Focus On the Family v. Pinellas Suncoast Transit

Decision Date09 September 2003
Docket NumberNo. 02-14442.,02-14442.
Citation344 F.3d 1263
PartiesFOCUS ON THE FAMILY, Plaintiff-Appellant, v. PINELLAS SUNCOAST TRANSIT AUTHORITY, Defendant-Appellee.
CourtU.S. Court of Appeals — Eleventh Circuit

Mathew Duane Staver, Erik W. Stanley, Anita Leigh Staver, Liberty Counsel, Longwood, FL, for Plaintiff-Appellant.

Alan S. Zimmet, Nicole E. Weiss, Julia Mandell Cole, Tew, Zinober, Barnes, Zimmet & Unice, Clearwater, FL, for Defendant-Appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before MARCUS and WILSON, Circuit Judges, and RESTANI*, Judge.

MARCUS, Circuit Judge:

Focus on the Family ("Focus") appeals from the district court's order entering final summary judgment in favor of the Pinellas Suncoast Transit Authority ("PSTA"). Focus has sued the PSTA, advancing both a facial and an as-applied First Amendment challenge to a contract between PSTA and Eller Media, Inc. ("Eller") that allegedly barred Focus from advertising on bus shelters in Pinellas County, Florida its "Love Won Out" convention, a gathering that it planned to hold in the Tampa/Clearwater area during early 2000. This case requires us to resolve several jurisdictional issues concerning Article III standing, methods of proving causation and section 1983's "under color of state law" requirement. After thoroughly considering the parties' briefs and the relevant case law, we conclude that Focus has standing to advance its First Amendment claims and that appellant has demonstrated the existence of a genuine factual issue regarding the satisfaction of § 1983's state action requirement. Because the district court erred in holding contrarily, we vacate its order entering final summary judgment and remand for further proceedings consistent with this opinion.


The essential facts are these. PSTA is a governmental entity created by the State of Florida, the sole responsibility of which is the provision of public transportation within Pinellas County. In February, 1995, PSTA entered into an advertising transit shelter agreement (the "agreement" or the "contract") with Patrick Media Group ("Patrick"), pursuant to which Patrick was permitted to construct and sell advertising space on bus shelters along PSTA transit routes. In 1996, Patrick was sold to Eller, which assumed Patrick's rights and obligations under the agreement.1 At the agreement's inception, roughly 150 PSTA-owned shelters already lined these bus routes (although these shelters do not feature advertising), and the agreement authorizes Eller to build no more than 500 additional shelters. The contract says that the structures are to be owned and managed by Eller, but the advertising revenues generated are to be shared between Eller and PSTA on a percentage basis. Moreover, Eller is required to seek PSTA's approval before constructing any shelter, and PSTA retains the right to require Eller to remove or relocate a given shelter. PSTA also specifies where on the structure advertising may appear. The agreement further provides that upon its expiration PSTA will have the option of purchasing the shelters for their fair market value.

Most importantly from the perspective of the instant litigation, although Eller is delegated responsibility for initially approving or disapproving proposed advertising, PSTA retains the right to review all advertisements that Eller proposes to place on the shelters and to require the removal of any advertisement that does not meet its approval.

Section V of the agreement sets forth numerous restrictions pertaining to the content of such advertising. This portion of the agreement lies at the heart of the case, and as such it is worth reproducing in its entirety. It provides:

A. PSTA reserves the right to approve all advertising, exhibit material or announcements and the manner of their presentation, which approval shall not be unreasonably withheld.

B. No advertising promoting the sale of alcohol, tobacco, or political or socially embarrassing subject shall be allowed in the bus shelters.

C. No advertisement, exhibit material or announcement shall be accepted by [Eller] for display in the bus shelters which is to the knowledge of [Eller]:

1. False, misleading or deceptive; or

2. Clearly defamatory or likely to hold up to scorn or ridicule any person or group of persons; or

3. Obscene or pornographic; or 4. In advocacy of imminent lawlessness or unlawful violent action; or

5. All or any combination of the foregoing.

D. Before displaying any advertising, exhibit material or announcement which [Eller] reasonably believes may be objectionable to PSTA, [Eller] shall first submit the material to PSTA for PSTA's review. PSTA shall have the right to deny the use of any transit shelter advertising space for any material which it reasonably determines to be objectionable.

E. Reasonable proof or clarification of statements contained in an advertisement, exhibit material or announcement may be required by PSTA as a condition of use or continued use of transit shelter advertising space.

F. Advertisements of a political or editorial or election nature are prohibited.

G. [Eller] shall immediately remove from any transit shelter, at [Eller's] sole cost and expense, upon written demand of PSTA or its authorized representative, any display, sign, poster or other advertising material, including advertising content, which does not meet with PSTA's reasonable approval.....

Notably, the agreement does not further define any of these prohibited categories of advertising, including such terms as: "political," "socially embarrassing," "false," "misleading," "deceptive," "defamatory," "likely to hold up to scorn or ridicule any person or group of persons," "obscene," "pornographic," or "objectionable." Nor are there any other written guidelines providing any meaning for these terms. However, when a proposed advertisement plainly falls within one of these categories — e.g., a beer ad—Eller is not required to consult PSTA before rejecting it. In other words, if an advertisement clearly is impermissible under PSTA's guidelines, then Eller may simply reject it out of hand. If the acceptability of the advertisement is a closer question, then Eller must consult PSTA, which makes the final decision whether to permit the advertisement. Plainly, under the regime PSTA has final decision-making authority regarding the approval of any advertisement.

In January, 2000, Eller's Miami office was contacted by a representative from Focus on the Family, an evangelical organization dedicated to the preservation of what it believes to be the appropriate American family structure. Among Focus's organizational convictions is that homosexuality is a preventable condition. Consistent with this view, in early 2000 Focus held a conference in the Tampa/Clearwater area that it denominated "Love Won Out." Appellant wished to publicize the conference through advertising, and its call to Eller was a product of this desire. Specifically, Focus wanted to place on several bus shelters in Pinellas County advertisements featuring a close-up picture of a human face, with the words "Love Won Out: Addressing, Understanding and Preventing Homosexuality in Youth" printed over the image.

Focus alleges that Becky Blair, its employee in charge of advertising for the conference, faxed a copy of the advertisement to Norma Berger, an Eller representative, and that Eller approved it. PSTA concedes that Eller sent Focus its standard contract and that appellant signed this document, although no Eller representative ever signed it. Blair subsequently sent the artwork for the poster to a printing company. After the advertisements were completed, Focus asserts Berger contacted Blair and informed her that the Love Won Out advertisements had been rejected because the "Tampa Transit Authority" did not like the word "homosexuality." Some time later, appellant continues, Karen Eaglin, the director of the conference, contacted Frank Bitetto, another Eller representative. Bitetto similarly told Eaglin that the advertisements had been rejected by PSTA because it was overly political. Focus alleges that Eaglin asked to speak with Bitetto's supervisor, Shawn Ulrich, who informed her that Bitetto (and, by implication, Berger) was mistaken, and that it was Eller that rejected the advertisements.

PSTA says that it was Wayne Mock, the General Manager of Eller's Clearwater Office,2 who decided not to run the Love Won Out advertisements. Appellee says that Ulrich and Bitetto presented the advertisements to Mock because they were concerned with their content, and that Mock decided not to approve it because the notion that homosexuality is preventable is highly controversial and potentially offensive. Mock said during his deposition that although he believed that appellant's advertisements were prohibited under the PSTA-Eller contract, his decision was not based on that agreement but instead was predicated entirely on Eller's internal policies and its standard contract (which, to reiterate, Focus signed but Eller did not). This account was corroborated by Roger Sweeney, PSTA's Executive Director, who testified that PSTA was not involved in the decision to reject Focus's advertisements. Following the rejection of the Love Won Out advertisements, Eller returned Focus's payment for the ads and the copies of the advertisements themselves.

Based on this pattern of dealing, Focus first brought suit against Eller and PSTA in the state Circuit Court for the Sixth Judicial Circuit, in Pinellas County, under Florida's Public Records Law. Specifically, Focus sought to compel the disclosure of records relating to Eller's management of its advertising space on PSTA's shelters. Although the Public Records Law is inapplicable to private entities, appellant argued that documents in Eller's possession pertaining to the sale of...

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