Anti-abortion posters to return to Philadelphia transit stations

Friday, April 2, 1999

Controversial posters linking abortion to breast cancer can again be displayed in Philadelphia transit stations after a settlement was reached recently in a federal lawsuit involving a Virginia-based religious group and transit officials.

Christ’s Bride Ministries sued the Southeastern Pennsylvania Transportation Authority and its licensee, Transportation Display’s Inc., after SEPTA officials removed 4-by-5 foot posters sponsored by the religious group that said “Women Who Choose Abortion Suffer More & Deadlier Breast Cancer.” The posters are part of what the religious group calls its “Loving, Life-sparing” Public Service Campaign I.

The religious group had signed a contract with SEPTA in January 1996 to display the posters. However, in February 1996, officials removed the posters after many complaints from transit riders and a letter from a federal health official criticizing the ad. The health official wrote: “This ad is unfortunately misleading, unduly alarming, and does not accurately reflect the weight of the scientific literature.”

The religious group sued on May 10, 1996, claiming its First Amendment free-speech rights were violated. A federal trial court judge held a three-day bench trial — a trial without a jury — in June. On Aug. 16, 1996, the judge dismissed the case.

However, on appeal, the 3rd U.S. Circuit Court of Appeals ruled last June in Christ’s Bride Ministries v. SEPTA that transit officials had violated the religious group’s free-speech rights by removing the posters.

The 3rd Circuit noted that SEPTA had accepted numerous advertisements for display, including on the topics of religion and abortion. “In its efforts to generate advertising revenues, SEPTA permitted abortion-related and other controversial advertisements concerning sexuality,” the appeals court wrote.

According to the appeals court, the government agency created a “designated public forum” by its “practice of permitting virtually unlimited access” to its advertising spaces.

In First Amendment law, government officials have a higher constitutional burden when regulating speech on public property that the officials have opened up for public expression either by tradition or designation.

On government property not generally open to the public — nonpublic fora — government officials have greater leeway to regulate speech, but their actions must be reasonable and they cannot discriminate against speech based on viewpoint.

The 3rd Circuit ruled that the transit authority officials violated the First Amendment under either standard. Even if the advertising spaces were considered to be nonpublic fora, the appeals court ruled that the actions in removing the posters “were not reasonable.”

The transit authority appealed to the U.S. Supreme Court. However, last January the high court refused to review the 3rd Circuit’s decision.

As a result of the high court’s decision not to hear the appeal, the parties settled the dispute on terms favorable to Christ Bride’s Ministries.

Under the March 29 settlement, SEPTA agreed to pay Christ Bride’s attorneys fees and court costs — and to allow the display of the posters.

Mathew Staver, attorney for the religious group and president of the civil liberties legal defense group the Liberty Counsel, said in a news release: “Government agencies cannot censor speech, even controversial speech.

“The First Amendment guarantees that debate on issues be wide open and robust,” he said. “SEPTA muzzled one side of the debate concerning the link between abortion and breast cancer.”