ACLU Sues Philadelphia-Area Transit System for Banning Ads on Housing Discrimination

May 2, 2018 10:00 am

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PHILADELPHIA — The American Civil Liberties Union and co-counsel filed a First Amendment lawsuit today on behalf of The Center for Investigative Reporting (CIR) against the Southeastern Pennsylvania Transportation Authority (SEPTA) over its ban on advertising that involves controversial issues.

CIR’s proposed ad would feature an informative graphic showcasing public data its reporters collected and analyzed that found racial disparities in the conventional home mortgage market in 61 metro areas across America, including in Philadelphia. CIR’s news investigation has prompted the Pennsylvania attorney general to probe racial discrimination in Philadelphians’ access to home loans.

“It’s always a bad idea to give the government the power to choose what ideas can be heard,” said Reggie Shuford, executive director of the ACLU of Pennsylvania. “Time and time again, the Supreme Court has rejected the notion that the government has a legitimate interest in censoring political speech or speech it finds offensive. Debate on public issues is the cornerstone of participatory democracy. No government entity, including SEPTA, should single it out for censorship.”

SEPTA said that it refused to let CIR run its proposed ad on buses and trains because SEPTA policy prohibits ads with “political” content, defined broadly to include anything that relates to government policies, and ads that take a position on “matters of public debate.”

The lawsuit argues that both of these prohibitions violate free speech rights guaranteed by the Constitution. The suit asks the court to declare those provisions unconstitutional and to order SEPTA to run CIR’s ads.

“Getting important information into the hands of those most affected is a key tenet of both journalism and government,” said Amy Pyle, CIR’s editor in chief. “Allowing a transit agency to define factual information as political advocacy takes us all down a dangerous slope.”

According to the ACLU, the challenged provisions of SEPTA’s advertising standards violate the free speech clause of the First Amendment in several ways. The provisions in the SEPTA policy are vaguely defined, giving SEPTA unfettered discretion to censor a broad range of speech. These provisions in the policy also discriminate based on viewpoint by censoring controversial speech.

“Banality is not a virtue, but under SEPTA’s policy it is a requirement for placing an advertisement,” said Brian Hauss, an attorney with the ACLU Speech, Privacy, and Technology Project. “As this case shows, the public loses when transit authorities try to avoid controversy by censoring ‘political’ speech.”

CIR was founded in 1977 and is the nation’s first nonprofit investigative news organization. Its work has been widely recognized for its excellence, impact, and groundbreaking creativity.

The lawsuit was filed in the U.S. District Court for the Eastern District of Pennsylvania. CIR is represented by Mary Catherine Roper and Molly Tack-Hooper of the ACLU of Pennsylvania; Brian Hauss and Jacob Hutt of the ACLU; John S. Stapleton, Dylan J. Steinberg, and Rebecca Santoro Melley of the law firm Hangley Aronchick Segal Pudlin & Schiller; Seth F. Kreimer, a professor at the University of Pennsylvania Law School; and D. Victoria Baranetsky, CIR general counsel.

Today’s complaint is here:

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