1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-25-1998

Christ's Bride v. SEPTA

Precedential or Non-Precedential:

Docket 96-1829

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Recommended Citation

"Christ's Bride v. SEPTA" (1998). 1998 Decisions. Paper 145.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/145
Filed June 25, 1998 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 96-1829 

CHRIST'S BRIDE MINISTRIES, INC., 

 Appellant 

v. 

SOUTHEASTERN PENNSYLVANIA TRANSPORTATION 

AUTHORITY; TRANSPORTATION DISPLAY'S INC. 

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

(D.C. Civil Action No. 96-cv-03631) 

Argued May 21, 1997 

Before: GREENBERG, ROTH and WEIS, Circuit Judges 

(Opinion Filed June 25, 1998) 

 Mathew D. Staver, Esq. 

 Frederick H. Nelson, Esq. (Argued) 

 Nicole Arfaras Kerr, Esq. 

 Liberty Counsel 

 1900 Summit Tower Boulevard 

 Suite 560 

 Orlando, FL 32810 

 James T. Owens, Esq. 

 25 South Church Street 

 Westchester, PA 19382-3220 

 Attorneys for Appellant 
 William H. Roberts, Esq. (Argued) 

 Jordana Cooper, Esq. 

 Daniel H. Wheeler, Esq. 

 Blank, Rome, Comisky & McCauley 

 1200 Four Penn Center Plaza 

 Philadelphia, PA 19103 

 Seth Kreimer, Esq. 

 3400 Chestnut Street 

 Philadelphia, PA 19104 

 David Rudovsky, Esq. 

 Kairys & Rudovsky 

 924 Cherry Street 

 Fifth Floor 

 Philadelphia, PA 19107 

 Attorneys for Appellees 

 Tina Kowalsky Haut, Esq. 

 275 Madison Avenue 

 New York, NY 10016 

 Attorney for Appellee 

 Transportation Display's Inc. 

 C. Neil Peterson, Esq. 

 1234 Market Street 

 Philadelphia, PA 19107 

 Attorney for Appellee Southeastern 

 Pennsylvania Transportation 

 Authority 

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 

 2 
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. 

S 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 

 3 
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<!DAG> x 60<!DAG> posters would be displayed at 24 locations in rail 

stations for one year. The contract also stated that during 

that year two 21<!DAG> x 62<!DAG> 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 

 4 
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. 

 5 
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. SS 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

_________________________________________________________________ 

1. CBM has not appealed the district court's rejections of its claims 

under 42 U.S.C. SS 1985 and 1986. CBM has, however, objected to the 

district court's denial of its breach of contract claim. It argues that it 

only received one page of the two page contract and that there was no 

"meeting of the minds" as to the terms of the contract between it and 

TDI. The complaint does not make this allegation, however. CBM also 

attached both pages of the contract to the complaint and relied on 

language from the allegedly missing second page in the complaint itself. 

CBM also argues that the contract is "unconscionable," although the 

complaint makes no such allegations. We reject these claims as being 

without merit. 

 6 
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 between their product and breast 

cancer, it should not be "unduly alarming" for CBM to 

report a slightly greater risk purportedly associated with 

induced abortions. 

The district court issued an opinion on August 16, 1996, 

holding for the defendants on all counts. The court

reasoned that public transit stations do not constitute 

traditional public fora and that SEPTA and TDI had not 

created a public forum because they maintained control 

over the use of the advertising space. The court also found 

that Dr. Lee's letter was a "reasonable" basis on which to 

remove the advertisement. The court commented that 

"ultimately a consensus may develop" as to the link

between breast cancer and abortion but "at this time we do 

not know." The court did not decide whether either SEPTA's 

or CBM's experts were "right." 

CBM timely appealed to this Court. We have jurisdiction 

under 28 U.S.C. S 1291. 

II. Standard of Review 

In evaluating the claim that CBM's First Amendment 

rights have been violated, we have a "constitutional duty to 

conduct an independent examination of the record as a 

whole, without deference to the trial court." Hurley v. IrishAmerican Gay Group of Boston, 115 S.Ct. 2338, 2344 

(1995). This independent duty does not extend to the 

district court's rulings on matters of credibility, to which we 

continue to defer, id. (citing Harte-Hanks Communications, 

Inc. v. Connaughton, 491 U.S. 657, 688 (1989)), but it does 

require us draw our own inferences from the factual

 7 
evidence presented. United States v. Antar, 38 F.3d 1348, 

1357 (3d Cir. 1994); Swineford v. Snyder Co. Pa., 15 F.3d 

1258, 1165 (3d Cir. 1994). 

III. State Action and Commercial Speech 

Turning to the substantive issues, we readily dispose of 

two initial matters. First, the United States Constitution 

guarantees freedom of expression only against infringement 

by the state, not by private actors. Hurley v. Irish-American 

Gay Group of Boston, 115 S.Ct. 2338, 2344 (1995). In this 

case, however, the parties agree that SEPTA is a state 

actor, as is its licensee, TDI, and that their actions are 

constrained by the First and Fourteenth Amendments.

Second, the posters come within the ambit of speech fully 

protected by the First Amendment. The defendants argue 

that because callers to the 1-800 number listed on the 

poster may receive information advertising the services of 

medical malpractice attorneys, CBM's message is thereby 

transformed into "commercial speech," and should receive 

substantially less constitutional protection. See Bolger v. 

Youngs Drug Prods. Corp., 463 U.S. 60, 66-67 (1983). But 

the speech at issue does not advertise goods or services, 

nor does it refer to a specific product or service. The 1-800 

number listed on the poster does not even connect callers 

to CBM. Any economic motive of CBM for posting the 

advertisement is very attenuated at best. See U.S. 

Healthcare v. Blue Cross of Gr. Philadelphia, 898 F.2d 914, 

932-933 (3d Cir. 1990). The speech involved is accordingly 

not "commercial," at least in the sense that it is afforded 

less protection under the First Amendment. 

IV. Public Forum 

The government may, as a general rule, limit speech that 

takes place on its own property without running afoul of 

the First Amendment. Lamb's Chapel v. Center Moriches 

Union Free School Dist., 508 U.S. 384, 390 (1993); Perry 

Educ. Ass'n. v. Perry Local Educators' Ass'n, 460 U.S. 37, 

46 (1983). Where, however, the property in question is 

either a traditional public forum or a forum designated as 

public by the government, the government's ability to limit 

speech is impinged upon by the First Amendment. Perry, 

460 U.S. at 45-46. In either a traditional or a designated 

 8 
public forum, the government's content-based restrictions 

on private speech must survive strict scrutiny to pass 

constitutional muster. Id.; International Society for Krishna 

Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992). The 

government has, however, a far broader license to curtail 

speech if the forum has not been opened to the type of 

expression in question. In such a case, the government's 

restrictions need only be viewpoint neutral and"reasonable 

in light of the purpose served by the forum." Rosenberger v. 

Rector and Visitors of the Univ. of Va., 115 S.Ct. 2510, 

2516-2517 (1995) (quoting Cornelius v. NAACP Legal 

Defense and Educ. Fund, Inc., 473 U.S. 788, 806 (1985)); 

Kreimer v. Bureau of Police for the Town of Morristown, 958 

F.2d 1242, 1262 (3d Cir. 1992). 

In order to decide whether a public forum is involved 

here, we must first determine the nature of the property 

and the extent of its use for speech. The Supreme Court 

wrestled with a similar question in Cornelius v. NAACP 

Legal Defense and Educ. Fund, Inc., 473 U.S. 788 (1985), 

when it considered whether legal defense funds could be 

excluded from a charity drive among federal employees. The 

government argued in Cornelius that the"federal 

workplace" was the relevant forum. The plaintiffs on the 

other hand maintained that the forum consisted only of the 

charity drive itself. Id. at 800. The Court defined the forum 

in terms of the access sought by the plaintiff. It accordingly 

rejected the view that the entire workplace was the proper 

forum, because the plaintiffs sought only to join the charity 

drive, not to engage in actual, face-to-face solicitation in the 

workplace. Id. at 801. The Court went on to conclude that 

the charity drive itself did not constitute a public forum 

and that the restrictions on participation were reasonable. 

In this case, the district court variously defined the forum 

at issue as "the stations in a public transit system," a 

"public transportation system," and "SEPTA's subway and 

rail stations and their advertising space." Applying the 

reasoning of Cornelius, we look to the access sought by 

CBM. CBM did not seek to leaflet, demonstrate, or solicit in 

the rail and subway stations as a whole. Instead, it sought 

access only to the advertising space leased out by SEPTA, 

through TDI. The contract between the parties 

 9 
contemplated advertising with posters in the stations and 

next to the clocks at Suburban Station in Philadelphia. We 

conclude, therefore, that the forum at issue is SEPTA's 

advertising space. See, Airline Pilots Assoc. v. Dept. of 

Aviation of the City of Chicago, 45 F.3d 1144, 1151 (7th Cir. 

1995) (holding that display diorama in airport, not entire 

concourse, constituted relevant forum); Lebron v. Nat'l. R.R. 

Passenger Corp., 69 F.3d 650, 655-656 (holding that one 

billboard was the relevant forum, not the entire Penn 

Station); New York Magazine v. Metropolitan Transp. Auth., 

136 F.3d 123, 130 (2d Cir. 1998) (holding that because 

MTA allowed both commercial and political speech, the 

outside of MTA buses is a designated public forum).2 

Our next step is to decide whether SEPTA's advertising 

space is a public forum. It clearly does not constitute a 

"traditional" public forum, archetypal examples of which 

include streets and parks. These areas have been"held in 

the public trust," Lee, 505 U.S. at 680, and dedicated to 

expressive activity for "time out of mind." Id. (quoting 

Hauge Committee for Industrial Organization, 307 U.S. 496, 

515 (1939)). We agree with the district court that the 

advertising space in the stations is not a traditional public 

forum. We do not understand CBM to argue otherwise.

More difficult is the question whether SEPTA has created 

a designated public forum by "expressly" dedicating its 

advertising space to "speech activity." U.S. v. Kokinda, 497 

U.S. 720, 726-727 (1990) (plurality opinion). A designated 

_________________________________________________________________ 

2. The parties have not argued that the relevant forum is actually just 

advertising space in the stations, to the exclusion of space leased on and 

inside SEPTA vehicles. Because SEPTA stated that it used different 

standards in evaluating advertisements that appeared as wrap-around 

bus ads, one could conclude that these types of ads are a separate 

forum. See Lebron, 69 F.3d at 655 (one billboard, not all of the 

billboards 

in Penn Station, constituted the relevant forum because the billboard 

was unique and the speaker sought access only to that specific 

billboard), but see Lebron, 69 F.3d at 661 (Newman, C.J. dissenting) 

(arguing that "public forum analysis cannot be so particularized as to 

focus on one of several billboards on government property"). Whether we 

consider the limitations on wrap-around bus ads as creating a separate 

forum, or merely a particular limitation within the larger forum of 

SEPTA's advertising space, our disposition of the case remains the same. 

 10 
public forum is created because the government so intends. 

Inaction does not make such a forum; neither does the 

allowance of "limited discourse." Cornelius, 473 U.S. at 802. 

We accordingly look to the authority's intent with regard to 

the forum in question and ask whether SEPTA clearly and 

deliberately opened its advertising space to the public. 

Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260, 269- 

270 (1988); Perry, 460 U.S. at 37. To gauge SEPTA's intent, 

we examine its policies and practices in using the space 

and also the nature of the property and its compatibility 

with expressive activity. Gregoire v. Centennial School 

District, 907 F.2d 1366, 1371 (3d Cir. 1990) (citing 

Cornelius, 473 U.S. at 802); Brody v. Sugzdinis, 957 F.2d 

1108, 1117 (3d Cir. 1992). Restrictions on the use of the 

forum, however, do not necessarily mean that SEPTA has 

not created a public forum. They may demonstrate instead 

that SEPTA intended to create a limited public forum, open 

only to certain kinds of expression. See, e.g., Kreimer, 958 

F.2d at 1261 (public library constituted a limited public 

forum for "reading, writing and quiet contemplation," but 

not for "oral and interactive" First Amendment activities); 

Rosenberger v. Rector and Visitors of the Univ. of Va., 115 

S.Ct. 2510, 2517 (1995) (student activities fund, available 

to student groups meeting certain criteria, constituted 

limited public forum). 

 A. SEPTA's policies 

We will look first at the purpose for which SEPTA uses 

the space in question. The main function of the advertising 

space at issue is to earn a profit for SEPTA. Although 

SEPTA generates approximately 99.5% of its revenues

through the operation of the public transit system, it does 

derive about one half of one percent of its operating budget 

from the leasing of advertising space in its stations and in 

and on its vehicles. The contract between TDI and SEPTA 

states that "it is understood that it is Licensee's obligations 

[sic] under the terms of this contract to produce revenues 

. . .."3 

_________________________________________________________________ 

3. That the generation of income is a goal of the advertising space is 

also 

reflected in the manner in which SEPTA is paid by TDI under the 

 11 
The record shows that TDI and SEPTA also had a 

secondary goal in using the space: promoting "awareness" 

of social issues and "providing a catalyst for change." These 

objectives are stated in the "TDI Cares" brochure. The "TDI 

Cares" program, in which SEPTA participates, seeks to 

" `give back' to the communities which[TDI] serve[s] in 

many ways . . .." In this program TDI picks an issue of 

public concern and then pays for the materials and labor 

involved in creating the advertisements. The purpose of the 

program, in TDI's words, is to assail TDI markets with 

"images, both poignant and creative, which are designed to 

elevate awareness and provide a catalyst for change." This 

page of the brochure is headed "consciousness" and states 

that the program tries to "focus consciousness on an issue 

of pressing human concern." The testimony at trial was 

that SEPTA participated in TDI's annual campaign by

donating unsold advertising space. SEPTA and TDI "jointly 

agree" on what initiatives will run in the Philadelphia area, 

but it is not clear from the record which ads ran on SEPTA 

property under this program.4 

SEPTA argues that where the government runs a 

commercial operation, a "bright-line rule" directs that no 

public forum has been created. For this proposition, SEPTA 

_________________________________________________________________ 

contract. TDI guarantees a minimum annual payment to SEPTA, one 

twelfth of which is due at the beginning of each month, but SEPTA 

receives fifty-five percent of all net sales in any given month if that 

amount is greater than one twelfth of the guaranteed annual payment. 

In the first agreement year, the guaranteed annual payment was 

$2,000,000. This rose to $2,950,000 for the fifth and final agreement 

year. 

4. SEPTA contends that we should not consider the TDI Cares brochure 

because it is hearsay. The brochure was, however, admitted into 

evidence without objection by SEPTA. Moreover, it was offered not for the 

truth of the matter asserted but for the fact that the assertions were 

made -- which is not hearsay. In addition, the brochure plays little role 

in our decision. There is no evidence on the record of which ads actually 

ran in the campaigns described in the brochure or of how much 

advertising space SEPTA and/or TDI actually donated to those 

campaigns. Considered with the other evidence in the record, the 

brochure demonstrates, however, that the forum in question is suitable 

for speech concerning social problems and issues. 

 12 
cites International Society for Krishna Consciousness, Inc. v. 

Lee, 505 U.S. 672 (1992). In Lee, the Court considered 

restrictions on solicitation and leafleting in airport 

terminals. The Court began by noting that the government 

owned and operated the airport terminals and that: 

 Where the government is acting as a proprietor, 

 managing its internal operations, rather than acting as 

 a lawmaker with the power to regulate or license, its 

 actions will not be subjected to the heightened review 

 to which its actions as a lawmaker may be subject. 

505 U.S. at 678 (quoting United States v. Kokinda, 497 U.S. 

720, 725 (1990) (plurality opinion) (citing Cafeteria & 

Restaurant Workers v. McElroy, 367 U.S. 866, 896 (1961))). 

In Lee, the Court went on, however, to apply the factors 

identified in Cornelius to determine whether the airport 

terminals were public fora. The Court reasoned that the 

city's purpose in operating the airport was to generate a 

profit by serving the air-traveling public. The goal of the 

terminal was "the facilitation of passenger air travel" and 

not "the promotion of expression." 505 U.S. at 682. The 

Court distinguished the restricted access in air terminals 

from other "transportation nodes," such as rail and bus 

stations. Id. at 681. 

We do not read Lee, as SEPTA suggests, to mean that

every time the government runs a commercial enterprise it 

has, by definition, decided not to create an open forum. To 

the contrary, it is the commercial and restricted nature of 

an airport concourse which suggested that the government 

did not intend the concourse to be primarily a forum for 

expression. See also Cornelius, 473 U.S. at 799-800. 

Here, we have determined that the forum is not the 

SEPTA stations, but only the advertising space within the 

stations. We need not concern ourselves with solicitation or 

leafletting of the public within the stations but only with 

the use of the ad space itself. The nature of this forum is 

partly commercial, consistent with the goal of SEPTA to 

earn a profit on its advertising space and with CBM's offer 

to pay the commercial rate to lease that space. See Airline 

Pilots Assoc. v. Dept. of Aviation of the City of Chicago, 45 

F.3d 1144, 1157 (7th Cir. 1995); Stewart v. District of 

 13 
Columbia Armory Bd., 863 F.2d 1013, 1019 (D.C. Cir.

1988). However, SEPTA has also used the advertising space 

to generate a profit through expressive activity. This 

expressive use has not interfered with providing rail 

transportation facilities to the public. Thus, the nature of 

the forum suggests, but by no means establishes, see 

Lehman v. City of Shaker Heights, 418 U.S. 298, 304

(1974), that the government has dedicated the space to 

expression in the form of paid advertisements. See 

Southeastern Promotions, Limited v. Conrad, 420 U.S. 546, 

555 (1975) (holding municipal theaters were "public forums 

designed for and dedicated to expressive activities"). 

With these goals in mind, we next consider SEPTA's 

written policy governing permissible advertising. The 

contract between TDI and SEPTA provides that "it is

SEPTA's strong preference that [TDI] concentrate on

securing advertising other than that which is tobacco and 

alcohol related." The contract directs that TDI use its "best 

efforts" to fill the space with other advertisements. 

Recognizing that TDI's responsibility under the contract is 

to "produce revenues," the contract permits the combined 

sale of alcohol and tobacco advertising of up to twenty 

percent of the annual dollar value of the advertising. TDI 

also, however, has an obligation to "pursue qualified public 

health groups, as identified by SEPTA" and to make 

advertising space available to them "on a one to one ratio 

to the tobacco and alcohol related advertising at that time, 

subject to space availability." In addition, the contract 

reserves for SEPTA the right to reject advertisements that it 

does not like: 

 All advertising displays at any time inserted or placed 

 by the Licensee in any display devices in any vehicle 

 and /or locations shall be of an appropriate character 

 and quality, and the appearance of all displays shall be 

 acceptable to SEPTA. No libelous, slanderous, or 

 obscene advertising maybe accepted by the Licensee for 

 display in the Authority's transit and railroad vehicles 

 and facilities. All advertising determined by the[sic] 

 SEPTA, in its sole discretion, as objectionable within 

 the meaning of this subsection must not be utilized on 

 any SEPTA vehicle or facility. SEPTA shall have the 

 14 
 right to immediately remove any advertising material 

 which has already been applied, in the event that the 

 [sic] SEPTA deems material objectionable for any 

 reason, at the expense of the Licensee. 

SEPTA argues that because it retained the right in its 

sole discretion to reject or to remove any advertisement that 

it deems objectionable, it did not create a public forum of 

any sort. The authority's own statement of its intent, 

however, does not resolve the public forum question. 

Gregoire v. Centennial School District, 907 F.2d 1366, 1374 

(3d Cir. 1990) (reasoning that "intent, as evidenced by a 

government's statements, is a factor to be considered," but 

that "the forum inquiry does not end with the government's 

statement of intent"); see also Air Line Pilots Association, 

Int'l. v. Dept. of Aviation, 45 F.3d 1144, 1153-1154 (7th Cir. 

1995); Stewart v. Dist. of Columbia Armory Bd., 863 F.2d 

1013, 1016-1017, 1020 (D.C.Cir. 1988). 

Furthermore, the fact that SEPTA has reserved for itself 

the right to reject ads for any reason at all does not signify, 

in and of itself alone, that no public forum has been 

created. See Gregoire, 907 F.2d at 1375. In Gregoire, we 

warned that "standards for inclusion and exclusion" in a 

limited public forum "must be unambiguous and definite" if 

the "concept of a designated open forum is to retain any 

vitality whatever." 907 F. 2d at 1375. We do not hold that 

the government could never, pursuant to an open-ended 

policy of excluding speech as it sees fit, effectively close the 

forum to certain speech (or maintain an entirely closed 

forum) through a consistent practice of so doing. But the 

fact that the government has reserved the right to control 

speech without any particular standards or goals, and 

without reference to the purpose of the forum, does not 

necessarily mean that it has not created a public forum. If 

anything, we must scrutinize more closely the speech that 

the government bans under such a protean standard. See 

Gregoire, 907 F.2d at 1375; id. at 1386 (Stapleton, J., 

dissenting); Denver Area Educational Telecommunications 

Consortium v. FCC, 116 S.Ct. 2374, 2414-2415 (1996)

(Kennedy, J., concurring in part and dissenting in part); 

Lebron, 69 F.3d at 661-662 (Newman, C.J., dissenting). 

 15 
SEPTA's purpose in operating the forum and its written 

policies governing access provide no conclusive answer as 

to whether the forum is intended to be closed or open. The 

goal of generating income by leasing ad space suggests that 

the forum may be open to those who pay the requisite fee. 

SEPTA has specified a few areas in which it will not freely 

accept advertising: alcohol and tobacco advertising beyond 

a specified limit and ads deemed libelous or obscene. These 

restrictions do not apply to the CBM posters. Beyond these 

limitations, there are no specific restrictions on the type of 

advertising that SEPTA will accept. In effect, SEPTA's 

reservation of the right to reject any ad for any reason does 

not conclusively show that it intended to keep the forum 

closed. 

We turn now to SEPTA's past practice in using the 

advertising space, and the suitability of the forum to the 

speech in question. 

 B. SEPTA's Past Practice and the Suitability of th e 

 Forum for CBM's Ad 

SEPTA has accepted a broad range of advertisements for 

display. These include religious messages, such as"Follow 

this bus to FREEDOM, Christian Bible Fellowship Church;" 

an ad criticizing a political candidate; and explicitly worded 

advertisements such as "Safe Sex Isn't" and an 

advertisement reminding viewers that "Virginity-It's cool to 

keep" and "Don't give it up to shut `em up." Indeed, many 

ads address topics concerning sex, family planning, and 

related topics. Other examples include a controversial ad 

campaign on AIDS education and awareness, posters 

stating "The Face of Adoption" "Consider Adoption" and 

"Every child deserves a family," and another ad reading 

"Pregnant? Scared? Confused? A.R.C. Can Help Call 1-800- 

884-4004 or (215-844-1082.)" 

On the topic of abortion, SEPTA has accepted two ads. 

One read "Choice Hotline, For Answers to Your Questions 

About: Birth Control * Pregnancy * Prenatal Care * Abortion 

* Adoption * HIV/AIDS * Sexually Transmitted Diseases 

(STDs) Abortion - Making A Decision, Call State Health Line 

1-800-692-7254 For Free Booklet on Fetal Development, 

 16 
Fetus is Latin for Little one - A Little Human is a Baby, 

Confidential * Free." The other one addressed the health 

benefits of legalizing abortion: "When Abortion Was Illegal, 

Women Died. My Mother Was One of Them. Keep Abortion 

Legal and Safe. Support the Clara Bell Duvall Education 

Fund. 471-9110." 

From the broad range of ads submitted, SEPTA has 

requested modification of only three. One was the large 

wrap-around bus ad for Haynes hosiery, which would have 

covered the entire bus with the picture of a "scantily clad" 

woman; it was too "risque." The same ad was accepted as 

a smaller "poster" ad on the sides of buses. SEPTA also 

asked for modification of an ad depicting a gun with a 

condom stretched over it. The text of the ad, "Safe Sex 

Isn't," ultimately ran without the graphics. SEPTA also 

requested that an advertisement for a personal injury law 

firm delete references to rail accidents. 

We conclude then, based on SEPTA's written policies, 

which specifically provide for the exclusion of only a very 

narrow category of ads, based on SEPTA's goals of 

generating revenues through the sale of ad space, and 

based on SEPTA's practice of permitting virtually unlimited 

access to the forum, that SEPTA created a designated 

public forum. Moreover, it created a forum that is suitable 

for the speech in question, i.e., posters which presented 

messages concerning abortion and health issues. CBM paid 

for advertising space which had previously been used for 

ads on those topics. We need not define the precise

boundaries of the forum, particularly concerning visual 

images that could be considered explicit. The topic of 

abortion and its health effects were, however, 

"encompassed within the purpose of the forum." Cornelius, 

473 U.S. at 806. 

SEPTA argues, however, and the district court concluded, 

that the instances in which SEPTA requested modification 

of ads demonstrate that SEPTA maintained "tight control" 

over the forum. This reasoning is consistent with a number 

of cases, holding that generally when permission is

necessary before ads are posted, the government has not 

created a public forum. See Perry, 460 U.S. at 47. In this 

case, however, at least 99% of all ads are posted without 

 17 
objection by SEPTA. As we note above, SEPTA has 

exercised control over only three ads, two of which had 

graphics to which SEPTA objected, and one of which 

solicited personal injury cases that could be directed 

against SEPTA. In one case, the concern with the graphics 

was unique to the wrap-around type bus ad -- concerns 

not implicated here. In all three cases, after negotiation 

with the sponsor, the ads were permitted to run with some 

modification. 

Because of SEPTA's policy in accepting ads, including 

two on the specific topic in question, the argument that 

SEPTA has "tight control" over the forum may apply to ads 

which are similar to the ones for which SEPTA has required 

modification. That does not mean, however, that such 

control applies to subject matter over which SEPTA has 

never before exercised any restrictions. Because the forum 

may be limited in one way does not foreclose its status as 

a public forum with respect to other categories of speech. If 

it did, there would have been no limited public forum in 

Widmar, 454 U.S. at 267, or in Rosenberger, 115 S.Ct. at 

2510. Both cases involved designated fora which excluded 

non-student groups. Nor would there have been a limited 

public forum in Kreimer, where the library constituted a 

public forum although it was open only to certain kinds 

expression.5 

_________________________________________________________________ 

5. In Denver Area Educational Telecommunications Consortium v. FCC, 

116 S.Ct. 2374, 2388 (1996) (plurality opinion), the Court was troubled 

by how to characterize the government's decision to limit a forum to 

exclude certain speech. Does strict scrutiny apply, Justice Breyer asked 

for the plurality, if the government "builds a band shell in the park and 

dedicates it solely to classical music (but not to jazz)?" Justice Kennedy 

responded that the correct analogy to the cable system at issue was "the 

Government's creation of a band shell in which all types of music might 

be performed except rap music," and went on to say that "the provisions 

here are content-based discriminations in the strong sense of 

suppressing a certain form of expression that the Government dislikes, 

or otherwise wishes to exclude on account of its effects, and there is no 

justification for anything by strict scrutiny here." 116 S.Ct. at 2374 

(Justice Kennedy, concurring and dissenting). In this case, the past 

practice of permitting much speech, particularly that on the topic of 

abortion, makes Justice Kennedy's analogy apt. 

 18 
But we reiterate that the government's exercise of some 

restrictions on speech does not foreclose a public forum. 

We do not hold that merely because the government may 

have had a past practice of permitting some expressive 

activity, it has created a public forum. Standing alone, a 

past practice of permitting some expressive activities or 

"limited discourse" does not mandate that the government 

intended the forum as public. Cornelius, 473 U.S. at 802; 

Kokinda, 497 U.S. at 720; Perry, 460 U.S. at 47.6 We must 

look at the past practice in conjunction with the purpose of 

the forum. In Cornelius, although the government permitted 

speech in the forum, the "extensive" criteria for admission 

to the forum and the government's purpose in creating the 

forum demonstrated that the government intended the

forum to be closed. 473 U.S. at 804-805; see also, Kokinda, 

497 U.S. at 730; Perry, 460 U.S. at 47-48. Here, on the 

other hand, the purpose of the forum does not suggest that 

it is closed, and the breadth of permitted speech points in 

the opposite direction. 

Moreover, there is no evidence that SEPTA rejected the ad 

pursuant to a new or previously existing policy to close the 

forum to debatable or misleading speech generally, or 

_________________________________________________________________ 

Our consideration of the similarity of the speech in question to speech 

permitted in the past is related to a determination of whether the 

limitation constitutes viewpoint discrimination, although here we make 

that inquiry only in conjunction with the other factors in the public 

forum analysis. We do not reach the viewpoint discrimination issue in 

this case. Even if we concluded that no viewpoint discrimination took 

place, however, this would not make the past use of the space irrelevant 

in determining whether the forum is public. How the forum has been 

used in the past is a core component of the public forum inquiry. See, 

e.g., Cornelius at 803-805; see also Denver Area Consortium, 116 S.Ct. 

at 2415 (Kennedy, J. concurring and dissenting) ("It contravenes the 

First Amendment to give Government a general license to single out 

some categories of speech for lesser protection so long as it stops short 

of viewpoint discrimination."). 

6. In Kokinda, only four Justices concluded that no public forum had 

been created. Four Justices reached exactly the opposite exclusion -- a 

limited public forum had been created -- based in large part on the past 

practice of permitting speech in the forum. Kokinda, 497 U.S. at 750. 

 19 
closed it to such speech on any particular topic of health. 

To the contrary, SEPTA simply argues that the forum was 

closed, and will be closed, to any speech that SEPTA wishes 

to exclude for any reason. In other words, SEPTA does not 

argue that the forum is closed to this particular type of 

speech because SEPTA views it differently from the speech 

it has permitted in the past. Instead, SEPTA claims the 

forum is closed to all speech, and that short of viewpoint 

discrimination, SEPTA can make any content-based 

restrictions it chooses. SEPTA's prior acceptance of a broad 

range of advertisements cuts particularly strongly against 

this claim. Cf. Gregoire, 907 F.2d at 1373. As Justice 

Kennedy reasoned in Denver Area Consortium,"[t]he power 

to limit or redefine forums for a legitimate purpose [citation 

omitted] does not allow the government to exclude certain 

speech or speakers from them for any reason at all." 116 

S.Ct. at 2414 (Kennedy, J.) (concurring and dissenting). 

The Seventh Circuit has also concluded, in a case similar 

to this one, that a transportation authority created a 

limited public forum. Planned Parenthood Ass'n v. Chicago 

Transit Auth., 767 F.2d 1225 (7th Cir. 1985). In Planned 

Parenthood, the Chicago Transit Authority ("CTA") refused 

to lease advertising space to Planned Parenthood for display 

of "abortion-related" advertisements. Although CTA had 

rejected an anti-Vietnam war ad (later displayed as part of 

a settlement agreement), and an "Impeach Nixon" placard 

(later displayed pursuant to court order), CTA had accepted 

an anti-war ad depicting "large bombs falling on a child 

releasing a dove with an olive branch in its beak." 767 F.2d 

at 1230. The court concluded that CTA had created a

limited public forum, reasoning that "CTA maintains no 

system of control over the advertisements that it accepts ... 

other than the general contractual directive .... to refuse 

vulgar, immoral, or disreputable advertising" and that CTA 

"has allowed its advertising space to be used for a wide 

variety of commercial, public-service, public-issue, and 

political ads." Id. at 1232-1233. Noting as well that CTA 

had no policy pursuant to which the ad was excluded, the 

court concluded that the transportation authority had 

created a public forum. We are confronted with a similar 

factual situation in this case, and we reach the same 

conclusion. 

 20 
In arguing to the contrary, SEPTA relies primarily on 

Cornelius v. NAACP Legal Defense and Education Fund , 473 

U.S. 788,902 (1985) and Student Coalition for Peace v. 

Lower Merion School, 776 F.2d 431, 436 (3d Cir. 1985). In 

Cornelius, however, the government had a "consistent 

policy," spanning more than two decades, of limiting the 

charity drive to organizations that provided "direct health 

and welfare services to individuals . . .."7 473 U.S. at 793. 

The purpose of the charity drive, moreover, was to limit the 

disruptive effects of individual charity drives throughout the 

year, by "lessening the amount of expressive activity 

occurring on public property." Id. at 805. Here, there is no 

comparable "policy and practice" demonstrating that the 

government intended that the forum be closed to the

speech at issue in this case. Indeed, the record points 

exactly the other way. In its efforts to generate advertising 

revenues, SEPTA permitted abortion-related and other 

controversial advertisements concerning sexuality. 

In Student Coalition for Peace v. Lower Merion School, 776 

F.2d 431, 436 (3d Cir. 1985), we considered the refusal of 

a school board to permit a "Peace Fair" on the school's 

athletic field or inside the boys' gymnasium. A student 

organization, not sponsored by the school, which advocated 

a bilateral nuclear freeze, sought to conduct the fair at the 

school. The school had permitted use of the athleticfield for 

a Special Olympics, for a Memorial Day service, for a "Bike 

Hike," and for jogging, picnics, and similar activities. 776 

F.2d at 434. The board rejected the request pursuant to an 

unwritten, but long-standing policy of reserving the athletic 

field for "athletic and governmental purposes." The board 

noted that use of the gym could cause damage to thefloor, 

and offered the use of the auditorium, which the group 

_________________________________________________________________ 

7. This policy was in effect from 1963 until 1982. Cornelius, 473 U.S. at 

792. During 1982 and 1983, some legal defense funds participated in 

the charity drive under court order. An Executive Order issued in 1983 

limited participation to "voluntary, charitable, health and welfare 

agencies that provide or support direct health and welfare services to 

individuals or their families," excluding "[a]gencies that seek to 

influence 

the outcomes of elections or the determination of public policy through 

political activity or advocacy, lobbying, or litigation on behalf of 

parties 

other than themselves." 473 U.S. at 795. 

 21 
rejected. We concluded, because permission to use the 

facilities in question was not granted "as a matter of 

course" and because the nature of the property suggested 

the facilities did not have as their primary purpose 

expressive activities, that the government had not created a 

limited public forum. Id. at 436-437. The property at issue 

here, on the other hand, has been dedicated to expressive 

activity of exactly the sort in which petitioners seek to 

engage. Moreover, as to the subject of abortion specifically, 

and family planning issues generally, permission to post 

advertisements has been granted as a "matter of course." 

There is no policy, written or unwritten, pursuant to which 

CBM's ads were removed. 

Lehman v. City of Shaker Heights, 418 U.S. 298 (1974) is 

similarly inapposite. In Lehman, the Court considered a 

ban on political advertising in the city's transit vehicles. A 

candidate for city council challenged the city's rejection of 

his ad pursuant to the city's policy, which had been in 

effect for 25 years. The card space, the Court reasoned, was 

a "commercial venture," and the city was free to limit the 

space to enhance commercial revenues, and to protect 

riders from the "blare of political propaganda." Id. at 303- 

304. As we have made clear, however, SEPTA has no longstanding practice of prohibiting ads like CBM's; nor does it 

have any policy pursuant to which the ads were removed. 

SEPTA's past practice is, instead, to include such ads. 

Because we find that SEPTA has created a designated

public forum, content-based restrictions on speech that 

come within the forum must pass strict scrutiny to comport 

with the First Amendment. Perry, 460 U.S. at 46. As the 

Supreme Court explained in Police Dept. of the City of 

Chicago v. Mosley, 408 U.S. at 92, 95, "above all else, the 

First Amendment means that government has no power to 

restrict expression because of its message, its ideas, its 

subject matter, or its content." Thus the government "may 

not grant the use of a forum to people whose views it finds 

acceptable, but deny use to those wishing to express less 

favored or more controversial views. And it may not select 

which issues are worth discussing or debating in public 

facilities." Id. at 96. The prohibited expression in this case, 

CBM's ad, falls within the scope of the forum created by 

 22 
SEPTA. Thus, SEPTA's restriction is subject to heightened 

review. 

SEPTA has not argued that its actions survive strict 

scrutiny. Accordingly, we conclude that CBM's First

Amendment rights were violated when SEPTA removed 

CBM's ads. 

V. Reasonableness of SEPTA's Restrictions 

Even if the speech in question had fallen outside the 

limited public forum created by SEPTA, we would 

nonetheless conclude that SEPTA's removal of the posters 

violated the First Amendment because the removal was not 

"reasonable." When reviewing a governmental agency's 

limitation of speech on government property that has not 

been designated a public forum, the "reasonableness" of 

action limiting speech is gauged with reference to the 

nature of the forum itself. As the Supreme Court explained: 

 Consideration of a forum's special attributes is relevant 

 to the constitutionality of a regulation since the 

 significance of the governmental interest must be 

 assessed in light of the characteristic nature and 

 function of the particular forum involved. 

United States v. Kokinda, 497 U.S. 720, 732 (1990) 

(plurality opinion) (quoting Heffron v. International Society 

for Krishna Consciousness, 452 U.S. 640 (1981); see also, 

Perry, 460 U.S. at 49. The Kokinda plurality went on to 

hold that a ban on solicitation on postal premises was 

reasonable, in part because the "purpose of the forum" was 

"to accomplish the most efficient and effective postal 

delivery system." Id. at 732. Solicitation, the postal service 

had decided, was "inherently disruptive" of its business. Id. 

Other cases also make clear that the reasonableness of 

the government's restriction on speech depends on the 

nature and purpose of the property from which it is barred. 

In Kreimer, for example, we considered whether regulations 

governing the behavior of library patrons were reasonable 

by evaluating to what extent the regulations were 

consistent with, or promoted, the purposes to which the 

library had been dedicated. 958 F.2d at 1262. Rules

limiting disruptive behavior were deemed reasonable

 23 
because they constituted "perhaps the clearest and most 

direct way to achieve maximum library use." Id; see also, 

Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 270, 273 

(1988) (content-based restrictions on speech in school 

newspaper constitutional "so long as [they] are reasonably 

related to legitimate pedagogical concerns"); Cornelius v. 

NAACP Legal Defense and Educ. Fund, Inc., 473 U.S. 788, 

806 (1985) (distinctions in non-public forum based on 

"subject matter and speaker identity" are constitutional as 

long they are "reasonable in light of purpose served by the 

forum and are viewpoint neutral"); Lee v. Intern. Soc. for 

Krishna Consciousness, Inc., 505 U.S. 672, 685 (1992) 

(O'Connor, J., concurring) (reasonableness inquiry is 

"whether [the restrictions on solicitation and on distribution 

of literature] are reasonably related to maintaining the 

multipurpose environment that the Port Authority has 

created."). 

Similarly, in Lehman v. City of Shaker Heights, 418 U.S. 

298, 303 (1974), the Court considered whether the city's 

refusal to accept political advertising on its rapid transit 

vehicles violated the First Amendment. The Court reasoned 

that 

 Revenue earned from long-term commercial advertising 

 could be jeopardized by a requirement that short-term 

 candidacy or issue-oriented advertisements be 

 displayed on car cards. Users would be subjected to 

 the blare of political propaganda. There could be 

 lurking doubts about political favoritism, and sticky 

 administrative problems might arise in parceling out 

 limited space to eager politicians. In these

 circumstances, the managerial system to limit car card 

 space to innocuous and less controversial advertising 

 does not rise to the dignity of a First Amendment 

 violation. 

418 U.S. at 304 (plurality opinion). The Court thus

reasoned that, in order to maximize commercial revenue 

and eliminate concerns about political favoritism, the city 

could restrict the car card space to exclude political 

advertisement. 

In this case, the district court concluded that SEPTA 

acted reasonably in relying on Dr. Lee's letter to remove the 

 24 
CBM posters. However, CBM paid the commercial rate for 

the advertising space, just like any other advertiser, and 

submitted an advertisement on abortion and women's 

health, topics that were already the subject of other 

permitted advertisements. The subject of the speech, and 

the manner in which it was presented, were compatible 

with the purposes of the forum. 

The plurality opinion in Kokinda warned against 

accepting the argument that simply because the 

government permitted other potentially disruptive speech 

on postal property, it had to permit solicitation as well. The 

Court reasoned that "whether or not the Service permits 

other forms of speech, which may or may not be disruptive, 

it is not unreasonable to prohibit solicitation on the ground 

that it is unquestionably a particular form of speech that is 

disruptive of business." 497 U.S. at 733.8 See also Greer v. 

Spock, 424 U.S. 831, 838 n.10 (1976). In this case,

however, unlike Kokinda and Lehman, the government has 

offered no basis on which to conclude that the speech in 

question would interfere with the accepted purposes of the 

advertising space. See Lee v. Intern. Soc. for Krishna 

Consciousness, Inc., 505 U.S. 672, 691 (1992) (O'Connor, J. 

concurring) ("because I cannot see how peaceful 

pamphletting is incompatible with the multipurpose 

environment of the Port Authority airports, I cannot accept 

that a total ban on that activity is reasonable without an 

explanation as to why such a restriction `preserves the 

property' for the several uses to which it has been put. 

[citation to Perry]"); Airline Pilots Assoc. v. Dept. of Aviation, 

45 F.3d 1144, 1161 (7th Cir. 1995) (Flaum, J. Concurring) 

("...when the government decides who may speak based on 

substantive criteria, it acts as a censor. The government 

should not normally take on the role of deciding who may 

speak on what matters, regardless of what capacity in 

which it acts"). 

_________________________________________________________________ 

8. Although the four Justice plurality concluded that the restriction was 

reasonable, three dissenting Justices concluded that even if the forum 

was nonpublic, the restrictions were not reasonable, in large part 

because the post office permitted other disruptive speech. This 

"inconsistent treatment," in the eyes of the dissent, "renders the 

prohibition on solicitation unreasonable." Kokinda, 497 U.S. 760-761 

(Brennan, J. dissenting). 

 25 
SEPTA argued before the district court that Gambaccini 

had testified that SEPTA "closed the debate to a situation in 

which there are ads or debated and dubious statements of 

medical fact."9 Consistent with this statement, SEPTA could 

have argued that based on Dr. Lee's letter, it viewed CBM's 

ad as "debated and dubious," and accordingly excluded it. 

A prohibition on "debated and dubious ads," put in place 

before, or because of the concerns about CBM's ad, might 

qualify as reasonable. We note, however, that SEPTA does 

not have a policy of protecting riders from "debated and 

dubious" speech generally, nor does SEPTA link this

purported policy to its use of the forum. 

In any event, we need not reach that question. 

Gambaccini did not testify to such a policy, implemented 

either before or after the removal of CBM's ad. Instead, 

when questioned if he would post an ad saying "women 

who choose abortion live longer and have less breast 

cancer," he answered "[N]ot unless there was some credible 

evidence to support it." (Appendix at 354-355). This is a 

different standard -- a debatable advertisement may well be 

supported by credible evidence. And if this standard 

controlled, SEPTA was unreasonable because it failed to 

give CBM an opportunity to produce such evidence. 

Moreover, Gambaccini did not explain whether this 

standard applied generally, or just to ads on the topic of 

abortion and cancer. Nor did he explain SEPTA's grounds 

for adopting it. SEPTA has left us to guess why, in terms of 

the purpose of the forum, it excluded CBM's ad, and why, 

and to what extent, other ads will also be excluded. This 

makes it difficult to evaluate the extent of the governmental 

interest in excluding the speech from SEPTA's property. 

Finally, as we have noted, SEPTA never asked CBM-- 

the sponsor of the ad -- to defend its accuracy, to explain 

the basis for the ad, or to clarify it. Instead, SEPTA removed 

the ad without contacting CBM -- even though CBM had 

modified the poster in response to SEPTA's previous

requests. 

_________________________________________________________________ 

9. SEPTA argued before us that it "determined not to devote its 

advertising areas to alarming allegations regarding cancer and abortion, 

given the controverted nature of the public health claim as described in 

the HHS letter." 

 26 
We conclude, therefore, that under the facts presented 

SEPTA's actions were not reasonable. SEPTA acted as a 

censor, limiting speech because it found it to be 

"misleading." SEPTA argues that it cannot investigate the 

accuracy of medical claims in ads. For that reason, it relied 

on Dr. Lee's letter. We do not hold that SEPTA must hire its 

own cadre of experts to evaluate medical claims made in 

ads. It was SEPTA, however, which accepted advertising on 

a permitted topic, and then decided that CBM's ad was 

unacceptably misleading. Having decided to exclude the 

posters on this basis, SEPTA did not act reasonably when 

it failed to ask CBM to clarify the basis on which the claim 

was made. This is all the more true where SEPTA has failed 

to explain how its content-based distinctions are related to 

preserving the advertising space for its intended use, and 

where SEPTA has in place no policy, old or new, written or 

unwritten, governing the display of ads making contested 

claims. 

VI. Conclusion 

For the reasons set forth above, we will reverse district 

court's order granting judgment to SEPTA, and we will 

remand this case for further proceedings consistent with 

this opinion. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 27