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. e du/thir dc ir c uit_1998/145Filed 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 AppellantWilliam 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 wheth er, in doing so, SEPTA, a regional transportation authorit y, violated the First Amendment rights of the advertis er, Christ's Bride Ministries, Inc. (CBM). The district court

2found, after conducting a bench trial, that the Fir st

Amendment was not violated because the advertising space at issue did not constitute a public forum and beca use SEPTA acted reasonably in removing the posters. We do not agree with either conclusion. In light of the other advertisements, including those relating to abortio n, which SEPTA had previously permitted to run on its proper ty, and in light of SEPTA's own purposes in using and leasi ng the space, we have determined that SEPTA intended to cr eate a designated public forum. We find that SEPTA's act ion in removing the posters does not survive the strict sc rutiny applied to speech within the parameters of a design ated public forum; nor does it pass the reasonableness t est 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. An n. S 1502. It operates buses, subways, and regional ra il lines in and around the City of Philadelphia. SEPTA contr acts with a licensee, Transportation Display's Inc. (TDI ), for the construction and sale of advertising space in its s tations
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 a nd 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 sy stem. SEPTA referred CBM to TDI. Bradley Thomas, presiden t 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 Mea ra 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

3white 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 organiza tion 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 charitab le, religious, educational, non-profit 501(c)(3) organi zation. CBM, P.O. Box 22 Merrifield, VA 22116. (703) 598-22 26." SEPTA then approved the posters for display.

On January 15, 1996, the posters went up. TDI put t wo 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" complaint s about the poster, which included "rider protest" and"crit icism" by "women's health organizations" and "local governmen t officials." Shortly thereafter, Robert Meara told C BM that SEPTA wanted CBM to identify itself more prominentl y on the posters. CBM accordingly added decals to the si gns 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 t hat 46<!DAG> x 60<!DAG> posters would be displayed at 2 4 locations in rail stations for one year. The contract also stated tha t during that year two 21<!DAG> x 62<!DAG> signs would be di splayed on clocks at Suburban Station. The monthly charge for the sig ns on the clocks was $642.60, while the monthly charge fo r 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 sh ould 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 lette r written by Dr. Philip Lee, Assistant Secretary of H ealth in the United States Department of Health and Human

4Services. The letter was not addressed to anyone in SEPTA,

but instead to Lawrence Reuter, General Manager of the Washington Metropolitan Area Transit Authority, whe re CBM's posters were also displayed. Dr. Lee wrote to Reuter
that

It has recently come to my attention that th e Metro Transit System has posted more than 1,100 fr ee public
service ads from the Christ's Bride Ministri es. The ad
states: "Women who choose abortion suffer mo re &
deadlier breast cancer. Information: 1-800-6 34-2224." This ad is unfortunately misleading, unduly alarming, and does not accurately reflect the weight o f the
scientific literature.

Dr. Lee went on to state that in his opinion the st udies showing a link between breast cancer and abortion s uffered from methodological weaknesses, that there was no consensus on the purported relationship between bre ast cancer and abortion, and that Dr. Lee knew of no ev idence 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 o f the National Cancer Institute, describing a study that suggested a positive correlation between induced abortions an d breast cancer. Dr. Lee noted that although the article did appear in the Journal, the Journal also published an edito rial stating that the results were not "conclusive." Fin ally, Dr. Lee expressed concern that callers to the 1-800 num ber were being asked to participate in a survey and tha t callers
could become confused and think that the National C ancer Institute supported the survey, which it did not.

Based on Dr. Lee's letter, SEPTA removed the poster s 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 the ir accuracy. The 1-800 number concerns were an "ancill ary"
consideration. It is uncontested that no one at SEP TA or TDI conducted any other inquiry into the accuracy o f the message on the poster, or contacted CBM for informa tion that would support the claim made by the ad, or inf ormed CBM of SEPTA's objections to the ad before removing the posters.

5On March 13, 1996, nearly a month later, Meara of T DI

wrote to Thomas of CBM, explaining that the posters had been removed on February 16. Meara stated in his le tter that the decision had been made by SEPTA as a resul t 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 lit erature'." TDI included a check to CBM for $3,042.60 for the "unus ed 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 TD I as defendants. The complaint alleged violations of CBM's rights under the First and Fourteenth Amendments an d also alleged breach of contract. CBM sought compens atory damages and declaratory and injunctive relief pursu ant to 42 U.S.C. SS 1983, 1985(c) and 1986.1 The United St ates District Court for the Eastern District of Pennsylv ania conducted a three-day bench trial in June 1996. The court heard testimony about SEPTA's and TDI's policies an d practices regarding advertising space on SEPTA prop erty, 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 o f a cause and effect relationship between abortion and breast cancer. These experts did, however, acknowledge tha t 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 reject ions 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 c laim. 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 contr act between it and TDI. The complaint does not make this allegation, h owever. CBM also attached both pages of the contract to the complain t and relied on language from the allegedly missing second page in the complaint itself. CBM also argues that the contract is "unconscionabl e," although the complaint makes no such allegations. We reject thes e claims as being
without merit.

6testified that the better studies have not been con sistent

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, i n his opinion, showed a statistically significant increas e in breast cancer among women who had undergone induced abortions. He argued that this risk could not be ac counted 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 contrac eptives. Because manufacturers of contraceptives alert the p ublic as to the possible link between their product and brea st cancer, it should not be "unduly alarming" for CBM to report a slightly greater risk purportedly associat ed 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 consti tute traditional public fora and that SEPTA and TDI had not created a public forum because they maintained cont rol over the use of the advertising space. The court al so found
that Dr. Lee's letter was a "reasonable" basis on w hich 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 tim e 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 jurisdic tion

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 "constitutiona l duty to conduct an independent examination of the record as a whole, without deference to the trial court." Hurle y v. IrishAmerican Gay Group of Boston, 115 S.Ct. 2338, 2344 (1995). This independent duty does not extend to th e district court's rulings on matters of credibility, to which we continue to defer, id. (citing Harte-Hanks Communic ations, Inc. v. Connaughton, 491 U.S. 657, 688 (1989)), but it does require us draw our own inferences from the factual

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

1357 (3d Cir. 1994); Swineford v. Snyder Co. Pa., 1 5 F.3d 1258, 1165 (3d Cir. 1994).

III. State Action and Commercial Speech

Turning to the substantive issues, we readily dispo se of two initial matters. First, the United States Const itution guarantees freedom of expression only against infri ngement by the state, not by private actors. Hurley v. Iris h-American Gay Group of Boston, 115 S.Ct. 2338, 2344 (1995). I n this case, however, the parties agree that SEPTA is a st ate actor, as is its licensee, TDI, and that their acti ons 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 ar gue that because callers to the 1-800 number listed on the poster may receive information advertising the serv ices of medical malpractice attorneys, CBM's message is the reby transformed into "commercial speech," and should re ceive substantially less constitutional protection. See B olger v. Youngs Drug Prods. Corp., 463 U.S. 60, 66-67 (1983) . But the speech at issue does not advertise goods or ser vices, nor does it refer to a specific product or service. The 1-800 number listed on the poster does not even connect c allers 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 acco rdingly 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 afo ul of the First Amendment. Lamb's Chapel v. Center Morich es 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 design ated as public by the government, the government's ability to limit speech is impinged upon by the First Amendment. Per ry, 460 U.S. at 45-46. In either a traditional or a des ignated

8public forum, the government's content-based restri ctions

on private speech must survive strict scrutiny to p ass constitutional muster. Id.; International Society f or Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992 ). The government has, however, a far broader license to c urtail speech if the forum has not been opened to the type of expression in question. In such a case, the governm ent's restrictions need only be viewpoint neutral and"rea sonable in light of the purpose served by the forum." Rosen berger 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 (19 85));
Kreimer v. Bureau of Police for the Town of Morrist own, 958 F.2d 1242, 1262 (3d Cir. 1992).

In order to decide whether a public forum is involv ed here, we must first determine the nature of the pro perty and the extent of its use for speech. The Supreme C ourt wrestled with a similar question in Cornelius v. NA ACP Legal Defense and Educ. Fund, Inc., 473 U.S. 788 (1 985), when it considered whether legal defense funds coul d be excluded from a charity drive among federal employe es. The government argued in Cornelius that the"federal workplace" was the relevant forum. The plaintiffs o n 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 t he charity drive, not to engage in actual, face-to-face solici tation in the workplace. Id. at 801. The Court went on to conclud e that the charity drive itself did not constitute a publi c forum and that the restrictions on participation were rea sonable.

In this case, the district court variously defined the forum at issue as "the stations in a public transit syste m," a "public transportation system," and "SEPTA's subway and rail stations and their advertising space." Applyin g the reasoning of Cornelius, we look to the access sough t by CBM. CBM did not seek to leaflet, demonstrate, or s olicit in the rail and subway stations as a whole. Instead, i t sought access only to the advertising space leased out by SEPTA, through TDI. The contract between the parties

9contemplated advertising with posters in the statio ns and

next to the clocks at Suburban Station in Philadelp hia. We conclude, therefore, that the forum at issue is SEP TA's advertising space. See, Airline Pilots Assoc. v. De pt. 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. N at'l. R.R. Passenger Corp., 69 F.3d 650, 655-656 (holding that one billboard was the relevant forum, not the entire Pe nn Station); New York Magazine v. Metropolitan Transp. Auth., 136 F.3d 123, 130 (2d Cir. 1998) (holding that beca use MTA allowed both commercial and political speech, t he outside of MTA buses is a designated public forum). 2

Our next step is to decide whether SEPTA's advertis ing space is a public forum. It clearly does not consti tute a "traditional" public forum, archetypal examples of which include streets and parks. These areas have been"he ld in the public trust," Lee, 505 U.S. at 680, and dedica ted to expressive activity for "time out of mind." Id. (qu oting 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 traditio nal public forum. We do not understand CBM to argue otherwise.

More difficult is the question whether SEPTA has cr eated a designated public forum by "expressly" dedicating its advertising space to "speech activity." U.S. v. Kok inda, 497 U.S. 720, 726-727 (1990) (plurality opinion). A des ignated

___________________________________________________ ______________

2. The parties have not argued that the relevant fo rum 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 appeare d 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, n ot all of the
billboards in Penn Station, constituted the relevant forum bec ause the billboard was unique and the speaker sought access only to th at specific billboard), but see Lebron, 69 F.3d at 661 (Newman, C.J. dissenting) (arguing that "public forum analysis cannot be so p articularized as to focus on one of several billboards on government pr operty"). 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 c ase remains the same.

10public forum is created because the government so i ntends.

Inaction does not make such a forum; neither does t he 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 pu blic. 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 compati bility with expressive activity. Gregoire v. Centennial Sc hool District, 907 F.2d 1366, 1371 (3d Cir. 1990) (citin g Cornelius, 473 U.S. at 802); Brody v. Sugzdinis, 95 7 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 in stead that SEPTA intended to create a limited public foru m, open only to certain kinds of expression. See, e.g., Kre imer, 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 acti vities); Rosenberger v. Rector and Visitors of the Univ. of Va., 115 S.Ct. 2510, 2517 (1995) (student activities fund, a vailable to student groups meeting certain criteria, constit uted limited public forum).

A. SEPTA's policies

We will look first at the purpose for which SEPTA u ses the space in question. The main function of the adv ertising space at issue is to earn a profit for SEPTA. Altho ugh 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 operati ng budget from the leasing of advertising space in its statio ns and in
and on its vehicles. The contract between TDI and S EPTA
states that "it is understood that it is Licensee's obligations [sic] under the terms of this contract to produce r evenues . . .."3

___________________________________________________ ______________

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

also reflected in the manner in which SEPTA is paid by T DI under the

11The record shows that TDI and SEPTA also had a

secondary goal in using the space: promoting "aware ness" of social issues and "providing a catalyst for chan ge." 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 issu e of public concern and then pays for the materials and labor involved in creating the advertisements. The purpos e of the program, in TDI's words, is to assail TDI markets w ith "images, both poignant and creative, which are desi gned 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 a n 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 "j ointly agree" on what initiatives will run in the Philadel phia area,
but it is not clear from the record which ads ran o n 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 t o SEPTA, one twelfth of which is due at the beginning of each mo nth, but SEPTA receives fifty-five percent of all net sales in any given month if that amount is greater than one twelfth of the guarantee d annual payment. In the first agreement year, the guaranteed annual payment was $2,000,000. This rose to $2,950,000 for the fifth a nd final agreement

year.

4. SEPTA contends that we should not consider the T DI Cares brochure because it is hearsay. The brochure was, however, a dmitted into evidence without objection by SEPTA. Moreover, it w as 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 broc hure 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 o f how much advertising space SEPTA and/or TDI actually donated to those campaigns. Considered with the other evidence in th e record, the brochure demonstrates, however, that the forum in q uestion is suitable for speech concerning social problems and issues.

12cites International Society for Krishna Consciousne ss, Inc. v.

Lee, 505 U.S. 672 (1992). In Lee, the Court conside red restrictions on solicitation and leafleting in airp ort terminals. The Court began by noting that the gover nment owned and operated the airport terminals and that:

Where the government is acting as a propriet or, managing its internal operations, rather tha n acting as a lawmaker with the power to regulate or lic ense, its actions will not be subjected to the heighte ned review to which its actions as a lawmaker may be su bject.

505 U.S. at 678 (quoting United States v. Kokinda, 497 U.S. 720, 725 (1990) (plurality opinion) (citing Cafeter ia & Restaurant Workers v. McElroy, 367 U.S. 866, 896 (1 961))).

In Lee, the Court went on, however, to apply the fa ctors
identified in Cornelius to determine whether the ai rport terminals were public fora. The Court reasoned that the city's purpose in operating the airport was to gene rate a profit by serving the air-traveling public. The goa l of the terminal was "the facilitation of passenger air tra vel" and not "the promotion of expression." 505 U.S. at 682. The Court distinguished the restricted access in air te rminals 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 enterpr ise it has, by definition, decided not to create an open f orum. To the contrary, it is the commercial and restricted n ature of an airport concourse which suggested that the gover nment did not intend the concourse to be primarily a foru m 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 with in the
stations. We need not concern ourselves with solici tation or leafletting of the public within the stations but o nly with the use of the ad space itself. The nature of this forum is partly commercial, consistent with the goal of SEPT A 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 C hicago, 45 F.3d 1144, 1157 (7th Cir. 1995); Stewart v. Distric t of

13Columbia 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. T his expressive use has not interfered with providing ra il transportation facilities to the public. Thus, the nature of the forum suggests, but by no means establishes, se e 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. T he contract between TDI and SEPTA provides that "it is SEPTA's strong preference that [TDI] concentrate on securing advertising other than that which is tobac co and
alcohol related." The contract directs that TDI use its "best efforts" to fill the space with other advertisement s. Recognizing that TDI's responsibility under the con tract is to "produce revenues," the contract permits the com bined sale of alcohol and tobacco advertising of up to tw enty percent of the annual dollar value of the advertisi ng. TDI also, however, has an obligation to "pursue qualifi ed public health groups, as identified by SEPTA" and to make advertising space available to them "on a one to on e ratio to the tobacco and alcohol related advertising at t hat time, subject to space availability." In addition, the co ntract reserves for SEPTA the right to reject advertisemen ts that it
does not like:

All advertising displays at any time inserte d or placed by the Licensee in any display devices in an y vehicle and /or locations shall be of an appropriate character and quality, and the appearance of all displ ays shall be acceptable to SEPTA. No libelous, slanderous , or obscene advertising maybe accepted by the Li censee for display in the Authority's transit and railr oad vehicles and facilities. All advertising determined b y the[sic] SEPTA, in its sole discretion, as objectiona ble within the meaning of this subsection must not be u tilized on any SEPTA vehicle or facility. SEPTA shall h ave the

14right 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 advertis ement that it deems objectionable, it did not create a public forum of any sort. The authority's own statement of its inte nt, however, does not resolve the public forum question

. Gregoire v. Centennial School District, 907 F.2d 13 66, 1374 (3d Cir. 1990) (reasoning that "intent, as evidence d by a government's statements, is a factor to be consider ed," but that "the forum inquiry does not end with the gover nment's statement of intent"); see also Air Line Pilots Ass ociation, Int'l. v. Dept. of Aviation, 45 F.3d 1144, 1153-115 4 (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 i tself the right to reject ads for any reason at all does not signify, in and of itself alone, that no public forum has be en created. See Gregoire, 907 F.2d at 1375. In Gregoir e, we warned that "standards for inclusion and exclusion" in a limited public forum "must be unambiguous and defin ite" if the "concept of a designated open forum is to retai n any vitality whatever." 907 F. 2d at 1375. We do not ho ld that the government could never, pursuant to an open-end ed policy of excluding speech as it sees fit, effectiv ely close the forum to certain speech (or maintain an entirely cl osed forum) through a consistent practice of so doing. B ut the fact that the government has reserved the right to control speech without any particular standards or goals, a nd without reference to the purpose of the forum, does not necessarily mean that it has not created a public f orum. If anything, we must scrutinize more closely the speec h 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 Telecommunicat ions 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., dissentin g).

15SEPTA's purpose in operating the forum and its writ ten

policies governing access provide no conclusive ans wer as to whether the forum is intended to be closed or op en. The goal of generating income by leasing ad space sugge sts that the forum may be open to those who pay the requisit e fee. SEPTA has specified a few areas in which it will no t freely accept advertising: alcohol and tobacco advertising beyond a specified limit and ads deemed libelous or obscen e. These restrictions do not apply to the CBM posters. Beyon d these limitations, there are no specific restrictions on the type of advertising that SEPTA will accept. In effect, SEPT A's reservation of the right to reject any ad for any r eason 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 Chu rch;" an ad criticizing a political candidate; and explic itly 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 controvers ial ad campaign on AIDS education and awareness, posters stating "The Face of Adoption" "Consider Adoption" and "Every child deserves a family," and another ad rea ding "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 ad s. One read "Choice Hotline, For Answers to Your Quest ions About: Birth Control * Pregnancy * Prenatal Care * Abortion * Adoption * HIV/AIDS * Sexually Transmitted Diseas es (STDs) Abortion - Making A Decision, Call State Hea lth Line 1-800-692-7254 For Free Booklet on Fetal Developmen t,

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

Confidential * Free." The other one addressed the h ealth benefits of legalizing abortion: "When Abortion Was Illegal, Women Died. My Mother Was One of Them. Keep Abortio n Legal and Safe. Support the Clara Bell Duvall Educa tion

Fund. 471-9110."

From the broad range of ads submitted, SEPTA has requested modification of only three. One was the l arge wrap-around bus ad for Haynes hosiery, which would have covered the entire bus with the picture of a "scant ily clad" woman; it was too "risque." The same ad was accepte d as a smaller "poster" ad on the sides of buses. SEPTA also asked for modification of an ad depicting a gun wit h 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 inju ry law
firm delete references to rail accidents.

We conclude then, based on SEPTA's written policies
, which specifically provide for the exclusion of onl y a very narrow category of ads, based on SEPTA's goals of generating revenues through the sale of ad space, a nd based on SEPTA's practice of permitting virtually u nlimited access to the forum, that SEPTA created a designate d public forum. Moreover, it created a forum that is suitable for the speech in question, i.e., posters which pre sented messages concerning abortion and health issues. CBM paid for advertising space which had previously been use d for ads on those topics. We need not define the precise boundaries of the forum, particularly concerning vi sual images that could be considered explicit. The topic of abortion and its health effects were, however, "encompassed within the purpose of the forum." Corn elius,

473 U.S. at 806.

SEPTA argues, however, and the district court concl uded, that the instances in which SEPTA requested modific ation of ads demonstrate that SEPTA maintained "tight con trol" 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 w ithout

17objection 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 direc ted against SEPTA. In one case, the concern with the gr aphics was unique to the wrap-around type bus ad -- concer ns not implicated here. In all three cases, after nego tiation with the sponsor, the ads were permitted to run wit h some
modification.

Because of SEPTA's policy in accepting ads, includi ng 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 r equired modification. That does not mean, however, that suc h control applies to subject matter over which SEPTA has never before exercised any restrictions. Because th e forum may be limited in one way does not foreclose its st atus as a public forum with respect to other categories of speech. If it did, there would have been no limited public for um in Widmar, 454 U.S. at 267, or in Rosenberger, 115 S.C t. at 2510. Both cases involved designated fora which exc luded non-student groups. Nor would there have been a lim ited public forum in Kreimer, where the library constitu ted a public forum although it was open only to certain k inds expression.5

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5. In Denver Area Educational Telecommunications Co nsortium v. FCC, 116 S.Ct. 2374, 2388 (1996) (plurality opinion), th e 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 sys tem 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 stron g sense of suppressing a certain form of expression that the G overnment dislikes,
or otherwise wishes to exclude on account of its ef fects, and there is no justification for anything by strict scrutiny here. " 116 S.Ct. at 2374 (Justice Kennedy, concurring and dissenting). In th is case, the past practice of permitting much speech, particularly th at on the topic of abortion, makes Justice Kennedy's analogy apt.

18But 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 m ay have had a past practice of permitting some express ive activity, it has created a public forum. Standing a lone, a past practice of permitting some expressive activit ies or "limited discourse" does not mandate that the gover nment intended the forum as public. Cornelius, 473 U.S. a t 802; Kokinda, 497 U.S. at 720; Perry, 460 U.S. at 47.6 W e must look at the past practice in conjunction with the p urpose of the forum. In Cornelius, although the government pe rmitted speech in the forum, the "extensive" criteria for a dmission to the forum and the government's purpose in creati ng 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 sugge st that it is closed, and the breadth of permitted speech p oints 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 i n question to speech permitted in the past is related to a determination of whether the limitation constitutes viewpoint discrimination, al though here we make that inquiry only in conjunction with the other fac tors in the public forum analysis. We do not reach the viewpoint discr imination issue in this case. Even if we concluded that no viewpoint d iscrimination 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 Co nsortium, 116 S.Ct. at 2415 (Kennedy, J. concurring and dissenting) ("I t contravenes the First Amendment to give Government a general licens e 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 opp osite exclusion -- a limited public forum had been created -- based in l arge part on the past practice of permitting speech in the forum. Kokinda , 497 U.S. at 750.

19closed 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 SEPT A wishes to exclude for any reason. In other words, SEPTA do es not argue that the forum is closed to this particular t ype 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 vi ewpoint discrimination, SEPTA can make any content-based restrictions it chooses. SEPTA's prior acceptance o f a broad range of advertisements cuts particularly strongly against this claim. Cf. Gregoire, 907 F.2d at 1373. As Just ice Kennedy reasoned in Denver Area Consortium,"[t]he p ower to limit or redefine forums for a legitimate purpos e [citation omitted] does not allow the government to exclude c ertain speech or speakers from them for any reason at all. " 116 S.Ct. at 2414 (Kennedy, J.) (concurring and dissent ing).

The Seventh Circuit has also concluded, in a case s imilar to this one, that a transportation authority create d a limited public forum. Planned Parenthood Ass'n v. C hicago Transit Auth., 767 F.2d 1225 (7th Cir. 1985). In Pl anned Parenthood, the Chicago Transit Authority ("CTA") r efused to lease advertising space to Planned Parenthood fo r 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" pla card (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 a ccepts ... other than the general contractual directive .... t o refuse vulgar, immoral, or disreputable advertising" and t hat 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 th at CTA had no policy pursuant to which the ad was excluded , the court concluded that the transportation authority h ad created a public forum. We are confronted with a si milar factual situation in this case, and we reach the sa me conclusion.

20In 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. 198 5). In Cornelius, however, the government had a "consisten t policy," spanning more than two decades, of limitin g the charity drive to organizations that provided "direc t 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 thr oughout the year, by "lessening the amount of expressive activi ty occurring on public property." Id. at 805. Here, th ere 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 po ints exactly the other way. In its efforts to generate a dvertising revenues, SEPTA permitted abortion-related and othe r controversial advertisements concerning sexuality.

In Student Coalition for Peace v. Lower Merion Scho ol, 776 F.2d 431, 436 (3d Cir. 1985), we considered the ref usal of a school board to permit a "Peace Fair" on the scho ol's athletic field or inside the boys' gymnasium. A stu dent organization, not sponsored by the school, which ad vocated a bilateral nuclear freeze, sought to conduct the f air at the school. The school had permitted use of the athleti cfield for a Special Olympics, for a Memorial Day service, for a "Bike Hike," and for jogging, picnics, and similar activi ties. 776 F.2d at 434. The board rejected the request pursuan t to an unwritten, but long-standing policy of reserving th e athletic field for "athletic and governmental purposes." The board noted that use of the gym could cause damage to the floor, and offered the use of the auditorium, which the gr oup

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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 O rder issued in 1983 limited participation to "voluntary, charitable, he alth and welfare agencies that provide or support direct health and welfare services to individuals or their families," excluding "[a]genci es that seek to
influence the outcomes of elections or the determination of p ublic policy through political activity or advocacy, lobbying, or litiga tion on behalf of parties

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

21rejected. We concluded, because permission to use t he

facilities in question was not granted "as a matter of course" and because the nature of the property sugg ested the facilities did not have as their primary purpos e 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 expr essive activity of exactly the sort in which petitioners s eek to engage. Moreover, as to the subject of abortion spe cifically, and family planning issues generally, permission to post advertisements has been granted as a "matter of cou rse." 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 (197 4) is similarly inapposite. In Lehman, the Court consider ed a ban on political advertising in the city's transit vehicles. A candidate for city council challenged the city's re jection of his ad pursuant to the city's policy, which had bee n in effect for 25 years. The card space, the Court reas oned, was a "commercial venture," and the city was free to li mit the space to enhance commercial revenues, and to protec t riders from the "blare of political propaganda." Id . at 303- 304. As we have made clear, however, SEPTA has no l ongstanding practice of prohibiting ads like CBM's; no r does it have any policy pursuant to which the ads were remo ved. 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 e lse, the First Amendment means that government has no power to restrict expression because of its message, its ide as, its subject matter, or its content." Thus the governmen t "may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to expres s less favored or more controversial views. And it may not select which issues are worth discussing or debating in pu blic facilities." Id. at 96. The prohibited expression i n this case, CBM's ad, falls within the scope of the forum creat ed by

22SEPTA. Thus, SEPTA's restriction is subject to heig htened

review.

SEPTA has not argued that its actions survive stric t 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 t he limited public forum created by SEPTA, we would nonetheless conclude that SEPTA's removal of the po sters
violated the First Amendment because the removal wa s not "reasonable." When reviewing a governmental agency' s limitation of speech on government property that ha s 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 ex plained:

Consideration of a forum's special attribute s is relevant to the constitutionality of a regulation sin ce the significance of the governmental interest mu st be assessed in light of the characteristic natu re and function of the particular forum involved.

United States v. Kokinda, 497 U.S. 720, 732 (1990) (plurality opinion) (quoting Heffron v. Internation al Society for Krishna Consciousness, 452 U.S. 640 (1981); see also, Perry, 460 U.S. at 49. The Kokinda plurality went o n to hold that a ban on solicitation on postal premises was reasonable, in part because the "purpose of the for um" was "to accomplish the most efficient and effective pos tal delivery system." Id. at 732. Solicitation, the pos tal service had decided, was "inherently disruptive" of its bus iness. Id.

Other cases also make clear that the reasonableness of the government's restriction on speech depends on t he nature and purpose of the property from which it is barred. In Kreimer, for example, we considered whether regu lations governing the behavior of library patrons were reas onable 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

23because 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 sch ool newspaper constitutional "so long as [they] are rea sonably related to legitimate pedagogical concerns"); Corne lius 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 constitut ional as long they are "reasonable in light of purpose serve d by the forum and are viewpoint neutral"); Lee v. Intern. S oc. for Krishna Consciousness, Inc., 505 U.S. 672, 685 (199 2) (O'Connor, J., concurring) (reasonableness inquiry is "whether [the restrictions on solicitation and on d istribution of literature] are reasonably related to maintainin g the multipurpose environment that the Port Authority ha s created.").

Similarly, in Lehman v. City of Shaker Heights, 418 U.S. 298, 303 (1974), the Court considered whether the c ity's refusal to accept political advertising on its rapi d transit
vehicles violated the First Amendment. The Court re asoned

that

Revenue earned from long-term commercial adv ertising could be jeopardized by a requirement that s hort-term candidacy or issue-oriented advertisements b e displayed on car cards. Users would be subje cted to the blare of political propaganda. There cou ld be lurking doubts about political favoritism, a nd sticky administrative problems might arise in parce ling out limited space to eager politicians. In these circumstances, the managerial system to limi t car card space to innocuous and less controversial ad vertising does not rise to the dignity of a First Amen dment
violation.

418 U.S. at 304 (plurality opinion). The Court thus reasoned that, in order to maximize commercial reve nue and eliminate concerns about political favoritism, the city could restrict the car card space to exclude politi cal
advertisement.

In this case, the district court concluded that SEP TA acted reasonably in relying on Dr. Lee's letter to remove the

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

the advertising space, just like any other advertis er, and
submitted an advertisement on abortion and women's health, topics that were already the subject of oth er permitted advertisements. The subject of the speech , and the manner in which it was presented, were compatib le 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 s peech on postal property, it had to permit solicitation a s well. The Court reasoned that "whether or not the Service per mits other forms of speech, which may or may not be disr uptive, it is not unreasonable to prohibit solicitation on the ground that it is unquestionably a particular form of spee ch 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 spee ch in question would interfere with the accepted purposes of the advertising space. See Lee v. Intern. Soc. for Kris hna Consciousness, Inc., 505 U.S. 672, 691 (1992) (O'Co nnor, J. concurring) ("because I cannot see how peaceful pamphletting is incompatible with the multipurpose environment of the Port Authority airports, I canno t accept that a total ban on that activity is reasonable wit hout 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. Dep t. of Aviation, 45 F.3d 1144, 1161 (7th Cir. 1995) (Flaum, J. Concu rring) ("...when the government decides who may speak base d on substantive criteria, it acts as a censor. The gove rnment should not normally take on the role of deciding wh o may speak on what matters, regardless of what capacity in which it acts").

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8. Although the four Justice plurality concluded th at the restriction was reasonable, three dissenting Justices concluded tha t 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 dissen t, "renders the prohibition on solicitation unreasonable." Kokinda, 497 U.S. 760-761 (Brennan, J. dissenting).

25SEPTA argued before the district court that Gambacc ini

had testified that SEPTA "closed the debate to a si tuation in
which there are ads or debated and dubious statemen ts of medical fact."9 Consistent with this statement, SEP TA could have argued that based on Dr. Lee's letter, it view ed CBM's ad as "debated and dubious," and accordingly exclud ed 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 "debate d 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, implem ented
either before or after the removal of CBM's ad. Ins tead, when questioned if he would post an ad saying "wome n who choose abortion live longer and have less breas t cancer," he answered "[N]ot unless there was some c redible evidence to support it." (Appendix at 354-355). Thi s is a different standard -- a debatable advertisement may well be supported by credible evidence. And if this standar d controlled, SEPTA was unreasonable because it faile d 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 t opic of abortion and cancer. Nor did he explain SEPTA's gro unds 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 go vernmental interest in excluding the speech from SEPTA's prope rty.

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, SE PTA removed the ad without contacting CBM -- even though CBM ha d modified the poster in response to SEPTA's previous
requests.

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9. SEPTA argued before us that it "determined not t o 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."

26We conclude, therefore, that under the facts presen ted

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 investiga te 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 mad e in ads. It was SEPTA, however, which accepted advertis ing on a permitted topic, and then decided that CBM's ad w as 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 r elated to preserving the advertising space for its intended u se, and where SEPTA has in place no policy, old or new, wri tten or unwritten, governing the display of ads making cont ested
claims.

VI. Conclusion

For the reasons set forth above, we will reverse di strict court's order granting judgment to SEPTA, and we wi ll 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