Seventh Circuit Cuts Through First Amendment Forum Jargon and Issues Robust Defense of Free Expression

05 July 2016 Wisconsin Appellate Law Blog

Like many cities across the country, Fort Wayne, Indiana raises money through advertisements that it sells on the inside and outside of the buses it operates. And like many cities, Fort Wayne has a number of regulations on the content of those ads. Most of these regulations are uncontroversial – think of prohibitions on images or descriptions of violence, for example. A ban on ads that “express or advocate opinions or positions upon political, religious, or moral issues,” however, opens the door to problems.

Such an issue came before the Seventh Circuit in Women’s Health Link, Inc. v. Fort Wayne Public Transportation Corp., No 16-1195 (7th Cir. June 22, 2016). Health Link sought to display an ad with the picture of a young woman and the phrases “You are not alone.” and “Free resource for women seeking health care,” along with a phone number and a website address. The ad did not express any opinion on any “political, religious, or moral issues,” but Fort Wayne learned that Health Link was a pro-life organization that suggests alternatives to abortion for women with unplanned pregnancies and refused to allow the ad.

The Seventh Circuit ruled in favor of Health Link, finding the refusal to run the ad discriminatory. Key among its findings was that the restriction was based on the “advertisement,” not the “advertiser.” Because the content of the ad was unobjectionable and did not take a position on any political, religious, or moral issue, the decision by the City to look behind the ad to the organization’s website and affiliations was improper. Advocacy groups will likely rely on this decision to assert their free speech rights more robustly in the marketplace.

Of general interest in the area of First Amendment law, the court (Judge Richard Posner authoring the opinion) offered a sharp critique of the current state of the law of government regulation of private speech. The Supreme Court has developed a body of law holding that the nature of the restrictions that the government can impose on speech depends on the type of “forum” at issue (i.e., a sidewalk versus a theater versus a bus). While the distinctions make some sense, they quickly break down amid the proliferation of different types of forums delineated by different courts. As Judge Posner noted, it is “unedifying” to attempt to distinguish between a “traditional public forum,” a “designated public forum,” a “nonpublic forum,” a “limited designated public forum,” a “limited public forum,” and a “limited forum.”

As Judge Posner concluded, “it is rather difficult to see what work ‘forum analysis’ in general does.” Refusing to trouble itself with deciding where a bus fits in among the different types of forums, the court held that the key principle in all these cases “is that regulation is not to be used as a weapon to stifle speech just because it is unpopular.” Because the content of the ad did not violate Fort Wayne’s rules, but the City banned the ad anyway, the court found its decision an unjustifiable, arbitrary, and discriminatory restriction of Health Link’s speech. It remanded with instructions to enter an injunction forbidding the City to ban the ad.

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