event ex-prisoners were denied the
franchise—litigate on their behalf.

        The coalition determined that running ads in public
buses would be an effective way to reach its target audience,
so Lisa Krebbs, an employee of the ACLU, contacted the Port
Authority on the coalition‘s behalf. Krebbs was referred to
Anthony Hickton, the Port Authority‘s Director of Sales. She
identified herself as an ACLU employee, described the Ex-
Offender Voting Rights Project, and informed Hickton that
the coalition was interested in placing an ad in city buses.
Although no draft had yet been prepared, she explained that
the ad would inform ex-prisoners that they have the right to
vote, encourage them to vote, and provide a phone number
that they could call if they needed help or had questions.
Hickton told Krebbs that the Port Authority would not run the
ad. He explained that the ad as described did not comply with
the Port Authority‘s written advertising policy, which
prohibited ―noncommercial‖ advertisements.

      The coalition tried several times to persuade the Port
Authority to reverse course. It corresponded with Hickton
                             4
and the Port Authority‘s in-house counsel Chris Hess,
explaining that its advertisement was no different from many
other noncommercial ads commonly displayed in Port
Authority buses. Hickton and Hess refused to budge. The
coalition therefore filed this lawsuit under 42 U.S.C. § 1983,
alleging a violation of the First Amendment‘s Free Speech
Clause.     The complaint asserted, first, that the Port
Authority‘s advertising space is a public forum and that
rejecting the coalition‘s ad thus amounted to impermissible
content-based discrimination. Second, the complaint asserted
that the Port Authority had rejected the coalition‘s ad as a
result of unconstitutional viewpoint discrimination.

       While the lawsuit was pending, the parties and their
attorneys met to discuss a possible settlement. During the
meeting, Hess asserted—for the first time—that the Port
Authority had rejected the coalition‘s ad not just because it
was ―noncommercial‖ but also because it was ―political,‖
another subject matter banned under the advertising policy.
Ultimately no settlement was reached, and the litigation
proceeded apace.

        After the close of discovery, the parties filed cross
motions for summary judgment. The District Court denied
the coalition‘s motion.      The Court granted the Port
Authority‘s motion on the content-based-discrimination
claim, holding that the advertising space is not a public
forum. But the Court denied its motion as to the viewpoint-
discrimination claim, concluding that a genuine dispute
existed about whether the Port Authority had rejected the
coalition‘s ad because of hostility towards the ad‘s message.
                              5
What remained of the § 1983 suit—the viewpoint-
discrimination claim—was scheduled for a bench trial.

        The trial lasted five days, and the Court heard
testimony from a number of witnesses, including Hickton and
Hess, the decisionmakers responsible for rejecting the
coalition‘s ad. In support of the Port Authority‘s position,
Hess testified that he had once rejected an ―ad from the
League of Women Voters that just sort of said ‗vote.‘‖ JA
1428. Hess and Hickton, moreover, offered definitions of the
terms ―political‖ and ―commercial,‖ which are not defined in
the advertising policy. Their definitions differed somewhat,
but they agreed that an ad is not commercial unless it in some
way promotes the monetary interests of the advertiser.

       The Court also received evidence about other ads that
the Port Authority has run in its buses. As it turns out, the
Port Authority has not consistently adhered to the advertising
policy‘s ban on noncommercial ads. It has run a number of
noncommercial ads in recent years, including ads placed by
organizations known as Just Harvest, the Fair Housing
Partnership, and the Women‘s Law Project.

       Just Harvest is a nonprofit organization dedicated to
the elimination of poverty and hunger. Its advertisement
(which Hickton acknowledged was not commercial in nature)
informed low earners about their entitlement to the earned
income tax credit, a refundable tax credit given to low-
income workers and their families. The ad also stated that
Just Harvest would prepare simple tax returns for low-income
workers free of charge.
                              6
        The Fair Housing Partnership is a nonprofit group
committed to fighting housing discrimination.           Its ad
informed the public that housing discrimination is illegal and
provided a phone number that people could call if they had
questions or needed help. The Partnership does not charge
for its services, and Hickton knew this when he accepted the
ad.

       The Women‘s Law Project is a nonprofit organization
dedicated to advancing the rights and status of women. When
originally submitted, the Project‘s ad said, ―Just because
you‘re young doesn‘t mean you don‘t have rights. Call the
Women‘s Law Project for free legal information.‖ Refusing
to accept the ad as submitted, Hess recommended that ―free
legal information‖ be changed to ―confidential legal
services.‖ Although ―free legal information‖ was more
accurate (when a woman called she would typically receive
free information, not legal services), the Project acquiesced in
Hess‘ recommendation and the ad was run.

        After the trial, the District Court issued an opinion
concluding that the Port Authority had rejected the coalition‘s
ad as a result of viewpoint discrimination. The Court found,
first, that the Port Authority did not really reject the ad
because of its supposed political character. Because the Port
Authority did not mention this basis until after the litigation
had begun, the Court found that it was merely a post hoc
rationalization for the rejection. The Court concluded,
moreover, that the Port Authority‘s claim that it had rejected
the ad because it was noncommercial was a pretext for
viewpoint discrimination. The Court found that the ads
                               7
placed by Just Harvest, the Fair Housing Partnership, and the
Women‘s Law Project were—like the coalition‘s proposed
ad—noncommercial ads designed to educate readers about
their legal rights. That the Port Authority had accepted these
ads, but rejected the coalition‘s ad for the stated reason that it
was noncommercial, raised an inference of viewpoint
discrimination that the Port Authority had failed to rebut.

       The Port Authority appealed.

         II. JURISDICTION AND STANDARD OF REVIEW

       The District Court had jurisdiction under 28 U.S.C. §§
1331 and 1343. We have final-order 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. Fed. R. Civ. P. 52(a); McCutcheon v. America’s
Servicing Co., 

, 147 (3d Cir. 2009). In Bose
Corp. v. Consumers Union, 

(1984), however,
the Supreme Court instructed that ―in cases raising First
Amendment issues[,] an appellate court has an obligation to
‗make an independent examination of the whole record.‖‘ 

(quoting N.Y. Times Co. v. Sullivan, 

, 285
(1964)).    Independent fact review is necessary, Bose
explained, ―to make sure that ‗the [trial court‘s] judgment
does not constitute a forbidden intrusion on the field of free
expression,‘‖ 

376 U.S. at 285), and to
provide appellate courts with greater control over the case-by-
case elaboration of First Amendment principles, 

03.

                                8
        Bose‘s law-refinement purpose is triggered in all First
Amendment cases, but its speaker-protection purpose is
triggered only in cases where the speaker lost at the trial
level. See Eugene Volokh & Brett McDonnell, Freedom of
Speech and Independent Judgment Review in Copyright
Cases, 107 Yale L.J. 2431, 2442–43 (1998). It is therefore
unclear whether Bose applies to First Amendment cases
generally, or whether it is limited to First Amendment cases
in which the speaker unsuccessfully claimed a violation of
free speech rights in the trial court. There are circuit
decisions on both sides of the question. Compare Planned
Parenthood Ass’n v. Chicago Transit Auth., 

,
1229 (7th Cir. 1985) (Bose applies only when the speaker lost
at the trial level), with Bartimo v. Horsemen’s Benevolent &
Protective Ass’n, 

, 897 (5th Cir. 1985) (Bose
applies to First Amendment cases generally). This is a
substantial legal issue, but we decline to weigh in on it. We
need not take sides on the question of Bose‘s application here
because we would uphold the District Court‘s finding of
viewpoint discrimination under either the Bose or clear-error
standard.

                         III. MERITS

       The government does not have ―to grant access to all
who wish to exercise their right to free speech on every type
of [public] property without regard to the nature of the
property or to the disruption that might be caused by the
speaker‘s activities.‖ Cornelius v. NAACP Legal Defense &
Educ. Fund, Inc., 

, 799–800 (1985). The
Supreme Court has developed a forum analysis to determine
                              9
when the government‘s interest in limiting the use of its
property outweighs the interest of those wishing to use the
property as a place for expressive activity. 

three types of fora. Christian Legal Soc’y v.
Martinez, 

, 2984 n.11 (2010). On one end of
the spectrum lie traditional public fora. These fora, of which
public streets and parks are examples, ―‗have immemorially
been held in trust for the use of the public, and, time out of
mind, have been used for purposes of assembly,
communicating thoughts between citizens, and discussing
public questions.‘‖ Perry Educ. Ass’n v. Perry Local
Educators’ Ass’n, 

, 45 (1983) (quoting Hague v.
CIO, 

, 515 (1939)). In traditional public fora,
content-based restrictions on speech are subject to strict
scrutiny (i.e., the restrictions must be narrowly tailored to
serve a compelling governmental interest). 

designated public fora. These fora consist of public property
―that has not traditionally been regarded as a public forum‖
but that the government has intentionally opened up for use
by the public as a place for expressive activity. Pleasant
Grove City v. Summum, 

, 1132 (2009). As is
the case in traditional public fora, content-based restrictions
are subject to strict scrutiny in designated public fora. 

. Finally, public property that ―is not by
tradition or designation a forum for public communication‖
constitutes a nonpublic forum. 

Access to a
nonpublic forum can be restricted so long as the restrictions
are reasonable and viewpoint neutral. 

.

                              10
        The parties agree that the advertising space in Port
Authority buses is not a traditional public forum. They
disagree, though, over whether the space constitutes a
designated public forum or a nonpublic forum. The coalition
argues that the space is a designated public forum because the
Port Authority‘s practice has been to accept virtually all ads
from all advertisers. The Port Authority disagrees, asserting
that the space is a nonpublic forum because it has consistently
refused to accept, for example, political ads. See Port Auth.
Br. at 55 (citing Lehman v. City of Shaker Heights, 

(1974)). Although the parties have briefed and argued
the issue, we need not tackle the forum-selection question.
Regardless of whether the advertising space is a public or
nonpublic forum, the coalition is entitled to relief because it
has established viewpoint discrimination.

       Viewpoint discrimination occurs when the government
―targets not subject matter, but particular views taken by
speakers on a subject.‖ Rosenberger v. Rector & Visitors of
Univ. of Va., 

, 829 (1995). See also Ridley v.
Mass. Bay Transp. Auth., 

, 82 (1st Cir. 2004)
(explaining that the government engages in viewpoint
discrimination when it suppresses speech because it disagrees
with ―the underlying ideology or perspective that the speech
expresses‖). Viewpoint discrimination is anathema to free
expression and is impermissible in both public and nonpublic
fora. R.A.V. v. City of St. Paul, 

, 382 (1992);

. So if the government allows speech on
a certain subject, it must accept all viewpoints on the subject,

, even those that it disfavors or that
are unpopular, 

. See also
                              11
Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 

, 392–93 (1993) (where government allowed
nonpublic forum to be used for discussion of certain subjects,
it could not deny access to those wishing to discuss the
subjects from a religious standpoint).

        The Port Authority claims to have rejected the
coalition‘s ad on the grounds that it was ―political‖ and
―noncommercial‖—two types of ads that are banned under
the advertising policy. The ―political‖ ground can quickly be
dismissed. Because the Port Authority did not mention this
basis until after the lawsuit had been filed, the District Court
permissibly found that it was not a real basis for rejecting the
ad but was, instead, a post hoc rationalization. And in any
event it is less than obvious that the ad could even be
considered ―political‖ in nature. It would not have called on
citizens to, say, vote for a specific candidate or publicly
support a certain cause. Cf. 

(Brennan, J., dissenting) (suggesting that a ―public service ad
by the League of Women Voters . . . advertising the existence
of an upcoming election and imploring citizens to vote‖
would not qualify as a ―political‖ ad in the ordinary sense of
the word).

        The Port Authority‘s explanation that it rejected the
coalition‘s ad because of its noncommercial character
requires more analysis.         This is a viewpoint-neutral
explanation for the rejection, see 

(majority
opinion); Children of the Rosary v. City of Phoenix, 

, 979–80 (9th Cir. 1998), and the Port Authority has
consistently relied on it since Hickton‘s initial rejection of the
                               12
ad. As in the employment-discrimination context, however,
the recitation of a nondiscriminatory rationale is not sufficient
standing alone because it could be a cover-up for unlawful
discrimination. 

. As the First
Circuit explained in a case similar to this one:

       There are various situations which will lead a
       court to conclude that, despite the seemingly
       neutral justifications offered by the government,
       nonetheless the decision to exclude speech is a
       form of impermissible discrimination. . . . First,
       statements by government officials on the
       reasons for an action can indicate an improper
       motive. Second, where the government states
       that it rejects something because of a certain
       characteristic, but other things possessing the
       same characteristic are accepted, this sort of
       underinclusiveness raises a suspicion that the
       stated neutral ground for action is meant to
       shield an impermissible motive. Third,
       suspicion arises where the viewpoint-neutral
       ground is not actually served very well by the
       specific governmental action at issue; where, in
       other words, the fit between means and ends is
       loose or nonexistent.

(citations and footnote omitted); cf.
McDonnell Douglas Corp. v. Green, 

(1973).

       The coalition is not armed with direct evidence of
discrimination. This is hardly surprising. ―[T]he government
                               13
rarely flatly admits it is engaging in viewpoint
discrimination.‖ 

. Nor is there a lack
of fit between the Port Authority‘s viewpoint-neutral
explanation (i.e., that it only accepts commercial ads) and its
rejection of the coalition‘s ad. It is beyond dispute that the
coalition‘s ad was not commercial in nature. To establish
viewpoint discrimination, then, the coalition has advanced a
comparator analysis. It argues that although the Port
Authority says it rejected the ad for being noncommercial, it
accepted several other noncommercial advertisements,
thereby raising a suspicion of viewpoint discrimination.

       The coalition focuses on the ads placed by Just
Harvest, the Fair Housing Partnership, and the Women‘s Law
Project. The District Court determined that these ads were
similar to the coalition‘s proposed advertisement. Most
importantly the Court found that the ads, like the coalition‘s,
were noncommercial in nature.            The Port Authority
challenges this finding, arguing that the comparator ads were
in fact commercial because they promoted the provision of
services. This is wrong. At most the comparator ads
promoted the provision of free services, and the record is
filled with evidence, including testimony from Hickton and
Hess, that the Port Authority did not consider ads promoting
free services to be commercial. This makes sense: providing
free services is ordinarily thought to be a form of charity, not
commercial activity. That the Port Authority accepted several
noncommercial ads, but rejected the coalition‘s ad for the
stated reason that it was noncommercial, was evidence that
the District Court could properly consider as strongly
suggesting viewpoint discrimination. See Cornelius, 

at 812; 

; Cuffley v. Mickes, 

, 709–11 (8th Cir. 2000); AIDS Action Comm. of Mass.,
Inc. v. Mass. Bay Transp. Auth., 

, 9–12 (1st Cir.
1994).

        The suspicion of viewpoint discrimination is fortified
by the high degree of similarity between the coalition‘s ad
and the comparator ads. As the District Court observed, the
coalition‘s ad and the comparator ads were all designed to
educate readers about their legal rights. The coalition‘s ad
would have informed ex-prisoners that they have the right to
vote and provided a number they could call with questions.
Similarly, the Just Harvest ad educated low earners about
their right to the earned income tax credit and about Just
Harvest‘s free tax preparation services. The Fair Housing
Partnership‘s ad informed readers that they have a right to be
free from housing discrimination and provided a number they
could call if they had questions. The Women‘s Law Project‘s
ad was designed to advise young women about a resource for
obtaining free information regarding their legal rights. The
similarity between the comparator ads and the coalition‘s ad
is unmistakable, and thus provides firm ground for the
District Court‘s finding of viewpoint discrimination.

        The Port Authority says the District Court‘s finding of
viewpoint discrimination was erroneous for two reasons.
First, it points to Hess‘ testimony that he once rejected an ad
from the League of Women Voters that simply encouraged
people to vote. Stressing the similarity between the League‘s
ad and the coalition‘s, the Port Authority argues that this
testimony proves that it rejected the coalition‘s ad not because
                              15
of hostility towards the ad‘s message but because the ad (like
the League‘s) was noncommercial. We agree that this
testimony cut against a finding of viewpoint discrimination.
But the District Court weighed it against the coalition‘s
comparator evidence and found that the comparator evidence
more compellingly favored a finding of viewpoint
discrimination. We see no error here.

        As between evidence that a decisionmaker acted at
odds with a nondiscriminatory rationale and evidence that the
decisionmaker acted consistently with the rationale, the
former is often stronger proof of discrimination than the latter
is of nondiscrimination. See McDonnell 

. Suppose, for example, that a company fired a black
employee for the stated reason that she had missed work on
three occasions. Suppose further that the company had
refused to fire three white employees who had missed work
three times but that it had terminated one white employee
who had thrice missed work. The fact finder in this
hypothetical case could permissibly infer that the company‘s
race-neutral rationale was a pretext for discrimination even
though the company had fired a white employee who had
missed work on three occasions. See Reeves v. Sanderson
Plumbing Prods., Inc., 

, 146–48 (2000);
McDonnell 

; Pivirotto v. Innovative
Sys., Inc., 

, 352–54 & n.5 (3d Cir. 1999). From
this it follows that the rejection of the League of Women
Voters‘ ad did not compel the District Court to rule in the
Port Authority‘s favor.


                              16
        Second, the Port Authority contends that the finding of
viewpoint discrimination was improper because the evidence
shows that it simply made a mistake in accepting the
comparator ads. That is not so. The evidence shows that the
Port Authority accepted the comparator ads with full
knowledge of their contents, which is to say the ads did not
just ―slip through the cracks.‖ This suggests that, despite the
written ban on noncommercial ads, the Port Authority
decided that it would accept noncommercial, rights-education
advertisements similar to the comparator ads. See 

(noting, in a viewpoint-discrimination case,
that the government‘s ―actions speak louder than its words‖).
That the Port Authority made this decision and yet rejected
the coalition‘s advertisement, which was materially
indistinguishable from the comparator ads, amply establishes
viewpoint discrimination.

       A final word about the implications of our decision: in
upholding the District Court‘s ruling, we do not suggest that
the Port Authority must accept all noncommercial, rights-
education advertisements going forward. We hold only that
the facts of this case indicate viewpoint discrimination, and
that the coalition is therefore entitled to relief. If the Port
Authority were to develop more precisely phrased written
guidance on the ads for which it will sell advertising space
and apply the guidance in a neutral and consistent manner, it
may, in the future, be able to reject ads like the one at issue in
this appeal. See AIDS Action 

–13.

                       IV. CONCLUSION

                               17
        The District Judge afforded the parties a fair trial. He
patiently listened to five days of testimony, considered an
extensive set of exhibits, and issued a thoughtful, detailed
opinion concluding that the Port Authority‘s rejection of the
coalition‘s ad was motivated by hostility towards the ad‘s
message. We see no clear error in the underlying findings,
and the record fully supports the Judge‘s ruling. We will
affirm.




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