Federal appeals court strikes down Pennsylvania transit system policy on controversial advertisements

In a victory for news organizations seeking to advertise their reporting, the U.S. Court of Appeals for the Third Circuit ruled last week that the Southeastern Pennsylvania Transportation Authority cannot prohibit advertisements that are political in nature or discuss matters of public debate.

The court held in its Sept. 14 decision that SEPTA’s advertising standards were unconstitutionally overbroad and incapable of reasoned application. The court pointed specifically to SEPTA’s broad prohibition against advertisements referencing “certain political messages” and “public debate” as violations of the First Amendment.

The appeals court’s decision is an important win for the Center for Investigative Reporting. The California-based nonprofit news organization challenged the advertising standards in 2018 after the transit authority rejected one of its proposed advertisements highlighting its reporting on racial disparities in the mortgage lending market. SEPTA argued that the proposed advertisement violated its advertising standards, which prohibited advertisements expressing a viewpoint on political, economic, social, historical or religious issues.

Last year, the Reporters Committee for Freedom of the Press, joined by a coalition of 21 media organizations, raised concerns that these restrictive policies could harm news organizations by limiting their ability to share essential reporting on important topics of public concern. In a friend-of-the-court brief, the Reporters Committee argued that SEPTA’s policies allowed its officials to determine, sometimes inconsistently, which ads constituted “political” ads. The Reporters Committee warned that these policies could disproportionately affect advertisements from news organizations, even preventing advertisements that merely referenced press freedom.

“Because the news necessarily focuses on ‘economic, political, religious, historical [and] social issues’ of the day,” the Reporters Committee stated in the brief, “these advertisements remain at risk of being banned.”

The Third Circuit agreed. “[T]he lack of structure and clear policies governing [SEPTA’s] decision-making process creates a real risk that it may be arbitrarily applied,” Judge Joseph A. Greenaway Jr. wrote in the court’s opinion. “And CIR has amply demonstrated that at least on a few occasions that risk has become a reality.”

In its decision, the court relied on the 2018 Supreme Court case Minnesota Voters Alliance v. Mansky, which established that restrictions on speech are unconstitutional if they cannot be reasonably applied.

The court determined that SEPTA’s vague language and inconsistent implementation made the advertising standards incapable of reasonable application. For instance, the court noted that SEPTA accepted an advertisement publicizing the Democratic National Convention but denied a proposed advertisement from the U.S. Department of Homeland Security on the dangers of sex trafficking.

The court issued a permanent injunction preventing SEPTA from enforcing the challenged provisions to exclude the Center for Investigative Reporting’s advertisement, a decision that affirms news organizations and journalists’ First Amendment right to amplify their reporting on matters of public debate.

The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.

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