Christ's Bride Ministries, Inc. v. Southeastern Pennsylvania Transp. Authority

Page 242

148 F.3d 242

CHRIST'S BRIDE MINISTRIES, INC., Appellant v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY Transportation Display's Inc.

No. 96-1829.

United States Court of Appeals Third Circuit.

Argued May 21, 1997.

Decided June 25, 1998.

Mathew D. Staver, Frederick H. Nelson (Argued), Nicole Arfaras Kerr, Orlando, FL, James T. Owens, Westchester, PA, for Appellant.

William H. Roberts (Argued), Jordana Cooper, Daniel H. Wheeler, Blank, Rome, Comisky & McCauley, Philadelphia, PA, Seth Kreimer, Philadelphia, PA, David Rudovsky, Kairys & Rudovsky, Philadelphia, PA, for Appellees.

Tina Kowalsky Haut, New York City, for Appellee Transportation Display's Inc.

C. Neil Peterson, Philadelphia, PA, for Appellee Southeastern Pennsylvania Transportation Authority.

Before: GREENBERG, ROTH and WEIS, Circuit Judges

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 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. § 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 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 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.

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. §§ 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 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...