The U.S. Court of Appeals for the Third Circuit has ruled that a Pennsylvania public transportation agency had no right to reject an innocuous atheist advertisement, putting a temporary end to a saga that’s dragged on for more than seven years.
This all began in 2012, when atheist Justin Vacula and the Northeastern Pennsylvania Freethought Society attempted to place the following ad on buses in the County of Lackawanna Transit System (COLTS).
If that seems like quite literally the least offensive atheist ad ever, that’s kind of the point. This was a year when a lot of atheist groups were buying bus ads and billboards promoting their views, so Justin went in a different direction by trying to run an ad with the word “atheist,” links to a couple of websites, and pretty much nothing else.
COLTS took the bait by rejecting the ad, calling it too “controversial.”
Seriously. Too controversial. The COLTS policy at the time allowed them to reject ads “deemed controversial” or which would otherwise “spark public debate.”
Justin appealed the decision with the help of American Atheists, but the COLTS administrators stood by their claims.
“We will not allow our transit vehicles or property to become a public forum for the debate and discussion of public issues, and since passing this policy in June, we have been very consistent in not allowing any ads that violate the policy. That’s why we didn’t permit Mr. Vacula’s ad promoting atheism,” said COLTS solicitor Tim Hinton.
Debate? Discussion? What exactly were we arguing about when the ad was just one word…?
Apparently the mere existence of the word “atheists” was too controversial. (Maybe it’s because it was plural. Too much for some people to handle.)
Maybe the problem was that American Atheists was included on the ad? They were known for being provocative… so Justin submitted a revised ad in 2013, this time without the group’s name. He made a not-at-all controversial ad even less controversial.
Once again, however, he was rejected.
COLTS administrators even voted on a new policy to prevent this “debacle” from ever happening again.
The amended policy, which the COLTS board approved without discussion by a 4-0 vote, clarifies and lays out in more detail the types of advertising the agency will not accept, including ads that promote the existence or nonexistence of a supreme being or deity or other religious beliefs.
“It’s our aim to be completely neutral on religious issues,” solicitor Timothy Hinton said.
He said the revised policy had been in the works “for quite some time” and was not prompted by the NEPA Freethought Society’s latest attempt to advertise on COLTS buses.
Sure it wasn’t…
Still, that new policy hardly made things better. It might be okay and legal to avoid all ads debating God’s existence… but this ad wasn’t doing that. You could argue this was about as religiously neutral as you could get.
The weirdest thing about this whole story, in my opinion, is that Justin tried submitting yet another version of this ad. This time, he removed the word “Atheists” but kept “NEPA Freethought Society” and the group’s URL.
Believe it or not, COLTS said that one was okay.
It was all very confusing. How could it be that the word “Atheists” was too controversial, but “Freethought” was okay? Did they not know they were practically synonyms? If anything, it was evidence that COLTS was just discriminating against atheists.
Maybe everyone was making too big a deal about this. As long as COLTS banned all religious/political/advocacy advertising equally, then there wasn’t much atheists could do about it.
But that’s not what they were doing. In fact, since the time Justin’s first ad was rejected, COLTS allowed advertising from the following groups:
a. St. Mary’s Byzantine Catholic Church
b. St. Matthew’s Lutheran Church;
c. Christian Women’s Devotional Alliance;
d. Hope Church;
e. a School Board candidate; and
f. Brewer’s Outlet, a beer distributor; and
g. Old Forge Times, an online blog that contained links to anti-Semitic websites, holocaust denial websites, and white supremacist websites.
It seemed pretty obvious that COLTS had no problem with religious advertisements until atheists came along, then they tried retroactively creating a policy that would allow them to block Justin’s ad. At least that’s how he felt.
“It’s hard to advertise effectively if we’re not allowed to use the word ‘atheists’ to say who the NEPA Freethought Society’s members are or who we’re trying to reach,” said Justin Vacula, organizer and spokesperson for the NEPA Freethought Society. “We just want to be treated fairly and allowed the same opportunity to advertise that COLTS has given other groups for years.”
“The First Amendment means that government officials can’t censor speech just because it’s unpopular or because they disagree with the speaker,” said Reggie Shuford, executive director of the ACLU of Pennsylvania. “Once you open up a space for speech, you have to let everyone in equally.”
All of that happened in 2015, and while there were a few legal stumbling blocks along the way, U.S. District Judge Malachy E. Mannion finally issued his ruling in July of 2018: Unfortunately, he said COLTS had every right to reject the ad.
… the court finds that COLTS’ advertising space is a limited forum and that COLTS did not violate Freethought’s First Amendment free speech rights when it refused to display Freethought’s advertisements containing the word “atheists” on COLTS’ buses.
What about all those advertisements from churches that were green-lit? COLTS argued that they weren’t promoting God, per se, just advertising the churches. That’s the same reason they accepted the ad with only the NEPA Freethought Society’s name on it.
There is therefore no viewpoint based restriction. COLTS’ content based restriction on promoting or opposing religion is neutral and reasonable.
In short, the least offensive atheist ad ever made was deemed so anti-God that the government was within its right to reject it because it could “potentially affect its revenue or ridership.” The word “Atheists” — just by itself — was officially too in-your-face for certain religious sensibilities. Even though an advertisement for a local church was still okay.
Justin’s side later appealed the decision, and today, the Third Circuit agreed with them in a 2-1 ruling: The district judge was wrong and the decision must be overturned. The majority opinion was written by Thomas Hardiman, a judge who had been on the shortlist for Donald Trump‘s two nominations. He writes that the COLTS policy “discriminates based on viewpoint,” violating the First Amendment:
It’s true that Freethought’s “Atheists” ad relates to the “subject” of religion writ large. But at its core, its message is one of organizational existence, identity, and outreach… What matters for the viewpoint discrimination inquiry isn’t how religious a message is, but whether it communicates a religious (or atheistic) viewpoint on a subject to which the forum is otherwise open.
..,. COLTS prohibits Freethought’s statement of organizational identity just because of that statement’s atheistic character. For that reason, we hold that the 2013 policy facially discriminates against atheistic and religious viewpoints on all of the many topics permitted in the forum.
The 2013 policy’s ban on speech related to religion discriminates on the basis of viewpoint. And it is not a permissible limitation on COLTS’s forum, however that forum is characterized.
It’s a welcome decision. After all, the word “atheists” — without any attachment to a belief — shouldn’t be placed on the same level as people who say “God is good” or “God exists.” Our existence is not up for debate, nor should it be considered controversial.
Incidentally, this decision contradicts a similar case decided by the D.C. Circuit Court of Appeals that involved a rejected advertisement from the Catholic Church. That court said the Washington Metropolitan Area Transit Authority (WMATA) had the right to reject the Church’s ad. The opposite rulings (despite some key distinctions) could create a tension that only the U.S. Supreme Court could resolve.
***Update***: The ACLU of Pennsylvania issued this statement:
“I’m glad we can finally run bus ads telling people who we are,” said Justin Vacula, spokesperson for the NEPA Freethought Society. “Our message is simple: atheists exist. If you are an atheist, you are not alone.”
“This ruling is an important acknowledgement that censoring potentially controversial speech in order to avoid possible disruption is constitutionally suspect,” said Molly Tack-Hooper, senior staff attorney at the ACLU of Pennsylvania. “The core purpose of the First Amendment is to protect minority views like those of atheists in northeastern Pennsylvania. The government can’t restrict speech just because some people might react badly to it.”
(Large portions of this article were posted earlier.)