In Young Israel of Tampa, Inc. v. Hillsborough Area Regional Transit Authority, (11th Cir., Jan. 10, 2024), the U.S. 11th Circuit Court of Appeals held unconstitutional a public transit agency's policy on the sale of advertising space on its vehicles and property. While selling advertising space, the agency prohibited ads that "primarily promote a religious faith or religious organization." Applying this policy, the transit agency rejected an ad from plaintiff promoting a "Chanukah on Ice" event. The court concluded that the policy violates plaintiff's free speech rights, saying in part:
Though the analysis would not change one way or another, we’ll assume, without deciding, that the HART vehicles and property at issue here are nonpublic forums as opposed to limited public forums. Even so, when the government restricts speech in nonpublic forums, it “must avoid the haphazard and arbitrary enforcement of speech restrictions in order for them to be upheld as reasonable.”...
Given the inherent ambiguity of the word “religious,” the uncertainty and potential breadth of the term “primarily promote,” and the lack of any definitions, we agree with the district court that the policy fails to provide any objective or workable standards. The policy therefore fails under [the U.S. Supreme Court's decision in Minnesota Voters Alliance v.] Mansky....
Judge Newsom filed a concurring opinion, saying in part:
I'm not sure that any religious-speech restriction could survive a reasonableness inquiry under Mansky—because I’m not sure that any policymaker could define or identify “religious” speech using “objective, workable standards.”
Judge Grimberg filed a concurring opinion, saying in part:
By constructing a policy that is so clearly and completely incapable of reasonable application, HART has successfully evaded a ruling on the viewpoint-versus-subject-matter dispute that is at the heart of this case. And that evaded ruling, in my view, has long been settled by the Supreme Court’s “trilogy” of cases....
Where the same advertisement, with the same content is welcomed when references to religion are removed and replaced with secular ones, I see no way around concluding ... that the public transportation system engaged in unconstitutional viewpoint discrimination.
