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Wednesday, January 11, 2006

Ind. Decisions - 7th Circuit affirms ban against woman distributing religious material on Milwaukee city bus

In Anderson, Gail v Milwaukee County Transport, Judge Evans writes:

In this case, filed pursuant to 42 U.S.C. § 1983, Gail Anderson alleges that Milwaukee County and Milwaukee Transport Services, Inc., the operator of the Milwaukee County bus system, violated her First and Fourteenth Amendment rights by their “tariff,” which prohibits the distribution of literature on county buses. Ms. Anderson, a woman in her mid-fifties, lives in Milwaukee. She doesn’t drive a car and so is a regular customer on Milwaukee’s buses. But she is not, it would appear, your typical bus rider. As anyone who rides buses in urban communities knows, most passengers mind their own business. Most avoid conversation, and many even avoid eye-contact, with other passengers. Not Ms. Anderson. She (here, of course, we take her allegations as true) has a “sincerely held religious belief” and a wish to “share her faith with those sitting next to her on the bus by talking to them and giving them religious literature.” She also wants to give her literature to other passengers who pass by her seat on the bus. It’s unclear just how long, and how often, she has followed her urge to share her views with other riders. * * *

[At some point security officers] explained to her that the Transit System had a rule against distributing literature on buses. They asked her whether she wanted to board the next bus to continue her trip. Being within six blocks of her home, she decided to walk. * * *

Tariff 116 says “No person furnished transportation under fares named in this tariff shall be permitted to enter or remain in the system’s buses: (a) For purpose of distributing any form of advertising or literature.” * * *

In a nonpublic forum, the government may restrict speech to a greater extent than in a public or designated public forum. Restrictions must be viewpoint-neutral and reasonable. In other words, restrictions need only pass the test of reasonableness so long as they are not an attempt to stifle a viewpoint based on its content. Int’l Soc’y for Krishna Consciousness, Inc. v. Lee at 683. A restriction does not need to be “the most reasonable or the only reasonable limitation”; it does not need to be narrowly tailored; nor does the governmental interest need to be compelling. Cornelius at 808-809. In fact, simple common sense is sufficient to uphold a regulation under reasonableness review. United States v. Kokinda, 497 U.S. 720, 734 (1990). Using this approach, the Court has found reasonable, for instance, a ban on soliciting in an airport terminal, Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, and a restriction on political advertising on public transit. Lehman v. City of Shaker Heights. See also Children of the Rosary v. City of Phoenix, 154 F.3d 972 (9th Cir. 1998). In Chicago Acorn v. Metropolitan Pier and Exposition Authority, 150 F.3d 695, 704 (7th Cir. 1998), we found that leafleting should not be permitted in places where “pedestrian traffic will be obstructed.” See also Hawkins v. City and County of Denver, 170 F.3d 1281 (10th Cir. 1999).

Here, the restriction is clearly reasonable. Bus passengers are a captive audience. While riding on the bus, many passengers have an interest in avoiding unwelcome communications. It is reasonable for the bus company to attempt to ensure their comfort. In Lehman, the Court concluded that a city was entitled to protect unwilling viewers against intrusive advertising on its buses in order to provide rapid, convenient, pleasant, and inexpensive public transportation for them. It is also reasonable to wish to avoid disagreements among passengers which the distribution of literature might inspire. Furthermore, the bus company has an interest in passenger safety. The company expresses concern that a driver could be distracted by literature distribution and that abandoned literature can cause a safety hazard and certainly a littering problem. Given the nature of the forum, a ban on the distribution of literature on buses passes constitutional muster.

This case was voted "Best of the Rest" here on Decision of the Day.

Posted by Marcia Oddi on January 11, 2006 01:29 PM
Posted to Ind. (7th Cir.) Decisions