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Wednesday, June 22, 2016

Ind. Decisions - 7th Circuit decides two Indiana cases today, including reversal of Ft.Wayne Citilink denial of ads by Women's Health Link on its buses

In Women's Health Link, Incorp. v. Fort Wayne Public Transportation (ND Ind., Miller), a 9-page opinion, Judge Posner writes:

The defendant, colloquially referred to as “Citilink,” is a municipal corporation that provides bus service in Fort Wayne, Indiana, and also has regulatory authority over advertisements both inside the buses and on the buses’ exterior. The plaintiff is a nonprofit corporation (which we’ll call Health Link for the sake of brevity) that provides health care for women in Fort Wayne. It wanted to post the following advertisement in Citilink’s buses: [photo]

Citilink refused to allow the ad to be posted. It forbids public service ads that “express or advocate opinions or positions upon political, religious, or moral issues.” Although the proposed ad did not express or advocate any such opinion or position, Citilink discovered that Health Link, although it provides a variety of uncontroversial health services, mainly in the form of referrals to providers of health care, is pro‐life and so suggests (though not in the ad) that women with unplanned or crisis pregnancies consider health care and related services that provide alternatives to abortion, such as adoption counseling. Since abortion is generally regarded as a moral issue, Citilink concluded that Health Link’s proposed ad was ineligible to appear in or on Citilink buses, even though the ad itself—as any reader of this opinion can see—contains not the faintest reference to abortion or its alternatives. * * *

Once a government entity has created a facility (the ad spaces in and on its buses, in this case) for communicative activity, it “must respect the lawful boundaries it has itself set.” Rosenberger v. Rector & Visitors of University of Virginia, 515 U.S. 819, 829 (1995). Citilink’s refusal to post the ad was groundless discrimination against constitutionally protected speech. Cf. Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969).

The judgment in favor of Citilink is reversed with instructions to enter judgment for the plaintiff enjoining Citilink’s refusing to post the plaintiff’s proposed ad in its buses.

In Nancy Thomas v. Carolyn Colvin (ND Ind., Springmann, a 16-page, per curiam opinion, the panel writes:
Nancy Thomas applied for Supplemental Security Income in 2010 when she was 55 years old. An ad-ministrative law judge identified her medically determinable impairments as degenerative changes in her back and left shoulder, Graves’ disease, and dysthymic disorder (a form of chronic depression). But the ALJ concluded that these im-pairments do not impose more than minimal limitations on Thomas’s ability to work and denied her application. Thom-as disputes the ALJ’s omission of fibromyalgia from the list of impairments and contends that his conclusion about the severity of her physical impairments is not supported by substantial evidence. (She does not discuss the ALJ’s conclu-sion that she does not have a severe mental impairment.) We agree with both of Thomas’s contentions and remand the case for further proceedings.

Posted by Marcia Oddi on June 22, 2016 05:24 PM
Posted to Ind. (7th Cir.) Decisions