By: Andrea Sears
PHILADELPHIA – The ACLU is appealing a court ruling that allows a county transit system to ban ads from an atheist group. The County of Lackawanna Transit System refused to allow the Northeast Pennsylvania Freethought Society to place ads on its vehicles that contained the word “atheist” and the group’s website. The transit system said the ads were too controversial.
According to ACLU staff attorney Brian Hauss, when a government entity such as a transit authority opens up a space for public speech, the First Amendment puts strict limits on its ability to censor that speech.
“When the government has the power to censor speech simply because it’s too controversial, history has shown time and again that the government will inevitably use that power for the benefit of people with political connections and the powerful, and to the detriment of everybody else,” he says.
The Federal District Court upheld the ban, saying the vehicles are a “limited public forum,” allowing for more discretion, and because the ban was not based on the viewpoint of the ads.
But Hauss disagrees with that determination. He points out that when the government is given wide discretion to prohibit speech it deems controversial, no one knows what the factors are that go into that determination.
“If the government concluded, for example, that an ad supporting Black Lives Matter was hate speech, it would be empowered to suppress that advertisement and its discretion would be very hard to overrule,” he explains.
He notes that in a similar case, a transit system in the nation’s capital banned an ad placed by the ACLU that simply contained the text of the First Amendment.
And Hauss points out that official censorship leads to the stifling of debate and the public’s right to know, as has happened in Philadelphia.
“The transit system there refused to run an ad about mortgage discrimination,” notes Hauss. “It was an informational ad explaining that there was systemic mortgage discrimination in a lot of housing in Pennsylvania.”
The ACLU is appealing the Lackawanna ruling to the Federal Court of Appeals for the Third Circuit.