Alabama Attorney General Steve Marshall led 21 attorneys general in filing a brief opposing the Hillsborough County Florida transit authority’s policy denying the First Amendment rights of a religious group to advertise on public transportation. The case of Young Israel of Tampa, Inc. v. the Hillsborough Area Regional Transit Authority is currently in a federal appeals court.
“Whenever a violation of religious speech occurs, it is of serious concern to all who are dedicated to the preservation of the First Amendment,” stated Marshall. “When a government-run transit authority allows advertising on its public buses but specifically bans any advertising the government deems too religious, the government clearly violates the First Amendment. We rightfully support the plaintiff, Young Israel of Tampa, Inc., in their challenge of the unconstitutional practice of the Hillsborough Area Regional Transit Authority (HART) prohibiting religious advertising on its buses.”
Marshall and the 20 other attorneys general claim in their brief that HART’s policy of banning religious speech violates the First Amendment of the U.S. Constitution and previous Supreme Court precedents.
“First, HART lumps in ‘religious affiliation advertising’ with other forms of advertising it forbids: ads for ‘tobacco, alcohol, or related products’ and ads containing ‘profane language, obscene materials,’ ‘images of nudity,’ or ‘depiction[s] of graphic violence,’ among others,” Marshall et. al. wrote in their brief. “But one of these things is not like the others. By treating them alike, HART sends the perverse message that religious speech is too controversial, too taboo, and too dangerous for public discussion—a notion that flies in the face of our nation’s history and tradition celebrating religious discourse and the First Amendment’s dual guarantee of the freedoms of speech and religious exercise.”
The conservative AGs’ brief continued, “Second, HART’s policy defies a trilogy of Supreme Court cases holding that blanket bans on religious messaging is unconstitutional viewpoint discrimination. That remains true even if the advertising space on HART’s buses is considered a ‘nonpublic forum’ as HART contends. No matter the forum, religious viewpoint discrimination is never permitted.”
“Third, even if HART’s policy were not viewpoint discriminatory, it fails as an unreasonable content-based restriction,” the brief added. “HART presented no evidence that allowing religious advertisements will impact its goals of maximizing revenue or operating a safe transit system. And there is no reasonable way it can conduct the line drawing necessary to implement its policy without running afoul of the Constitution—a fact this case demonstrates.”
Marshall was joined by the attorneys general from Alaska, Arizona, Arkansas, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Montana, Nebraska, New Hampshire, Ohio, Oklahoma, South Carolina, Tennessee, Texas, Utah, and Virginia in their brief that was filed on September 14, 2022, in the U.S. Court of Appeals for the 11th Judicial Circuit.
Young Israel of Tampa is an Orthodox Jewish synagogue that submitted an ad to the Hillsborough Area Regional Transit Authority (HART) seeking to advertise its annual celebration of Chanukah. HART rejected the ad because it was religious—and it has a policy banning all ads that promote alcohol, tobacco, illegal drugs, obscenity, nudity, pornography, politics, and religion. After Young Israel appealed to HART’s CEO, HART said it would run the ad only if it censored all references to a central feature of the Jewish celebration of Chanukah: the menorah. Young Israel refused the demand that it strips its religious symbol from the ad, so HART refused to run it.
The Becket Fund is representing Young Israel in its lawsuit against HART.
Becket argued that HART’s Advertising Policy is not only religiously offensive but also violates the First Amendment. On February 5, 2021, Young Israel of Tampa filed a lawsuit against HART in the United States District Court for the Middle District of Florida. On January 26, 2022, the federal district court granted summary judgment to Young Israel. The court found that HART’s ban on religious advertisements was both discriminatory and standardless. The court also ordered that HART’s religious-ad ban should be permanently prevented from being enforced.
HART has appealed that judgment to the Eleventh Circuit Court of Appeals.
To connect with the author of this story, or to comment, email brandonmreporter@gmail.com.
