1 PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________

No. 0 9

- 3352 & 09

- 3563

_____________
PITTSBURGH LEAGUE OF YOUNG VOTERS

EDUCATION FUND; AMERICAN CIVIL LIBERTIES FOUNDA TION 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 Dis trict Court for the Western District of Pennsylvania District Court No. 2

- 06

- cv

- 1064 District Judge: The Honorable Terrence F. McVerry

Argued May 1 0 , 20112 Before: SMITH, CHAGARES, and VANASKIE

,

Circuit Judges

(Filed: August 5, 2011 )

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

Counsel for Appell ant

s
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 Appellees3 ________________
OPINION

________________ SMITH, Circuit Judge.

Unlike m any of it s sister states, Pennsylvania allows

f elons to vote immediately upon release from prison

. In an

effort t o co rrect widespread belief to the contrary, a coalition

of public

- interest organizations set out to run an

ad vertisement informing ex

- prisone rs 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 A uthority denied the

request, pointing to its written advertising pol icy

, which

prohibits ― noncommercial ‖ ad s . The coalition sued, alleging

a violation of the First Amendment . The case proceeded to a4 bench trial, where the coalition proved that despite its written

advertising policy

, the Port A uthority had accepted many

n oncommercial ads in recent years , several of which bore a

striking resemblance to the coalition‘s ad

. Based mainly on

this ―comparator‖ evidence, t he District Court found that the

rejection of the coalition‘s ad amounted to viewpoint

discrimination in vio lation of the First Amendment

. W e will

affirm

.

I

. B ACKGROUND

M any of Pennsylvania‘s ex

- prisoners do not know t hey have the right to vote. Seeing a need for public education, a coalition of public

- interest groups, including the ACLU and the Pittsburgh L eague 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 v ote, and

— i n the event ex

- pris oner s w ere denied the franchise

— litigate on their behalf.

The coalition determined that running ads in public buses would be an effective way to r each its target audience,5 so Lisa Krebbs

, an employee of the ACLU

, contacted the Port Authority on the coali tion‘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 ha ve the right to vote, encourage them to vote, and provide a phone number that they could call if they needed help or had question s. Hickton told Krebbs that the Port Authority w ould not run the ad. He explained that the ad as described did not comply with the Port Authority‘s written advertising policy

, which prohibited ― non commercial‖ advertisements

.
The coalition tried several times to persuade the Port Authority to reverse course . It corresponded with Hickton

a nd the Port Authority‘s in

- house counsel Chris Hess

, explaining that its ad vertisement was no different from many other noncom mercial ad s commonly displayed i n Port Aut hority 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 a sserted , first, that the Port Authority‘s advertising s pa ce is a public forum and that rejecting the coalition‘s ad thus amounted to impermissible
content

- based discrimination . Second, the complaint a sserted that the Port Authority had reject ed the coalition‘s ad as a result of unconstitutional viewpoint discri mination.6 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 ―noncomme rcial‖ 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 dis covery, 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 vie wpoint

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. What remained of the § 1983 suit

— the viewpoint

discrimination claim

— was s cheduled for a bench trial

. The trial lasted five days, and the Court heard testimony from a number of witnesses, including Hickton and Hess, th e decisionmakers respon sible 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
term s ―political‖ and ―commercial,‖ which are not defined in the advertising policy. The ir definitions differe d somewhat

,7 but they agreed that an ad is not commercial unless it in some
way p romote s the monetary interest s of the advertiser.

The Court also received evidence about other ads that the Port Authority ha s run i n its buses

. As it turns out

, the Port Authority ha s not consistently adhered to the advertising poli cy‘s ban on noncommercial ads. I t has run a number of noncommercial ads in recent years , including ads placed by organizations known as J ust 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 a cknowledged was not commercial in nature) informed low earners about their e ntitlement 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.

T he 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.

T he 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 because8 you‘re young doe sn‘t mean you don‘t have rights. Call the Women‘s Law Project for free legal information.‖ Refusi ng to accept the ad as submitted, Hess recommended that ―free legal information‖ be changed to ―confidential legal services.‖ Although ―free legal informati on‖ 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

con cluding that the Po rt Authority had rejected the coalition‘s ad a s a result of viewpoint discrimination. The Court found

, first, that the Port Authority did not really reject the ad because of its supposed p olitical character . Because the Port Authority did not mention thi s 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 non commercial was a pr etext for viewpoint discrimination. The Court found that the ads placed by Just Harvest, the Fair Housing Partnership, and the Women‘s Law Project were

— l ike 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

. J URISDICTION AND S TANDARD OF R EVIEW9 The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1343. We have final

- order jurisdiction under 28 U.S.C. § 1291. W e review a district court‘s legal conclusions de novo

, and or dinarily review its fact ual findings for clear

error

. Fed. R. Civ. P. 52(a); McCutcheon v. America’s Servicing Co. , 560 F.3d 143, 147 (3d Cir. 2009)

. In Bose Corp. v. Consumers Union , 466 U.S . 485 (1984), however, the Supreme Court instructed that ―in cases raising First Am endment issues[,] an appellate court has an obligation to  ̳make an independent examination of the whole record .‖ ‘ Id. at 499 (quoting N. Y

. Times Co. v. Sullivan , 376 U.S. 254, 28 5 (1964 )). Independent fact review is necessary

, Bose explained

, ― to make su re that  ̳the [trial court‘s] judgment does not constitute a forbidden intrusion on the field of free expression

, ‘‖ id. (quoting Sullivan , 376 U.S. at 285), and to provide appellate courts with greater control over the case

- by

case elaboration of First Amen dment principles

, i d. at 501

– 03

.
Bose ‘s law

- refinement purpose is triggered in all First Amendment cases, but its s peaker

- protection purpose is triggered only in cases where the speaker lost at the trial level. See Eugene Volokh & Brett McDonnell, Freed om 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 i s limited to First Amendment cases in which the speaker un successfully claimed a violation of free speech rights in the trial court . T here are circuit decisions on both sides of the question

. Compare Planned Parenthood Ass’n v. Chicago Transit Auth. , 767 F.2d 1225,10 1229 (7th Cir. 1985) ( Bose applies only when t he speaker lost at the trial level), with Bartimo v. Horsemen’s Benevolent & Protective Ass’n , 771 F.2d 894, 897 (5th Cir. 1985) ( Bose applies to First Amendment cases generally ). Th is is a substantial legal issue, but we decli ne to weigh in on it . We

ne ed 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.

I II

. M ERITS

T he government does not have ―to grant access to a ll 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.

, 473 U.S. 788, 799

– 800 (1985). The Supreme Court has developed a forum analysis to determine 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. Id.
There are three types of fora. Christian Legal Soc ’y v. Martinez , 130 S. Ct. 2971, 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 hel d 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 Local11 Educators’ Ass’n , 460 U.S. 37, 45 (1983) ( qu oting Hague v. CIO , 307 U.S. 496, 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 )

. Id. Next are d esignated 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 , 129 S. Ct. 1125, 1132 (2009). As is the case in traditional public fora, content

- based restrictions are subject to strict scrutiny in designated public fora

. Perry
, 460 U.S. at 45. Finally, public property that ― is not by tradition or designati on a forum for public communication‖ constitutes a nonpublic forum. Id. at 46. Access to a nonpublic forum can be restricted so long as the restrictions are reasonable and viewpoint neutral. Cornelius , 473 U.S. at 800.

The parties agree that the advert ising 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 ad s 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 , 418 U.S. 298 (1974)). Although the parties have briefed and argued the issue , we need not tackle the forum

- selection question.12 Regardless of whether the advertising space is a public or nonpublic forum, th e coalition is entitled to relief because it has estab lished viewpoint discrimination

.
V iewpoint discrimination occurs when the government ―targets not subject matter, but particular views taken by speakers on a subject.‖ Rosenberger v. Rector & Vis itors of Univ. of Va. , 515 U.S. 819, 829 (1995). See also Ridley v. M ass. Bay Transp. Auth. , 390 F.3d 65, 82 (1st Cir. 2004) (explaining that the government engages in viewpoint discrimination when it suppresses speech because it disagrees with ― the under lying ideology or perspec tive 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

, 505 U.S. 377 , 38 2 (19 92 ); Perry , 460 U.S. at 46. So if th e government allows speech on

a certain subject, it must a ccept all viewpoints on the subject, Cornelius , 473 U.S. at 806, even those that it dis favors or that are unpopular, Rosenberger , 515 U.S. at 829. See also Lamb’s Chapel v. Ctr. Moriches Union F ree Sch. Dist. , 508 U.S. 384, 392

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

T he Port Authority claims t o 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 t he Port Authority did not mention th is basis until af

ter the lawsuit had been filed, t he District Court13 permissibly found that it was not a real basis for rejecting the ad but was, instea d, a post hoc rationalization

. And in any
event it i s less than obvious that the ad could even be considere d ―political‖ in nature . I t would not have called on citizens to , say, vote for a specific candidate or publicly support a certain cause. Cf. Lehman , 418 U.S. at 317 (Brennan, J., dissenting) ( suggesting that a ―public service ad by the League of Women V oters . . . 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 rejecte d the coalition‘s ad because of its noncommercial character requires more analysis

. Th is is a viewpoint

- neu tral explanation for the rejection

, s ee id. at 304 (majority opinion) ; Children of the Rosary v. City of Phoenix , 15 4 F.3d 972 , 979

– 80 (9th Cir. 1998), and the Port Authority has

c onsistently relied on it since Hickton‘s initial rejection of the 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 discri mination. Cornelius , 473 U.S. at 812. 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, nonetheles s the decision to exclude speech is a form of impermissible discrimination. . . . First, statements by government officials on the14 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.

Ridley , 390 F.3d at 87 ( citations and footnote omitted); cf. M cDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973).

The coalition is not armed with direct evidence of discrimination. This is hardly surprising. ―[T] he government rarely flatly admits it is engaging in viewpoint discrimination.‖ Ridley , 390 F.3d a t 86. Nor is there a lack of fit between the Port Authority‘s viewpoint

- neutral explanation ( i.e. , that it only accepts commercial ad s) and its rejection of the coalition‘s ad. I t is beyond dispute that the coalition‘s ad was not commercial in nature . T o 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 raisi ng a suspicion of viewpoint discrimination.15 T he coalition focuses on th e 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 adver tisement. Most importantly the Court found that the ads, like the coalition‘s,

were no n commercial in nature . The Port Authority challenges this finding, arguing that the comparator ads were in fact commercial because they promoted the provision of servic es. 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 commercia l. This makes sense : providing free services is o rdinarily thought to be a form of charity, not commercial activity

. That the Port Authority accepted several

n oncommercial ads, but reject ed the coalition‘s ad for the stated reason that it was noncommerci al

, was evidence that the District Court could properly consider as strongly suggesting viewpoint discrimination. See Cornelius

, 473 U.S.
at 812; Ridley , 390 F.3d at 87 ; Cuffley v. Mickes , 208 F.3d 702, 709

– 11 (8th Cir. 2000); A IDS Action Comm. of Mass., Inc. v. Mass. Bay Transp. Auth. , 42 F.3d 1, 9

– 12 (1st Cir. 1994).
The suspicion of viewpoint discrimination is fortified b y t he high degree of similarity between the coalition‘s ad and the comparator ads. As the District Court observed, t he 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 provide d a number th ey could call with questions

.16 Similarly, the Just Harves t 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 P artnership ‘s ad informed readers that they have a right to be free from housing discrimination and provid ed a number th ey could call if they had questions. The Women‘s Law Project ‘s ad was designed to advise young women abou t 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 provide s 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‘ t estimony that he once r ejected 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 prove s that it reject ed the coa lition‘s ad not because of hostility towards the ad‘s message but because the ad ( like the League‘s ) was noncommercial

. We agree that th is testimony c ut against a finding of viewpoint discrimination

. But the District Court weighed it against the coalitio n‘s comparator evidence and found th at the co mparator evidence

more compellingly favored a finding of v iewpoint discrimination. We see no error here

.
As between e vidence that a decisionmaker acted at odds with a non discriminatory rationale a nd evidence that t he decisionmaker acted consistently with the rationale, the former is often stronger proof of discrimination than the latter17 is of nondiscrimination. See McDonnell Douglas , 411 U.S. at 804. Suppose, for example, that a company fired a black employe e for the stated reason that s he had missed work on three occasions . Suppose further that the company had refused to fire thr ee white employees who had missed work three times but that it had terminated one white employee who had thrice missed work

. T he fact finder in this hypothetical case could permissibly infer that the company‘s

race

- neutral rationale was a pretext for discrimination even though th e company had fired a white employee who had missed work on three occasions

. See Reeves v. Sanderson Plu mbing Prods

. , Inc. , 530 U.S. 133, 146

– 4 8 (2000) ; McDonnell Douglas , 411 U.S. at 804 ; Pivirotto v. Innovative Sys., Inc. , 191 F.3d 344, 35 2

– 54 & n.5 (3d Cir. 1999)

. From this it follows that the rejection of the League of Women Voter s ‘ ad did not compel th e District Court to rule in the Port Authority‘s favor.

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 n ot so. T he evidence show s that the Port Authority accepted the comparator ads with full knowledge of their contents

, which is to say th e ads did not just ― slip through the cracks. ‖ This suggests that

, despite the written ban on noncommercial ads, the Por t Authority decided that it would accept noncommercial , rights

- education advertisements similar to the comparator ads. See Cuffley

, 208 F.3d at 711 ( 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 rejected18 the coalition‘s advertisement , which was m aterially indistingu ishable from the comparator ads

, amply establishes viewpoi nt discrimination

. A final word about the implications of our decision : i n upholding the District Court‘s ruling , we do not suggest that the Port Authority must accept all non commercial , rights

education ad vertisement s going forward. We hold only that the facts of this case indicate viewpoint discrimination

, and that the coalit ion is therefore entitled to relief. I f 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 , i t may , in the future, be abl e to reject ads like the one at issue in this appeal. See AIDS Action Comm. , 42 F.3d at 12

– 13.

I V

. C ONCLUSION

The District Judge afforded the parties a fair trial. He patiently listened to five days of testimony , considered an extensive set of exhibit s, 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 Judg e‘s ruling . W e will affirm

.