PITTSBURGH - The U.S. Court of Appeals for the Third Circuit held today that Port Authority of Allegheny County's refusal to display a paid voter-education advertisement sponsored by the Pittsburgh League of Young Voters Education Fund and the ACLU of Pennsylvania was impermissibly based on the advertisement's viewpoint in violation of the groups' free-speech rights.
"The Third Circuit's decision is an important victory for First Amendment rights. It reaffirms the principle that government agencies cannot exclude speech simply because they disagree with the speaker's viewpoint," said Jon Pushinsky, an ACLU-PA cooperating lawyer in Pittsburgh."The court's decision paves the way for the plaintiffs to communicate their nonpartisan voter-education message on Port Authority buses."
The ACLU and the League were part of a coalition that sought to display an ad on Port Authority buses prior to the 2006 general election to educate bus riders that, unlike many states, Pennsylvania allows people convicted of felonies to vote after they have been released from prison. Port Authority rejected the proposed ad, claiming that it violated the agency's commercial-only advertising policy.
In a unanimous decision, the Third Circuit affirmed the opinion of U.S. District Judge Terrence McVerry, who ruled that Port Authority's purported rationale for refusing to display the voter-education advertisement - the ad's noncommercial content - was belied by other advertisements that the agency had displayed with similar noncommercial content.
"The similarity between the comparator ads and the coalition's ad is unmistakable, and thus provides firm ground for the District Court's finding of viewpoint discrimination," the Third Circuit said in its opinion.
"The Third Circuit recognized that Port Authority's rejection of the voter-education advertisement was based on its message," said Sara Rose, an ACLU-PA staff attorney. "When transit agencies like Port Authority open up space on their vehicles for advertising, they cannot pick and choose which messages they like. The First Amendment requires the government to treat all speakers fairly."
In addition to Pushinsky and Rose, the plaintiffs are also represented by ACLU-PA Legal Director Witold Walczak.