Religious Speech and Advertising: Current Circuit Split and its Implications for Congress

Religious Speech and Advertising: Current Circuit Split and its Implications for Congress

Legal Sidebari

Religious Speech and Advertising: Current
Circuit Split and its Implications for Congress
December 11, 2019
On September 17, 2019, the U.S. Court of Appeals for the Third Circuit (Third Circuit), in a divided
decision, held that a transit system’s policy banning ads with religious and atheistic messages violated the
First Amendment’s Free Speech Clause. This decision came shortly after the U.S. Court of Appeals for
the District of Columbia Circuit (D.C. Circuit) held that a similar ban was a permissible and reasonable
regulation in a nonpublic forum. A petition to review (i.e., certiorari) the D.C. Circuit case is currently
pending before the Supreme Court. Although the two cases differ slightly, together, they present the
question of when a blanket ban on religion as a subject matter becomes unconstitutional viewpoint
discrimination. This developing split amongst the circuit courts, while relevant to the specific context of
the regulation of local transit systems, may have broader implications for Congress and free speech law
that this Sidebar explores in more detail.
First Amendment and Religious Speech
The Free Speech Clause provides that “Congress shall make no law . . . abridging the freedom of
speech. . . .” It is well settled, however, that the government does not have to permit all forms of speech
on property that it owns and controls. The Supreme Court has developed a “forum based” approach for
evaluating the constitutionality of speech restrictions the government may impose on the use of its
property. The Court has identified three categories of forums. Within each, courts will apply a different
level of scrutiny when determining whether a speech-based regulation violates the First Amendment. In
other words, courts will look at where the government is attempting to regulate speech and then decide
how limited the government is in its ability to regulate speech in that forum.
In both the “traditional public forum” (a place that has “by long tradition” been devoted to assembly and
debate, such as a sidewalk or park) and the “designated public forum” (a space that the government has
intentionally opened up to a broad audience for expressive activity), the government must satisfy strict
scrutiny to impose a content-based restriction on speech (i.e., a restriction that is based on the subject
matter or type of speech). To satisfy this heightened judicial scrutiny, the government must show that the
restriction is necessary to serve a compelling state interest and is narrowly drawn to achieve that interest.
By contrast, the “nonpublic forum” is one that is not traditionally designed, nor intentionally opened up,
for public speech, such as a jail or public school classroom. In nonpublic forums, the government has
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more flexibility to limit speech based on its content. Any restrictions on speech, however, must be
reasonable in light of the purposes served by the forum. Importantly, regardless of the type of forum at
issue, viewpoint-based restrictions, or restrictions that target speech not because of its subject matter but
because of the “particular views taken by speakers on a subject,” are “prohibited.”
The exclusion of religious speech from public spaces on its face raises concerns about whether the
government is engaging in content or viewpoint based regulation. Nonetheless, unique constitutional
questions arise when the speech being regulated concerns religion because of the interplay between the
Free Speech Clause and another provision in the First Amendment, the Establishment Clause. The latter
clause forbids Congress from making laws “respecting an establishment of religion. . . .” and has been
viewed as reflecting broader interests in maintaining a separation between church and state. The Court has
read the Establishment Clause to prohibit the government not only from establishing religion through
coercion but also through symbolic endorsement or financial support. While governments have long
justified restricting religious speech from a forum by citing the need to avoid Establishment Clause
violations, the Supreme Court has largely resolved Establishment Clause concerns in favor of religious
groups, holding that the Establishment Clause does not require a government to exclude religious speech
from forums it has otherwise opened to expression. As a result, in three cases, the Court squarely
confronted the question of whether government regulations aimed at limiting religious speech in a
nonpublic forum violates the Free Speech Clause.
First, in the 1993 case Lamb’s Chapel v. Center Moriches Union Free School District, the Court
invalidated a public school district’s regulation allowing groups to use its facilities for social, civic, and
recreational meetings, but prohibiting any use for “religious purposes.” The Court ruled that the school
had discriminated on the basis of viewpoint, rather than subject matter, because it opened its facilities to
presentations on child rearing and family values, but excluded those with religious views on the same
subject matter.
Three years later, the Court in Rosenberger v. Rector and Visitors of University of Virginia, relied on
Lamb’s Chapel to invalidate a University of Virginia policy in which subsidies from a Student Activities
Fund were withheld from student groups whose activities “primarily promote[d] or manifest[ed] a
particular belief in or about a deity or an ultimate reality.” Applying this policy, the University denied
funding to a student group that published a Christian-themed magazine that covered topics such as racism,
pregnancy, and student stress. The Court held that the policy amounted to viewpoint discrimination
because the school had granted funding to student publications with secular views on topics such as
racism, but not to publications with “religious editorial viewpoints” on the same topics. For the Court, the
University’s policy was constitutionally problematic because it did not “exclude religion as a subject
matter,” but instead had uniquely disfavored those with religious viewpoints, seeming to leave open the
question of whether bans on religion as a subject matter were constitutional.
Finally, in 2001 in Good News Club v. Milford Central School, the Court reaffirmed its holdings in
Lamb’s Chapel and Rosenberger, deciding that a public school district violated the First Amendment
when it excluded a Christian children’s club from using school facilities for after-school meetings, while
still allowing secular groups to use public facilities for social, civic, and recreational meetings. In doing
so, the Court suggested that if the government allows for discussion on morals and character, then it must
allow religious viewpoints on the same.

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The Circuit Split
Archdiocese of Washington v. Washington Metropolitan Area Transit Authority
Using this Supreme Court precedent as a guide, two circuit courts of appeal recently addressed, among
other legal issues, whether public transit systems’ bans on religious advertising violated the Free Speech
Clause of the First Amendment.
The first case, Archdiocese of Washington v. Washington Metropolitan Area Transit Authority (WMATA),
involved a challenge to a policy implemented by WMATA in which WMATA closed its advertising space
to “issue-oriented ads”—defined to include political, religious, and advocacy ads. WMATA implemented
the policy due to complaints from riders, community groups, and business interests, as well as concerns
about safety and vandalism of its property. In 2017, the Archdiocese of Washington submitted its “Find
the Perfect Gift” ad to WMATA, seeking to place the ad on the side of WMATA buses. The ad, which was
part of the Archdiocese’s evangelization efforts, and more specifically, a campaign promoting the Advent
season, depicted a scene featuring the silhouettes of three shepherds and sheep on a hill facing a star
shining brightly in the night sky with the words “Find the Perfect Gift.” The ad also displayed an address
for a website that included information about the Catholic Church, including a link to parish resources,
religious videos, and other religious content. WMATA rejected the “Find the Perfect Gift” ad under its
policy prohibiting “advertisements that promote or oppose any religion, religious practice, or belief.”
After the district court rejected a challenge to WMATA’s policy, the Archdiocese appealed.
On appeal, the D.C. Circuit determined that, because buses are not traditional meeting places for
discussion, and because WMATA had placed restrictions on what speech it would allow on its buses,
WMATA’s advertising space was a nonpublic forum. WMATA therefore had “wide latitude to restrict
subject matters” so long as it maintained viewpoint neutrality and its restrictions were reasonable. In
concluding that the WMATA policy was viewpoint neutral and reasonable, the D.C. Circuit rejected the
Archdiocese’s arguments that, like the restrictions in Lamb’s Chapel, Rosenberger, and Good News Club,
the WMATA policy suppressed its religious viewpoints on subjects that were otherwise allowed in the
advertising space. The court explained that the nonpublic forums in those cases had been opened to a
wide range of subjects and the policies had functionally suppressed religious viewpoints on each of those
subjects. By contrast, the D.C Circuit concluded that the WMATA policy instead banned advertising on
the entire subject matter of religion, in that it barred both religious and non-religious viewpoints on a
variety of topics. According to the D.C. Circuit, the Supreme Court in Rosenberger had approved of this
type of subject-matter restriction.
Northeastern Pennsylvania Freethought Society v. County of Lackawanna Transit
System
More than a year after the D.C. Circuit’s decision, the Third Circuit issued an opinion resolving a similar
dispute in Northeastern Pennsylvania Freethought Society v. County of Lackawanna Transit System
(COLTS). In 2013, COLTS enacted a policy banning ads on its buses “that promote the existence or non-
existence of a supreme deity, deities, being or beings; that address, promote, criticize or attack a religion
or religions, religious beliefs, or lack of religious beliefs; that directly quote or cite scriptures, religious
text or texts involving religious beliefs or lack of religious beliefs; or that are otherwise religious in
nature.” Northeastern Pennsylvania Freethought Society (Freethought), an atheist organization, submitted
a proposal to COLTS for an advertisement that simply read “Atheists” and included Freethought’s web
address on an image of a blue sky with clouds. COLTS rejected the ad under its religious speech
prohibition, but accepted a follow-up proposal from Freethought in which the word “Atheists” was
removed. Freethought’s challenge to the policy was rejected by the United States District Court for the
Middle District of Pennsylvania.

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On appeal, the Third Circuit analyzed COLTS’s prohibition on religious advertising to determine whether
the policy constituted permissible subject-matter regulation, or whether it impermissibly discriminated
against religious and atheistic viewpoints. The court relied on the trio of Supreme Court cases discussed
above and concluded that despite COLTS’s stated intent to ban all religious advertising, the policy
functionally suppressed religious views on otherwise allowable subjects in the forum. For example,
according to the court, nothing in the policy would prohibit a secular organization from running an ad that
communicated the message “We exist, this is who we are, consider learning about or joining us,” but
atheistic or religious organizations would be banned from advertising a similar message because of the
religious nature of their organization.
While the Third Circuit noted factual differences between the D.C. Circuit case and the one before them,
the court disagreed with the D.C. Circuit’s reasoning in upholding the WMATA policy as a permissible
subject-matter restriction. According to the Third Circuit, the D.C. Circuit relied on dicta from
Rosenberger to support its contention that the Supreme Court permitted the exclusion of religion as an
entire subject in nonpublic forums. The Third Circuit, however, concluded that Good News Club—
decided after Rosenberger—rejected the notion that religion could be excluded from a forum as an entire
subject. According to the court, religion is a “comprehensive body of thought” providing a perspective to
view and discuss many topics. If a forum is otherwise open to topics that can be viewed from a religious
perspective, the court suggested that it would be nearly impossible to bar religious speech without
engaging in viewpoint discrimination.
Considerations for Congress
These two divergent circuit court opinions highlight a dispute over whether the government can restrict
religious speech from government forums. Perhaps most obviously, the circuit split implicates the
discretion that governments have in regulating religious speech on local public transit systems. How local
governments regulate their transit systems may be of immense interest to Congress, as the United States
invests more than $12 billion annually through the Federal Transit Administration to support public transit
systems, including systems like WMATA. Federal grants are already conditioned on the grantee’s
compliance with various requirements and procedures. To the extent the courts authorize the regulation of
speech in a manner contrary to Congress’s intent, Congress could, within the confines of the First
Amendment, choose to make federal funds that are appropriated to local public transit systems contingent
on implementing policies in line with Congress’s views on religious speech.
More generally, religious speech considerations arise in a broad array of forums of interest to Congress
well beyond the specific context of the WMATA and COLTS cases. The federal government plays a large
role in regulating speech in public and nonpublic forums as the owner of nearly 300,000 buildings and
structures, including congressional buildings. Further, under Rosenberger, a public funding stream aimed
at facilitating private speech may be considered a speech forum, meaning the circuit split may implicate
when religious speech may be excluded from government funding programs, such as grant-making or
fundraising campaigns. Additionally, religious speech restrictions may be implicated when a government
allows for comments on its websites or social media pages. Moreover, much like Congress’s interests
with respect to local transit systems, through its power of the purse, the federal government may be
funding a host of state or local government forums where religious speech may be the subject of
regulation. Legislatively, Congress may respond to religious speech restrictions by state or local
governments with action similar to The Equal Campus Access Act of 2019, which is currently pending in
both the House and the Senate. This bill, for example, would require public institutions of higher
education to grant the same rights to all student organizations, regardless of the organization’s religious
beliefs, practices, speech, or leadership standards.
As the law currently stands, the specific issue of religious advertising on public transit is unsettled. On
May 20, 2019—prior to the Third Circuit’s COLTS decision—the Archdiocese of Washington filed a

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petition for writ of certiorari to the Supreme Court, seeking review of the D.C. Circuit’s decision. On
September 26, 2019, the Archdiocese filed a supplemental brief in support of its petition, claiming the
Third Circuit’s decision created a clear circuit split on the issue of policies restricting religious advertising
on public transit. Should the Supreme Court review the WMATA case, it will likely need to resolve the
D.C. Circuit and Third Circuit’s conflicting interpretations of Rosenberger and whether the government
may constitutionally impose blanket bans on religious speech in nonpublic forums, issues affecting the
regulation of religious speech in a host of government forums.

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Author Information

Whitney K. Novak

Legislative Attorney

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