City rejects atheist bus ad as "too controversial"

[Brownstein, Alan]

Cornelius v. NAACP Legal Defense Fund also suggests that the government can exclude controversial messages from a nonpublic forum (which the bus may be) as long as the policy is not applied in a way that constitutes viewpoint discrimination. The Court held that excluding advocacy groups, in part, because they were controversial was not intrinsically viewpoint discriminatory.  That would support the bus operator's rule, but one could challenge the way the rule is applied.

I know it is common usage, but I have always thought it muddied the waters to characterize a regulation as "vague" for free speech purposes when the regulation guides government action but does not involve the imposition of penalties on speakers.  The issue here isn't notice as to speakers, but government discretion in applying the policy.  A regulation may fail both requirements; it may fail to provide notice to speakers and also provide officials too much discretion in implementing the rule, but I think it makes more sense to discuss these concerns separately - especially when only one of them applies.

Alan Brownstein

From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Conkle, Daniel O.
Sent: Friday, May 15, 2009 4:22 PM
To: Law & Religion issues for Law Academics
Subject: RE: City rejects atheist bus ad as "too controversial"

The bus operator's policy in Bloomington (my current stomping grounds!) is slightly less vague that Steve's posting might suggest, although vagueness remains a serious problem.  Citing its concerns about creating the appearance of favoritism and imposing controversial views on captive audiences, the policy limits ads to commercial ads, works of art, and "noncontroversial public service announcements."  The policy specifically excludes political ads and ads containing "statements of position in support of or in opposition to controversial public issues."  I assume the policy could be read to preclude not only atheistic messages but also sectarian religious appeals, although that's certainly not clear (which tends to support the ACLU's vagueness challenge).

Under a more clearly worded policy, could the bus operator exclude all political and religious advertising?  Cf. Lehman v. City of Shaker Heights.  Or would that be regarded as impermissible viewpoint discrimination, at least as to the religious messages?  Cf. Lamb's Chapel, Good News Club, Rosenberger, etc.

Dan Conkle

**********************************************
Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University Maurer School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail conkle at indiana.edu
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________________________________
From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Steve Sanders
Sent: Friday, May 15, 2009 1:12 PM
To: Religionlaw at lists.ucla.edu
Subject: City rejects atheist bus ad as "too controversial"
The Indiana Atheist Bus Campaign is seeking to buy advertising on municipal buses with the slogans "In the beginning, man created God" and "You can be good without God."  The group explains on its web site (http://inatheistbus.org/), "We want to let everyone know that it's all right not to believe in a deity, that you do not need to be 'saved,' and that you can be a good person without religion.  We hope that everyone will look at the facts and evidence before making life decisions, including religion."

The bus operator in Bloomington, IN (my old stomping grounds) refused to accept the "You can be good without God" ads because they were "too controversial."  The Indiana Civil Liberties Union has sued on behalf of the campaign.  See http://inatheistbus.org/2009/05/05/bloomington-rejects-you-can-be-good-without-god-lawsuit-underway/ for links to the complaint and press release.

Bloomington Mayor Mark Kruzan (disclosure: one of my undergrad classmates and old friends) says the city legal department won't represent Bloomington Transit, which is a separate municipal corporation which contracts with the city legal department.  According to the Bloomington Herald-Times, "Kruzan said having city legal defend BT in court would amount to 'promoting government sanctioned censorship' because the bus service gets city legal's services at an hourly rate less than that of a private law firm, which is in essence a partial taxpayer subsidy."


_____________________________________

Steve Sanders

Attorney<http://www.mayerbrown.com/lawyers/profile.asp?hubbardid=S597744167>, Supreme Court and appellate litigation practice group, Mayer Brown LLP, Chicago

Co-editor, Sexual Orientation and the Law Blog<http://lawprofessors.typepad.com/lgbtlaw/>

Adjunct faculty, University of Michigan Law School (Winter term 2010)

Email: stevesan at umich.edu<mailto:stevesan at umich.edu>

Personal home page: www.stevesanders.net<http://www.stevesanders.net/>




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