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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
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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 
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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. 

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, 
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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 ExOffender 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 

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. 
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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 viewpointdiscrimination 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 viewpointdiscrimination 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,
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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 lowincome workers and their families. The ad also stated that 

Just Harvest would prepare simple tax returns for low-income 

workers free of charge. 

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 
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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 

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
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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., 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 

Amendment 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, 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,‘‖ id. (quoting Sullivan, 376 U.S. at 285), and to 

provide appellate courts with greater control over the case-bycase elaboration of First Amendment principles, id. at 501–

03. 

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., 767 F.2d 1225, 
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1229 (7th Cir. 1985) (Bose applies only when the 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). 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., 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 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 
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Educators’ Ass’n, 460 U.S. 37, 45 (1983) (quoting 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 

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, 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 designation 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 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, 418 U.S. 

298 (1974)). Although the parties have briefed and argued 

the issue, we need not tackle the forum-selection question. 
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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., 515 U.S. 819, 829 (1995). See also Ridley v. 

Mass. 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 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, 505 U.S. 377, 382 (1992); 

Perry, 460 U.S. at 46. So if the government allows speech on 

a certain subject, it must accept all viewpoints on the subject, 

Cornelius, 473 U.S. at 806, even those that it disfavors or that 

are unpopular, Rosenberger, 515 U.S. at 829. See also 

Lamb’s Chapel v. Ctr. Moriches Union Free 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 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 
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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. Lehman, 418 U.S. at 317 

(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 id. at 304 (majority 

opinion); Children of the Rosary v. City of Phoenix, 154 F.3d 

972, 979–80 (9th Cir. 1998), and the Port Authority has 

consistently 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 

discrimination. 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, 

nonetheless the decision to exclude speech is a 

form of impermissible discrimination. . . . First, 

statements by government officials on the 
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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. 

McDonnell 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 at 86. 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. 
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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, 473 U.S. 

at 812; Ridley, 390 F.3d at 87; Cuffley v. Mickes, 208 F.3d 

702, 709–11 (8th Cir. 2000); AIDS 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

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. 
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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 

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 
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is of nondiscrimination. See McDonnell Douglas, 411 U.S. at 

804. 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., 530 U.S. 133, 146–48 (2000);

McDonnell Douglas, 411 U.S. at 804; Pivirotto v. Innovative 

Sys., Inc., 191 F.3d 344, 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. 

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 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 rejected 
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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, rightseducation 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 Comm., 42 F.3d at 12–13. 

IV. CONCLUSION

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.