UPDATE: Eleventh Circuit Permanently Enjoins Unconstitutional Ban on Religious Advertising
Protect The 1st has long followed a First Amendment legal struggle between the Orthodox synagogue Young Israel of Tampa and the Hillsborough Area Regional Transit Authority (HART). That public authority had rejected Young Israel’s efforts to place advertisements for its “Chanukah on Ice” event on HART vehicles and bus shelters. The U.S. Court of Appeals for the Eleventh Circuit has now weighed in, permanently enjoining HART’s policy prohibiting ads that “promote a religious faith or religious organization.”
This case is important on multiple fronts. First, HART’s policy represents unconstitutional – and unreasonable – viewpoint discrimination because it bans religious speech on the sole basis of its religious character. It presents the troubling implication that if we can ban religious advertisements in public transit areas solely because they are religious, what’s to stop local governments from banning religious speech in public parks or other long-observed public venues of free speech?
Further, the case represents a milestone in First Amendment jurisprudence because it has resulted in a permanent injunction on continued implementation of the policy as written. As we wrote in our amicus brief:
“First Amendment rights are fundamental rights essential to every other form of freedom. As a result, First Amendment rights warrant special protection. Because courts cannot enjoin conduct and do not ‘strike down’ unconstitutional laws, a court cannot adequately protect First Amendment interests without including prohibitions against future illegal conduct in its injunction.
“Without such preventative relief, governments would be free to repeat the same constitutional violation in the future. Any resolution of this case that fails to prevent future harm does not adequately vindicate the First Amendment.”
Earlier, a district court had come down on the side of Young Israel, issuing a permanent injunction forbidding HART from “rejecting any advertisement on the ground that the advertisement primarily promotes a religious faith or religious organization.” On appeal, the Eleventh Circuit likewise upheld that permanent injunction, though on slightly different grounds, reasoning that “….HART’s policy, even if viewpoint neutral, is unreasonable due to a lack of objective and workable standards.”
Indeed, the court found that HART has “no specific training or written guidance to interpret its . . . policy.” Internal review of religious advertisements is subject to the whims of the reviewers, and HART makes no attempt to inform its employees of any “workable norms” that might help them make an objective determination of the policy’s application. The Eleventh Circuit’s ruling thus “‘means that there is no circumstance in which this particular ban on [religious] advertising could ever be lawful.’”
Presumably, HART could attempt to come up with a narrowed policy in the future. For now, we are pleased with and applaud the appellate ruling, which permanently protects Young Israel’s First Amendment rights vis à vis this policy – now and into the future.