Citations
- 337 F. Supp. 3d 562
Full opinion text
Baylson, District Judge.
TABLE OF CONTENTS
I. INTRODUCTION...570
II. FACTUAL BACKGROUND...570
A. Initial Proposed CIR Advertisement...570
B. SEPTA's Rejection of the Proposed Ad...573
C. Revised Advertisement and Second Rejection...574
III. PROCEDURAL BACKGROUND...574
IV. EVIDENCE...575
A. Preliminary Injunction Evidence...575
B. Benedetti's Trial Testimony...575
1. Impact of AFDI Litigation...575
2. SEPTA's Application of Standards, Including the Challenged Provisions....576
3. Interpretation of the Challenged Provisions...577
4. Digital Displays/News Feeds...578
5. Asserted Inconsistencies in Benedetti's Testimony and Other Evidence...578
C. Other Exhibits and Depositions...580
D. Examples of Ads Accepted and Rejected by SEPTA...581
E. Advertisements by Banks...583
V. PARTIES' CONTENTIONS...584
A. CIR's Contentions...584
1. Standards are Not Capable of Reasoned Application...584
2. The Challenged Provisions are Not Viewpoint Neutral on their Face or As Applied...585
3. Standards are Not "Reasonable" in Light of the Purpose of the Forum...585
4. SEPTA's Advertising Space is a Designated Public Forum, and the 2015 Advertising Standards Do Not Satisfy Strict Scrutiny...585
B. SEPTA's Contentions...586
1. The Advertising Space on Buses is a Non-Public Forum...586
2. The Advertising Standards are Reasonable...586
3. The Advertising Standards are Viewpoint Neutral...588
VI. FINDINGS OF FACT...588
A. General...588
B. SEPTA'S Response to AFDI Ad...589
C. SEPTA's Process for Reviewing Proposed Advertising...591
D. Bank Advertisements...595
E. SEPTA's Denial of CIR's Proposed Advertisement...596
VII. DISCUSSION OF LAW...597
A. Forum Analysis...598
1. Defining the Forum and Type of Forum...598
2. The Advertising Space on SEPTA Buses is a Non-Public Forum...601
B. The Standards and Burden Applicable in a Non-Public Forum...602
C. CIR's Facial Attack on Whether the Challenged Provisions Are Capable of Reasoned Application Under Mansky...603
1. Language That Must be Stricken as Incapable of Reasoned Application...604
2. Meet and Confer Requirement...605
D. CIR's Facial Attack on the Restrictions (as to be Amended)...605
1. NAACP v. City of Philadelphia...606
2. Transit Authorities Advertisements as a Subset of First Amendment Jurisprudence...608
3. The Special Circumstances of a "Captive Audience" on Transit Vehicles...608
4. SEPTA as a Government Actor...609
5. Decisions on Transit Authorities' Speech Regulations in the Third Circuit...609
6. Decisions on Transit Authorities' Speech Regulations Outside of the Third Circuit...611
7. SEPTA's Restrictions (as to be Amended) Are Reasonable in Light of the Purpose of the Forum...612
E. Content-Based, Viewpoint Neutral Restrictions of Advertisements in Transit Vehicles Do Not Offend the First Amendment...613
1. SEPTA's Restrictions (as to be Amended) Are Viewpoint Neutral on Their Face...615
2. SEPTA's Restrictions are Viewpoint Neutral as Applied...616
a. SEPTA's Acceptance of Public-Service Advertisements...616
b. SEPTA's Acceptance of Bank Advertisements is Not Accepting Viewpoint Advertisements and SEPTA's Rejection of CIR's Advertisements was Reasonable...618
VIII. CONCLUSION...620
I. INTRODUCTION
Southeastern Pennsylvania Transit Authority ("SEPTA") has been operating the mass transit system in Philadelphia since 1964. It operates bus, subway, commuter rail, light rail, and trolley service to Philadelphia and Delaware, Montgomery, Bucks and Chester counties, with some train service to Wilmington, Delaware and Trenton, New Jersey.
This case concerns the advertising space on the inside of SEPTA buses. SEPTA's bus network serves the many neighborhoods of Philadelphia and suburbs. Many residents of Philadelphia, particularly those for whom private vehicles, taxis or other forms of transportation are inaccessible or too expensive, rely on SEPTA buses, trolleys, and subways for daily transportation. The viability of this public transit system is thus of critical importance in a city of over 1.5 million, where more than 25% of residents live below the poverty rate. QuickFacts: Philadelphia City, Pennsylvania, U.S. CENSUS BUREAU https://www.census.gov/quickfacts/philadelphiacitypennsylvania (July 1, 2017)
II. FACTUAL BACKGROUND
A. Initial Proposed CIR Advertisement
Plaintiff, The Center for Investigative Reporting ("CIR") is a nonprofit investigative journalism organization based in Emeryville, California. (10/01/18 Trial Ex. 11.) Its mission notes that "Advances in social justice, solutions to pressing problems, and greater accountability in both the public and private sectors all rely on the availability of credible information. Verifiable, nonpartisan facts empower the public to effect positive change, advancing improved outcomes for a broad range of critical issues." (Id. ) CIR's reporting is published on its news website Reveal (www.revealnews.org), as well as on its national radio show, podcast, video, and live events. (ECF l, "Compl." ¶ 11.)
On February 15, 2018, CIR published the results of a year-long investigation into disparate lending trends throughout the country. (Trial Ex. 4.) The results of this investigation showed that in 61 metropolitan areas, applicants of color were more likely to be denied conventional home purchase mortgages. (Id. ) CIR used the information from this investigation to create a 10-panel comic strip entitled "A Stacked Deck." (Trial Ex. 7.)
In January 2018, a designer from CIR emailed Jon Roche, Vice President at Intersection, the company that manages advertising space for SEPTA, seeking to display the comic on the interior of SEPTA buses. (Trial Ex. 10, Jan. 17, 2018 Email from G. Hongsdusit to J. Roche.) The comic was derived from the following advertisement from Reveal's website:
(Compl. ¶ 16.)
B. SEPTA's Rejection of the Proposed Ad
SEPTA rejected CIR's proposed advertisement, noting that "[t]he proposed ad is an issue ad and cannot be accepted. Disparate lending is a matter of public debate and litigation." Ex. 10, Feb. 22, 2018 Email from J. Roche to H. Young.) Included in the email exchange with CIR was a copy of the SEPTA's 2015 Advertising Standards. (Id. )
Following SEPTA's rejection of the ad, Victoria Baranetsky, Esq., General Counsel for CIR, exchanged letters with SEPTA's General Counsel, Gino Benedetti Esq., regarding the stated reason for the rejection. (See Trial Exs. 16-19.) Benedetti explained that SEPTA adopted the 2015 Advertising Standards after previous litigation involving SEPTA's advertising policies. See Am. Freedom Defense Initiative v. SEPTA, 92 F.Supp.3d 314 (E.D. Pa. 2015) (hereinafter " AFDI") (Goldberg, J.). Benedetti stated that SEPTA rejected CIR's proposed advertisement "under Standards 9(b)(iv)(a) and (b)" of the 2015 Advertising Standards. (Trial Ex. 17.) These standards read:
Prohibited Advertising Content. Advertising is prohibited on transit facilities, products and vehicles if it or its content falls into one or more of the following categories-
(a) Advertisements promoting or opposing a political party, or promoting or opposing the election of any candidate or group of candidates for federal, state, judicial or local government offices are prohibited. In addition, advertisements that are political in nature or contain political messages, including advertisements involving political or judicial figures and/or advertisements involving an issue that is political in nature in that it directly or indirectly implicates the action, inaction, prospective action or policies of a government entity.
(b) Advertisements expressing or advocating an opinion, position or viewpoint on matters of public debate about economic, political, religious, historical or social issues.
(Trial Ex. 22, at ¶¶ II(A)(9)(b)(i)-(ii).)
The second sentence of subparagraph (a) and subparagraph (b) are collectively referred to as the "Challenged Provisions." The 2015 Advertising Standards also include language stating that SEPTA has the "express intention ... that property allocated for advertising be a non-public forum." (Id. at ¶ II(A)(9)(b)(ii).)
C. Revised Advertisement and Second Rejection
Benedetti presented testimony as to his objection to two panels which he stated were of "particular concern,"-one showing "a white hand handing keys and stick of dynamite to a black hand," and one that displayed "African-Americans holding signs protesting ... and a white guy not part of the protest." (Trial Ex. 111, Benedetti Dep. at 156:9-158:3.) CIR proposed a revised advertisement which removed these panels, but SEPTA again rejected that advertisement as being "barred by the same advertising standards as the first." (ECF 32, SEPTA Opp'n to CIR Mot. for Inj. Ex. A, at 1.)
III. PROCEDURAL BACKGROUND
CIR's May 1, 2018 complaint asserts a single cause of action for a violation of the First and Fourteenth Amendments. (Compl. at 12.) The Complaint sought declaratory and injunctive relief, as well as costs and attorneys' fees, and any other relief that the Court deems proper. SEPTA answered the Complaint on June 5, 2018. (ECF 10, Answer.)
On August 17, 2018, CIR moved for a preliminary injunction seeking to enjoin SEPTA from administering its 2015 Advertising Standards. (ECF 20, "Mot. for Prelim. Inj.") SEPTA opposed that motion on August 31, 2018 (ECF 21, SEPTA Opp'n; ECF 23, "SEPTA Am. Opp'n"), and CIR replied in support on September 10, 2018 (ECF 24, "SEPTA Rep."). This Court held a hearing on the motion on September 14, 2018, and ordered the parties to file supplemental briefing, with which they complied on September 21, 2018. (ECF 26, 27, 31, 32.) Also on September 14, 2018, while continuing to take the motion for preliminary injunction under advisement, the Court scheduled a final hearing/trial on the merits of CIR's case for October 1, 2018. (ECF 26.) Then, on September 25, 2018, upon consideration of the hearing transcript and all briefing, this Court denied the motion for preliminary injunction without prejudice. (ECF 33, "Sept. 25, 2018 Prelim. Inj. Op."; ECF 34, "Sept. 25, 2018 Prelim. Inj. Order.")
A bench trial took place as scheduled on October 1, 2018 (ECF 39). The trial involved the testimony of just one witness-Mr. Gino Benedetti, General Counsel for SEPTA. By stipulation, SEPTA first questioned Benedetti on direct, followed by cross-examination from counsel for CIR. The parties also submitted stipulations regarding evidence and certain factual matters. (ECF 37). The Court then called for post-trial briefing and sent a letter to all counsel on October 3, 2018, with specific questions for the parties to address. CIR's brief, which included proposed findings of fact and conclusions of law and answers to the Court's specific questions, was submitted on October 8, 2018. (ECF 44, "CIR Post-Trial Br.") SEPTA responded in opposition with its own proposed findings of fact and conclusions of law, as well as its own responses to the Court's specific questions on October 15, 2018. (ECF 47, "SEPTA Post-Trial Br."; ECF 48, Notice of Errata.) CIR replied on October 22, 2018 (ECF 49), and SEPTA filed a Sur-Reply on October 29, 2018 (ECF 50).
The Court held post-trial oral argument on November 1, 2018.
IV. EVIDENCE
A. Preliminary Injunction Evidence
CIR presented evidence in support of its motion for preliminary injunction, including deposition testimony from Benedetti and Baranetsky. These transcripts were summarized in this Court's September 25, 2018 Memorandum Opinion denying that motion, which we incorporate by reference. (See Sept. 25, 2018 Prelim. Inj. Op.)
B. Benedetti's Trial Testimony
Benedetti testified that he has responsibilities including "working with counsel and my client in adopting the amendment to the standards" and "making the final decision about whether or not a proposed ad satisfies our standards." (10/01/18 Trial Tr., at 42:2; 43:4-9) (hereinafter "Trial Tr.") Benedetti testified that his job responsibilities are not "related to revenue maximization." (Id. at 43:10-12.)
Benedetti testified that SEPTA has contracted with Intersection (formerly Titan) to solicit advertising for SEPTA vehicles both through the SEPTA website and the work of local and national salespeople. (Id. at 44:6-16.) Benedetti stated that Intersection sells advertisements for all of SEPTA rails, buses, and trolleys, and that the same advertising standards apply to advertising space on each vehicle. (Id. at 46:16-51:20; 65:19-67:6.) Benedetti confirmed that in total, SEPTA advertises on the interior and exterior of over 2,500 vehicles and 200-plus stations and facilities. (Id. at 67:7-9.) SEPTA has a $1.2 billion operating budget, and advertising revenue is "a very small piece of our revenue." (Id. 52:2-7.)
Benedetti testified about what he thought was the purpose of the advertising space. When asked about the advertisement revenue, Benedetti testified that "we certainly consider this to be a source of revenue, not at the expense of happy customers and safe customers." (Id. at 40:6-8.) According to Benedetti, an advertiser could "specify where he or she would like the ads" but that "[m]echanically, I don't know how that actually happens." (Id. at 49:20-22.) On cross examination, Benedetti stated that the advertisements "are really designed to fit-we want them to fit within the standards and it's our belief that that will keep our riders safe, happy and not detract from our core mission of moving them around safely." (Id. at 68:24-69:3.)
1. Impact of AFDI Litigation
Benedetti testified that SEPTA amended its standards after it was sued by AFDI in 2014, and that the SEPTA board approved the standards in October 2014 and revised them again after the AFDI decision with a unanimous vote in 2015. (Id. at 45:10-15; 26:2-6.) These amendments, he said, were made in response to the "public outcry" from the AFDI advertisement that "had reporters swarming SEPTA, it had our employees concerned. We had our customers concerned. So really wanted to avoid that kind of situation where we had-you know, to run that kind of ad on our system." (Id. at 46:24-47:9.) Benedetti additionally testified that there was vandalism on buses that ran the AFDI ad, and that SEPTA had "bus operators who were unwilling to operate the busses on which the ads were placed and so we honored their objections and then had to put someone else on those routes." (Id. at 47:18-48:11.)
In revising the advertisements, Benedetti engaged the help of counsel and "reviewed the cases, reviewed memorandum from [counsel], reviewed standards that other authorities... had used, discussed them with the board, discussed them with the senior executive of SEPTA and came up with what now is embodied in" the 2015 Amendments to the standards. (Id. at 46:9-16.)
Benedetti stated that SEPTA wanted to "make sure that the experience of the customer and the experience of the employee, our core mission-you know, safe efficient travel for the public, was maintained and protected." (Id. at 47:14-17.)
2. SEPTA's Application of Standards, Including the Challenged Provisions
When asked about whether SEPTA considered including the word "commercial" in its advertising standards, Benedetti stated at trial, "I really don't have a recollection of having that specific conversation with the client," but also noted that he was "certain that I debated that with our counsel." (Id. at 101:24-25, 103:1-2.) He testified that he did not think that they considered using the term "public service" in the revised standards. (Id. at 103:18-21.)
Benedetti stated that SEPTA has multiple "different lines of defense" when reviewing proposed advertisements for compliance with the 2015 Advertising Standards. (Id. at 52:17-18.)
Benedetti explained that the first "line of defense" is through Intersection alerting him to a potentially violative advertisement. Benedetti had "discussions with Intersection about what we think are things that would violate the standard so that they would have enough information to inform me of an ad that, you know, could violate the standards." (Id. at 52:18-21; 54:3-7.)
Benedetti stated that the second "line of defense" involves the following:
SEPTA advertising personnel-actual SEPTA employees, Mr. Jim Dellipriscoli being the primary one-who sees all the ads that before they go on the bus, after they go on the bus, and I've had conversations with him about what are the kind of things he needs to look out for to be able to bring to my attention so I can make a judgement about them.
(Id. at 52:22-53:3.)
Once Benedetti has been alerted about a proposed advertisement that potentially violates the 2015 Advertising Standards, Benedetti testified that he follows the following process.
Well, the first thing I do is I look at the ad and I would-depending on the nature of the ad, I may get counsel involved. I also more recently-very recently actually would confide with one of my colleagues, Billy Smith, who's one of the lawyers that works in my office. We look at the ad, we bring out the standards-Exhibit 22, and we take a look at it against those standards.
And then we may, depending on where that takes us, do an... internet search... to understand more about the subject matter of the ad and whether or not it violates either (a)-standard (a) or standard (b), the political standard or the public speech or public debate standard.
(Id. at 55:5-17.)
If Benedetti is on vacation when an issue comes up with an advertisement, he is contacted. (Id. at 99:10-25.) Benedetti also testified that he may look back at previous decisions about similar advertisements. (Id. at 55:22-24.) Benedetti stated that he uses common sense, and that his common-sense determination is based upon his life experiences, legal training, and "discussions with other people about their opinions." (Id. at 90:11-21.) He said that he does not consider "the identity of the proposed advertiser, except to the extent that I would visit the advertiser's website." (Id. at 114:18-20.)
When asked about prior application of the 2015 Advertising Standards, Benedetti stated that he had a "shift of some sorts on the public service ads because of some confusion I had about Judge Goldberg's ruling" on the issue of whether public service ads were considered political speech. (Id. at 70:12-14, 21-23.) He stated that now he does not "consider them to be automatically political speech. I just judge them against the standard like other ads." (Id. at 71:2-4.)
When asked how many proposed advertisements SEPTA has rejected since the 2015 Advertising Standards took effect, Benedetti stated it had rejected "not many." (Id. at 55:25-56:2.) Benedetti stated that he has sought advice from counsel regarding a potential advertisement "maybe a half a dozen times" in a year. (Id. at 100:15-17.) He does not routinely offer the opportunity for a rejected advertiser to revise a rejected advertisement, but that it has happened "a couple of times." (Id. at 103:25-105:8.)
Benedetti testified that the process he went through when reviewing the CIR ad under the Advertising Standards was that he first "tried to understand the ad," then he "went to CIR's website and I learned more about what the ad was about, what CIR was about, and what it was trying to accomplish with the ad," and then he did "a more general search beyond CIR's website." (Id. at 118:22-119:6.) While doing this "more general search," Benedetti stated that he found an article from the American Bankers Association ("ABA"), an editorial in the New York Times, lawsuits and settlements about discriminatory lending. (Id. at 119:7-12.) He stated that he found the ABA article "important ... because it criticized the research upon which the ad CIR proposed was based," and determined that there was a "real live debate" between CIR and the ABA about discriminatory lending. (Id. at 119:13-19.)
3. Interpretation of the Challenged Provisions
With regard to Subsection (a) of the 2015 Advertising Standards, Benedetti testified that the words "political" and "political in nature" are "essentially the same to me." (Id. at 57:5-8.) Benedetti explained that the phrase "an issue is political in nature in that it directly or indirectly implicates the action, inaction, prospective action or policies of the government entity" is not separate from the phrase "political in nature," but "further defines or connects with what's political in nature." (Id. at 57:11-18.) On cross examination, he stated that these two phrases have different meanings, and that it is possible for an ad to "violate this provision without implicating directly or indirectly the action, inaction, prospective action or policies of a government entity." (Id. at 87:15-88:3.) When asked if the word " 'implicate' means advocates for or calls for," he answered that "it could mean either." (Id. at 88:13-15.)
Regarding Subsection (b), Benedetti testified that a determination of whether something is within the prohibition on "matters of public debate" is "kind of a mechanical type of analysis that we do. We look to see what is being argued, debated in society in general." (Id. at 57:19-22.) Benedetti stated that this evaluation involves "the entire ad and then we also look at holistically about what is the subject matter of that ad being debated in society at large." (Id. at 58:1-4.) Benedetti stated that finding information online about a debate is "not necessarily" enough to make it a public debate. (Id. at 92:22-24.) When asked about the difference between issues of public and private debate, he stated that he uses "common sense and [I] have the discussion and have the conversations." (Id. at 92:20-21.) Benedetti did clarify that a "dispute about which football team you prefer is not a matter of public debate." (Id. at 92:13-17.)
Benedetti testified that "sometimes" ads that violate Subsection (b) "could be controversial ads." (Id. at 58:13-15.) He also stated that an ad can involve politics but not violate the Challenged Provisions, such as with the "Welcome, DNC" ads. (Id. at 60:13-17; Trial Ex. 31.)
4. Digital Displays/News Feeds
There was extensive testimony that certain SEPTA vehicles now have the ability to display "digital" material, either advertisements or "news feeds," which was sometimes referred to as "infotainment" digital displays on SEPTA vehicles. The news feeds were displayed on the digital displays through an agreement between Intersection and Screenfeed, a company that curates information from Reuters and the Associated Press. (Benedetti Dep. at 30:15-31:5.)
The "infotainment" digital displays on SEPTA vehicles, Benedetti testified that he knew the spaces were to display advertisements and route information, but that his office was "not involved in ... reviewing or being informed about the news feeds being pushed through the-digital displays." (Trial Tr. at 62:5-16.) He stated that the news feeds were brought to his attention through this case, and that "I was initially of the understanding that the news feeds were there because they added value to the ads and I thought dollars and cents value so that an ad on a digital display would cost more ... than an ad on a panel on a bus.... I learned that that's not true." (Id. at 63:12-19.) He concluded that SEPTA has "eliminated all the feeds at this point" when he "learned that there really wasn't any value being added in terms of the cost of the-the ads themselves." (Id. at 64:5, 12-20.) On cross examination, Benedetti admitted that the content in a news feeds "could be" "compatible with the forum being closed to political speech and speech on matters of public debate." (Id. at 80:20-23.)
Regarding the news feeds on the digital "infotainment" displays, Benedetti noted during his deposition that SEPTA has not given any "guidance or requirements regarding the content of the news items that Intersection allows to be posted on the infotainment systems." (Benedetti Dep. at 32:18-22.) He also stated that neither Screenfeed nor Intersection can "determine what sorts of news to put out on the infotainment system" and that he did not know if Intersection reviewed the news. (Id. at 31:23-32:8.) During trial, after stating that he did not know whether SEPTA "had the option to pre-review or remove certain headlines that would run in the newsfeeds," Plaintiff's counsel presented him with a screenshot from the Screenfeed website permitting review of certain news items. (Trial Tr. at 79:15-80:19; Trial Ex. 110.) Benedetti stated that SEPTA had asked Intersection to look for the contract between itself and Screenfeed but that Intersection was not able to locate it. (Trial Tr. at 79:15-80:19.)
5. Asserted Inconsistencies in Benedetti's Testimony and Other Evidence
One of CIR's principal arguments is that Benedetti's testimony was contradictory on some points and inconsistent with other evidence in the case. The Court agrees that Benedetti's testimony was not clear or totally consistent on a few issues. First, Benedetti seems to walk back his answer regarding the reasons for SEPTA's practice of leasing its advertising space. During his deposition, Benedetti stated that SEPTA's purpose for leasing space to advertisers was "[t]o raise revenue independent of the fare box and taxpayer subsidies and to do so in a manner that provides for safety, efficiency and comfort of our passengers."
(Benedetti Dep. at 17:5-10.) During trial, however, he notes that "[r]evenue was a consideration" but states that this was "only in so much as this is a small percentage of the money that we raise, aside from the fare box and the taxpayer subsidies, but that revenue-and I think the standard states this-that was going to be balanced against the customer's experience." (Trial Tr. at 48:23-49:2.)
Regarding the process by which SEPTA reviews proposed advertisements, when asked if SEPTA had "come to any clarification with Intersection regarding how the term political is to be interpreted for the purposes of Subsection (a)," Benedetti responded, "We purposely don't do that because we want to evaluate each proposed ad against the standards and then engage in the process we engage in to determine whether or not it matches our standards or doesn't." (Benedetti Dep. at 69:3-18.)
During trial, Benedetti stated that Baranetsky conceded that the advertisement was political in a letter she wrote to SEPTA. (Trial Tr. at 119:23-120:7.) In that March 21, 2018 letter, Baranetsky stated, "CIR's animation including facts and statistics on a political issue is protected speech." (Trial Ex. 16, at 2.) Baranetsky asserted that her March 21, 2018 letter was not an admission that the CIR ad falls within the prohibition on political advertisements. (Trial Ex. 18.)
CIR focuses much of its criticism of SEPTA's policies, and Benedetti's practices, on the issue of what may be "political." Although CIR has made clear that it did not object to the first sentence of Subsection (a) of the Challenged Provisions, relating to advertisements about political parties or political candidates, CIR asserts that in some ads SEPTA ignores that prohibition. CIR also objects strongly to the second sentence of Subsection (a), which has further examples of political content. On one hand, Benedetti fails to see certain advertisements as political or touching on public debate when they are for a commercial service. For example, the ad by the advertiser Fusion depicted people of color and displayed the words, "As American Ads." (Trial Ex. 34.) The ad featured an image of an African American child wearing a shirt that said, "My Life Matters." (Id. ) When discussing this ad, Benedetti testified, "I thought this was an ad promoting services of the sponsor of the ad, which was a television producer or network, I forget which." (Trial Tr. at 92:25-94:21.) He stated that he did not think that this ad was "a message about two things being equally American," or "implicat[ing] any matters of public debate on social issues." (Id. )
On the other hand, however, Benedetti did not always draw clear distinctions about certain issues of public debate when the advertisement covered a commercial venture. For example, during trial the undersigned asked Benedetti about a hypothetical advertisement that "didn't say anything about for or against [the Philadelphia soda tax'], but... let's say this was the Norristown local, which went to Montgomery County, all right? So suppose the ad said, do you know you can buy Pepsi Cola cheaper in Norristown than in Philadelphia?" (Id. at 113:21-114:2.) Benedetti responded, "I think that could still be a problem under sub-standard (a) or (b), because-particularly (b) because the notion of the soda tax and everything that surrounds it is being debated in the public." (Id. at 114:6-9.) Despite Benedetti's testimony that he gives commercial advertisements the same treatment as non-commercial advertisements, and the fact that the 2015 Advertising Standards do not draw this commercial/non-commercial distinction, Benedetti apparently considers the commercial nature of certain advertisements.
Benedetti also could not provide clear testimony about the definition of "political in nature" under Subsection (a). During his deposition, when Plaintiff's counsel asked Benedetti, "Simply involving a political issue is not in itself dispositive of whether something violates Substandard (a) or not?" he responded, "It's hard for me to abstractly give you an answer to a question like that." (Benedetti Dep. at 116:15-20.) When asked if "mentioning a law or regulation [is] political," he responded, "I don't know. Could be. Could not be." (Id. at 116:21-23.) At trial, Benedetti stated that an advertisement could be "political in nature" and thus violate the 2015 Advertising Standards without "directly or indirectly implicating the action, inaction, prospective action or policies of a government entity." (Trial Tr. at 86:24-87:2, 24-88:3.)
C. Other Exhibits and Depositions
CIR submitted exhibits in support of its Motion for a Preliminary Injunction and supplemented those exhibits at trial. (See Trial Ex. 20.) Among the 114 trial exhibits are deposition transcripts, articles about CIR's research, comparator advertisements. The Court reviews the exhibits briefly below and considers them in our analysis.
The first set of exhibits can be categorized as CIR's financial information and information related to its report on disparate lending. (Trial Exs. 2-5, 7-9, 11-15, 81, 82.) These documents include, among other things, a summary of the CIR report that was the basis of the contested advertisement. (Trial Ex. 4.) This document stated the findings of the CIR report as being in part:
We found 61 metro areas out of 409 where applicants of color were more likely to be denied a conventional home purchase mortgage, even after controlling for nine economic and social factors, including the applicants income, the amount of the loan and the neighborhood where they wanted to buy property.
(Id. at 2.)
Among the exhibits are emails between CIR representatives and Roche from Intersection. (Trial Exs. 10, 30, 83.) There are also letters that followed SEPTA's rejection of the CIR ad, including one from Baranetsky to Roche (Trial Ex. 16), from Benedetti to Baranetsky (Trial Ex. 17), and from Baranetsky to Benedetti (Trial Ex. 18).
The record contains documents that pertain to SEPTA's policies-including its prior advertising standards (Trial Ex. 23), its 2015 revised advertising standards (Ex. 22), and a screenshot of portion of SEPTA's website entitled "advertising opportunities." (Trial Ex. 21.) News articles are also included in the record; there are articles about the new fleet of SEPTA hybrid-electric buses (Trial Ex. 26), the upcoming SEPTA video kiosks at bus shelters (Trial Ex. 27), and the fact that SEPTA is to make at least $150 million under their contract with Intersection (Trial Ex. 80). There are also pictures of video "infotainment" systems on the regional rail line (Trial Ex. 28), as well as a screenshot from the Screenfeed website addressing "Options to moderate your feeds." (Trial Ex. 110.) Information about SEPTA's advertising billing, revenue, and spending is also in the record. (Trial Exs. 67-70.)
The record additionally contains deposition transcripts from Benedetti (Trial Ex. 111), Baranetsky (Trial Ex. 115), and Thomas Kelly, SEPTA's Director of Sales. (Trial Ex. 112.)
D. Examples of Ads Accepted and Rejected by SEPTA
The bulk of exhibits consist of proposed advertisements, most of which have been accepted by SEPTA, though some have been rejected. These are reviewed below. The record contains articles related to what CIR perceives as the issues addressed by specific advertisements SEPTA approved. (Trial Exs. 84, 85, 99-109.)
The advertisements in the file that have been rejected include the following:
Trial Ex. 54: An advertisement stating "Dear Art Museum: Art is Expensive! So is constructing new buildings! We totally get why you can't pay all your employees a living wage!" ;
Trial Ex. 55: An advertisement from Bethany Christian Services saying, "Unplanned Pregnancy? Now What? Consider adoption as an option. You don't have to make your decision alone." ;
Trial Ex. 56 : An advertisement from the U.S. Department of Homeland Security stating, "Sex trafficking, Forced labor, Domestic Servitude. It's happening in our community. Get informed." ;
Trial Ex. 57: An advertisement reading, "Due to the enormously grave miscarriage of justice, we call for the immediate recusal of Judge Genece Brinkley from the case of Meek Mill. Stand with Meek Mill." ;
Trial Ex. 59: An advertisement from the Philadelphia Department of Health saying, "Stop Big Tobacco advertising in our communities. Our children are NOT replacement smokers! Big Tobacco is targeting our kids. Get cigs out of my local stores! Our communities have 3x more tobacco advertising. Break the Cycle! Quit or don't start smoking!" ;
Trial Ex. 60: Another Philadelphia Department of Health ad saying, "Mosquitoes aren't the only ones that spread Zika," and a related advertisement that added to that message, "Love your partner. Wear condoms. Wait to get pregnant. Prevent Zika." ;
Trial Ex. 61: A set of advertisements from Planned Parenthood saying, "Everybody deserves expert care," "Talk to the Birth Control Experts," and "Ask the Women's Health Care Experts. Birth Control at Planned Parenthood" ;
Trial Ex. 62: An advertisement from Fairfax Crybank soliciting sperm bank donors ;
Trial Ex. 64: Advertisements stating, "Fight for Bean" and "#StormtheHeavens" ; and
Trial Ex. 65: An advertisement from an organization called XQ stating, "Education isn't a problem. It's a solution."
Some of the accepted advertisments in the record are as follows:
Trial Ex. 31: Advertisements from the Democratic National Convention ("DNC") Host Committee;
Trial Ex. 32: Advertisements from the PHI 2016 Host Committee regarding the DNC, including one from the union SEIU 32BJ reading, "Welcome DNC. We are Philadelphia's: Union Middle Class Jobs, office cleaners, community, neighbors, building service workers, window washers, security officers, families, school district workers. Road out of poverty." ;
Trial Ex. 33: Advertisements for an event at the African American Museum from the American Friends Service Committee featuring pictures of Martin Luther King, Jr., Cesar Chaves, and Lucretia Mott saying, among other things, "What will you do for Peace?" ;
Trial Ex. 34: Advertisements from Fusion showing pictures of diverse people, including an African American child with a t-shirt reading "My Life Matters" with the phrase "As American As" in front of them ; and
Trial Exs. 88, 113: Advertisements from Facebook stating, "Fake news is not your friend," "Data misuse is not your friend," "Clickbait is not your friend," "Fake accounts are not your friends."
SEPTA had also accepted many "public service" advertisements from local, state, and federal agencies, including the Free Public Library of Philadelphia (Trial Ex. 41), Healthcare.gov (Trial Ex. 42), the Public Health Administration (Trial Ex. 43), the Philadelphia Department of Health (Trial Exs. 44, 50, 58), the Philadelphia Department of Labor (Trial Ex. 46), the Montgomery County Health Department (Trial Ex. 46), the Commonwealth of Pennsylvania (Trial Ex. 47), Philadelphia Recycle (Trial Ex. 49), the Mayor's Office of Community (Trial Ex. 94), United States Department of Homeland Security (Trial Ex. 95), the National Guard (Trial Ex. 89), and the Philadelphia Water Department (Trial Ex. 96). The record also included an advertisement from SEPTA itself. (Trial Ex. 48.)
In addition, there are ads from public service organizations and from private organizations, including Philadelphia Fight (Trial Ex. 51), Roosevelt Blvd.com (Trial Ex. 90), the Clean Air Council (Trial Ex. 91), the Pennsylvania Housing Finance Agency (Trial Ex. 92), and PA Able (Trial Ex. 93). There are also advertisements for Einstein Healthcare (Trial Ex. 71) and various educational institutions and organizations. (Trial Exs. 63, 72-79.)
E. Advertisements by Banks
The record also features advertisements from banks for home loans. When Benedetti was asked about the bank advertisements that SEPTA ran, he stated that he "thought those bank ads were the bank advertising for their services and products it provides. And not making any statement about discrimination or not discriminating." (Trial Tr. at 121:15-17.)
These are discussed in detail below.
The bank ads that have been submitted in this case that inform the Court's conclusions are the following exhibits:
Trial Ex. 35: First Bank of New Jersey ad with image of Caucasian couple; stating, "A bank should... feel right at home"; and bearing the Member FDIC and Equal Housing Lender logos.
Trial Ex. 36: DNB First ad with image of African-American man and Caucasian woman standing next to a moving box; stating, "We've Got the Home Loan You Need[ ]"; and bearing the Member FDIC and Equal Housing Lender logos.
Trial Ex. 37: Univest Bank and Trust Co. ads depicting a male, non-Caucasian construction worker; a female, non-Caucasian chef; a Caucasian couple; an African-American couple sitting next to moving boxes; and a family skiing; stating, "Bank here to get there"; and bearing the Member FDIC logo.
Trial Ex. 38: Tompkins VIST Bank ad with image of African-American couple and child in front of a stack of moving boxes; stating, "Making your dream of home ownership a reality"; and bearing the Member FDIC and Equal Housing Lender logos.
Trial Ex. 39: Wells Fargo ad with image of African-American mother and child at home; stating, "Up to $7,500 to help you buy a home...See if you qualify at the NeighborhoodLIFT Event April 1-2, 2016"; bearing Equal Housing Lender logo.
Finally, there is an advertisement from the Housing Equality Center stating, "Housing discrimination is illegal. Housing Equality Center can help you understand your rights." (Trial Ex. 66.) Benedetti was asked about this advertisement during his deposition and stated that he could not remember whether this advertisement was rejected or accepted. (Benedetti Dep. at 287:15-24.)
V. PARTIES' CONTENTIONS
A. CIR's Contentions
CIR's case is premised on four arguments:
(1) Subsections (a) and (b) of the 2015 Advertising Standards are unconstitutionally vague and not capable of reasoned application;
(2) The 2015 Advertising Standards are not viewpoint neutral;
(3) The 2015 Advertising Standards are not "reasonable" in light of the purpose of the forum; and
(4) SEPTA's advertising space is a designated public forum, and the 2015 Advertising Standards fail strict scrutiny.
Each of these contentions is discussed in more detail below.
1. Standards are Not Capable of Reasoned Application
CIR explains that it is settled law that restrictions on speech will violate the First Amendment "if they are so vague that they do not meaningfully constrain officials' discretion." (CIR Post-Trial Br., at 26) (citing Minn. Voters Alliance v. Mansky, --- U.S. ----, 138 S.Ct. 1876, 201 L.Ed.2d 201 (2018) ); Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 537-38, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981) (Brennan, J., concurring); Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 553, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975) ; Sypniewski v. Warren Hills Reg'l Bd. of Educ., 307 F.3d 243, 266 (3d Cir. 2002) ; Kalman v. Cortes, 723 F.Supp.2d 766, 803 (E.D. Pa. 2010) (Baylson, J.). CIR contends that a First Amendment challenge to a law that vests officials with unbridled discretion to censor speech may be brought as a facial challenge. (See CIR Post-Trial Br., at 27.)
According to CIR, the Supreme Court recently placed the question of whether a restriction confers unbridled discretion on a governmental decisionmaker under the umbrella of a First Amendment reasonableness analysis. (Id. at 28) (citing Mansky ). Like the restrictions that were found to be too "expansive" in Mansky, CIR argues that the Challenged Provisions are equally, if not more, unconstitutionally vague. (CIR Post-Trial Br., at 28.)
CIR also argues that, to the extent SEPTA relies on the government-speech doctrine to shield other agencies' advertisements from this Court's analysis, that doctrine should not apply. (Id. at 33-34.)
2. The Challenged Provisions are Not Viewpoint Neutral on their Face or As Applied
CIR next contends that the Challenged Provisions are viewpoint discriminatory on their face and as applied to CIR's proposed advertisement. (Id. at 34.) To support its argument, CIR compares bank advertisements previously displayed by SEPTA whereby the banks purport to be "equal housing lender[s]" with its own ad reporting on discriminatory lending practices. (Id. at 35.) To allow the bank ads while rejecting CIR's ad is an exercise of viewpoint discrimination, CIR asserts. (Id. )
CIR also explains that, in practice, SEPTA interprets its 2015 Advertising Standards to prohibit ads that ask for changes to governmental policies, and simultaneously to allow ads promoting governmental policies and programs. (Id. at 36.)
Finally, CIR argues that SEPTA's inclusion of the phrase "matters of public debate" in the 2015 Advertising Standards is facially viewpoint discriminatory because the phrase is indistinguishable from a ban on controversial speech. (Id. at 37.) CIR cites various cases that have held that restrictions on "controversial" speech are akin to viewpoint discrimination. (Id. ) Likening the word "controversy" to SEPTA's phrase "a matter of public debate," CIR contends the restriction is facially viewpoint discriminatory. (Id. )
3. Standards are Not "Reasonable" in Light of the Purpose of the Forum
CIR contends that even if this Court finds SEPTA's advertising space to be a non-public forum, the 2015 Advertising Standards do not satisfy the requirements of the First Amendment. To pass Constitutional muster, CIR argues that SEPTA has not met its burden of showing that its standards are reasonable in light of the purpose of the advertising space. (Id. at 37-38.) SEPTA explained at trial that the purpose of its advertising space is to generate revenue, and CIR avers that there is no evidence that the 2015 Advertising Standards were intended to advance that goal. (Id. at 38-39.) According to CIR, the standards would actually serve to reduce advertising revenue if they were enforced as written. (Id. at 39-40.) To the extent SEPTA has offered "rider comfort" as a purpose of the advertising space, CIR argues that the standards are not clearly tied to that purpose when SEPTA regularly exposes riders to political speech and matters of public debate through the newsfeeds on its infotainment systems. (Id. at 40.) Moreover, CIR argues that SEPTA does nothing to shield riders from political/public-debate content outside of its advertising spaces. (Id. at 42.)
4. SEPTA's Advertising Space is a Designated Public Forum, and the 2015 Advertising Standards Do Not Satisfy Strict Scrutiny
Finally, although CIR conceded during the preliminary injunction proceedings that SEPTA had a limited public forum, it withdrew that agreement for purposes of the trial. CIR argues that SEPTA's advertising space is a designated public forum such that this Court should review the 2015 Advertising Standards under the rigors of strict scrutiny. (Id. at 43.) SEPTA's advertising space has been deemed such a designated public forum in two prior judicial decisions. CIR argues that there is not enough evidence in the record to conclude that SEPTA has successfully closed its forum since those decisions were made. (Id. at 43-44.)
In a designated public forum, all restrictions on speech must survive strict scrutiny. In such a case, SEPTA would have the burden of proving that its restrictions are "narrowly tailored" to a compelling government interest that SEPTA could not achieve through less restrictive means. (Id. at 44.) CIR points out that SEPTA has not attempted to justify the 2015 Advertising Standards under strict scrutiny, and thus has not met its burden. (Id. at 45.)
B. SEPTA's Contentions
1. The Advertising Space on Buses is a Non-Public Forum
SEPTA contends that the relevant forum is the advertising space on SEPTA buses because that is the property to which CIR seeks access for its advertisement. (SEPTA Post-Trial Br., at 25.) That forum, according to SEPTA, is a non-public forum because the 2015 Advertising Standards expressly state that SEPTA intended the advertising space to be a non-public forum, and since enacting these Standards, SEPTA has "operat[ed] such venue as a non-public forum requiring potential advertisers to adhere to SEPTA's Advertising Standards and [has] policed those standards." (Id. at 27.) In other words, SEPTA's policy and practices reflect its intention to close the forum. (See id. )
2. The Advertising Standards are Reasonable
Next, SEPTA contends that the restrictions in the Advertising Standards are reasonable, and that SEPTA has reasonably applied the Standards, as required in a non-public forum. (Id. at 29-30.)
First, SEPTA argues that it was within its rights and reasonable to revise its advertising policy and close the forum in light of its legitimate interest in increasing ridership by refraining from offending customers. (Id. at 29-30.) SEPTA also refutes CIR's contention that the Advertising Standards serve no purpose because riders are exposed to newsfeeds on SEPTA buses, arguing that newsfeeds do not violate its Standards because there is a difference between "hard news" and prohibited political and issue advertising. (Id. at 36.)
Second, SEPTA contends that it has reasonably and consistently applied the Advertising Standards, explaining why it was reasonable to accept other ads that CIR contends were "political" and concerned "matters of public debate," including the Philadelphia FIGHT Community Health Center ads and the ads about the 2016 DNC in Philadelphia. (Id. at 32.)
With respect to the DNC advertisements, unlike SEPTA's Opposition to CIR's Motion for Preliminary Injunction, SEPTA's Post-Trial Brief concedes that SEPTA made an incorrect determination in allowing one of the ads about the DNC in Philadelphia-the ad proposed by a union. (Id. ) Although SEPTA's Opposition to CIR's Motion for Preliminary Injunction acknowledged that the DNC was "political," SEPTA argued that it was reasonable to allow all of the DNC ads. (SEPTA Am. Opp'n, at 31-33.) There, SEPTA contended that the DNC ads did not constitute political advocacy, but rather welcomed visitors to Philadelphia. (Id. ) SEPTA reasoned that just because the DNC ads "touch[ed] on politics or a political issue" did not render them "political in nature." (Id. at 32.)
SEPTA goes one step further in its Post-Trial Brief and concedes that it made an incorrect determination in allowing the union ad supporting DNC. (SEPTA Post-Trial Br., at 32.) However, SEPTA argues that its mistake in this "close case" does not render the Advertising Standards' policy on "political" advertisements unconstitutional. (Id. ) SEPTA distinguishes the DNC union ad from CIR's ad, arguing that the CIR ad did not present such a close case because CIR's ad would violate "any reasonable interpretation" of Subsections (a) or (b). (Id. at 37.)
SEPTA also contends that the Challenged Provisions are not unconstitutionally vague because they are reasonable and do not allow for arbitrary enforcement. (Id. at 31, 33.) In particular, SEPTA argues that the reference to "political" ads in Section 9(a) of the Advertising Standards does not render the Standards unconstitutionally vague, citing to the Second Circuit. (Id. at 31) (citing Lebron v. Nat'l R.R. Passenger Corp. (Amtrak), 69 F.3d 650, 658 (2d Cir. 1995), opinion amended on denial of reh'g en banc, 89 F.3d 39 (2d Cir. 1995) ("Nor would a policy against 'political' advertising ... be void for vagueness in light of the Supreme Court's decision in Lehman.").)
Similarly, SEPTA argues that Subsection (b), which prohibits ads on "matters of public debate," is not unconstitutionally vague. (SEPTA Post-Trial Br., at 33.) SEPTA contrasts Subsection (b) with a transit authority advertising policy prohibiting "controversial" ads, which the Sixth Circuit held to be unconstitutional. (Id. ) (quoting Am. Freedom Def. Initiative v. Suburban Mobility Auth. for Reg'l Transp., 698 F.3d 885, 894 (6th Cir. 2012) (hereinafter " SMART") ). According to SEPTA, because its Advertising Standards do not expressly prohibit "controversial ads," but instead ban ads on specific topics, not necessarily because they are controversial topics, the Standards are not unconstitutionally vague. (SEPTA Post-Trial Br., at 33.)
3. The Advertising Standards are Viewpoint Neutral
SEPTA contends that its Advertising Standards are viewpoint neutral both on their face and as applied in rejecting CIR's proposed ad. (Id. at 35.)
First, SEPTA argues that its Standards are viewpoint neutral on their face because even if they "incidentally prevent[ ] certain viewpoints from being heard in the course of suppressing certain general topics of speech," it is not "[SEPTA's] intent to intervene in a way that prefers one particular viewpoint in speech over other perspectives on the same topic." (Id. ) (quoting Am. Freedom Def. Initiative v. Mass. Bay Transp. Auth., 781 F.3d 571, 582 (1st Cir. 2015) (hereinafter " MBTA") ). In other words, the Advertising Standards are viewpoint neutral because they restrict all viewpoints on "matters of public debate," not certain viewpoints. (See SEPTA Post-Trial Br., at 35.)
Second, SEPTA contends that it reasonably applied its Advertising Standards in refusing to run CIR's proposed ad. (Id. ) SEPTA specifically refutes CIR's contention that by approving ads of "equal housing lender" banks, while rejecting CIR's ad on the same topic of "discriminatory lending," SEPTA engaged in viewpoint discrimination. (See id. at 35; CIR Post-Trial Br. at 35.) SEPTA contends that it was reasonable for SEPTA to conclude that ads from "equal housing lender" banks did not pertain to the same topic as CIR's ad-discriminatory lending-because the bank ads did not acknowledge a debate or present data on discriminatory lending, nor did they address the disposition of loan applications by race, neighborhood, or otherwise. (SEPTA Post-Trial Br., at 35-36.) Further, the fact that the bank ads indicated that the banks were "equal housing lenders" did not mean that the ads took a position on discriminatory lending; rather, banks are required by law to indicate in their ads that they award loans on a non-discriminatory basis. (Id. at 35) (citing Nondiscriminatory advertising, 12 C.F.R. § 338.3 (2005) ). SEPTA also distinguishes the bank ads from CIR's proposed ads by alleging that the bank ads "look forward, not back. The ads are designed to foster future borrowing; they do not address lending practices." (SEPTA Post-Trial Br., at 36.) In SEPTA's Opposition to CIR's Motion for Preliminary Injunction, SEPTA added that CIR's ad and the bank ads do not represent opposite views on discriminatory lending because CIR's ad is based on aggregate data, not on the lending activity of any particular bank. (SEPTA Am. Opp'n, at 37.)
VI. FINDINGS OF FACT
A. General
1. SEPTA leases space for conventional print advertising on the exterior and/or interior of many of the Authority's over 2,500 vehicles (including buses, trolleys, and trains) and in more than 200 stations and facilities. (Benedetti Dep. at 15:21-16:6, 18:6-10; Trial Ex. 21; Trial Tr. at 67:7-10.)
2. SEPTA leases its advertising space to generate revenue, but this purpose has been consistently balanced with SEPTA's "core mission" of transporting passengers safely, efficiently, and comfortably. (Benedetti Dep. at 17:5-10; Trial Tr. at 49:4-8, 67:18-25.)
3. According to SEPTA's website, it provides "various ways for advertisers to effectively communicate with the approximately 1 million commuters that ride SEPTA each day." (Trial Ex. 21.)
4. SEPTA contracts with Intersection, (formerly Titan Outdoor LLC), an independent, non-governmental entity, to sell advertising space on SEPTA vehicles and in SEPTA stations on SEPTA's behalf. (Benedetti Dep. at 20:13-23.)
5. Generally, at some times, some of SEPTA's advertisement space is empty or not leased. (Kelly Dep. at 15:20-16:1.)
6. SEPTA applies the same advertising standards (the 2015 Advertising Standards) to all of its advertising spaces in and on all SEPTA vehicles and facilities. (Trial Tr. at 65:19-23.) However, the only request for advertising in this case was made for bus advertising. SEPTA agrees that the same SEPTA standards would apply to advertisements inside subway and trolley cars. This Court finds that the other advertising spaces, such as the exterior of a bus or other transit vehicles, stations, platforms, or bus shelters may raise other issues and are outside of the scope of this opinion.
7. Any person or group may seek to advertise on SEPTA's advertising spaces, and SEPTA accepts both commercial and non-commercial advertisements. (Benedetti Dep. at 19:14-20:9; Trial Tr. at 70:6-8.)
8. The Advertising Standards, which are contained in the contract between SEPTA and Intersection, currently list twenty-two categories of prohibited advertisements. (Trial Ex. 22, at ¶¶ II(A)(9)(b)(iv)(a)-(v).)
9. The Advertising Standards do not have any separate rules that define or apply to "public service ads." If SEPTA receives a proposal for a PSA, it reviews that advertisement against the same advertising standards as all other advertisements. (Trial Tr. at 64:21-24.)
10. If any aspect of a proposed advertisement violates the Advertising Standards, SEPTA's policy is to reject the advertisement. (Trial Tr. at 58:7-10.)
11. There are fifteen members of SEPTA's board. (Benedetti Dep. at 45:16-18.) Two members are appointed from each of the five counties in Pennsylvania that SEPTA serves: Philadelphia, Bucks, Montgomery, Chester and Delaware. The Philadelphia representative is appointed by the Mayor and approved by the City Council, and the Bucks, Montgomery, Chester, and Delaware County representatives are appointed by County Commissioners. The House of Representatives minority and majority party each appoint one member. The Governor appoints the final member. (Id. at 45:18-46:1.)
12. Of SEPTA's current operating budget of $1.2 billion, approximately half is made up of revenue generating by passenger fares. (Id. at 52:2-5.) SEPTA generates between $12 and $15 million in net revenue from advertisements annually, with approximately $5.2 million from advertisements on buses. (Exs. 68, 69; 11/01/18 Tr. at 6:16-21; 7:12-15; 8:11-14.)
B. SEPTA'S Response to AFDI Ad
13. SEPTA adopted the Advertising Standards in May 2015, following Judge Goldberg's decision in AFDI, which declared that SEPTA's advertising spaces were a designated public forum and ordered SEPTA to allow AFDI's anti-Islamic advertisement to run on SEPTA's buses. 92 F.Supp.3d 314.
14. In its 2015 amendment, SEPTA added language that stated that the express purpose of the Advertising Standards was "to accept such forms of advertising as will enhance the generation of revenues to support its transit operations without adversely affecting the patronage of passengers." (Trial Ex. 22, at ¶ (II)(A)(9)(b)(ii).) The amendment further stated that "SEPTA will retain strict control over the nature of the advertisements accepted for posting on or in its transit facilities, products, and vehicles and will maintain its advertising space strictly as a non-public forum." (Id. ) In addition, the amendment added new categories of prohibited content, including the Challenged Provisions.
15. By adding the new language, SEPTA intended to turn its advertising spaces into a nonpublic forum, subject to lesser judicial scrutiny, so that it could avoid having to run controversial advertisements like AFDI's that might prompt a negative response from riders, employees, or the media. (Benedetti Dep. at 54:12-55:13 (When asked whether SEPTA analyzed the impact of the proposed 2015 Advertising Standards on riders' experiences, Benedetti answered, "I mean, we were adopting the standards to improve our riders' experience.") (Benedetti Dep. 54:16-18; Trial Tr. 68:24-69:3 ("[W]e want [ads] to fit within the standards and it's our belief that that will keep our riders safe, happy and not detract from our core mission of moving them around safely"); id. at 69:8-11 (The 2015 Advertising Standards represent an attempt to balance SEPTA's "revenue-generating goals for the ad space against the customer experience") ); (see also Benedetti Dep. at 58:2-59:2; Trial Tr. at 45:6-15, 46:23-47:17, 68:1-3, 69:12-17.)
16. This Court finds that SEPTA made a specific effort following the decision in AFDI to promulgate standards/policies/regulations that would qualify the advertising space on the interior of its transit vehicles, including subways, buses, and railroad cars as a non-public forum.
17. The record supports a finding that SEPTA has been successful in closing the forum and that these advertising spaces are uniquely but correctly designated as non-public.
18. Although CIR has submitted proposed findings on fact on "SEPTA's digital displays," (CIR Post-Trial Br., at 6-7), the Court finds that SEPTA has effectively terminated the news feeds on those digital displays and therefore there is no issue for the Court to decide concerning this form of media in SEPTA buses. Digital displays remain showing advertisements and route information.
19. The Court credits SEPTA's contentions, as supported by the record, that it wants its transit spaces, in buses and subways, to be welcoming and comfortable for passengers. The Court finds that SEPTA has good and credible reasons to believe that advertisements that state any viewpoint on topics that involve economic, political, religious, historical, or social issues may deter a significant subset of passengers from using SEPTA transit facilities.
20. Benedetti's testimony that buses that ran the AFDI ad were the subject of vandalism, that "bus operators ... were unwilling to operate the busses on which the ads were placed and so we honored their objections and then had to put someone else on those routes," and that there were "reporters calling about reactions" "[n]early every day during the course of litigation" and upon the issuance of Judge Goldberg's decision, is credible. (Trial Tr. at 47:18-20, 48:6-17.)
21. The concerns expressed by SEPTA executives on these points, based upon their experiences with driver, rider, and public reactions to the AFDI ad, are credible.
22. In order to test the effectiveness of the advertisements that would arguably be offensive to a certain subset of transit riders, SEPTA would have to actually run those advertisements in a transit space over a significant period of time to determine if ridership declined. SEPTA did not conduct such an analysis. (See Kelly Dep. at 8:19-9:3.) SEPTA's AFDI experience is very probative t