Planned Parenthood Ass'n/Chicago Area v. Chicago Transit Authority

• Decision Date: 18 July 1985
• Docket Number: No. 84-2518,84-2518
• Citation: 767 F.2d 1225
• Parties: , 2 Fed.R.Serv.3d 1479 PLANNED PARENTHOOD ASSOCIATION/CHICAGO AREA, an Illinois not-for-profit corporation, Plaintiff-Appellee, v. CHICAGO TRANSIT AUTHORITY, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1225

767 F.2d 1225

54 USLW 2085, 2 Fed.R.Serv.3d 1479

PLANNED PARENTHOOD ASSOCIATION/CHICAGO AREA, an Illinois

not-for-profit corporation, Plaintiff-Appellee, v. CHICAGO TRANSIT AUTHORITY, et al., Defendants-Appellants.

No. 84-2518.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 25, 1985.

Decided July 12, 1985.

As Amended July 18, 1985.

Richard W. Burke, Burke, Griffin, Chomicz & Wienke, Chicago, Ill., for defendants-appellants.

Alan S. Gilbert, Sonnenschein, Carlin, Nath & Rosenthal, Chicago, Ill., for plaintiff-appellee.

Before BAUER and ESCHBACH, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

ESCHBACH, Circuit Judge.

Planned Parenthood Association/Chicago Area ("PPA") brought this action under 42 U.S.C. Secs. 1983, 1985(3), and 1986 against the Chicago Transit Authority and numerous individual defendants ¹ (collectively, "CTA"), alleging that CTA's refusal to rent space in its advertising system to PPA violates PPA's rights under the First and Fourteenth Amendments of the United States Constitution. The district court, finding the CTA advertising system had become a public forum, agreed and granted a permanent injunction enjoining CTA from refusing to sell advertising space to PPA. The district court reserved the issue of damages for later resolution.

On appeal from the grant of injunctive relief, CTA argues that several of the district court's factual findings are clearly erroneous, and that its legal conclusions are flawed. We have jurisdiction under 28 U.S.C. Sec. 1292(a)(1). We now affirm.

I.

The facts of this case, as found by the district court, are reported in Planned Parenthood Association v. Chicago Transit Authority, 592 F.Supp. 544 (N.D.Ill.1984), and will not be repeated in their entirety here. CTA maintains advertising space on its property throughout Chicago. This space includes car cards on the interiors of buses and transit trains. Winston Network, Inc. ("Winston") has an exclusive contract with CTA to accept and place cards, signs, and other forms of advertising in available CTA advertising space. Under the contract, Winston may not accept "immoral, vulgar, or disreputable advertisements"; otherwise, no restriction is placed on Winston's acceptance of messages.

Winston, on behalf of CTA, accepts a wide variety of commercial, political-candidate, public-service, and public-issue advertising. While commercial and political-candidate advertisers pay full rate, non-profit organizations may have their message posted on CTA property for only a nominal fee that covers CTA's costs in placing the ads. ² Winston does not seek approval from CTA before accepting full-rate advertising, except in the infrequent instances where it believes an ad raises questions of vulgarity or legality. On the other hand, Winston often seeks approval for ads from non-profit organizations. Jack Sullivan, Winston's liaison with CTA, testified that he forwards proposed non-profit ads to CTA when the non-profit organization is, in his view, not an "established" organization, or when he thinks the content of the proposed ad is controversial. Sullivan bases these determinations on his own judgment.

In 1983 and 1984, PPA, a not-for-profit organization that provides a variety of family-planning services, repeatedly sought advertising space in CTA buses and transit cars. PPA's first proposed ad mentioned the availability of family-planning services. Sullivan forwarded the ad to CTA, where PPA's request for advertising space was denied. PPA continued to request advertising space, and submitted a second proposed ad. The second ad mentioned the availability of counseling about "prenatal care, abortion, or adoption." CTA officials again decided that permission to display the ad should be denied.

PPA then brought this action pursuant to 42 U.S.C. Secs. 1983, 1985(3) and 1986 charging that CTA's refusal to accept PPA's message violated PPA's rights under the First and Fourteenth Amendments. CTA in its answer claimed that it had rejected PPA's messages by applying its "long-standing, consistently-enforced policy ... to reject controversial public issue advertisements."

After a bench trial, ³ the district court found that CTA had no such policy, and that the purported policy had been contrived for this action. Further, the court found that if there was a policy of rejecting controversial public-issue ads, it was neither consistently enforced nor applied to any issue except abortion. It also found that CTA's response to ads on the issue of abortion had been sporadic. For instance, CTA had in the past accepted and posted messages from other family-planning organizations, including the Illinois Family Planning Council, a not-for-profit organization that provides funds to PPA. CTA also accepts and posts messages for hospitals and medical clinics without ascertaining whether they offer abortion-related services. ⁴ CTA made no effort to determine what abortion-related services PPA offered before rejecting its ad. Indeed, PPA's first proposed message was rejected despite the fact that it did not mention the word "abortion." Nor did CTA know when it rejected PPA's ads whether PPA referred persons for abortions or performed abortions. ⁵ Finally, the court rejected as unsupported by the record CTA's assertion that acceptance of "abortion-related" messages would cause administrative disruption, protests, and loss of revenue.

The court concluded that CTA had created a public forum

by opening its message space to a wide variety of protected speech, including political candidate messages, religious messages, messages by trade unions and other not-for-profit organizations and associations, and other issue-oriented messages of various sorts and commercial messages of all sorts....

592 F.Supp. at 553. The court then concluded that CTA's rejection of PPA's message was not a permissible time, place, or manner restriction, but an impermissible rejection based on the content of the message and the identity of the speaker. Finally, the court concluded that the result would be the same even if the CTA facilities were not public fora, because exclusion of PPA's message was "arbitrary and capricious and [did] not reasonably advance the intended purpose of CTA facilities." Id. at 555. Accordingly, the court entered an order declaring CTA's refusal of message space to PPA unconstitutional and permanently enjoining CTA from refusing to lease PPA space for its messages. ⁶

II.

CTA challenges three of the district court's factual findings: (1) that CTA has previously accepted "controversial public-issue advertising," (2) that CTA has no policy against accepting such advertising, and (3) that CTA's expressed reasons for rejecting abortion-related advertising are unfounded and speculative. Before we examine CTA's contentions, we first consider our standard of review.

A. Standard of Review

Although CTA recognizes that appellate review of factual findings is governed by Fed.R.Civ.P. 52(a), it suggests two reasons why that rule's "clearly erroneous" standard should not control here.

First, CTA notes that the Supreme Court has repeatedly held that in cases raising First Amendment issues, an appellate court has an obligation to "make an independent examination of the whole record," New York Times v. Sullivan, 376 U.S. 254, 285, 84 S.Ct. 710, 729, 11 L.Ed.2d 686 (1964) (quoting Edwards v. South Carolina, 372 U.S. 229, 235, 83 S.Ct. 680, 683, 9 L.Ed.2d 697 (1963)), including independent review of the trier of fact's findings in support of the judgment. See also NAACP v. Claiborne Hardware, 458 U.S. 886, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1983); Greenbelt Cooperative Publishing Ass'n v. Bresler, 398 U.S. 6, 90 S.Ct. 1537, 26 L.Ed.2d 6 (1970). However, the presence of a First Amendment issue in a case does not, in and of itself, trigger the rule of independent review of the factual findings of the lower court. The rule's purpose is to assure "that the judgment does not constitute a forbidden intrusion into the field of free expression." New York Times, supra, 376 U.S. at 285, 84 S.Ct. at 729. The Supreme Court's recent discussion of the interplay between Rule 52(a) and the doctrine of independent review in Bose Corp. v. Consumers Union of United States, 466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984), convinces us that the independent review doctrine is inapplicable to this case.

In Bose, the Supreme Court reaffirmed the need for closer scrutiny of certain factual findings "in cases involving restrictions on the freedom of speech protected by the First Amendment, particularly in those cases in which it is contended that the communication in issue is within one of the few classes of 'unprotected' speech," id. at 1961, such as fighting words, obscenity, incitement to riot, or libel. In each of those cases, the Court noted, "the limits of the unprotected category, as well as the unprotected character of the particular communications, have been determined by the judicial evaluation of certain facts that have been deemed to have constitutional significance." Id. at 1962. Independent appellate review of such facts assures that the suppression of protected speech--particularly unpopular or controversial speech--is not insulated from close scrutiny by the straightforward application of the clearly-erroneous rule. The rule thus reflects a special solicitude for claims that the protections afforded by the First Amendment have been unduly abridged.

CTA is not before this court claiming abridgement of its First Amendment rights. Its claim is, rather, that its proprietary interest in excluding PPA's message from its trains and buses has been wrongly restricted. The doctrine of independent review has never been thought to afford special protection for the government's claim that it has been wrongly prevented from restricting speech. Accordingly, we do not agree with CTA that the district court's factual findings should be subjected to a...