Pittsburgh League of Young Voters Education Fund v. Port Authority of Allegheny County, No. 09-3352 & 09-3563 (3d Cir. August 5, 2011)
A coalition of public interest organizations sought to place an advertisement on Port Authority of Allegheny County buses to inform Pennsylvania ex-prisoners that they are eligible to vote immediately upon release. The advertisement would have also encouraged voting and included a telephone number to assist or answer questions. Port Authority rejected their advertisement stating that it did not comply with its written policy of accepting only commercial advertisements.
The coalition brought a Section 1983 action in the District Court for the Western District of Pennsylvania alleging that their right to free speech was violated. After a bench trial, the district court found that Port Authority’s rejection of the advertisement constituted viewpoint discrimination. Port Authority appealed to the Third Circuit.
Because of the bench trial, the Third Circuit applied a clear error standard of review to the district court’s factual determination of viewpoint discrimination.
The Court explained that viewpoint discrimination occurs when the government suppresses speech based on the particular views or ideology of the speakers.
The Court noted that Port Authority’s explanation that it rejected the advertisement because of its noncommercial character is viewpoint neutral. But the Court added that the government rarely admits to engaging in viewpoint discrimination, so the explanation alone was not sufficient because it may be a cover-up.
Comparing the coalition’s advertisement with noncommercial, rights-education advertisements that Port Authority had previously accepted despite its written policy, the Court found that the suspicion of viewpoint discrimination was reinforced.
Although Port Authority pointed to an instance in which it rejected a similar noncommercial advertisement from the League of Women Voters, the Court concluded:
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.
Finding no error in the district court’s determination that viewpoint discrimination was present, the Third Circuit affirmed and explained the implications of its decision:
[W]e 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.