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ACLU and SEPTA spar over ‘unconstitutional’ ad policy

(Emma Lee/WHYY)

(Emma Lee/WHYY)

Federal judges could reconsider a ruling allowing SEPTA to refuse to run ads from the Center for Investigative Reporting about housing discrimination.

American Civil Liberties Union lawyers argued on behalf of the investigative journalism organization Wednesday before a federal appeals court panel. ACLU attorney Molly Tack-Hooper said that SEPTA’s ban on advertising involving “matters of public debate” is unconstitutional, and that rejecting the ads is a First Amendment violation.

SEPTA refutes that claim, and the regional transit agency’s attorney, Maryellen Madden, argued the policy blocks political speech while allowing public service messages. The policy is designed for comfort and safety of riders, Madden said.

“What we try and do is figure out whether it’s a political message and whether it’s advocacy,” Madden said.

A politics-free zone?

SEPTA adopted the policy in 2015, after a court mandated it to run ads attacking Muslims and linking them to Hitler.

Those ads were considered constitutionally protected free speech, and the advertising space was deemed a public forum. The ban at the center of the current ACLU challenge was an attempt to regulate ads and avoid conflicts over offensive material.

But SEPTA ran into the First Amendment challenge again last year, after it rejected the Center for Investigative Reporting (CIR) ad campaign.

The ads featured findings from an investigative series about racial disparities in mortgage lending in more than 60 U.S. cities, including Philadelphia.

(Disclosure: WHYY co-published a Center for Investigative Reporting article on disparities in Philadelphia mortgage lending. WHYY also airs CIR’s radio show, “Reveal,” Sundays at 4.)

ACLU of Pennsylvania sued on behalf of CIR, on grounds that the ban on “matters of public debate” violated the First Amendment because it left the transportation authority with too much power to decide which ads were appropriate or not.

A federal district court ruled late last year that portions of the SEPTA policy were overly broad and should be amended.

But the court said the denial of the center’s advertising request was constitutional because the ban has been applied evenly regardless of viewpoint.

Now, the ACLU wants to see SEPTA make further changes to its ad restrictions — and for the federal appeals court to “tell SEPTA it has to run CIR’s ads,’” said Tack-Hooper.

She emphasized that CIR’s fight is about more than the content of its campaign.

“CIR is in it not just in order to be able to run the ads, but because they care about the First Amendment,” Tack-Hooper said.

SEPTA declined to comment on the case. It is unclear when the federal panel deliberating will rule on the appeal.

The agency generates about $15 million in advertising revenue annually, said spokesman Andrew Busch.

The Associated Press contributed to this report.

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