1

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 19-1170

_______________

THE CENTER FOR INVESTIGATIVE REPORTING,

Appellant

v.

SOUTHEASTERN PENNSYLVANIA 

TRANSPORTATION AUTHORITY

______________

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania

(D.C. Civ. Action No. 2-18-cv-01839)

District Judge: Hon. Michael M. Baylson

______________

Argued October 23, 2019

______________

Before: GREENAWAY, JR., PORTER, and GREENBERG, 

Circuit Judges.

(Filed: September 14, 2020)
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Molly M. Tack-Hooper [ARGUED]

American Civil Liberties Union of Washington Foundation

901 Fifth Avenue

Suite 630

Seattle, WA 19102

Brian M. Hauss

American Civil Liberties Union

Speech, Privacy & Technology Project

125 Broad Street

18th Floor

New York, NY 10004

John S. Stapleton

LeVan Muhic Stapleton

601 Route 73 North

Four Greentree Centre

Suite 303

Marlton, NJ 08053

Rebecca S. Melley

Robert A. Wiygul

Hangley Aronchick Segal Pudlin & Schiller

One Logan Square

18th & Cherry Streets, 27th Floor

Philadelphia, PA 19103

Attorneys for Appellant

Stephen G. Harvey

Steve Harvey Law

1880 John F. Kennedy Boulevard

Suite 1715

Philadelphia, PA 19103
3

James P. Davy

2362 East Harold Street

Philadelphia, PA 19125

Bruce D. Brown

The Reporters Committee for Freedom of the Press

1156 15th Street, N.W.

Suite 1020

Washington, DC 20005

Attorneys for Amicus Appellants

Kendra L. Baisinger

Robert E. Day, III

Maryellen Madden [ARGUED]

John J. Powell

Montgomery McCracken Walker & Rhoads

1735 Market Street

21st Floor

Philadelphia, PA 19103

Attorneys for Appellee

Gregory J. Krock

McGuireWoods LLP

Tower Two-Sixty

260 Forbes Avenue, 18th Floor

Pittsburgh, PA 15222

Attorney for Amicus Appellee

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OPINION OF THE COURT

_______________
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GREENAWAY, JR., Circuit Judge.

Appellant Center for Investigative Reporting (“CIR”) 

seeks a permanent injunction that would require the 

Southeastern Pennsylvania Transportation Authority 

(“SEPTA”) to run an advertisement on the inside of SEPTA 

buses. The advertisement promotes CIR’s research on racial 

disparities in the home mortgage lending market. SEPTA 

rejected the advertisement under two provisions of its 2015 

Advertising Standards, which prohibit advertisements that are

political in nature or discuss matters of public debate (the 

“Challenged Provisions”). The question presented is whether 

the Challenged Provisions violate the First Amendment. 

Because the Challenged Provisions are incapable of reasoned 

application, we answer that question yes. Accordingly, we will 

reverse and instruct the District Court to grant declaratory 

relief and issue a permanent injunction preventing SEPTA 

from enforcing the Challenged Provisions to exclude CIR’s 

advertisement.

I. BACKGROUND

The Parties

SEPTA has operated Philadelphia’s mass transit 

system, including buses, subways, commuter rail, light rail, 

and trolley service, since 1964.1 Like many other public 

1 This Court has found, and the parties do not dispute, 

that SEPTA is a government actor “constrained by the First . . 

. Amendment[.]” Christ’s Bride Ministries, Inc. v. SEPTA, 148 

F.3d 242, 247 (3d Cir. 1998).
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transportation authorities, SEPTA generates revenue by 

accepting advertisements that it displays in its facilities and on 

its vehicles. The advertising agency Intersection (formerly 

Titan Outdoor, LLC) manages SEPTA’s advertising program, 

including selling advertising space and reviewing proposed 

advertisements. SEPTA’s contract with Intersection includes 

the Advertising Standards, which apply to all the advertising 

space in or on SEPTA vehicles and facilities. When 

Intersection determines that a proposed advertisement may 

violate the Advertising Standards, it sends the advertisement to 

Gino Benedetti, SEPTA’s General Counsel, who makes the 

final decision whether to accept the advertisement.

CIR is a California-based, nonprofit, investigative news

organization. Its mission is to advance social justice through 

the dissemination of verifiable, nonpartisan facts about public 

issues. CIR publishes its reporting on various platforms, such 

as its news website Reveal (www.revealnews.org), national 

radio show, and podcast.

SEPTA’s Rejection of the Proposed Advertisement

In January 2018, CIR submitted a proposed 

advertisement for display on the interior of SEPTA buses. The 

proposed advertisement consisted of a comic strip entitled “A 

Stacked Deck,” which summarized the findings of a thenforthcoming CIR report detailing the results of its year-long 

investigation into mortgage lending trends throughout the 

United States. The report, which CIR published on February

18, 2019, indicated that in 61 metropolitan areas, applicants of 

color were more likely to be denied conventional home 

purchase mortgages. 
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The proposed advertisement consists of the following

comic strip:
7
8
9
10
11
12

On February 22, 2018, SEPTA rejected CIR’s proposed 

advertisement because “[d]isparate lending is a matter of 

public debate and litigation.” App. 576. SEPTA included in 

its rejection email a copy of the 2015 Advertising Standards, 

which were operative at the time. Id. SEPTA later clarified 

that it rejected the proposed advertisement “under Standards 

9(b)(iv)(a) and (b)” of the 2015 Advertising Standards. App. 

613. These provisions, both of which CIR challenges, read:

Prohibited Advertising Content. Advertising is 

prohibited on transit facilities, products and 

vehicles if it or its content falls into one or more 

of the following categories –

(a) Advertisements promoting or opposing a 

political party, or promoting or opposing the 

election of any candidate or group of candidates 

for federal, state, judicial or local government 

offices are prohibited. In addition, 

advertisements that are political in nature or 

contain political messages, including 

advertisements involving political or judicial 

figures and/or advertisements involving an issue 

that is political in nature in that it directly or 

indirectly implicates the action, inaction, 

prospective action or policies of a government 

entity.

(b) Advertisements expressing or advocating 

an opinion, position or viewpoint on matters of 

public debate about economic, political, 

religious, historical or social issues.
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App. 616–17.

On August 6, 2018, months after commencing the 

instant action, CIR submitted a second proposed advertisement 

to SEPTA. As the District Court explained, the revised 

advertisement removed two panels from the original—one 

showing “a white hand handing keys and stick of dynamite to 

a black hand,” and another showing “African-Americans 

holding signs protesting . . . and a white guy not part of the 

protest.” Ctr. for Investigative Reporting v. SEPTA, 337 F. 

Supp. 3d 562, 574 (E.D. Pa. 2018) (alteration in original). In 

the letter accompanying this proposed advertisement, CIR 

explained that it removed the two panels because they were 

ones that SEPTA identified as particularly concerning.

By letter dated September 21, 2018, SEPTA rejected 

this second advertisement, explaining that it violated the same 

provisions as the first. SEPTA explained that the comic “as a 

whole,” as opposed to isolated elements, violated the 

Advertising Standards. Dist. Ct. Dkt. 2:18-cv-01839, ECF No. 

32-1 at 2. Despite its contention that the entire comic was 

problematic, SEPTA highlighted various unchanged, 

individual elements of the comic that continued to concern 

SEPTA. These include: On panel 1, the phrase “A STACKED 

DECK”; on panel 2, the words “regularly,” “DENIED,” and 

“dream”; on panel 6, the sentence “This is just the latest in the 

United States’ SORDID HISTORY of unequal access to 

owning a home” and the accompanying image; and on panel 

10, the phrase “a deck stacked against them” and the 

accompanying image. Id.
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CIR’s Allegations

On May 2, 2018, CIR filed the Complaint, alleging that 

SEPTA violated its First and Fourteenth Amendment rights by 

rejecting its proposed advertisement. To vindicate these rights,

CIR seeks a declaratory judgment that the Challenged 

Provisions are unconstitutional and a permanent injunction

prohibiting SEPTA from enforcing the Challenged Provisions

to exclude CIR’s proposed advertisement.

District Court Proceedings

On August 17, 2018, CIR filed a motion for a 

preliminary injunction. The Court authorized the parties to 

engage in limited discovery, including depositions, prior to the 

hearing on that motion. On September 14, 2018, the District 

Court held the preliminary injunction hearing.

On September 25, 2018, the District Court denied CIR’s 

motion without prejudice. In reaching this holding, the District 

Court applied the familiar test for preliminary relief: “A party 

seeking a preliminary injunction must show: (1) a likelihood of 

success on the merits; (2) that it will suffer irreparable harm if 

the injunction is denied; (3) that granting preliminary relief will 

not result in even greater harm to the nonmoving party; and (4) 

that the public interest favors such relief.” Kos Pharm., Inc. v. 

Andrx Corp., 369 F.3d 700, 708 (3d Cir. 2004). 

The District Court found that while CIR had shown that 

it suffered an irreparable injury, none of the other factors 

favored granting preliminary injunctive relief. The District 

Court explained that (1) because of the scant evidence about 

SEPTA’s reasons for implementing the 2015 Advertising 

Standards the District Court could not determine whether CIR 
15

was likely to succeed on the merits, and (2) neither the balance 

of the equities nor the public interest clearly supported either 

party. Because the bench trial was scheduled to begin in less 

than one week, the District Court determined that it would 

prioritize bringing the case to a final disposition. The District 

Court therefore declined to enter a preliminary injunction.

On October 1, 2018, the District Court held a bench 

trial. At trial, the District Court heard live testimony from Gino 

Benedetti, SEPTA’s General Counsel, and the parties 

presented exhibits and stipulated facts. 

At trial, as to Subsection (a) (i.e., the political 

provision), Benedetti testified on direct examination that the 

terms “political” and “political in nature” were “essentially the 

same to [him].” Ctr. for Investigative Reporting, 337 F. Supp. 

3d at 577. He stated that the phrase “directly or indirectly 

implicates the action, inaction, prospective action or policies 

of a government entity . . . defines or connects with what’s 

political in nature.” Id. On cross-examination, however, he 

testified that the terms “political” and “political in nature” have 

distinct and separate meanings and that “implicate” could 

mean “advocate[]” or “call[] for.” Id.

As to Subsection (b) (i.e., the public debate provision), 

Benedetti testified that to determine whether something is a 

“matter of public debate” he performs “a mechanical type of 

analysis that . . . look[s] to see what is being argued, debated 

in society in general.” Id. He explained that he looks at “the 

entire ad” and evaluates “holistically . . . the subject matter of 

that ad being debated in society at large.” Id. That process, 

according to Benedetti, requires that he use “common sense” 

and have discussions to determine what is a matter of public 

debate. Id. In addition, he testified that sometimes 
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advertisements that violate the public debate provision “could 

be controversial ads” and that an advertisement can involve 

politics and not violate either provision. Id. at 578.

At trial, as the District Court noted, Benedetti provided 

inconsistent testimony regarding his process for determining 

whether proposed advertisements violate the Advertising 

Standards. Id. at 578–80. He stated that he did not view certain 

advertisements for commercial services as political or touching 

on matters of public debate. Id. at 579. For example, he 

approved an advertisement by Fusion that depicted people of 

color, one of whom was wearing a shirt that read “My Life 

Matters,” and displayed the phrase “As American Ads.” Id. 

Benedetti testified that he did not view this advertisement as 

“implicat[ing] any matters of public debate on social issues.” 

Id. (alteration in original).

Yet he also admitted that sometimes a commercial 

advertisement could pose a problem under the Challenged 

Provisions. For example, he testified that a hypothetical 

advertisement that said consumers can purchase Pepsi cheaper 

in Norristown (which does not have a soda tax) than in 

Philadelphia (which does have a soda tax) “could still be a 

problem under sub-standard (a) or (b) . . . because the notion 

of the soda tax and everything that surrounds it is being debated 

in the public.” Id. Benedetti testified that he gives commercial 

and non-commercial advertisements the same treatment. That 

testimony is supported by the fact that the 2015 Advertising 

Standards do not draw such a distinction. The District Court 

nonetheless found that Benedetti “apparently considers the 

commercial nature of certain advertisements.” Id. at 579–80.

Benedetti also failed to provide clear testimony about 

the definition of the phrase “political in nature,” which appears 
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in the political provision. He testified that mentioning a law or 

regulation could be considered political in nature, but he also 

testified that an advertisement could be political in nature 

without “directly or indirectly implicating the action, inaction, 

prospective action or policies of a government entity.” Id. at 

580.

During trial, the District Court also considered several 

additional advertisements that CIR submitted as exhibits to 

illustrate SEPTA’s allegedly discriminatory application of its 

advertising restrictions. These advertisements included

examples of both accepted and rejected applications. The 

District Court described each of these exhibits in its decision. 

See id. at 581–83.

Rejected advertisements include the following: (1) an 

advertisement stating “Dear Art Museum: Art is Expensive! 

So is constructing new buildings! We totally get why you can’t 

pay all your employees a living wage!”; and (2) an 

advertisement from Bethany Christian Services saying, 

“Unplanned Pregnancy? Now what? Consider adoption as an 

option. You don’t have to make your decision alone.” Id. at 

581. Benedetti testified that these advertisements were 

rejected because they involved the issue of a living wage and 

abortion, respectively, both of which he considered to be 

matters of public debate. Id. at 581 nn.3–4. Other rejected 

advertisements included one from the U.S. Department of 

Homeland Security, which announced, “Sex trafficking, 

Forced labor, Domestic Servitude. It’s happening in our 

community. Get informed.” Id. at 581. Benedetti could not 

explain why this advertisement was rejected, and SEPTA did 

not offer other evidence to shed light on this action.
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Accepted advertisements include the following: (1) an 

advertisement from the Philadelphia Host Committee that 

stated “Welcome [Democratic National Committee]. We are 

Philadelphia’s: Union Middle Class Jobs, office cleaners, 

community, neighbors, building service workers, window 

washers, security officers, families, school district workers. 

Road out of poverty”; (2) an advertisement for an event at the 

African American Museum that featured pictures of Martin 

Luther King, Jr., Cesar Chavez, and Lucretia Mott and posed, 

among other things, the question: “What will you do for 

Peace?”; and (3) a Facebook advertisement stating: “Fake 

news is not your friend,” “Data misuse is not your friend,” 

“Clickbait is not your friend,” “Fake accounts are not your 

friends.” Id. at 582–83. 

Benedetti testified that the Philadelphia Host 

Committee advertisement may not actually comply with the 

2015 Advertising Standards. Id. at 582 n.13. He further 

testified that the Peace advertisement did not violate the policy 

because it did not “tak[e] a position or ask[] for action.” Id. at 

583 n.14.

Other pertinent, accepted advertisements include those 

from banks regarding home loans. Several of these 

advertisements bear Equal Housing Lender and/or Member 

FDIC logos. Id. at 584. Relatedly, CIR identified an 

advertisement from the Housing Equality Center which stated, 

“Housing discrimination is illegal. Housing Equality Center 

can help you understand your rights.” Id. Benedetti, however, 

could not recall whether SEPTA accepted that advertisement.

After trial, the parties submitted proposed findings of 

fact and conclusions of law, and the Court heard oral argument.
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District Court Decision

On November 28, 2018, the District Court issued 

Findings of Fact and Conclusions of Law holding that portions 

of the Challenged Provisions were incapable of reasoned 

application. The District Court, however, struck problematic 

portions from the 2015 Advertising Standards and ordered 

SEPTA to revise the policy consistent with the District Court’s 

decision.2 The District Court then found that with the overly 

2 As revised by the District Court, the Challenged Provisions 

read:

(a) Advertisements promoting or opposing a 

political party, or promoting or opposing the 

election of any candidate or group of candidates 

for federal, state, judicial or local government 

offices are prohibited. In addition, 

advertisements that are political in nature or 

contain political messages, including 

advertisements involving political or judicial 

figures and/or advertisements involving an issue 

that is political in nature in that it directly or 

indirectly implicates the action, inaction, 

prospective action or policies of a government 

entity.

(b) Advertisements expressing or advocating 

an opinion, position or viewpoint on matters of 

public debate about economic, political, 

religious, historical or social issues.

Id. 604–05. 
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broad language removed, CIR’s viewpoint discrimination 

challenges, both facial and as-applied, fail. The District 

Court’s decision can be grouped into four principal parts.

First, the District Court determined that the relevant 

forum was the inside of SEPTA buses and that SEPTA had 

sufficiently “closed the forum to public speech and debate.” 

Id. at 602. 

Second, having found that the relevant forum was 

nonpublic, the District Court then evaluated whether the 

Challenged Provisions of the 2015 Advertising Standards were 

capable of reasoned application. Applying the Supreme 

Court’s decision in Minnesota Voters Alliance v. Mansky, 138 

S. Ct. 1876 (2018), the District Court found portions of both 

the political and public debate provisions to be “too broad to 

pass constitutional muster under Mansky.” Ctr. for 

Investigative Reporting, 337 F. Supp. 3d at 604. Instead of 

invalidating the Challenged Provisions in their entirety, 

however, the District Court excised portions of them. In 

addition to amending the Challenged Provisions, the Court 

directed SEPTA to adopt a meet-and-confer program under 

which it would discuss with advertisers proposed 

advertisements that SEPTA deems violative of its standards. 

Id. at 605. 

Third, the District Court applied the two-step test 

articulated by this Circuit in NAACP v. City of Philadelphia, 

834 F.3d 435 (3d Cir. 2016) and held that SEPTA’s

Advertising Standards, “with the stricken language removed, . 

. . are now facially valid, reasonable, and constitutional.” Ctr. 

for Investigative Reporting, 337 F. Supp. 3d at 612.
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Fourth, the District Court found that the Challenged 

Provisions, as amended by the District Court, were viewpoint 

neutral on their face and as applied to CIR. Id. at 615–18. 

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction under 28 U.S.C. 

§ 1331. This Court has appellate jurisdiction under 28 U.S.C. 

§ 1291.

“We review a district court’s legal conclusions de novo, 

and ordinarily review its factual findings for clear error.” 

Pittsburgh League of Young Voters Educ. Fund v. Port 

Authority of Allegheny Cnty., 653 F.3d 290, 295 (3d Cir. 2011). 

Because this case implicates the First Amendment, however, 

we “make an independent examination of the whole record.” 

Bose Corp. v. Consumers Union, 466 U.S. 485, 499 (1984). 

Nonetheless, we defer to the District Court to the extent its 

factual findings “concern witness credibility.” Fulton v. City 

of Philadelphia, 922 F.3d 140, 152 (3d Cir. 2019); Bose, 466 

U.S. at 499, 510–11. 

III. DISCUSSION

CIR makes two arguments why the Challenged 

Provisions of the Advertising Standards, as revised by the 

District Court, are unconstitutional: (1) they discriminate based 

on viewpoint as applied to CIR and (2) they impose an 

impermissible restriction on speech given the public nature of 

the forum.3 Although these arguments implicate several First 

3 At oral argument, counsel for CIR conceded that on 

appeal CIR was not making a facial viewpoint challenge to the 

Challenged Provisions, as it had below. Counsel for CIR also 
22

Amendment doctrines, we need only address whether the 

Challenged Provisions are capable of reasoned application. 

Because we hold that they are not, we will reverse and remand 

the case back to the District Court for further proceedings 

consistent with this decision.

Applicable Law

The First Amendment prohibits two forms of contentbased discrimination, subject matter discrimination and 

viewpoint discrimination, which is especially egregious. See 

Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 

828–29 (1995) (“Discrimination against speech because of its 

message is presumed to be unconstitutional.”). Subject matter 

restrictions may be permissible depending on the nature of the 

forum to which the speaker seeks access. Id. In those cases, 

“[t]he State may not exclude speech where its [restriction] is 

not ‘reasonable in light of the purpose served by the forum.’” 

Id. (quoting Cornelius v. NAACP Legal Def. & Educ. Fund, 

Inc., 473 U.S. 788, 804–06 (1985)). In contrast, viewpoint 

restrictions are impermissible in any forum. Id.

CIR brings both a facial and as-applied challenge to 

SEPTA’s current Advertising Standards. CIR’s facial 

challenge is that the current Advertising Standards constitute 

an impermissible subject matter restriction. Its as-applied 

challenge is that the current Advertising Standards 

discriminate against CIR’s viewpoint. Because we hold, for 

noted that it is challenging how the District Court revised the 

Advertising Standards, not the fact that it revised them.
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the reasons set out below, that the current Advertising 

Standards are an impermissible subject matter restriction on 

speech, we need not “pause to consider whether [the provision] 

might admit some permissible applications.” Iancu v. Brunetti, 

139 S. Ct. 2294, 2302 (2019).

In our recent decision Northeastern Pennsylvania 

Freethought Society v. County of Lackawanna Transit System, 

we explained that district courts must address whether a 

particular restriction is a viewpoint or subject matter restriction 

before conducting the forum analysis. 938 F.3d 424, 431–32 

(3d Cir. 2019). That is “because the type of forum sheds no 

light on whether a policy or decision discriminates against a 

certain viewpoint. And viewpoint discrimination is 

impermissible in any forum.” Id. (citations omitted).

Freethought, however, differs from this case in one

important respect. The Supreme Court’s recent case Mansky, 

which held that content-based restrictions on speech in 

nonpublic fora are unconstitutional if they are incapable of 

reasoned application, squarely resolves the issues in this case. 

138 S. Ct. at 1892. 

Mansky sets a baseline requirement that all forms of 

content-based restrictions must be capable of reasoned 

application. In other words, even if the content-based 

restriction is one that merely restricts certain subjects, as 

opposed to certain viewpoints, it must at the very least be 

capable of reasoned application. Freethought did not foreclose 

the possibility that we might find a government restriction on 

speech, at the threshold, to be incapable of reasoned 

application and therefore impermissible in any forum. Indeed, 

such a finding would avoid wading into First Amendment 

issues that need not be resolved to dispose of a case. 
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Accordingly, we are not required to decide in the first instance 

whether the policy here is based on viewpoint or subject 

matter, just as we are not required initially to decide whether 

the forum at issue is public or nonpublic. At a minimum, 

SEPTA’s restrictions on speech must be capable of reasoned 

application.4 See NAACP, 834 F.3d at 449 (“No matter the type 

4

In the context of other content-based restrictions on 

speech, such as gag orders, at least one other circuit has opined 

that the condition that restraints on speech be capable of 

reasoned application is a core one and is capable of being 

resolved before determining whether a restriction is based on 

viewpoint or subject matter. See In re Murphy-Brown, LLC, 

907 F.3d 788, 800 (4th Cir. 2018) (holding that a gag order, 

which petitioner argued discriminated based on viewpoint, was 

unconstitutionally vague, and therefore incapable of reasoned 

application, because “it forced individuals to ‘guess at its 

contours’”). In In re Murphy-Brown, the Fourth Circuit 

helpfully explained:

[t]his core requirement of clarity avoids twin 

problems. For one, “[t]he interpretive process 

itself would create an inevitable, pervasive, and 

serious risk of chilling protected speech pending 

the drawing of fine distinctions that, in the end, 

would themselves be questionable.” Vague 

restraints also pose the risk of discriminatory or 

arbitrary enforcement. 

Id. (citing Citizens United v. FEC, 558 U.S. at 327 & Gentile 

v. State Bar of Nevada, 501 U.S. 1030, 1051 (1991)).
25

of forum, restrictions on speech on government property must 

be reasonable.”). For the following reasons, we find that they 

are not, and we conclude our First Amendment inquiry there. 

Analysis

The question at the heart of this appeal therefore is 

whether the current Advertising Standards, either in their 

original form or as revised by the District Court, are capable of 

reasoned application. Assuming without deciding that the 

restrictions at issue are content-based and that the relevant 

forum is nonpublic, the current Advertising Standards only 

need to be “reasonable.” Eichenlaub v. Twp. of Ind., 385 F.3d 

274, 279 (3d Cir. 2004). In this context, “reasonable” means 

that they must be “designed to confine the ‘forum to the limited 

and legitimate purposes for which it was created.’” Id. 

(quoting Rosenberger, 515 U.S. at 829). The government actor 

bears the burden of “tying the limitation on speech to the 

forum’s purpose.” NAACP, 834 F.3d at 445. 

SEPTA sells advertisements to “raise revenue . . . in a 

manner that provides for the safety, efficiency[,] and comfort 

of [its] passengers.” App. 1083. Accordingly, we will discuss 

whether the current Advertising Standards are capable of 

reasoned application given these goals. Before discussing 

SEPTA’s arguments detailing why the current Advertising 

Standards satisfy this requirement, a discussion of Mansky, 

which we find controlling here, is necessary.

Mansky involved a challenge to a Minnesota law that 

prohibited individuals from making certain statements inside 

or near a polling location. The specific provision at issue 

prohibited individuals from wearing a “political badge, 

political button, or other political insignia . . . at or about the 
26

polling place.” Mansky, 138 S. Ct. at 1883. There, the Court 

held first that a polling place in Minnesota qualifies as a 

nonpublic forum. Id. at 1886. Because the provision did not 

“discriminate[] on the basis of viewpoint on its face,” the 

question before the Court was whether the political apparel ban 

was “reasonable in light of the purpose served by the forum.” 

Id. (citation omitted). The Court found that the interest of 

protecting voters at the polling location from messages that 

would distract them from “the important decisions 

immediately at hand” was sufficient to permit Minnesota to 

“choose to prohibit certain apparel . . . because of the message 

it conveys.” Id. at 1888. The Court held, however, that the 

term “political,” which was not defined in the statute and which 

had been interpreted in various ways in the State’s official 

guidance documents, was not “capable of reasoned 

application.” Id. at 1892.

In deciding that the term “political” as used in the 

Minnesota statute was unconstitutional, the Mansky Court 

considered several factors that are relevant here: whether the 

terms are “indeterminate,” such as by being left undefined in 

the statute or government policy at issue, and whether they 

have been or are susceptible to “erratic application.” Mansky, 

138 S. Ct. at 1889, 1890. According to Mansky, a prohibition 

on speech is unreasonable if it fails to “articulate some sensible 

basis for distinguishing what may come in from what must stay 

out.” Id. at 1888.

CIR contends that the District Court, in attempting to 

cure the constitutional deficiencies in the 2015 Advertising 

Standards, erred in finding that the revised policy was capable 

of reasoned application. That is so, CIR argues, because the 

current Advertising Standards continue to prohibit 

advertisements that “contain political messages” and those that 
27

address “political . . . issues.” Appellant Br. 49. According to 

CIR, both phrases pose the same First Amendment problems 

as the portions of the 2015 Advertising Standards that the 

District Court had already found unconstitutional under 

Mansky. 

SEPTA disagrees and argues that the restrictions at 

issue here differ from those in Mansky. Because of those 

differences, SEPTA contends, we should hold that the current 

Advertising Standards are capable of reasoned application and 

uphold the decision of the District Court. As a threshold 

matter, SEPTA questions CIR’s broad reading of Manksy

because of the Supreme Court’s earlier plurality decision in 

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

which the Court upheld a prohibition on political 

advertisements on city buses. SEPTA argues that the 

continued vitality of Lehman, which the Supreme Court cites 

favorably in Mansky, see 138 S. Ct. at 1885–86, means that not 

all bans on political advertisements are unconstitutional. 

SEPTA attempts to distinguish the current Advertising 

Standards from the political apparel ban in Manksy in three 

ways. First, Mansky presented, according to the Supreme 

Court, “a particularly difficult reconciliation: the 

accommodation of the right to engage in political discourse 

with the right to vote.” Id. at 1892 (quoting Burson v. 

Freeman, 504 U.S. 191, 198 (1992)). Second, SEPTA argues 

that the ban in Mansky was especially problematic because 

Minnesota had “issued contradictory implementing 

guidelines.” Appellee Br. 48. Here, in contrast, SEPTA 

represents that it has not issued any such guidelines. Third, the 

Minnesota law empowered temporary government employees 

(i.e., county election judges) to make quick decisions about 

what may or may not be a political issue. Here, again, SEPTA
28

contends that its practices are far more robust: SEPTA does 

not impose a pressing deadline, and it requires its General 

Counsel, and sometimes other lawyers, to determine whether

an advertisement falls within a prohibition.

SEPTA’s arguments, while forceful, are ultimately 

unpersuasive. Although the Supreme Court explicitly stated 

that its holding in Mansky did not “set the outer limit of what a 

State may proscribe,” 138 S. Ct. at 1891, it did not limit its 

holding to polling locations. More to the point, SEPTA does 

not challenge the District Court’s holding that portions of the 

Challenged Provisions were overbroad, but it fails to offer any 

reason why the lingering references to advertisements that 

“contain political messages” and those that address “political 

issues” are any more capable of reasoned application than 

those that were struck down. This is an especially important 

question given that the District Court broadened the public 

debate provision by eliminating the limiting phrase “matters of 

public debate about.” 

In addition, when asked during oral argument whether 

SEPTA would determine a series of hypothetical 

advertisements to be in violation of the current Advertising 

Standards, SEPTA’s counsel’s answers further highlighted the 

arbitrariness of the decision-making process. For example, 

when we asked whether an advertisement that depicted three 

girls of different races holding hands with a message that says, 

“This is how racism ends,” would be political, counsel for 

SEPTA responded “no, I don’t think so.” Oral Argument at 

23:33–24:04, Ctr. for Investigative Reporting v. SEPTA (No. 

19-1170), https://www2.ca3.uscourts.gov/oralargument/audio/

19-1170CenterforInvestigativeReportingvSEPTA.mp3. 

When the Court adjusted the hypothetical to include the same 

picture with a message that says, “This is what America looks 
29

like,” counsel for SEPTA responded by asking, “Who’s putting 

the ad on?” Id. at 24:13–24:21. That response highlights the 

extent to which the current Advertising Standards are 

susceptible to erratic application. 

As the Mansky Court explained, while the First 

Amendment does not require “[p]erfect clarity and precise 

guidance,” when the “restriction[s] go beyond close calls on 

borderline or fanciful cases . . . [,] that is a serious matter when 

the whole point of the exercise is to prohibit the expression of 

political views.” Id. at 1891 (citation omitted). A policy as illdefined as SEPTA’s carries “[t]he opportunity for abuse, 

especially where [it] has received a virtually open-ended 

interpretation.” Bd. of Airport Comm’rs of L.A. v. Jews for 

Jesus, Inc., 482 U.S. 569, 576 (1987) (citation omitted) (first 

alteration in original) (second alteration added).

Moreover, far from helping SEPTA’s case, the absence 

of guidelines cabining SEPTA’s General Counsel’s discretion 

in determining what constitutes a political advertisement

actually suggests that, like the Minnesota statute in Mansky, 

the lack of “objective, workable standards” may allow 

SEPTA’s General Counsel’s “own politics [to] shape his views 

on what counts as ‘political.’” Mansky, 138 S. Ct. at 1891. 

That was precisely the problem at the heart of Mansky and 

nothing in the District Court’s revision of the 2015 Advertising 

Standards helps to ameliorate that concern here. In fact, in its 

post-trial brief, SEPTA conceded that it should have rejected a 

union advertisement supporting the DNC. SEPTA also 

accepted an advertisement that included a Black youth wearing 

a t-shirt that says “My Life Matters.” Although such a 

statement arguably should not be “political,” the phrasing “My 

Life Matters” clearly alludes to the Black Lives Matter 

movement, which campaigns against violence aimed at Black 
30

people and which has become a lightning rod in the media. To 

many,such an advertisement would clearly be prohibited under 

the Advertising Standards, even as revised by the District 

Court. Yet Benedetti determined that it was not.

To be sure, one or two inconsistencies hardly proves 

that SEPTA has arbitrarily applied its Advertising Standards, 

but the lack of structure and clear policies governing the 

decision-making process creates a real risk that it may be 

arbitrarily applied. And CIR has amply demonstrated that at 

least on a few occasions that risk has become a reality. 

Accordingly, we reverse the District Court’s holding that the 

current Advertising Standards are capable of reasoned 

application.

Remedy

Having decided that the Challenged Provisions are 

unconstitutional, we must now determine the appropriate 

remedy. CIR contends that the District Court should have 

entered final judgment completely in its favor and directed 

SEPTA to run its advertisement. For the following reasons, we 

find that the District Court erred in failing to order SEPTA to 

run CIR’s proposed advertisements. We will therefore reverse

the District Court’s judgment and remand the case for entry of 

judgment in favor of CIR.5

Because CIR prevails on the merits, it must also show 

that “it is entitled to a permanent injunction as a matter of 

5 SEPTA, of course, is free to revise its Advertising 

Standards again to cabin the decisionmaker’s discretion in 

applying the ban on “political” advertisements. 
31

discretion.” Ne. Pa. Freethought Soc’y, 938 F.3d at 442 (citing

Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 157 

(2010); eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391 

(2006)). To do so, CIR “must show that (1) it has suffered 

irreparable injury; (2) there is no adequate remedy at law; (3) 

the balance of hardships tips in its favor; and (4) granting an 

injunction would not be against the public interest.” Id.

(citation omitted). 

Here, each of these elements is satisfied. First, CIR’s 

advertisement has already been rejected once under the 2015 

Advertising Standards. As discussed above, the current 

Advertising Standards reflect only the modest revisions 

imposed by the District Court, which fail to cure their 

constitutional deficiencies. Second, and relatedly, no remedy 

at law can cure CIR’s First Amendment injury because “[t]he 

loss of First Amendment freedoms, for even minimal periods 

of time, unquestionably constitutes irreparable injury.” Elrod 

v. Burns, 427 U.S. 347, 373 (1976). The only way for CIR to 

get complete relief is for the District Court to order SEPTA to 

run the advertisement. Third, the only hardship to SEPTA is 

the burden of redrafting the political and public debate 

provisions of its current Advertising Standards, if it chooses to 

do so. In contrast, the hardship to CIR is considerable in that 

the current Advertising Standards impermissibly deprive it of 

its, and other potential speakers’, constitutional rights to 

engage in free speech. Fourth, and finally, the public interest 

does not suffer by enforcing the First Amendment’s protection 

against restrictions on speech that are incapable of reasoned 

application.

* * * * *
32

The Challenged Provisions of the current Advertising 

Standards are incapable of reasoned application. Accordingly, 

we will reverse the judgment of the District Court and instruct 

it to grant declaratory relief and issue an injunction barring 

enforcement of the Challenged Provisions of the current 

Advertising Standards against CIR.