PA Transit System Owes Atheists’ Lawyers $275,000 for Rejecting Harmless Bus Ad

A Pennsylvania public transportation agency has agreed to pay out more than $275,000 after settling a case involving their rejection of an innocuous atheist advertisement. It puts an end to a saga that’s dragged on for more than eight 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 Vacula went in a different direction by running an ad with the word “atheist,” including links to a couple of websites, and adding pretty much nothing else.

COLTS took the bait by rejecting the ad, calling it too “controversial.”

Too controversial! The COLTS policy at the time allowed them to reject ads “deemed controversial” or which would otherwise “spark public debate,” but I’m not sure what was controversial about that sign… or what anyone would be debating.

Vacula 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.

Again: What debate? What discussion? What were we arguing about when the ad was just one word…?

Was it really just the word “atheists”?

Was it because the word was plural? (Two atheists are too many for some people to handle.)

Maybe the problem was that American Atheists was included on the ad — they were known for being provocative — so Vacula submitted a revised ad in 2013, this time without the group’s name. In other words, he made a not-at-all controversial ad even less controversial.

Once again, however, he was rejected.

Not only that: 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.

Then everything got even weirder.

Vacula submitted yet another version of this ad, this time removing the word “Atheists” but keeping “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? Weren’t they practically synonymous? If anything, their acceptance of the third ad was evidence that COLTS was just discriminating against atheists.

Or 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 Vacula’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.

So “Atheists” was controversial because it created a “debate” about religion… but ads from churches, political candidates, a hate site, and a beer distributor were acceptable.

It seemed pretty obvious that COLTS had no problem with religious or political advertisements until atheists came along… then they tried retroactively creating a policy that would allow them to block Vacula’s ad. At least that’s how he felt.

Justin and the NEPA Freethought Society, with the help of the ACLU of Pennsylvania, soon filed a lawsuit against COLTS arguing that this was a clear case of (non-)religious discrimination.

“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.

Said Mannion:

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.

Vacula’s side later appealed the decision. In September of 2019, he got the ruling he wanted: The U.S. Court of Appeals for the Third Circuit overturned the earlier decision, ruling 2-1 in the atheists’ favor. The majority opinion was written by Thomas Hardiman, a judge who had been on the shortlist for Donald Trump‘s three Supreme Court nominations. He wrote 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 was 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 contradicted 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 every right to reject the Church’s ad. The discrepancy between the two circuits could make this issue ripe for a Supreme Court argument in the future.)

Since that ruling, the ball has been in Pennsylvania’s court. Would they appeal? Or just take the loss?

As of last night, we know the answer: They’re taking the loss. And it’s a big one.

The County of Lackawanna Transit System agreed to pay $275,000 in attorney’s fees incurred by an atheist group that successfully challenged its policy that barred it from placing ads on the agency’s buses.

…

“We think this is a satisfactory resolution to the dispute over the ACLU’s legal fees,” said Tim Hinton, COLTS’ solicitor.

The fees are in addition to roughly $123,000 the agency paid McPartland’s firm for defending the lawsuit. Both legal bills were or will be paid from the general fund because an exclusion within the agency’s insurance policy barred coverage for the matter, Hinton said.

…

The agreement calls for COLTS to make payments in three installments: $100,000 was paid on Dec. 1; $100,000 will be paid on Dec. 1, 2021; and $75,000 on Aug. 1, 2022.

Last night, Justin Vacula sent along this reaction to the settlement:

It’s about time the word “atheists” can be displayed on advertisements in Northeastern Pennsylvania and hopefully the rest of the United States.

That someone is an atheist or wants to advertise an atheist group should not be controversial. The word “atheists” is not an “attack on religion” as COLTS’ solicitor claimed.

People are leaving religion and want to be part of groups offering community and support. The NEPA Freethought Society, like other groups, should be allowed to advertise on buses.

So taxpayers will be on the hook for $275,000 in legal bills all because state officials had to discriminate against the least offensive atheist billboard ever. For what it’s worth, the ACLU of Pennsylvania said they were owed far more money than they got — the $275,000 was the compromise, not the initial request. Still, it’s a victory for the atheist group and it’s a long time coming.

(Large portions of this article were posted earlier.)