[00:00:01] Speaker 00:
Case number 17-7059, American Freedom Defense Initiative, head out.

[00:00:07] Speaker 00:
Appellants versus Washington Metropolitan Area Transit Authority, WMATA, head out.

[00:00:13] Speaker 00:
Mr. Muse for the appellants.

[00:00:15] Speaker 00:
Mr. Verrilli for the appellants.

[00:00:52] Speaker 03:
Good morning.

[00:00:52] Speaker 02:
Good morning.

[00:00:52] Speaker 02:
May it please the court.

[00:00:53] Speaker 02:
I'm Robert Muse, and it's my honor and privilege to represent the plaintiff's appellants in this important First Amendment case.

[00:00:59] Speaker 02:
And I'd like to reserve three minutes of my time for rebuttal.

[00:01:02] Speaker 02:
To briefly summarize the principal issues before this case, first, highlighting that WMAA's restriction on my client's speech is inherently viewpoint-based, thereby largely rendering unnecessary any extended treatment of all the questions that are before this court.

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And closely related to the viewpoint-based restriction on my client's speech is the fact that these restrictions are unconstitutional due to their lack of objective criteria by which WMAA officials are permitted to censor such speech.

[00:01:30] Speaker 05:
I just want to be clear for one thing.

[00:01:32] Speaker 05:
Yes, sir.

[00:01:32] Speaker 05:
You're here on the denial of a preliminary relief, right?

[00:01:36] Speaker 02:
We're here on a cross motion for summary judgment, where summary judgment was granted in favor of Wulana.

[00:01:43] Speaker 05:
Summary judgment on the, so you're well beyond preliminary injunctions.

[00:01:47] Speaker 02:
We are well beyond that, Your Honor.

[00:01:49] Speaker 02:
I'm glad to clarify.

[00:01:49] Speaker 02:
So its final decision is de novo review.

[00:01:51] Speaker 02:
In fact, it's even beyond that.

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Under Bose and Hurley, the Supreme Court said the court must do a de novo review of all the facts because of the First Amendment issues involved.

[00:02:00] Speaker 03:
You haven't submitted a new ad under the November guidelines, right?

[00:02:04] Speaker 02:
We have not, Your Honor.

[00:02:05] Speaker 02:
We have the ad that we've submitted, from our perspective, is still pending the, you know, to be approved, and that's the reason why we filed this lawsuit.

[00:02:13] Speaker 02:
And obviously there was the issue which this Court wanted the parties to address in supplemental briefing regarding the fact that during the pendency of the litigation, it went from the moratorium to these final regulations,

[00:02:24] Speaker 02:
basically just finalized what the moratorium was in more specific terms in November.

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And I think both parties agree that the challenge is not moved as to those new regulations.

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It's really a continuation of the harm caused by the moratorium that was put in place.

[00:02:41] Speaker 01:
The ad was denied under the moratorium.

[00:02:44] Speaker 02:
The ad, just to be clear, the ad was submitted when the forum was open on May 20th.

[00:02:50] Speaker 01:
Right, but the denial happened after the interim policy went into effect, and there was a denial based on the interim policy.

[00:02:56] Speaker 02:
There was a denial based on the interim policy, and again, from our perspective, we never withdrew the ads.

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The ads are still pending, waiting, hopefully a favorable decision from this court, and they will go up at some point in time.

[00:03:06] Speaker 02:
But it was under the moratorium, which was focused on issue-oriented advertising.

[00:03:10] Speaker 02:
Again, the November 19 policy was just a continuation of that.

[00:03:15] Speaker 02:
And with regard to the forum question, it's really an interesting question, because I think under Cornelius, the forum, even after the moratorium and the policy change, should still be considered a public forum.

[00:03:27] Speaker 02:
One of the things I think there's a problem and there's perhaps a misunderstanding or even a confusion in the courts on the forum question, when you treat this as a limited public forum, and I have no problem with using that term limited public forum, but it's appropriately considered a subcomponent of a designated public forum.

[00:03:45] Speaker 02:
And not a non-public forum, because in effect what you're doing is you're treating this transit advertising space, right, because we're going to focus on what the forum is.

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It's advertising space, space that the government has intentionally opened for people to engage for the public to engage in speech.

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It's not just, you know, the government speaking.

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And comparing that and making it analogous, for example, to the walls of this courtroom, which is plainly a non-public forum.

[00:04:09] Speaker 01:
So what's the comparison with Lehman, though?

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Because in Lehman, also, you had advertising space.

[00:04:13] Speaker 01:
And it's also the case that there was some speech allowed, but there was some speech fenced out, i.e.

[00:04:18] Speaker 01:
issue-oriented political advertising.

[00:04:21] Speaker 02:
And just to be clear, Your Honor, in Lehman, they said political campaign speech.

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And so I think even in a limited public forum, designated public forum, you can make categorical restrictions on speech.

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But those categories have to be distinct and unambiguous.

[00:04:34] Speaker 01:
Do you think there's a meaningful First Amendment distinction between – I think it did say political campaign at one juncture, but I don't know if it was always described in those terms.

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But anyway, do you think there's a material First Amendment distinction between political campaign speech and politicals?

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politically oriented speech.

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I think what is important is if you can make that category definite and distinct, whereas I think political campaign speech is definite and distinct, political speech is not.

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Political speech is an amorphous concept that you can virtually turn anything into a political issue.

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So if you're going to limit categories in a designated public forum, and under Cornelius, the court says you can limit it by categories of speech, you can limit it by the speakers.

[00:05:13] Speaker 05:
You're sticking to political speech.

[00:05:16] Speaker 05:
I thought we were talking about campaigns.

[00:05:18] Speaker 02:
He was asking me if he thought that there was much of a distinction under the First Amendment between political campaign speech and political speech.

[00:05:25] Speaker 02:
Do I understand the question correctly, sir?

[00:05:26] Speaker 01:
Yes.

[00:05:27] Speaker 01:
And I thought in Lehman, though, was that the policy itself spoke in terms of political advertising as such, right?

[00:05:33] Speaker 02:
It was treated as political campaign advertising.

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Now, and I will say, Lehmann, and I think there's time for Lehmann to be revisited.

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In fact, I... Well, not by us.

[00:05:42] Speaker 01:
We can't do that.

[00:05:43] Speaker 01:
I understand that, but Lehmann didn't address it in terms of the forum analysis, and that's... But Cornelius then rethought... I mean, you may be right that at the time Lehmann was decided, it wasn't a forum case because we didn't really have forum doctrine, but then Cornelius described Lehmann as a non-public forum case.

[00:06:01] Speaker 02:
Yes, Your Honor.

[00:06:03] Speaker 02:
But again, if you look at how the development, Widmar v. Vincent, for example, is treated as a designated public forum.

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And even if you look at Lamb's Chapel, this is kind of where it's blending into the viewpoint discrimination component.

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And this is where it goes to the point where the categories have to be specific.

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Because even in a non-public forum,

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You point to discrimination is prohibited.

[00:06:24] Speaker 01:
Yes, so that has to be true.

[00:06:28] Speaker 01:
I think that Cornelius and the cases say that too.

[00:06:30] Speaker 01:
But just on the subject of whether we're dealing with a non-public forum or a designated public forum, it would help me if you explain what the distinction is between layman and this case.

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If we assume, and it seems like you bracketed an argument, but let's assume that layman now under Supreme Court precedent is treated as a non-public forum case.

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where the forum was determined to be a non-public forum, we're bound by that.

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What would be the distinction between layman and this case that would allow finding that layman involved a non-public forum and this case involves a public forum, whether you call it designated or limited or whatever?

[00:07:05] Speaker 02:
I think if you look at the evolution of the foreign doctrine, because Lehman didn't address it in those terms.

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And if you look, like for example, the International Society for Christianist Consciences versus Lee Supreme Court case, they describe the second category of public property is the designated public form, whether of a limited or unlimited character.

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And the limited nature is what Cornelius talks about.

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is where you can limit it by who the speakers are or what the categories are, so long as they're precise.

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And here, arguably, I don't have any problem with the fact that they limit the speakers to those who are willing to pay for advertising.

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That's a legitimate restriction.

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But then once you get into that restriction, if you have these amorphous terms, you're creating these problems in here with a viewpoint-based nature, but even from the form perspective.

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And they go on to say, here, regulations of such property is subject to the same limitations as governing a traditional public forum.

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So I really think that the forum analysis is problematic.

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Maybe it might not be for this court to resolve, but if you look across the landscape, it is a problem.

[00:08:06] Speaker 02:
It's one of the problems that I keep hammering every time I bring one of these cases, and hopefully we get to the Supreme Court on that forum issue.

[00:08:12] Speaker 02:
But even leaving aside the forum issue, you don't even have to address that because these restrictions themselves are inherently viewpoint-based.

[00:08:18] Speaker 02:
They don't restrict topics, for example, gambling.

[00:08:21] Speaker 02:
You can put an ad up there for a casino, but if I wanted to put an ad up there because I oppose gambling based on, you know, a Baptist belief or view or something, that's prohibited.

[00:08:29] Speaker 02:
That is quintessential viewpoint discrimination, and the fact that they may limit.

[00:08:37] Speaker 02:
Well, we do under the regulations that gambling is not a topic that's prohibited under the categories.

[00:08:43] Speaker 02:
Abortion's not even a topic that's prohibited under the family planning center.

[00:08:46] Speaker 05:
But the gambling ad could be rejected, perhaps, on the ground that it's controversial, the way you're describing.

[00:08:51] Speaker 02:
But if you're going to base your restriction on the fact that the ad is controversial, and United Food, which is a very good case in the transit authority on the Sixth Circuit,

[00:08:59] Speaker 02:
They had a restriction on ads that are controversial.

[00:09:01] Speaker 02:
And the court said, no, that is inherently, not only is it viewpoint-based, but it lacks objective criteria that gives them the unbridled discretion that then allows for viewpoint discrimination.

[00:09:10] Speaker 01:
So I'd put aside the unbridled discretion for just a moment.

[00:09:12] Speaker 01:
Can you elaborate on why it's viewpoint-based?

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and and and

[00:09:34] Speaker 02:
is by a company that supports government spending of defense, and people object to those types of ads being out there.

[00:09:41] Speaker 02:
But if I wanted to object to it on religious grounds or any other grounds, I couldn't do that.

[00:09:45] Speaker 01:
Okay, I understand.

[00:09:46] Speaker 01:
So on that, here's what Justice Brennan said in the dissent in Lehman, which is that a cigarette company is permitted to advertise the desirability of smoking its brand, but a cancer society is not entitled to caution by advertisement that cigarette smoking is injurious to health.

[00:10:01] Speaker 01:
So it sounds to me like your argument as to why this is viewpoint is the same argument that Justice Brennan was making.

[00:10:09] Speaker 02:
Justice Brennan understands.

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I think there's a great deal of confusion between content and viewpoint.

[00:10:14] Speaker 01:
And I think the point was that he was trying to say that this policy shouldn't be upheld precisely because it leads to these kinds of problems.

[00:10:22] Speaker 01:
And the majority in Lehman disagreed with that and thought, actually, this is OK.

[00:10:26] Speaker 01:
And it's non-viewpoint based.

[00:10:28] Speaker 01:
Otherwise, it would have been unconstitutional.

[00:10:31] Speaker 02:
But I think, again, if you look at the secret Lamb's Chapel, for example, that was a non-public forum where they said child rearing and family issues were a topic that could be discussed, but you couldn't discuss it if you had a religious viewpoint addressed to it.

[00:10:46] Speaker 02:
And the court struck it down.

[00:10:48] Speaker 02:
That's precisely what we have here.

[00:10:50] Speaker 01:
But it sounds to me like what you're saying is that the distinctions that Justice Brennan was drawing in Lehman are the same ones you're drawing.

[00:10:59] Speaker 01:
And I'm not saying that there's no substantive force to them.

[00:11:02] Speaker 01:
I'm just saying that they seem to be the same distinctions that were being drawn there.

[00:11:05] Speaker 01:
And the way he described it there is,

[00:11:07] Speaker 01:
That the discrimination is among entire classes of ideas, rather than among points of view within a particular class, does not render it any less odious.

[00:11:16] Speaker 01:
So he allowed that we're not talking about viewpoint, we're talking about a content-based distinction.

[00:11:21] Speaker 01:
And he thought it was problematic for exactly the same reasons that you're saying, but evidently the majority didn't think so.

[00:11:26] Speaker 02:
Well, you have to read that in light of Lamb's Chapel, which is a far more recent decision than the Lehman case on what constitutes viewpoint discrimination.

[00:11:35] Speaker 02:
And Lamb's Chapel is on all fours.

[00:11:36] Speaker 02:
You look at Rosenberger as well.

[00:11:38] Speaker 02:
Same thing with viewpoint discrimination.

[00:11:40] Speaker 02:
This is viewpoint discrimination.

[00:11:41] Speaker 02:
Granted, I understand dissent in Lehman, but they didn't treat it in the right form context.

[00:11:45] Speaker 02:
But if you look at the Mattel versus Tam, the court made a, giving offense is a viewpoint, the court said, when they struck down in a copyright.

[00:11:53] Speaker 02:
It wasn't even dealing with a forum question.

[00:11:55] Speaker 02:
So plainly, after Lance Chapel, this is viewpoint discrimination.

[00:11:59] Speaker 02:
I believe I'm going over my time at this point.

[00:12:01] Speaker 03:
We'll give you some time to reply.

[00:12:03] Speaker 02:
Thank you.

[00:12:13] Speaker 04:
Good morning and may it please the Court.

[00:12:16] Speaker 04:
In Cornelius, the Supreme Court defined viewpoint discrimination in a public forum as denying access to a speaker solely to suppress the point of view he espouses on an otherwise includeable subject in the forum.

[00:12:29] Speaker 04:
Nothing like that happened in this case.

[00:12:32] Speaker 04:
WMATA's advertising policy is viewpoint neutral on its face, is viewpoint neutral in its application, and it was adopted for viewpoint neutral reasons.

[00:12:42] Speaker 03:
Can I stop you just to ask my question?

[00:12:44] Speaker 03:
I may be beating a dead horse.

[00:12:46] Speaker 03:
I know both parties have said this is not moot, but have you indicated to the plaintiff

[00:12:53] Speaker 03:
either in the passage of the guidelines that anything denied under the moratorium we are automatically going to reconsider, or on the other hand, if you said anything denied under the moratorium is going to have to be resubmitted under our guidelines?

[00:13:11] Speaker 04:
I'm not aware that WMATA said either, Your Honor.

[00:13:15] Speaker 04:
And we do think this is a close case on the question of mootness.

[00:13:18] Speaker 04:
It's definitely true that the ad was rejected under the interim policy.

[00:13:23] Speaker 04:
But the operative closure of the forum, the categories that were closed and the interim policy and the categories that were closed and the permanent policy in November are almost word for word identical.

[00:13:36] Speaker 04:
So we do feel like this is a case that's in the

[00:13:41] Speaker 04:
not the voluntary secession situation.

[00:13:45] Speaker 04:
This is a case like Associated General Contractors in which, yes, the regulations changed and made some changes, but they continued to operate in a way that gave rise to the problem that the petitioner was complaining about.

[00:14:00] Speaker 04:
Now, it's a little different here.

[00:14:03] Speaker 04:
It's certainly the case that AFDI could have amended its complaint

[00:14:08] Speaker 04:
to raise a direct challenge to the permanent guidelines, but they did argue in their summary judgment papers that the permanent guidelines were unconstitutional and the district court did rule on it.

[00:14:20] Speaker 04:
And we do think if we put associated general contractors together with the Von Raab decision, which we also cited in our supplemental brief,

[00:14:27] Speaker 04:
which says that the court should adjudicate the matter on the basis of the regulations in force at the time that the court considers it, those are the now permanent regulations.

[00:14:37] Speaker 04:
So while we agree it's close, we do think that the correct answer is that the permanent policy, at least for purposes of prospective injunctive relief, which was the court's supplemental question, is before the court.

[00:14:49] Speaker 01:
Is it also possible to approach it so that even if it's not moot,

[00:14:53] Speaker 01:
that what we'd be addressing is the moratorium rather than the permanent policy on the theory that the moratorium was the one that was visited on the ad and the permanent policy wasn't as of yet.

[00:15:07] Speaker 01:
And even if it's non-mute as to the moratorium because there's not a voluntary cessation,

[00:15:14] Speaker 01:
we would be addressing the moratorium.

[00:15:16] Speaker 04:
I would suggest, respectfully, that the Court would approach that a little differently.

[00:15:20] Speaker 04:
I think what Von Robb holds is that in a situation like this one,

[00:15:25] Speaker 04:
where we're talking about prospective injunctive relief, that actually what would be addressed is not the moratorium, but the current policy.

[00:15:33] Speaker 04:
Because that was, Ron Robb's case about federal drug testing regulations, the regulations changed, but the court adjudicated the Fourth Amendment violation with respect to the then current regulations, not the ones that were objected to at the time.

[00:15:45] Speaker 04:
Now, so I think with respect to prospective relief, that's the right way to think about it.

[00:15:50] Speaker 04:
Certainly, though, with respect to retrospective relief, I definitely think that's right.

[00:15:55] Speaker 04:
Now, with respect to retrospective relief,

[00:15:58] Speaker 04:
WMATA has sovereign immunity, so no relief against them.

[00:16:01] Speaker 04:
The general manager was sued only in his official capacity, so no damage is there.

[00:16:07] Speaker 04:
Anyway, if I could, I want to just address a point that Your Honor raised, Judge Renovation, with respect to laymen.

[00:16:13] Speaker 04:
I think the language that Your Honor was searching for is on page 304 of the opinion.

[00:16:18] Speaker 04:
where the court holds that the decision to limit hard car space to innocuous and less controversial commercial and service-oriented advertising does not rise to the dignity of a First Amendment violation.

[00:16:30] Speaker 04:
So I do think Lehman pretty conclusively resolved the question of whether this can properly be, whether that distinction is one that can properly be justified as representing the closure of the form and creation of a

[00:16:47] Speaker 01:
So can I ask this question about the closure of the forum?

[00:16:50] Speaker 01:
So suppose that the forum wasn't closed, but then the reason for denying the ad was that it was controversial.

[00:16:59] Speaker 01:
That the subject matter and the way that it was asserted was controversial.

[00:17:04] Speaker 01:
I take it that you'd agree that that's not something that could be done.

[00:17:08] Speaker 04:
It certainly would be a much harder case than the one we have here to justify.

[00:17:11] Speaker 04:
I think probably we'd have to justify that on strict scrutiny grounds.

[00:17:15] Speaker 04:
And there might be some circumstance in which, if the controversy created a very serious risk, public safety risk probably could justify it.

[00:17:23] Speaker 04:
under strict scrutiny grounds.

[00:17:25] Speaker 04:
But here, of course, they did close the forum.

[00:17:27] Speaker 04:
They closed it in a categorical way.

[00:17:28] Speaker 01:
So here's my question about that.

[00:17:29] Speaker 01:
So let's just assume, I get that it could potentially be attempted to be justified under strict scrutiny, but let's assume that that would fail just for argument purposes.

[00:17:38] Speaker 01:
If that's true, that the ad can't be denied on that basis and you keep the forum open,

[00:17:45] Speaker 01:
then why is it that it's okay to close the forum for exactly that reason?

[00:17:49] Speaker 04:
Yes, I think that gets to the heart, actually, of the person I'm an issue in the case, and permit me to address it if I could.

[00:17:57] Speaker 04:
I think the key thing is that in a situation, and the situation we have here, and I think it's implicated by your honor's hypothetical, the situation we have here, there's no doubt that the ad, AFDI's ad, prompted the reconsideration of the policy.

[00:18:14] Speaker 04:
So there's causation.

[00:18:15] Speaker 04:
Our Witness 30b6 witness acknowledged that.

[00:18:17] Speaker 04:
We acknowledge it in our briefs.

[00:18:19] Speaker 04:
But causation does not equal pretext.

[00:18:23] Speaker 04:
And I think there are three points that really drive that home.

[00:18:26] Speaker 04:
The first is that WMATA had genuine and substantial viewpoint neutral policy reasons for making the change.

[00:18:35] Speaker 04:
Customer dissatisfaction, employee morale, safety, vandalism, and administrative burden.

[00:18:44] Speaker 04:
those viewpoint neutral justifications were directly implicated by the ad that AFDI submitted.

[00:18:51] Speaker 04:
Second, the decision Umada made was to make a actually quite broad categorical change to the nature of the forum.

[00:19:00] Speaker 04:
What WMATA did here was to close the forum to all issue-oriented advocacy, political, religious, and otherwise.

[00:19:09] Speaker 04:
And it did so recognizing, as the record shows, that it was posing a risk to about 10% of the advertising revenues.

[00:19:17] Speaker 04:
Now, that's not a step anybody would take lightly or solely based on a desire to discriminate against this particular ad.

[00:19:26] Speaker 04:
And in fact,

[00:19:29] Speaker 04:
at the very time that it adopted the interim policy in May, it also excluded two other ads.

[00:19:38] Speaker 04:
at that moment, and this is at JA100, the Bauer Sox 36 testimony, one from the corn farmer's lobby and another one from an airline lobby, which could hardly be thought of as controversial.

[00:19:51] Speaker 04:
And so I think that that shows you right at the moment that the policy was adopted, that it was adopted and administered for viewpoint neutral reasons.

[00:20:00] Speaker 04:
And the third point here is that this did not just come out of the blue.

[00:20:05] Speaker 04:
The issue had been percolating for quite some time at WMATA.

[00:20:08] Speaker 04:
These kinds of ads were of concern for years.

[00:20:12] Speaker 04:
We documented at page 8 of our brief the various other ads that had raised problems.

[00:20:17] Speaker 04:
They had been thinking about it.

[00:20:19] Speaker 04:
And there's no doubt that the AFBI ad brought those concerns to the floor.

[00:20:24] Speaker 04:
But the combination of those three things, I think, tells you that you can't view this as an impermissible viewpoint discrimination.

[00:20:32] Speaker 04:
You certainly can't view it as violating the definition of viewpoint discrimination that the Supreme Court provided in Cornelius.

[00:20:40] Speaker 01:
So when you say protection, you mean as a pretext for viewpoint discrimination.

[00:20:44] Speaker 01:
And when you say viewpoint discrimination, you mean hostile to the viewpoint being asserted by the ad.

[00:20:49] Speaker 04:
Yes, I think it's not what I say, it's what Cornelia says.

[00:20:53] Speaker 04:
It really matters in that regard, but that is what Cornelia says.

[00:20:56] Speaker 01:
Why is it that anything short of viewpoint is okay if anything short of viewpoint isn't okay as a basis for rejecting the ad as long as the forum stays open?

[00:21:10] Speaker 04:
Because if the rule were the opposite, then it would be virtually impossible ever to move from being an open forum to a non-public forum to go from an open and close to make that kind of policy change.

[00:21:25] Speaker 04:
which the Supreme Court and Cornelius and other cases have said that government in this role always has to have the flexibility to do so long as it does it in a neutral way.

[00:21:34] Speaker 01:
Otherwise you're just trapped if the rule is... So we just treat it as if we apply the same rubric as if the forum were never open to begin with and a jurisdiction were making a determination ex ante as to whether to open up the forum at all because in that situation it's okay to say

[00:21:49] Speaker 01:
Look, we could open up a forum, and we could allow all kinds of speech, but one of the problems is that there's going to be all kinds of controversy, and we don't want to open this up to controversy, and therefore we're going to only allow non-issue-oriented advertising.

[00:22:02] Speaker 01:
And the point is that if they can make that decision ex ante before the forum's ever opened up, you can make that same determination after the forum's been opened up as a basis to close it.

[00:22:10] Speaker 04:
Yes, I think that's what Cornelius holds.

[00:22:12] Speaker 04:
And in fact, Cornelius was a case in which

[00:22:15] Speaker 04:
there was some controversy about the organization's soliciting funds to support their public interest advocacy.

[00:22:24] Speaker 04:
And the court discussed that in the opinion in Cornelius, saying that that led to some concern that federal workers were going to be less likely to contribute to the Combined Federal Campaign because they were turned off by that issue advocacy.

[00:22:37] Speaker 01:
And what if the jurisdiction, the forum's already open, and then the jurisdiction says, here's an ad that really gives us pause.

[00:22:44] Speaker 01:
Why does it give us pause?

[00:22:46] Speaker 01:
Because this viewpoint really is something that I abhor.

[00:22:53] Speaker 01:
I realize that that could be a problem.

[00:22:55] Speaker 01:
And so what I'm going to do, and I'm not suggesting that this is pretextual in the kind of pejorative sense, but what I'm going to do is I'm going to realize that this entire subject matter is fraught with peril.

[00:23:08] Speaker 01:
And so yes, it's the viewpoint of this ad that gives me the greatest pause, but on a going forward basis, what we're going to do is to cut off the subject matter by saying issue-oriented advertising is out.

[00:23:20] Speaker 04:
You probably want to conduct a bit of more of a subtle analysis there.

[00:23:24] Speaker 04:
And I think if, for example, you had as evidence like the was before the First Circuit in the Ridley case where you had testimony from the manager of the transit system saying,

[00:23:37] Speaker 04:
I hate this message of this ad.

[00:23:40] Speaker 04:
I'm not going to allow it to be run.

[00:23:41] Speaker 04:
I will allow it to be run in the contrary position on the same issue.

[00:23:46] Speaker 04:
Then you have a problem.

[00:23:47] Speaker 04:
That's obvious.

[00:23:48] Speaker 04:
You should have a problem in that situation.

[00:23:50] Speaker 04:
If you have a situation in which the Transit Authority announces an ostensibly viewpoint neutral policy,

[00:23:58] Speaker 04:
But it is so dramatically under-inclusive that it doesn't really seem to be advancing the interest for which it's been implemented.

[00:24:09] Speaker 04:
Probably have an issue, at least a potential issue, or if you have

[00:24:15] Speaker 04:
a policy that's neutral on its face, but it's obviously not being enforced in a viewpoint-neutral way.

[00:24:21] Speaker 04:
Maybe you'd have an issue there, too.

[00:24:22] Speaker 04:
So it's not that you just get a free pass.

[00:24:25] Speaker 01:
And you think you need evidence of that variety in order to get past summary judgment, because if you allow that a viewpoint-based determination would render the closure of the forum invalid, then the question becomes, is there enough indicia of a viewpoint-based determination to get to the jury?

[00:24:43] Speaker 04:
I think we've acknowledged that we don't take issue with the First Amendment's analysis in Ridley, but on the summary judgment record here, you don't have anything like that.

[00:24:55] Speaker 04:
What you've got is even-handed enforcement, facial neutrality, and a series of viewpoint neutral policy justifications that are quite real and quite substantial and genuinely held.

[00:25:07] Speaker 04:
And under Anderson versus Liberty lobby, even if you can go through the record and find one scintilla of evidence, that's not enough.

[00:25:13] Speaker 04:
You've got to look at the record as a whole and make the judgment as to whether there's a genuine issue of fact.

[00:25:18] Speaker 01:
It's just that they're not content neutral, they're viewpoint neutral, because there is evidence that could get to the jury if the standard were content neutrality as opposed to viewpoint neutrality.

[00:25:27] Speaker 04:
Yes, but that, of course, Cornelius says that a transit authority always, that any government managerial operation always has the authority to move from one to the other.

[00:25:36] Speaker 04:
Committing to an open public forum does not forbid you from making a change to a closed forum in the future.

[00:25:46] Speaker 04:
The court has no further questions.

[00:25:48] Speaker 04:
Thank you.

[00:25:52] Speaker 03:
Well, why don't you take a couple minutes.

[00:25:59] Speaker 02:
Thank you, Your Honor.

[00:26:00] Speaker 02:
I want to address the, Your Honor, you asked the question about laymen.

[00:26:04] Speaker 02:
He read you the quote from laymen where they talked about how they closed that they only allowed innocuous commercial advertising in the layman case.

[00:26:12] Speaker 02:
I don't see any of these guidelines where

[00:26:15] Speaker 02:
That is the situation here.

[00:26:16] Speaker 02:
In fact, we obviously have a long history of just the opposite, which kind of goes to the question of even if it's a non-public forum, whether the restriction on issue-oriented advertising, given the nature of the advertising, the characteristics of the forum, whether it's even reasonable.

[00:26:29] Speaker 02:
And I would contend that it's not, even if you assume you have a non-public forum.

[00:26:33] Speaker 02:
But here, there isn't a restriction that just limits the advertising to innocuous commercial-only advertising.

[00:26:39] Speaker 02:
You can look at the guidelines themselves.

[00:26:41] Speaker 01:
But it is limited to issue-oriented advertising, right?

[00:26:44] Speaker 01:
I mean, I'm sorry.

[00:26:45] Speaker 01:
What's fenced out is issue-oriented advertising.

[00:26:48] Speaker 02:
And I've been arguing here and in the briefs that that is inherently a viewpoint-based restriction.

[00:26:52] Speaker 01:
It's not a categorical restriction.

[00:26:54] Speaker 01:
That's what Lehman says.

[00:26:55] Speaker 01:
Revenue earned, just above that quote, revenue earned from long-term commercial advertising could be jeopardized by a requirement that short-term candidacy or issue-oriented advertisements be displayed on carcarts.

[00:27:06] Speaker 01:
So it uses that term, issue-oriented advertisement, and thinks it's OK to exclude that.

[00:27:12] Speaker 02:
I don't want to repeat those same arguments.

[00:27:15] Speaker 02:
Again, their ads don't limit it, though, because the section that was read was innocuous commercial advertising.

[00:27:22] Speaker 02:
It's not limited.

[00:27:23] Speaker 02:
And if you look at our ad, what is the topic of our ad?

[00:27:25] Speaker 02:
In fact, they say advertisers promoting contests are permitted.

[00:27:28] Speaker 02:
This is the winning entry of an art contest.

[00:27:31] Speaker 02:
So under their guidelines, apparently, if this claim is not controversial, then our clients could submit the same ad and say, look, we're selling these posters for $1.

[00:27:39] Speaker 02:
And it's a commercial ad.

[00:27:41] Speaker 02:
It's a sale of a poster.

[00:27:44] Speaker 02:
That's where we run into these problems with this whole form analysis, where it's

[00:27:50] Speaker 02:
in the transit advertising, then we run into these viewpoint problems.

[00:27:53] Speaker 02:
I mean, it's just inherent in the nature of treating a transit advertising space like the courtroom walls, which goes back to the beginning.

[00:27:59] Speaker 02:
I want to make one last point on the closing of the forum, because they've been arguing that the only inference that there's an animus towards my client's ad was the timing.

[00:28:08] Speaker 02:
But it's more than that.

[00:28:09] Speaker 02:
We have that, we put the memorandum that was

[00:28:13] Speaker 02:
permitted, that was drafted at the time my client's ad was submitted, when they were looking at the MTA New York ban, and it says ban both religious and political ads, and then they go on to say the question then becomes if AFD ads can always be defined as religious ads.

[00:28:27] Speaker 02:
And so that's, when you look at just the genesis of this thing, my client sees the ad on the 20th,

[00:28:32] Speaker 02:
it's received by them in the 22nd.

[00:28:34] Speaker 02:
Their first meeting is the 28th.

[00:28:36] Speaker 02:
They throw together this hasty moratorium.

[00:28:38] Speaker 02:
They throw in that issue of advocacy because they can't figure out if it's religious or if it's political.

[00:28:43] Speaker 02:
And they have a memorandum that's on this.

[00:28:46] Speaker 02:
Even the moratorium that they produced had the date May 22nd when it was actually approved on May 28th.

[00:28:53] Speaker 02:
I mean, it's just to say that this is not pretext or there's not an inference of pretext is just absurd on this record.

[00:28:59] Speaker 02:
It's not just dealing with timing.

[00:29:02] Speaker 02:
Thank you.