3rd Circuit: Pa. transit agency unfairly barred bus ad

Thursday, August 11, 2011

A Pennsylvania transit agency violated the First Amendment when it rejected a bus ad that sought to inform former felons of their voting rights, a federal appeals court has ruled.

The 3rd U.S. Circuit Court of Appeals reasoned that the Allegheny County Port Authority committed viewpoint discrimination by denying the voting-rights advertisement after allowing ads from other nonprofit groups in the past.

Pennsylvania, unlike many states, allows felons to vote after they are released from prison. The Pittsburgh League of Young Voters Education Fund and the American Civil Liberties Union of Pennsylvania teamed up to form the Ex-Offender Voting Rights Project and decided that bus ads would be an effective way to educate former inmates about their rights.

They petitioned the Port Authority of Allegheny County to accept such an ad, but the agency refused, saying it did not accept noncommercial ads.

The groups then sued the Port Authority in federal court, claiming the agency committed viewpoint discrimination. They supported their claim by introducing “comparator evidence” — a concept often associated with employment discrimination law. In a sex-discrimination case, for example, a female plaintiff suing for discrimination often must show that she was treated worse than similarly situated male employees. Those male employees are her comparables and constitute comparator evidence.

The groups said that the Port Authority denied the ex-prisoner voting-rights ad but accepted noncommercial ads from Just Harvest, the Fair Housing Partnership and the Women’s Law Project.

The case went to trial, where U.S. District Judge Terrence F. McVerry sided with the Ex-Offender Voting Rights Project. The agency appealed, but on Aug. 5, a unanimous three-judge panel of the 3rd Circuit agreed with McVerry’s decision.

“The suspicion of viewpoint discrimination is fortified by the high degree of similarity between the coalition’s ad and the comparator ads,” Judge D. Brooks Smith wrote for the panel in Pittsburgh League of Young Voters Education Fund v. Port Authority of Allegheny County. “As the District Court observed, the coalition’s ad and the comparator ads were all designed to educate readers about their legal rights.”

The Port Authority argued that it did not commit viewpoint discrimination because it had also rejected an ad from the League of Women Voters. “We agree that this testimony cut against a finding of viewpoint discrimination,” Smith wrote. “But the District Court weighed it against the coalition’s comparator evidence and found that the comparator evidence more compellingly favored a finding of viewpoint discrimination.”

Gregory J. Krock, the Pittsburgh-based attorney who represented the transit agency before the 3rd Circuit, said: “The Port Authority is still in the process of considering its legal and business options.”

Sara J. Rose, staff attorney for the ACLU of Pennsylvania, applauded the appeals court’s ruling.

“The 3rd Circuit recognized that government agencies like the Port Authority in this case cannot pick and choose which messages they want to display once they have opened up a space to outside speakers for speech,” Rose said. “What the Port Authority did in this case was the essence of viewpoint discrimination.”