Judge Rules That Atheists’ Lawsuit Over Banned (and Completely Inoffensive) Bus Ad Can Proceed

About four years ago, atheist Justin Vacula and the NEPA Freethought Society attempted to place the following ad on buses in the County of Lackawanna Transit System (COLTS) in Pennsylvania:

That’s almost literally the least offensive atheist ad ever. It says the word… and little else.

COLTS, however, rejected the ad, calling it too “controversial.”

Justin appealed the decision with the help of American Atheists, but the COLTS leaders didn’t change their minds.

We will not allow our transit vehicles or property to become a public forum for the debate and discussion of public issues, and since passing this policy in June, we have been very consistent in not allowing any ads that violate the policy. That’s why we didn’t permit Mr. Vacula’s ad promoting atheism,” said COLTS solicitor Tim Hinton.

So Justin tried again the following year. He submitted a similar ad without mentioning American Atheists.

Once again, he was rejected. In fact, COLTS voted on a new policy to prevent this “debacle” from ever happening again:

The amended policy, which the COLTS board approved without discussion by a 4-0 vote, clarifies and lays out in more detail the types of advertising the agency will not accept, including ads that promote the existence or nonexistence of a supreme being or deity or other religious beliefs.

“It’s our aim to be completely neutral on religious issues,” solicitor Timothy Hinton said.

He said the revised policy had been in the works “for quite some time” and was not prompted by the NEPA Freethought Society’s latest attempt to advertise on COLTS buses.

To be sure, you could argue that an ad simply reading “Atheists” is religiously neutral… but hey, they passed a policy that now prohibits religious and non-religious advertising. Equality for all, right?

Well, Justin didn’t give up. A revised ad, stripped of even the word “atheist,” was finally approved by COLTS:

So this raises an interesting question: Was COLTS discriminating against atheists?

If you’re thinking “no,” because COLTS bans all religious/political/advocacy advertising as well, that’s just not true. In fact, since the time Justin’s first ad was rejected, COLTS allowed advertising from:

a. St. Mary’s Byzantine Catholic Church
b. St. Matthew’s Lutheran Church;
c. Christian Women’s Devotional Alliance;
d. Hope Church;
e. a School Board candidate; and
f. Brewer’s Outlet, a beer distributor; and
g. Old Forge Times, an online blog that contained links to anti-Semitic websites, holocaust denial websites, and white supremacist websites.

This is also the same transportation company that ran the message “God Bless America” on its buses well before Justin came along:

1jGiRlC

So religion is clearly not a problem for them.

In summary,

all restrictions on advertising and any concerns regarding religious advertisements were ignored until NEPA Freethought Society sought to advertise, and the ad space on COLTS had been historically available to all speakers. Indeed, for at least a decade before January 2012, COLTS had never rejected any advertisement.

This was all part of a lawsuit filed last April by the NEPA Freethought Society against COLTS, with the help of the ACLU of Pennsylvania.

Basically, the NEPA Freethought Society wants to run the original ad that included the word “atheist”:

“It’s hard to advertise effectively if we’re not allowed to use the word ‘atheists’ to say who the NEPA Freethought Society’s members are or who we’re trying to reach,” said Justin Vacula, organizer and spokesperson for the NEPA Freethought Society. “We just want to be treated fairly and allowed the same opportunity to advertise that COLTS has given other groups for years.”

“The First Amendment means that government officials can’t censor speech just because it’s unpopular or because they disagree with the speaker,” said Reggie Shuford, executive director of the ACLU of Pennsylvania. “Once you open up a space for speech, you have to let everyone in equally.”

In June, COLTS filed a motion to dismiss the lawsuit, saying they didn’t do anything wrong.

In response to that motion, the NEPA Freethought Society asked for the lawsuit to proceed:

[ACLU attorney Monica Clarke] Platt contends COLTS has not met the legal standard to qualify as a limited public forum. Even if it did, the society has evidence that COLTS accepted ads from several churches, which clearly shows its policy is not viewpoint neutral, she said.

This all “suggests COLTS was not truly interested in banning all words (that) reference to the existence or non existence of a deity; rather it was interested in excluding one side of that debate,” Ms. Platt said.

Ms. Platt also disputes COLTS claims that it can restrict speech because its primary purpose in accepting ads is to generate revenue. She contends the agency cannot show that the acceptance of any religious ad would impact its revenue.

“The exclusion of ads that discuss or refer to religion … has nothing at all to do with maximizing revenue. A church’s dollar is as green as a roofer’s,” she said.

I’m happy to say that the lawsuit will proceed. Yesterday, U.S. District Judge Malachy E. Mannion ruled that COLTS had no legal argument to dismiss the motion.

This isn’t a victory for anyone yet, but it means the case will be decided on its merits. That’s how this should play out — and it works to Justin’s advantage since the law seems to be on his side.

It’s disappointing atheists have to jump through this many hoops to get the same sort of treatment religious people get automatically, but I’m glad the fight will continue.

(via Justin Vacula. Large portions of this article were posted earlier.)

About Hemant Mehta

Hemant Mehta is the editor of Friendly Atheist, appears on the Atheist Voice channel on YouTube, and co-hosts the uniquely-named Friendly Atheist Podcast. You can read much more about him here.


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