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The ACLU filed a federal lawsuit against Southeastern Pennsylvania Transportation Authority (SEPTA) over its refusal to allow the Center for Investigative Reporting (CIR) to advertise on SEPTA鈥檚 vehicles.

CIR sought to advertise reporting from its news site, Reveal, which analyzed 31 million public records made available through the Home Mortgage Disclosure Act and found dramatic racial disparities in the conventional home mortgage market in 61 areas across the country, including Philadelphia. CIR鈥檚 proposed ad would have featured an informative graphic showcasing the public data that CIR鈥檚 journalists collected and CIR鈥檚 analysis of that data.

SEPTA rejected CIR鈥檚 proposal. It said that CIR鈥檚 proposed advertisement violated its ban on advertisements that are 鈥減olitical in nature鈥� or that express an 鈥渙pinion, position, or viewpoint on matters of public debate.鈥� Representing CIR, the ACLU argued that SEPTA鈥檚 ban on 鈥減olitical鈥� and public issue advertisements violated the First Amendment because it gave government officials too much discretion and encouraged arbitrary or selective enforcement.

The U.S. Court of Appeals for the Third Circuit agreed, holding that SEPTA鈥檚 ban could not be consistently and logically applied. For example, when the court asked whether an advertisement that depicted three girls of different races holding hands with a message that says, 鈥淭his is how racism ends,鈥� would be political, counsel for SEPTA responded that it would not. But when the court adjusted the hypothetical to include the same picture with a message that says, 鈥淭his is what America looks like,鈥� counsel for SEPTA could not immediately answer whether it was political.

The Third Circuit warned that, without clear guidelines to distinguish between permitted and prohibited advertisements, there was a real risk that enforcement officials鈥� personal politics would improperly influence their decisions about what counts as political. The court concluded that SEPTA鈥檚 policy could not be enforced to block CIR鈥檚 proposed advertisement.

The U.S. Supreme Court subsequently rejected SEPTA鈥檚 petition to take up the case. The decision has led to increasing recognition among lower courts that undefined bans on 鈥減olitical鈥� and public issue advertisements violate the First Amendment.