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September 17, 2019

PHILADELPHIA - In a 2-1 opinion issued today, a panel of the Third Circuit Court of Appeals ruled that the First Amendment prohibited a transit authority’s advertising policy excluding all advertisements that refer to atheism or religion.  

The case arose out of a challenge by the NEPA Freethought Society, an association of atheists, agnostics, and skeptics, to the advertising policy adopted by the County of Lackawanna Transit System (COLTS). For decades, COLTS allowed religious organizations to advertise on its buses before ultimately adopting a policy that excluded all “political” and “religious” advertisements as a means of suppressing potentially controversial advertisements. The NEPA Freethought Society sought to place an ad that simply said, “Atheists” with the Society’s website, but COLTS rejected versions of this ad on three occasions. 

“I’m glad we can finally run bus ads telling people who we are,” said Justin Vacula, spokesperson for the NEPA Freethought Society. “Our message is simple: atheists exist. If you are an atheist, you are not alone.”

Judge Hardiman wrote for the majority, holding that COLTS’ policy discriminated based on viewpoint by prohibiting religious and atheist speakers from advertising on any topic. Under the policy, COLTS allows advertisements for Geisinger Health System but rejected an advertisement from Lutheran Home Care and Hospice because of the religious reference in its name.

The court also ruled that the restriction on religious speech was not reasonably connected to the revenue-related purpose of the advertising program.

“This ruling is an important acknowledgement that censoring potentially controversial speech in order to avoid possible disruption is constitutionally suspect,” said Molly Tack-Hooper, senior staff attorney at the ACLU of Pennsylvania. “The core purpose of the First Amendment is to protect minority views like those of atheists in northeastern Pennsylvania. The government can’t restrict speech just because some people might react badly to it.”

The NEPA Freethought Society was represented on appeal by Molly Tack-Hooper of the ACLU of Pennsylvania; Brian Hauss of the ACLU Speech, Privacy, and Technology Project; Theresa E. Loscalzo, Stephen J. Shapiro, and Osazenoriuwa Ebose of Schnader Harrison Segal & Lewis LLP; and Benjamin D. Wanger and Rachel A.H. Horton.

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