The Center for Investigative Reporting recently conducted an into the disproportionate rate at which African-Americans and Latinos are denied conventional home mortgages compared to their white counterparts. The year-long investigation found that modern-day redlining 鈥� the discriminatory practice of denying a service to residents of certain areas based on racial or ethnic characteristics 鈥� has persisted in 61 areas across the country, even when controlling for applicants鈥� income, loan amount, and neighborhood.
CIR hoped to advertise its findings in Philadelphia bus shelters, newsstands, and other spaces where audiences potentially affected by the investigation could explore CIR鈥檚 work. Yet when CIR submitted its advertisement to the state-run local transportation authority 鈥� Southeastern Pennsylvania Transportation Authority, or SEPTA 鈥� the group received a puzzling response: The advertisement was 鈥減olitical鈥� and expressed 鈥渁n opinion, position or viewpoint on matters of public debate.鈥� It would therefore be rejected, CIR was told. 鈥淒isparate lending is a matter of public debate and litigation,鈥� SEPTA explained, citing the American Banking Association鈥檚 criticism of CIR鈥檚 report and methodology.
Today, CIR 鈥� represented by the 老澳门开奖结果, the 老澳门开奖结果 of Pennsylvania, and the law firm Hangley Aronchick Segal Pudlin & Schiller 鈥� sued SEPTA over its policy, which violates the First Amendment. The policy discriminates against speech that SEPTA deems offensive or controversial, and it gives sparse guidance on how to determine whether an advertisement might be rejected for being 鈥減olitical鈥� or for touching on a 鈥渕atter of public debate.鈥�
In 2015, SEPTA adopted an advertising policy that prohibits 22 categories of advertisements, two of which are relevant to the CIR ad. It prohibits advertisements 鈥渢hat are political in nature or contain political messages, including advertisements involving political or judicial figures and/or advertisements involving an issue that is political in nature in that it directly or indirectly implicates the action, inaction, prospective action or policies of a government entity.鈥� SEPTA also prohibits advertisements 鈥渆xpressing or advocating an opinion, position or viewpoint on matters of public debate about economic, political, religious, historical or social issues.鈥�
SEPTA purports to ban all 鈥減olitical鈥� and 鈥減ublic debate鈥� advertisements in order to avoid any controversial ones. The ban originated after SEPTA tried to reject an offensive ad proposal from anti-Muslim activist Pamela Geller but that the transportation authority could not, under the First Amendment, pick and choose between ads it liked and didn鈥檛 like. In response, SEPTA tried to take itself out of the pick-and-choose conundrum altogether, disallowing any advertisement on a matter of public debate or politics.
But the new policy ends up giving SEPTA too much power to pick and choose. SEPTA officials now have standardless discretion to reject advertisements they deem too controversial for publication. Is a movie poster depicting fictionalized military technology considered an advertisement on a matter of public debate? What about a different poster advertising a new documentary on military technology spending in the United States? Or a Lockheed Martin poster promoting an F-16 fighter jet? It is up to SEPTA officials to decide which of these advertisements is 鈥減olitical鈥� or on a 鈥渕atter of public debate,鈥� and therefore banned from its advertising spaces.
We know what happens with vague policies like this one from experience. The 老澳门开奖结果 is currently engaged in a legal battle with WMATA, the transit agency in Washington, D.C., over its rejection of several advertisements ranging from ads promoting Milo Yiannopoulos鈥檚 new book to 老澳门开奖结果 ads depicting the text of the First Amendment in English, Spanish, and Arabic. These ads were rejected because they involved 鈥渋ssue[s] on which there are varying opinions,鈥� per WMATA鈥檚 guidelines. Yet WMATA has frequently approved ads that feature issues on which there are varying opinions. For example, the transit agency approved an ad for a play commemorating the late Supreme Court Justice Antonin Scalia, with passages promoting a conservative judicial philosophy. It also approved an ad showing a crowd of demonstrators holding signs saying 鈥淏lack Lives Matter鈥� and 鈥淪tand for Justice.鈥� Such inconsistencies are inevitable when officials are given the discretion to censor whatever seems to them too controversial.
Good intentions may have initially motivated SEPTA to reject a bigoted, anti-Muslim message from its advertising spaces. But the predictable consequence of SEPTA鈥檚 policy is arbitrary censorship over critical matters of public debate. That鈥檚 a consequence the First Amendment does not allow.
CIR鈥檚 proposed ad would have featured a version of this graphic about its report on racial disparities in the conventional home mortgage market. It can be found .
