In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-1267

GAIL ANDERSON,

Plaintiff-Appellant,

v.

MILWAUKEE COUNTY and MILWAUKEE

TRANSPORT SERVICES, INC.,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 03 C 536—Lynn Adelman, Judge.

____________

ARGUED SEPTEMBER 28, 2005—DECIDED JANUARY 11, 2006

____________

Before FLAUM, Chief Judge, and MANION and EVANS,

Circuit Judges.

EVANS, Circuit Judge. In this case, filed pursuant to

42 U.S.C. § 1983, Gail Anderson alleges that Milwaukee

County and Milwaukee Transport Services, Inc., the

operator of the Milwaukee County bus system, violated

her First and Fourteenth Amendment rights by their

“tariff,” which prohibits the distribution of literature on

county buses.

Ms. Anderson, a woman in her mid-fifties, lives in

Milwaukee. She doesn’t drive a car and so is a regular

customer on Milwaukee’s buses. But she is not, it would
2 No. 05-1267

appear, your typical bus rider. As anyone who rides buses

in urban communities knows, most passengers mind their

own business. Most avoid conversation, and many even

avoid eye-contact, with other passengers. Not Ms. Anderson. She (here, of course, we take her allegations as true)

has a “sincerely held religious belief” and a wish to “share

her faith with those sitting next to her on the bus by talking

to them and giving them religious literature.” She also

wants to give her literature to other passengers who pass by

her seat on the bus. It’s unclear just how long, and how

often, she has followed her urge to share her views with

other riders.

Ms. Anderson’s urge to “share her faith” and the bus

company’s tariff collided on July 8, 2003. On that day, she

boarded a bus and took a seat near the front. From there,

she attempted to hand out copies of a book, later identified as “The Book of Hope.” The book contains stories from

the Bible. In the past, she says she has been allowed to

hand out the book on the bus, but this time the driver,

Rozell Smith, observed what she was doing and asked her

to stop. Despite repeated requests, Ms. Anderson did not

stop and, in fact, said, “I will not stop.” At this point, Smith

did not know the book contained religious material.

Because Ms. Anderson refused to stop handing out copies

of her book, Smith called the transit system dispatch office.

He spoke to dispatcher Valdis Salmins. The transcript of

the call is as follows:

Operator: . . . 63 on 63, bus 4442, badge 2637. . . . OK,

I want the company rules on passing out

literature on the bus, there. I’m sure we

have some kind of regulation, there. Is that

possible for people to pass out literature, all

different types of literature, over?

Dispatch: That’s a negative. There is no solicitation of

any kind allowed on our buses. (S0)
No. 05-1267 3

whether it’s free or for charge or whatever. . . . Nothing is to be given out on the

buses.

Operator: Well, that’s affirmative on that. I thought

that was a rule. I got a lady on here who’s

passing out books on the bus, annoying

the passengers, and I told her that she

couldn’t do that. She told me I couldn’t stop

her from doing that, over.

Dispatch: Ok, I’ll send the CPOs to intercept you. If

she gets off before you’re intercepted, please

give us a call back.

Operator: Roger.

Mr. Salmins called system security. The transcript of that

call:

CPO: CPO 8, dispatch . . . we’re in the downtown

area, what do you have?

Dispatch: EB from 107th and Silver Spring, I have

vehicle 4442, 63 on 63, badge 2037. Female

on board trying to hand out booklets. I don’t

know if they’re religious or political, or

what, but no solicitation allowed on

our buses whatsoever.

Two security officers intercepted the bus, boarded it,

approached Ms. Anderson, and asked whether they could

talk to her off the bus. At that point, they did not know

what she was handing out. After she was off the bus, Ms.

Anderson told the officers about “The Book of Hope.” The

officers explained to her that the Transit System had a rule

against distributing literature on buses. They asked her

whether she wanted to board the next bus to continue her

trip. Being within six blocks of her home, she decided to

walk.
4 No. 05-1267

The “rule” discussed by the bus driver and the dispatcher

is one of the “Passenger Tariffs,” under which the bus

system operates. The tariffs set out fare information and

rules regarding passenger conduct. Tariff 116 says “No

person furnished transportation under fares named in

this tariff shall be permitted to enter or remain in the

system’s buses: (a) For purpose of distributing any form

of advertising or literature.”

Based on these facts, the district judge (the Honorable

Lynn Adelman) granted the defendants’ motion for summary judgment. Ms. Anderson now appeals, claiming that

the tariff is impermissibly vague, overbroad, and unreasonable. She also claims it discriminates against religious

literature. We review a summary judgment determination as well as any questions of constitutional law under the

de novo standard of review. Weinberg v. City of Chicago, 310

F.3d 1029, 1035 (7th Cir. 2002).

We will turn first to Ms. Anderson’s claims that the tariff,

on its face, is unconstitutionally vague and overbroad. The

tariff is vague, she says, because it is unclear what “distributing” means. She poses several hypothetical examples. For

instance, is handing out one book distributing? A bus

company witness said no. But, she asks, is handing out one

item a day for more than one day considered distribution?

How about the businessman who hands a seat mate his

business card? Her examples of the outer limits of possible

meanings of the word “distributing” fall short of convincing

us that the tariff is unconstitutionally vague. Common

sense must not be and should not be suspended when

judging the constitutionality of a rule or statute.

A law is void for vagueness if it fails to give fair warning of what is prohibited, if it fails to provide explicit

standards for the persons responsible for enforcement

and thus creates a risk of discriminatory enforcement,

and if its lack of clarity chills lawful behavior. Grayned v.
No. 05-1267 5

1 We take the background facts from a Supreme Court decision in

the same case—Frisby v. Schultz, 487 U.S. 474 (1988).

City of Rockford, 408 U.S. 104 (1972). On the other hand,

the Court has said that “perfect clarity and precise guidance

have never been required even of regulations that restrict

expressive activity.” Ward v. Rock Against Racism, 491 U.S.

781, 794 (1989). There are, of course, limits to how precise

language can be in the context of a law, ordinance, or, for

that matter, a bus system tariff. In United States Civil

Service Commission v. National Association of Letter

Carriers, 413 U.S. 548, 578-79 (1973), the Court remarked

that “there are limitations in the English language with

respect to being both specific and manageably brief . . . .”

Looking at the Civil Service Rules interpreting the thenexisting version of the Hatch Act, 5 U.S.C. § 7324(a)(2), the

Court said the “ordinary person exercising ordinary common sense” knows perfectly well what they mean.

Ms. Anderson’s arguments that the tariff is vague are

reminiscent of those in Schultz v. Frisby, 877 F.2d 6, 8 (7th

Cir. 1989), which involved abortion opponents who

wished to picket the home of an abortion provider.1

 The

plaintiffs claimed that an ordinance which outlawed

picketing that was “directed at” a particular home was

unconstitutionally vague. We set out their concern:

Will it be enough to go ‘round and ‘round the block?

Could the picketers march in front of the five houses on

either side of the [providers’]? May they stop for one

minute, or two, or five, in front of the . . . place before

moving along? Surely they can’t evade the law by

standing in front of the . . . home and occasionally

jumping one house on either side. How much longer

must the route be?

We rejected these concerns in favor of common sense:
6 No. 05-1267

No matter how clear the ordinance seems, a hundred

nice questions may follow in its wake. The Constitution

does not require [the town] to answer each of these

before it may enforce the law. Incompleteness is a curse

of language, as of human imagination. To say that

precision is a precondition to enforcement is to say that

no ordinance regulating speech may stand—a proposition the Supreme Court has rejected over and again.

Id. In our case, we cannot imagine that the tariff would

have a chilling effect, for instance, on a bus-riding businessman who wanted to hand his business card to a seat mate.

In short, we do not find the ordinance unconstitutionally

vague.

Neither can the tariff be seen as facially overbroad. The

overbreadth doctrine allows a plaintiff to ask that a law

be struck down based not on how it affects the plaintiff

but on how it might be applied to third parties not before

the court. Because that is “strong medicine,” the “overbreadth of a statute must not only be real, but substantial

as well, judged in relation to the statute’s plainly legitimate

sweep.” Broadrick v. Oklahoma, 413 U.S. 601, 614-615

(1973). Again, in Virginia v. Hicks, 539 U.S. 113 (2003), the

Court emphasized that to be overbroad, the law’s application to protected speech must be substantial. That simply

is not the case here. The tariff is narrowly drawn and

applies—as we shall see—in a limited environment. More

importantly, Ms. Anderson has not shown that the tariff

would significantly affect the rights of individuals not

before us in any way differently from the way it affects her.

Accordingly, as the Court said in City Council v. Taxpayers

for Vincent, 466 U.S. 789, 802 (1984), “It would therefore be

inappropriate in this case to entertain an overbreadth

challenge to the ordinance.”

Ms. Anderson’s primary contention is that to the extent

the tariff prevents her from sitting on the bus and hand-
No. 05-1267 7

ing out literature, it is unconstitutional as applied to

her. We agree that her activities are a form of speech

protected under the First Amendment. Further, the bus is a

governmentally controlled forum. But, it is well-settled that

the government is not required to permit all forms of speech

on all of the property it owns. Int’l Soc’y for Krishna

Consciousness, Inc. v. Lee, 505 U.S. 672 (1992). We use

“forum analysis” to determine when the government’s

interest in limiting the use of its property to its intended

purpose outweighs the interests of those wishing to use the

property for other purposes, such as First Amendment

activities. Cornelius v. NAACP Legal Def. & Educ. Fund,

Inc., 473 U.S. 788 (1985). Under this approach, on property

that has traditionally been available for public expression,

regulation of speech is subject to the highest scrutiny.

Similarly, the government is bound by the same standard

in the “designated public forum”—property the government

has opened up for limited or unlimited public expressive

activity. Finally, there is the “nonpublic forum”; that is,

“[p]ublic property which is not by tradition or designation

a forum for public communication . . . .” Perry Educ. Ass’n

v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46 (1983). As

Ms. Anderson properly concedes, the interior of a cityoperated transit vehicle is a nonpublic forum. See Lehman

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

In a nonpublic forum, the government may restrict speech

to a greater extent than in a public or designated public

forum. Restrictions must be viewpoint-neutral

and reasonable. In other words, restrictions need only

pass the test of reasonableness so long as they are not

an attempt to stifle a viewpoint based on its content. Int’l

Soc’y for Krishna Consciousness, Inc. v. Lee at 683. A

restriction does not need to be “the most reasonable or

the only reasonable limitation”; it does not need to be

narrowly tailored; nor does the governmental interest

need to be compelling. Cornelius at 808-809. In fact,
8 No. 05-1267

simple common sense is sufficient to uphold a regulation

under reasonableness review. United States v. Kokinda, 497

U.S. 720, 734 (1990). Using this approach, the Court has

found reasonable, for instance, a ban on soliciting in an

airport terminal, Int’l Soc’y for Krishna Consciousness, Inc.

v. Lee, and a restriction on political advertising on public

transit. Lehman v. City of Shaker Heights. See also Children of the Rosary v. City of Phoenix, 154 F.3d 972 (9th Cir.

1998). In Chicago Acorn v. Metropolitan Pier and Exposition

Authority, 150 F.3d 695, 704 (7th Cir. 1998), we found that

leafleting should not be permitted in places where “pedestrian traffic will be obstructed.” See also Hawkins v. City

and County of Denver, 170 F.3d 1281 (10th Cir. 1999).

Here, the restriction is clearly reasonable. Bus passengers

are a captive audience. While riding on the bus, many

passengers have an interest in avoiding unwelcome communications. It is reasonable for the bus company

to attempt to ensure their comfort. In Lehman, the Court

concluded that a city was entitled to protect unwilling

viewers against intrusive advertising on its buses in order

to provide rapid, convenient, pleasant, and inexpensive

public transportation for them. It is also reasonable to wish

to avoid disagreements among passengers which the

distribution of literature might inspire. Furthermore, the

bus company has an interest in passenger safety. The

company expresses concern that a driver could be distracted

by literature distribution and that abandoned literature can

cause a safety hazard and certainly a littering problem.

Given the nature of the forum, a ban on the distribution of

literature on buses passes constitutional muster.

Finally, Ms. Anderson also seems to claim that the

restriction as applied in this case is, in fact, content-based

and therefore unconstitutional. She says there is an

“unwritten scheme” by which there are exceptions from

the total ban on literature distribution—exceptions

which arise out of the discretion bus operators have to
No. 05-1267 9

choose which people they will ask to stop distributing

literature. She says that discretionary enforcement of

the tariff results in discrimination against religious literature; therefore, the tariff is subject to strict scrutiny analysis. We see no factual basis for this claim. As

we said, at the time the driver asked her to stop passing out

her book, he had no idea what it was about. Neither did the

security officers who took Ms. Anderson off the bus. Furthermore, Ms. Anderson offers no evidence that anyone has

been allowed to distribute nonreligious literature on the

bus. Her main support for her claim that enforcement is

discriminatory is that the bus company has a rack behind

the driver’s seat which holds copies of bus route schedules

and monthly newsletters. She says that if the company can

provide that literature, she can pass out her book. We reject

this contention out of hand. The comparison between

passively providing bus riders with schedules and information about the very system on which they are riding cannot

be compared to a passenger distributing literature of any

kind. Ms. Anderson’s argument on this point rests on thin

air.

Ms. Anderson has failed in her attack on the tariff,

and accordingly we AFFIRM the judgment of the district

court.
10 No. 05-1267

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—1-11-06