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Rachel Von | The Journal Gazette
Citilink is being sued by Women’s Health Link for rejecting the organization’s ads on its buses.

Citilink’s defense hinges on policy

Outcome of suit for rejected ads rests on reasons

When a local women’s group opposed to abortion filed a lawsuit against Citilink last month, Fort Wayne’s bus system became the latest transit network to be taken to task over its advertising practices.

Dozens of others across the country through the years have been embroiled in similar lawsuits from various groups and organizations that have tried to buy ad space in buses or vehicles.

From abortion-rights opponents to atheists, these organizations have been quick to sue when their ads – like the women’s group here – were rejected by a transit service or bus system.

Nearly all of them have claimed the same thing:

The organization’s First Amendment – or free speech – rights were violated when the advertisements were rejected.

Whether such a lawsuit will be successful, though, hinges on numerous factors, according to legal experts.

And sometimes it becomes murky whether free speech is actually being violated, or even if, when or why a government entity – such as a bus system like Citilink – can reject an advertisement from a group.

“Basically, the city is allowed to restrict as long as they are treating everyone equally,” said Nancy Marcus, an assistant professor of law at Indiana Tech.

Clear-cut policies

Citilink officials would not discuss the lawsuit for this story.

Filed in federal court, the lawsuit claims that Women’s Health Link tried to buy space for 11-by-17-inch ads in Citilink buses twice last fall.

Women’s Health Link’s mission, according to court documents, is to provide women with “unplanned and crisis pregnancies life affirming counseling and referring them to health-care-related services that provide alternatives to abortion.”

The advertisements the organization wants to run have the phrases “You are not alone” and “Free resources for women seeking health care” on either side of the smiling face of a young woman.

Initially, Citilink rejected the proposed ads because Women’s Health Link – which is affiliated with Allen County Right to Life – dealt with “controversial issues.”

Then, those same officials said the ads were inherently noncommercial because they advertised services that were free.

Citilink does have an advertisement policy that is readily available online.

Ads that are noncommercial in nature are restricted, along with ones that have profanity, libelous speech, violence, alcohol, tobacco or firearms, among other topics, according to the policy.

That policy is similar to the one used by Transpo, the South Bend public transportation system.

A representative for Transpo said advertisements that are religious, demeaning or disparaging or involve politics are restricted on South Bend’s buses.

That policy came about after Transpo allowed advertisements from an atheist organization to adorn the sides of its buses in 2009.

The same organization sued Bloomington’s bus system the same year for that city’s refusal to run the ads.

Officials with Bloomington’s public transit system buses initially rejected the ads over being “controversial” – which went against its policy to not run what officials deemed controversial ads – but relented and ran them after the lawsuit was filed.

While Transpo ran the ads, the transit system’s board voted soon after the end of the advertisements’ run to change its policy to restrict ads involving religion.

Legal experts said that having a policy in place may help Citilink.

Still, if Citilink allows ads similar to those for Women’s Health Link but that take the opposite viewpoint, Citilink could be open for trouble.

Lawyers for the Alliance Defending Freedom, who filed the lawsuit on behalf of Women’s Health Link, argue in the suit that the ads the organization wants to run are no different from several other public service announcements and noncommercial advertisements already displayed on Citilink buses.

Also, part of the issue is whether a court will find a public bus the same as a town square or sidewalk, according to legal experts.

It becomes a bigger issue if Citilink allowed advertising from an opposing viewpoint and Women’s Health Link can show that the organization’s viewpoint is why the ads were banned.

“If the city allowed a right to Right to Life rally downtown but denied Planned Parenthood to have a march, then you would have a problem,” said Barbara Smith, an assistant professor of communications at IPFW.

“The city cannot discriminate by viewpoint,” she said.

Neutral reasons

While the city cannot reject advertisements based on viewpoint, it has other avenues to reject advertisements.

One legal expert said that if the city can show a more “neutral” reason for rejecting the ad, then it will have a defense.

“If the city excludes all political advertising of any sort, and if the ad here can be categorized as political, then the city might be able to say this is not within the scope of its advertising policy,” said Daniel O. Conkle, a professor of law at the Maurer School of Law at Indiana University.

Attorneys for Citilink have not formally responded to Women’s Health Link’s claims in the lawsuit; they have until later this month to do so.

Another wrinkle that could come in this case is Citilink’s policy to not run “misleading” or “false” advertisements, according to some legal experts.

Women’s Health Link has not been accused of or sued for false or misleading advertisements.

Other groups opposing abortion rights have been accused of using such tactics, though.

So much so that San Francisco, New York and other cities have passed ordinances preventing such crisis pregnancy centers from using advertisements that disguise their mission.

At least one of these pregnancy crisis centers in San Francisco unsuccessfully sued the city over the ordinance.

And during the past month, Yahoo and Google have removed advertisements that have popped up when people were searching for abortion clinics.

The majority of these ads were crisis pregnancy centers that claimed to provide abortions, but in truth were funded by groups opposed to abortion rights.

While Women’s Health Link’s mission is outlined in court documents as clearly finding alternatives to abortion for women, the mission statement on its website is much shorter:

“Our mission is to walk with women through life to ensure they have life-affirming health care.”

If the city ran false or misleading ads, according to Marcus, the assistant professor from Indiana Tech, that could open officials up to lawsuits from others.

“And they have a compelling interest in protecting the city from lawsuits,” she said.

Legal experts said if the city could show that the ads were somehow misleading – if an entity was trying to portray itself as a health care provider but in reality was not – the city might have another argument for rejecting the ads.

Women’s Health Link does make clear on its Facebook page it is not a health care provider but strictly a resource.

Last week, Women’s Health Link filed a request for a preliminary injunction that would allow the group’s ads to run while the case is in progress.

The judge overseeing the case has scheduled a hearing for June 3.

jeffwiehe@jg.net

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