                                         PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT
                      ____________
                       No. 18-2743
                      ____________

          NORTHEASTERN PENNSYLVANIA
             FREETHOUGHT SOCIETY,
                               Appellant
                        v.

   COUNTY OF LACKAWANNA TRANSIT SYSTEM
                  ____________

      On Appeal from the United States District Court
          for the Middle District of Pennsylvania
                 (D.C. No. 3-15-cv-00833)
        District Judge: Hon. Malachy E. Mannion
                         ____________

                  Argued June 12, 2019
   Before: HARDIMAN, PORTER, and COWEN, Circuit
                      Judges.

                   (Filed: September 17, 2019)

Molly M. Tack-Hooper [Argued]
American Civil Liberties Union of Pennsylvania
P.O. Box 60173
Philadelphia, PA 19106
Brian Hauss
American Civil Liberties Union Foundation
125 Broad Street
18th Floor
New York, NY 10004


Theresa E. Loscalzo
Stephen J. Shapiro
Schnader Harrison Segal & Lewis LLP
1600 Market Street
Suite 3600
Philadelphia, PA 19103

Rachel A.H. Horton
DLA Piper
1650 Market Street
One Liberty Place
Suite 5000
Philadelphia, PA 19103

Benjamin D. Wanger
Mullen Coughlin
1275 Drummers Lane
Suite 302
Wayne, PA 19087


      Attorneys for Appellant Northeastern Pennsylvania
Freethought Society

Thomas A. Specht [Argued]
Marshall Dennehey Warner Coleman & Goggin


                            2
P.O. Box 3118
Scranton, PA 18505

      Attorney for Appellee County of Lackawanna Transit
System

Bruce D. Brown
The Reporters Committee for Freedom of the Press
1156 15th Street, N.W.
Suite 1020
Washington, DC 20005

       Attorney for Amicus Reporters Committee for Freedom
of the Press in Support of Appellant

Geoffrey Blackwell
American Atheists Legal Center
718 7th Street, N.W.
Washington, DC 20001

      Attorney for Amicus Curiae American Atheists and
Center for Inquiry

                      ____________

                OPINION OF THE COURT
                     ____________

HARDIMAN, Circuit Judge.

       This appeal arises under the First Amendment to the
United States Constitution. Appellant Northeastern
Pennsylvania Freethought Society (Freethought) would like to
advertise on public buses in Lackawanna County,


                             3
Pennsylvania. Freethought proposed an ad displaying the word
“Atheists” along with the group’s name and website. The
County of Lackawanna Transit System (COLTS) rejected the
ad under its policy which excludes religious and atheistic
messages. Because that policy discriminates based on
viewpoint, we hold that it violates the First Amendment.

                                I

        COLTS provides public bus service in Lackawanna
County. Because its ticket revenue is negligible, COLTS is
funded almost exclusively by the Pennsylvania Department of
Transportation, Lackawanna County, and the federal
government. COLTS leases advertising space on the inside and
outside of its buses, but the revenue that generates makes up
less than two percent of COLTS’s budget.

        Freethought is an association of atheists, agnostics,
secularists, and skeptics. Its goals are to build a community for
likeminded people, to organize social and educational events,
and through these events and other activism to “promot[e]
critical thinking and uphold[] the separation of church and
state.” App. 140. Freethought advocates its view of proper
church-state separation by filing complaints and protesting
public religious displays.

       In 2012, Freethought organizer and spokesman Justin
Vacula was a student at Marywood University in Scranton. One
day during his commute to campus, Vacula noticed a “God
Bless America” message on the outside of a COLTS bus. The
message—which scrolled across the bus’s digital route-
information display when enabled by the driver—was added
by the manufacturer after the terrorist attacks of September 11,
2001. Vacula complained and COLTS removed the message

                               4
from its software. This upset some drivers, including one who
defiantly displayed a “God Bless America” magnet on the
inside of his bus. Vacula complained again, and COLTS made
the driver remove it.

        Because of these expressions of religious sentiment,
Freethought proposed to run a “response” advertisement to
“challenge a potential church/state violation and test
COLTS’[s] advertising policy.” App. 1553. The proposed ad
simply read “Atheists,” and included Freethought’s web
address, superimposed on a blue sky with clouds. Vacula said
the ad was meant to show local religious believers that there
are atheists in the community and to provide a resource for
those believers to learn about Freethought. The ad would also
tell other nonbelievers in the region that they are “not alone”
and that “a local organization for atheists exists.” App. 1553.

       Freethought submitted its proposal in January 2012, but
COLTS rejected the ad. Communications director Gretchen
Wintermantel decided Freethought “wanted to advertise so that
they could spark a debate on our buses.” App. 1098. And the
word “atheists” (or, for that matter, the words “Jews” or
“Muslims”) might do just that. App. 1099. In rejecting
Freethought’s proposal, COLTS relied on a policy it had
adopted in 2011 that banned ads for tobacco products, alcohol,
firearms, and political candidates. App. 686. It also banned ads
that in COLTS’s “sole discretion” are “derogatory” to racial,
religious, and other specified groups. Id. It even prohibited ads
that are “objectionable, controversial[,] or would generally be
offensive to COLTS’[s] ridership.” Id.

      Before 2011 COLTS had no policy—though it reserved
in its contracts the right to reject “objectionable or
controversial” ads. E.g., App. 340. It never exercised that right

                               5
until Wintermantel and her boss rejected an ad warning that
“Judgment Day” was approaching. App. 56–57, 1051. They
did so even though COLTS had routinely run religious ads in
the past with no problem. That included ads for churches, the
Office of Catholic Schools, and the evangelist Beverly
Benton—who promised a “Saturday night miracle service” at
a convention she headlined. App. 477. There is no evidence of
record that those ads or any others had elicited a passenger
complaint. Partisan political ads, gambling ads, and ads for
alcoholic beverages all ran without incident. Even an ad for a
virulently racist and anti-Semitic website was permitted
without apparent complaint. COLTS nevertheless rejected the
“Judgment Day” ad, believing its religious character could rile
up passengers.

        The “Judgment Day” experience convinced
Wintermantel it was time to implement a formal policy. She
began researching other transit systems’ policies and identified
controversies in other cities kindled by inflammatory ad
campaigns. She reviewed a New York Times article about an
atheist ad campaign in Fort Worth, which had drawn competing
religious ads and a pastor-led boycott. The article also noted
that atheist bus ads and billboards had been vandalized in
Detroit, Tampa Bay, and Sacramento. In Cincinnati, the Times
reported, a landlord took an atheist ad down after receiving
threats. If all that could happen, Wintermantel thought, similar
ads could upset COLTS riders and cause disturbances on its
buses. So she drafted the 2011 policy and the COLTS board
approved it.

      COLTS rejected Freethought’s first “Atheists” ad
proposal in 2012 and a similar one in 2013. These rejections
were based on the 2011 policy’s vaguest provision. COLTS had
decided, in its “sole discretion,” that the “Atheists” ad would

                               6
be controversial. The first rejection was by phone, but the
second came by letter which stated:

       COLTS does not accept advertisements that
       promote the belief that “there is no God” or
       advertisements that promote the belief that
       “there is a God” . . . . The existence or
       nonexistence of a supreme deity is a public issue.
       COLTS       believes   that   your      proposed
       advertisement may offend or alienate a segment
       of its ridership and thus negatively affect its
       revenue. COLTS does not wish to become
       embroiled in a debate over your group’s
       viewpoints.

App. 701.

        About a week later, COLTS enacted a new policy to
“clarify” the 2011 policy. App. 59–60. This 2013 policy is still
in effect. It announced that COLTS opened its ad space “for the
sole purpose of generating revenue for COLTS while at the
same time maintaining or increasing its ridership.” App. 687.
Besides banning many of the same ads as the 2011 policy
(including “disparaging” ads and ads for firearms, alcohol, and
tobacco), the 2013 policy featured new prohibitions on
religious and political messages. COLTS reasoned that many
have strong feelings about religion and politics, so excluding
those messages would help keep the peace. The religion
provision barred ads:

       that promote the existence or non-existence of a
       supreme deity, deities, being or beings; that
       address, promote, criticize or attack a religion or
       religions, religious beliefs or lack of religious

                               7
       beliefs; that directly quote or cite scriptures,
       religious text or texts involving religious beliefs
       or lack of religious beliefs; or [that] are otherwise
       religious in nature.

App. 687–88. The politics provision barred partisan and
electioneering ads, and ads that “involv[e] an issue reasonably
deemed by COLTS to be political in nature in that it directly or
indirectly implicates the action, inaction, prospective action, or
policies of a governmental entity.” App. 687.

        When Freethought proposed a third “Atheists” ad,
COLTS rejected it under the 2013 policy’s religious speech
prohibition. COLTS reiterated its position that the “existence
or non-existence of a supreme deity is a public issue.” App.
704. “It is COLTS’[s] goal to provide a safe and welcoming
environment on its buses for the public at large,” the rejection
letter explained, and “[t]he acceptance of ads that promote
debate over public issues such as abortion, gun control or the
existence of God in a confined space like the inside of a bus
detracts from this goal.” Id.

        Eventually, Freethought proposed an ad that dropped
the word “Atheists” and simply listed its name and web
address. Wintermantel consulted COLTS’s attorney, who
thought it was a borderline case under the 2013 policy.
“[Vacula] is being tricky,” the lawyer opined, but he conceded
the ad might not violate COLTS’s religious or political speech
prohibitions, so they needed to research the matter. App. 1528.
COLTS ultimately accepted the ad. But Freethought would still
like to run its thrice-rejected “Atheists” ad, which “more
clearly explain[s] who its members are.” Freethought Br. 19.
So it sued under 42 U.S.C. § 1983.


                                8
                                II

       Freethought challenged COLTS’s 2013 policy, seeking
a declaratory judgment and a permanent injunction forbidding
COLTS from enforcing the policy. The District Court ruled for
COLTS after a one-day bench trial. The Court held COLTS’s
policy viewpoint neutral, reasoning that the religious speech
prohibition put the entire subject of religion out of bounds. It
also deemed COLTS’s ad space a limited public forum, even
though it had probably once been a designated public forum.
The Court grounded that conclusion in COLTS’s statement of
intent “not to become a public forum” and its “practice of
permitting only limited access to the advertising spaces on its
buses.” Ne. Pa. Freethought Soc’y v. Cty. of Lackawanna
Transit Sys., 327 F. Supp. 3d 767, 779–80 (M.D. Pa. 2018).
Holding Freethought’s “Atheists” ad outside the forum’s
bounds, the Court turned to whether that restriction was
reasonable.

        The ad space was first opened, the Court found, to raise
revenue. With its 2013 policy, COLTS added the purpose of
“maintaining or increasing COLTS’[s] ridership.” Id. at 781.
The Court held the policy’s restrictions were reasonably
connected to those goals. First, the policy was intended to
“keep COLTS neutral on matters of public concern,” which the
Court said is “an especially strong interest supporting the
reasonableness in limiting speech.” Id. at 782. Second, the
Court held the policy was reasonably connected to rider safety,
since threats to rider safety also threaten revenue and ridership.
“Given the decrease in civil tolerance and the increase in social
unrest and violence in today’s society,” the Court explained,
allowing ads like Freethought’s might provoke “a controversial
discussion” which could “potentially lead to a dangerous
situation for both passengers and drivers.” Id. at 782–83.

                                9
Finally, the Court held the 2013 policy was not
unconstitutionally vague because “a person of ordinary
intelligence can generally tell what types of advertisements are
permitted or proscribed.” Id. at 784.

       Freethought filed this timely appeal.

                              III

       The District Court had jurisdiction over Freethought’s
First Amendment claim under 28 U.S.C. § 1331. We have
jurisdiction over this appeal under 28 U.S.C. § 1291. Where,
as here, “the speaker unsuccessfully claimed a violation of free
speech rights in the trial court,” Pittsburgh League of Young
Voters Educ. Fund v. Port Auth. of Allegheny Cty., 653 F.3d
290, 295 (3d Cir. 2011), we conduct an independent review of
the record. Bose Corp. v. Consumers Union of U.S., Inc., 466
U.S. 485, 499 (1984).

                              IV

       We approach this case as a facial challenge to COLTS’s
prohibition of religious speech. The First Amendment doctrine
underlying Freethought’s challenge leads ineluctably to facial
invalidity—so we need not “pause to consider whether [the
provision] might admit some permissible applications.” Iancu
v. Brunetti, 139 S. Ct. 2294, 2302 (2019); see Citizens United
v. FEC, 558 U.S. 310, 331 (2010) (“[T]he distinction between
facial and as-applied challenges is not so well defined that it
has some automatic effect or that it must always control the
pleadings and disposition in every case involving a
constitutional challenge.”). If the religious speech prohibition
as written “‘aim[s] at the suppression of’ views,” Brunetti, 139
S. Ct. at 2302 (quoting Matal v. Tam, 137 S. Ct. 1744, 1767

                              10
(2017) (Kennedy, J., concurring in part and concurring in the
judgment)), it is invalid, see id. If instead it’s an impermissible
content based restriction, that too leads to facial invalidity. See
Minn. Voters All. v. Mansky, 138 S. Ct. 1876, 1885, 1888
(2018); Simon & Schuster, Inc. v. Members of New York State
Crime Victims Bd., 502 U.S. 105, 123 (1991) (holding statute
“not narrowly tailored to advance [the government’s]
objective” and so “inconsistent with the First Amendment”);
Ward v. Rock Against Racism, 491 U.S. 781, 801 (1989)
(“[T]he validity of the regulation depends on the relation it
bears to the overall problem the government seeks to correct,
not on the extent to which it furthers the government’s interests
in an individual case.”). In either case COLTS “violate[d] the
Constitution when it passed the [policy],” Diop v.
ICE/Homeland Sec., 656 F.3d 221, 232 n.10 (3d Cir. 2011).

                                V

        Government actors like COLTS cannot restrict speech
because they “disapprov[e] of the ideas expressed.” R.A.V. v.
City of St. Paul, 505 U.S. 377, 382 (1992). Yet not every public
space is Hyde Park, so a government may sometimes impose
content or speaker limitations that protect the use of its
property. See Mansky, 138 S. Ct. at 1885. But no matter what
kind of property is at issue, viewpoint discrimination is out of
bounds.

       Viewpoint discrimination is an “egregious form of
content discrimination.” Rosenberger v. Rector & Visitors of
Univ. of Va., 515 U.S. 819, 829 (1995). Rather than aiming at
an entire subject, it “targets . . . particular views taken by
speakers.” Id. And that violates the First Amendment’s most
basic promise. See Texas v. Johnson, 491 U.S. 397, 414 (1989)
(collecting cases). It empowers the censor to deprive the citizen

                                11
of the opportunity to persuade. So in any forum, “[t]he
government must abstain from regulating speech when the
specific motivating ideology or the opinion or perspective of
the speaker is the rationale for the restriction.” Rosenberger,
515 U.S. at 829; see Good News Club v. Milford Cent. Sch.,
533 U.S. 98, 111–12 (2001).

       Distinguishing subject matter from viewpoint can be
difficult. Rosenberger, 515 U.S. at 830–31. Fortunately, “our
task here is greatly simplified by a trilogy of Supreme Court
decisions each addressing blanket bans on religious messages
and each concluding that such bans constitute impermissible
viewpoint discrimination.” Byrne v. Rutledge, 623 F.3d 46, 55
(2d Cir. 2010). Those cases—Rosenberger, Lamb’s Chapel,
and Good News Club—govern this one.

       In Rosenberger, the University of Virginia withheld
subsidies from student groups whose activities “primarily
promote[d] or manifest[ed] a particular belie[f] in or about a
deity or an ultimate reality.” 515 U.S. at 825. An undergraduate
group that published Wide Awake, a “magazine of
philosophical and religious expression,” challenged that
policy. Id. at 825–26. Wide Awake was founded to “facilitate
discussion which fosters an atmosphere of sensitivity to and
tolerance of Christian viewpoints,” and “to provide a unifying
focus for Christians of multicultural backgrounds.” Id. (citation
and alterations omitted). To that end, its writers opined from a
Christian perspective on issues like racism, pregnancy, and
student stress. Id. at 826.

       The Court held the University had restricted viewpoint,
not subject matter. “Religion may be a vast area of inquiry,”
the Court reasoned, “but it also provides, as it did here, a
specific premise, a perspective, a standpoint from which a

                               12
variety of subjects may be discussed and considered.” Id. at
831. The policy was viewpoint based because it “select[ed] for
disfavored treatment those student journalistic efforts with
religious editorial viewpoints.” Id. Student news groups could
write on racism, or stress, or pregnancy—but not if their faith
informed the message.

        The Rosenberger dissent argued that the restriction was
based on subject matter, not viewpoint, because it applied to all
religions and “agnostics and atheists as well.” See
Rosenberger, 515 U.S. at 895–96 (Souter, J., dissenting).
COLTS makes a similar argument here. But as the Court
explained in Rosenberger, that argument “reflects an
insupportable assumption that all debate is bipolar and that
antireligious speech is the only response to religious speech.”
Id. at 831. Within a given subject, “[i]t is as objectionable to
exclude both a theistic and an atheistic perspective on the
debate as it is to exclude one, the other, or yet another political,
economic, or social viewpoint.” Id.; see Brunetti, 139 S. Ct. at
2299.

       To reach its holding, the Rosenberger Court relied
mainly on Lamb’s Chapel. In that case, the Supreme Court
invalidated a ban on the use of public-school property for
“religious purposes” that had stymied a group’s efforts to
screen religious lectures on family issues and child rearing.
Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508
U.S. 384, 393 (1993). As in Rosenberger, it did not matter
“[t]hat all religions and all uses for religious purposes are
treated alike” because the lectures—though avowedly
religious—discussed topics the policy otherwise permitted. Id.

      In short, Rosenberger “clarified the distinction between
content-based and viewpoint discrimination and adopted a

                                13
broad construction of the latter, providing greater protection to
private religious speech on public property.” Summum v.
Callaghan, 130 F.3d 906, 917 (10th Cir. 1997).1 The Court
provided yet more clarity in Good News Club. It granted
certiorari in that case to resolve “a conflict among the Courts
of Appeals on the question whether speech can be excluded
from a limited public forum on the basis of the religious nature
of the speech.” 533 U.S. at 105. As in Lamb’s Chapel and
Rosenberger, the Court answered “no.”

       The Court held it was viewpoint discrimination to bar
the use for religious purposes of a space otherwise available
for “instruction in any branch of education, learning or the arts”
and for “social, civic and recreational meetings and
entertainment events, and other uses pertaining to the welfare
of the community.” Id. at 102. The Good News Club, which
wanted to offer after-school religious instruction, must have
equal access to a forum that allowed others to speak on morals
and character development. Id. at 108–09. If a forum is open to




       1
         In arguing for a narrower construction of viewpoint,
our dissenting colleague claims our holding will deter
governments from creating forums for speech. Dissenting Op.
8–9. That concern is relevant to deciding whether a
government has opened a forum (and what kind of forum). See
Arkansas Educ. Television Comm’n v. Forbes, 523 U.S. 666,
680–83 (1998). But it cannot bear on the viewpoint
discrimination analysis because courts should not nurture
forums that “silence dissent and distort the marketplace of
ideas,” Tam, 137 S. Ct. at 1766 (Kennedy, J., concurring in part
and concurring in the judgment).

                               14
teaching morals through Aesop’s Fables, it must be open to
religious moral instruction too. Id.

        Good News Club also foreclosed the argument that a
broad prohibition on religious speech can validate religious
viewpoint discrimination. Rosenberger noted in dicta that the
university’s policy did not prohibit religion as a subject matter.
515 U.S. at 831. That comment might have been read to
suggest a broader policy could bar religious perspectives on
otherwise allowable topics—so long as the prohibition was
phrased to “exclude religion as a subject matter.” Good News
Club rejected that proposition and disclaimed any reliance on
this dictum. See 533 U.S. at 110–11. The Good News Club’s
“quintessentially religious” activities, id. at 111, could not be
excluded even though the policy broadly forbade use of the
forum “for religious purposes,” id. at 103.

        Our Court reinforced Good News Club’s understanding
of Rosenberger in Child Evangelism Fellowship of New Jersey
Inc. v. Stafford Township School District, 386 F.3d 514 (3d Cir.
2004). That case involved limitations on access to facilities and
back-to-school nights. Id. at 519. Some community groups
were pre-approved for access, while others could be added at
the school district’s discretion. Id. As for the content allowed,
the policy required advance approval by the district and a nexus
to the students or school. Id. at 520. It forbade partisan and for-
profit messages as well as solicitations. Id. The district allowed
Child Evangelism to host meetings like those in Good News
Club, but denied it permission to distribute its flyers,
permission slips, and Bibles. Id. at 523. Rejecting the district’s
purportedly viewpoint neutral rationales as “either incoherent
or euphemisms for viewpoint-based religious discrimination,”
id. at 527, we underscored what was already clear after Good
News Club. Whether or not a government claims to have

                                15
excluded “religion as a subject or category of speech,” “if
government permits the discussion of a topic from a secular
perspective, it may not shut out speech that discusses the same
topic from a religious perspective.” Id. at 528; see Donovan ex
rel. Donovan v. Punxsutawney Area Sch. Bd., 336 F.3d 211, 226
(3d Cir. 2003).

        The same is true in this case. “Whatever its stated intent,
[COLTS’s] ban on religious messages in practice operates not
to restrict speech to certain subjects but instead to distinguish
between those who seek to express secular and religious views
on the same subjects.” Byrne, 623 F.3d at 56–57; see Cornelius
v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 806
(1985).

         By the terms of the 2013 policy and as shown by
COLTS’s permissive practice, the forum is open to messages
on all topics not expressly banned. As the Seventh Circuit
explained, “[t]he absence of an explicit list of permissible
subjects upon which discourse is permissible in [a] nonpublic
forum does not mean that there is no ‘otherwise includible
subject’ for discussion in the forum . . . . [such] policies
impliedly allow[] the distribution of all other written material
. . . .” Grossbaum v. Indianapolis-Marion Cty. Bldg. Auth., 63
F.3d 581, 590 (7th Cir. 1995). We thus disagree with the
dissent’s argument that the viewpoint analysis in Rosenberger,
Lamb’s Chapel, and Good News Club can be distinguished by
the fact those cases involved “prospectively defined,
permissible subject matter.” Dissenting Op. 6 (quoting
Archdiocese of Wash. v. Wash. Metro. Area Transit Auth., 897
F.3d 314, 338 (D.C. Cir. 2018) (Wilkins, J., concurring)).

      As Vacula explained in 2012, the “Atheists” ad was
meant to communicate to believers and atheists alike that “a

                                16
local organization for atheists exists,” and to atheists in
particular that they are “not alone.” App. 1553. The ad, though
minimalistic, reasonably communicates those messages.
Nothing in the record suggests COLTS’s policy would prohibit
secular associations from advertising their organizational
philosophy or from communicating the message: “We exist,
this is who we are, consider learning about or joining us.” See
Lamb’s Chapel, 508 U.S. at 393. But atheistic and religious
associations are banned from saying the same thing because of
the character of their speech.

       Similarly, a healthcare provider may tout its services—
so long as it doesn’t disclose that those services are (or once
were) part of a religious tradition. Geisinger Health System is
in; Lutheran Home Care & Hospice is out. And the Diocese of
Scranton may run an ad encouraging the public to “Consider
Adoption”—provided it doesn’t say why.

        It’s true that Freethought’s “Atheists” ad relates to the
“subject” of religion writ large. But at its core, its message is
one of organizational existence, identity, and outreach. Even if
that speech “is quintessentially religious’ or ‘decidedly
religious in nature,’” Good News Club, 533 U.S. at 111, it may
still “constitute a separate viewpoint on a wide variety of
seemingly secular subject matter,” Good News/Good Sports
Club v. Sch. Dist. of City of Ladue, 28 F.3d 1501, 1507 (8th Cir.
1994). What matters for the viewpoint discrimination inquiry
isn’t how religious a message is, but whether it communicates
a religious (or atheistic) viewpoint on a subject to which the
forum is otherwise open.

       This point is well-illustrated by a Second Circuit case
which invalidated a Vermont law prohibiting deity names and
other religious references on license plates. Byrne v. Rutledge,

                               17
623 F.3d at 49–50. The motorist in Byrne wanted his plate to
say JN36TN—a reference to the oft-quoted biblical passage
John 3:16. The court explained this reference spoke to several
possible topics, all of which were open to secular speech.
Whether the plate was “intended . . . as a statement of personal
belief or philosophy or simply as a statement of self-identity as
a Christian or affiliation with the Christian church . . . . The
critical fact is that Vermont permits” the use of its forum “for
comment on all of these subjects, so long as the comment is
from a secular perspective.” Id. at 57. In the same way, COLTS
prohibits Freethought’s statement of organizational identity
just because of that statement’s atheistic character. For that
reason, we hold that the 2013 policy facially discriminates
against atheistic and religious viewpoints on all of the many
topics permitted in the forum.

       We recognize that this holding diverges from a recent
decision of the United States Court of Appeals for the D.C.
Circuit, Archdiocese of Washington v. Washington
Metropolitan Area Transit Authority, 897 F.3d 314 (D.C. Cir.
2018), petition for cert. filed, No. 18-1455 (May 20, 2019). The
court there reasoned that because WMATA prohibited
messages on many subjects, it had not “invite[d] . . . debate on
religion.” Id. at 327. That narrower forum, the court held,
authorized the transit agency’s ban on “[a]dvertisements that
promote or oppose any religion, religious practice or belief”
despite the rule announced in Rosenberger, Lamb’s Chapel,
and Good News Club. Id. at 318–19. WMATA’s policy isn’t the
same as COLTS’s, see Archdiocese of Wash. v. Wash. Metro.
Area Transit Auth., 281 F. Supp. 3d 88, 96 (D.D.C. 2017), and
the facts of the cases are different. But we respectfully disagree
with our sister court.



                               18
        The Archdiocese of Washington proposed an
evangelistic ad to run on the exterior of WMATA’s buses. The
ad depicted “a starry night and the silhouettes of three
shepherds and sheep on a hill facing a bright shining star high
in the sky, along with the words ‘Find the Perfect Gift.’”
Archdiocese of Wash., 897 F.3d at 320. It also included a web
address and social media hashtag. Id. WMATA rejected the ad
under the religious speech prohibition described above. The
D.C. Circuit held WMATA’s policy regulated content, not
viewpoint. Id. at 325. To make that determination, the court
thought it needed to conduct a forum analysis. Id. at 321–24.
Then, emphasizing the narrowness of the forum, the court held
WMATA’s policy permissibly excluded “religion as a subject
matter.” Id. at 327 (quoting Rosenberger, 515 U.S. at 831).
Finally, the court rejected the Archdiocese’s arguments that the
topics it wanted to address were open to secular speakers. Id.
at 329.

        Our disagreement starts at the beginning—with the D.C.
Circuit’s choice to conduct a forum analysis before
determining whether the policy discriminated on the basis of
viewpoint. That put the cart before the horse because the type
of forum sheds no light on whether a policy or decision
discriminates against a certain viewpoint. And viewpoint
discrimination is impermissible in any forum. Mansky, 138 S.
Ct. at 1885; Tam, 137 S. Ct. at 1763 (plurality opinion); Good
News Club, 533 U.S. at 111–12; Rosenberger, 515 U.S. at 829.
Courts “need not tackle the forum-selection question” since
“[r]egardless of whether the advertising space is a public or
nonpublic forum, the [speaker] is entitled to relief” if it
establishes viewpoint discrimination. Pittsburgh League, 653
F.3d at 296; see Hedges v. Wauconda Cmty. Unit Sch. Dist. No.
118, 9 F.3d 1295, 1298 (7th Cir. 1993) (“The [F]irst


                              19
[A]mendment’s ban on discriminating against religious speech
does not depend on whether the school is a ‘public forum’ and,
if so, what kind . . . .”). So Lamb’s Chapel, Rosenberger, and
Good News Club cannot be distinguished by reasoning that
those forums were open to a “wide[r] range of subjects,”
Archdiocese of Wash., 897 F.3d at 327. What matters is whether
the range of subjects—narrow, wide, or in-between—includes
the one the speaker wants to address. See Air Line Pilots Ass’n,
Int’l v. Dep’t of Aviation of City of Chi., 45 F.3d 1144, 1159 (7th
Cir. 1995) (“It may be that an entire category of speech is
banned, but this hardly satisfies a viewpoint inquiry.”).

        The D.C. Circuit was also concerned that “[t]he
Archdiocese’s position would eliminate the government’s
prerogative to exclude religion as a subject matter in any non-
public forum.” Id. at 325. But that “prerogative” is based on a
dictum in Rosenberger that the Supreme Court has since
disclaimed. Good News Club, 533 U.S. at 110. And it echoes
the protestations of the Rosenberger dissent, not the reasoning
of the majority. See Rosenberger, 515 U.S. at 898 (Souter, J.,
dissenting) (“If this amounts to viewpoint discrimination, the
Court has all but eviscerated the line between viewpoint and
content.”). In any case, no prerogative to ban subjects can
justify viewpoint discrimination.

        Perhaps a forum could be defined so narrowly that
religious perspectives would be non-germane. But the COLTS
ad space is not such a forum. And we doubt whether a forum
like COLTS’s—defined by its exclusions and otherwise open,
rather than defined by its beneficiaries and otherwise closed—
could ever fit the bill. See Cornelius, 473 U.S. at 806 (“[A]
speaker may be excluded from a nonpublic forum if he wishes
to address a topic not encompassed within the purpose of the
forum or if he is not a member of the class of speakers for

                                20
whose especial benefit the forum was created,” but “the
government violates the First Amendment when it denies
access to a speaker solely to suppress the point of view he
espouses on an otherwise includible subject.” (citations
omitted)). That COLTS has tied those exclusions to speech it
considers “controversial” only compounds the problem. See
Child Evangelism, 386 F.3d at 527 (“A group is controversial
or divisive because some take issue with its viewpoint.”).

       It makes sense that it would be difficult, if not
impossible, to exclude religion “as a subject matter” in a forum
open to topics susceptible to a religious perspective. After all,
a typical “subject” is not “a comprehensive body of thought”
from which “a variety of subjects may be discussed and
considered,” Rosenberger, 515 U.S. at 831. Compare Choose
Life Ill., Inc. v. White, 547 F.3d 853, 865 (7th Cir. 2008)
(finding viewpoint neutrality because the government
“excluded the entire subject of abortion from its specialty-plate
program”), with Byrne, 623 F.3d at 57 (holding blanket ban on
“religious” vanity plates cannot justify excluding religious
expression of self-identity when secular expression is
allowed). That’s why we must “broad[ly] constru[e]
[viewpoint discrimination], providing greater protection to
private religious speech on public property.” Summum, 130
F.3d at 917.

       Religion is not only a subject. It’s a worldview through
which believers see countless issues. It was so for our Nation’s
founders, whose moral thesis changed the world and conceived
a new birth of freedom in the United States: “that all men are
created equal, that they are endowed by their Creator with
certain unalienable Rights, that among these are Life, Liberty
and the pursuit of Happiness.” The Declaration of
Independence para. 2 (U.S. 1776). Is there room for our

                               21
revolutionary creed on a COLTS bus? Apparently not. As
COLTS’s counsel admitted at oral argument, the word
“Creator” would be a problem.

        Finally, to the extent the D.C. Circuit reasoned that
religious speech on a permissible topic may be censored if it is
not “primarily” about that topic, see Archdiocese of Wash., 897
F.3d at 329, we disagree with that too. As the Supreme Court
explained in Good News Club, that a message on a permitted
topic is “quintessentially religious” or “decidedly religious in
nature” does not relegate it to second-class status. See 533 U.S.
at 111.

                               VI

       Even if COLTS’s ban on religious speech were
viewpoint neutral, it would still need to survive scrutiny as a
content based restriction. That means, at a minimum, it must
be reasonable “in the light of the purpose of the forum and all
the surrounding circumstances.” Cornelius, 473 U.S. at 809.2


       2
         If COLTS’s ad space were a designated public forum,
as Freethought urges, strict scrutiny would apply. We need not
decide what kind of forum the ad space is, because the religious
speech ban fails even if the space is a limited or nonpublic
forum. But we doubt COLTS has successfully closed its forum
to Freethought’s speech.

      COLTS opened its ad space as a designated public
forum. From when it began selling ads until the “Judgment
Day” proposal, COLTS never rejected a single ad. It ran



                               22
religious, political, and commercial ads during that time. See
Christ’s Bride Ministries, Inc. v. Se. Pa. Transp. Auth., 148
F.3d 242, 250–52 (3d Cir. 1998). So its forum was open to
Freethought’s atheistic message. See id.

       And while COLTS may limit or close the forum at any
time, United States v. Bjerke, 796 F.2d 643, 647 (3d Cir. 1986),
it cannot do so in an improper manner. See The Koala v.
Khosla, F.3d , 2019 WL 3311148, at *12 (9th Cir. July 24,
2019); Ridley v. Mass. Bay Transp. Auth., 390 F.3d 65, 77 (1st
Cir. 2004).

       We doubt the 2013 policy closed the forum. First, its
central prohibition—on political speech—includes a tangle of
double negatives that is vague enough to ensnare nearly any
message. It bans “advertisements involving an issue
reasonably deemed by COLTS to be political in nature in that
it directly or indirectly implicates the action, inaction,
prospective action, or policies of a governmental entity.” App.
687 (emphases added). That does not provide a sufficiently
definite standard for COLTS to exercise discretion. See
Mansky, 138 S. Ct. at 1891. And second, the “expressive use
[of COLTS’s ad space] has not interfered with providing [bus
service] to the public.” Christ’s Bride, 148 F.3d at 250. That
suggests its new restrictions are not “truly part of ‘the process
of limiting a nonpublic forum to activities compatible with the
intended purpose of the property,’” United Food &
Commercial Workers Union, Local 1099 v. Sw. Ohio Reg’l
Transit Auth., 163 F.3d 341, 351–52 (6th Cir. 1998) (quoting
Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S.
37, 49 (1983)).

                               23
This standard does not demand “the most reasonable or the
only reasonable limitation,” so “a finding of strict
incompatibility between the nature of the speech or the identity
of the speaker and the functioning of the nonpublic forum is
not mandated.” Cornelius, 473 U.S. at 808. Still, our review is
more exacting than the deferential rational basis standard.
NAACP v. City of Philadelphia, 834 F.3d 435, 442–43 (3d Cir.
2016). COLTS bears the burden of showing its restrictions are
reasonable. Id. at 443.

       COLTS opened its advertising space to raise revenue.
The 2013 policy states COLTS will sell ads for the “sole
purpose of generating revenue for COLTS while at the same
time maintaining or increasing its ridership.” App. 687.
Freethought argues we should disregard those latter interests—
maintaining or increasing ridership—because COLTS
stipulated that they were not goals when it first opened its ad
space and when it enacted the 2011 policy. But we assess both
the speech forum and the broader government property of
which it is part. See Cornelius, 473 U.S. at 801–02. An
advertising program that deters all or many riders is
inconsistent with the purpose of a public bus. See NAACP, 834
F.3d at 445–46 (holding commonsense inferences can support
explanation of forum’s purpose). There’s no indication COLTS
wanted to transform its buses from public transit to rolling
billboards. So we assess reasonableness given both goals: ad
revenue and ridership.

       Does the religious speech ban reasonably pursue those
goals? Freethought says suppressing controversial speech is
inherently illegitimate. But this confuses means and ends. A
policy that on its face singled out “controversial” or
“offensive” messages would indeed be viewpoint
discriminatory. See Brunetti, 139 S. Ct. at 2299–2300. But

                              24
unlike the 2011 policy, the 2013 policy does not do that. “The
First Amendment does not forbid a viewpoint-neutral
exclusion of speakers who would disrupt a nonpublic forum
and hinder its effectiveness for its intended purpose.”
Cornelius, 473 U.S. at 811; see Lehman v. City of Shaker
Heights, 418 U.S. 298, 304 (1974) (plurality opinion).
COLTS’s goal is not to squelch controversial speech for its own
sake, but to avoid disruption by excluding categories of speech
it believes likely to inflame passions.

        While that may be a permissible goal sometimes, it
should be viewed with suspicion for several reasons. It
conflicts with the core purposes of the First Amendment. See,
e.g., Bd. of Regents of Univ. of Wis. Sys. v. Southworth, 529
U.S. 217, 235 (2000) (“The whole theory of viewpoint
neutrality is that minority views are treated with the same
respect as are majority views.”); Simon & Schuster, 502 U.S.
at 118; Abrams v. United States, 250 U.S. 616, 630 (1919)
(Holmes, J., dissenting) (“[W]e should be eternally vigilant
against attempts to check the expression of opinions that we
loathe and believe to be fraught with death.”). It invites a
heckler’s veto by signaling that the government will suppress
unpopular speech if the public behaves badly. See Seattle
Mideast Awareness Campaign v. King County, 781 F.3d 489,
504 (9th Cir. 2015) (Christen, J., dissenting). And it’s hard for
officials to apply these standards objectively—and harder still
for courts to assess whether they have done so. See NAACP,
834 F.3d at 446. We proceed with those cautionary principles
in mind.

       COLTS argues that heated debates on its buses could
deter riders and escalate to the point of distracting the driver,
endangering passengers, and reducing revenue. But since
rational basis review doesn’t apply here, we should not conjure

                               25
any “conceivable state of facts,” FCC v. Beach Commc’ns,
Inc., 508 U.S. 307, 313 (1993), that could support COLTS’s
action. True, COLTS cited disruptions on other transit systems
in formulating its policy—disruptions that led to anonymous
threats against buses, as well as boycotts and vandalism. While
threats, boycotts, and vandalism could threaten ridership,
COLTS stipulated its policy “was specifically to prevent debate
inside of COLTS’[s] buses . . . and had nothing to do with
debate outside the buses.” App. 57. Yet COLTS has failed to
cite a single debate caused by an ad on one of its buses.

        To be sure, a government “need not wait until havoc is
wreaked to restrict access to a nonpublic forum.” Cornelius,
473 U.S. at 810. But if it wants to censor topics it deems
“controversial,” to avoid disruption, it needs more than mere
supposition. Cf. Air Line Pilots, 45 F.3d at 1157 (“[T]here is no
evidence that a general allowance of political or public interest
advertising would otherwise undermine [the government’s]
ability to rent display cases. Only by imagining objections to
particular viewpoints can any commercial inconvenience be
conceived.”). The censorship of messages because they are
controversial is viewpoint discrimination. See Brunetti, 139 S.
Ct. at 2299–2300. It follows that when the state seeks to ban
particular topics for fear of public controversy, it must make a
showing of threatened disruption.

        But the record provides ample reason to doubt COLTS’s
concerns. COLTS has never received a complaint about an ad,
even though one ad hawked “notes from the underground” and
“bulletproof commentary for enlightened minds” courtesy of a
racist and anti-Semitic blog. App. 346–49. No one complained
about the bevy of religious and political ads COLTS ran before
it enacted its policies. In fact, the only rider complaints in the
record relate to COLTS’s decision to exclude Freethought’s ad.

                               26
       What about COLTS’s solicitude for a captive audience?
The Supreme Court has long connected reasonableness in
protecting a forum with the intrusiveness of the restricted
expressive activity. See Lehman, 418 U.S. at 304 (plurality
opinion); id. at 308 (Douglas, J., concurring in the judgment);3
Air Line Pilots, 45 F.3d at 1161–62 (Flaum, J., concurring)
(collecting cases). But COLTS’s stated interest in leaving a
captive audience in peace is undercut because much of the
relevant forum is the exterior of its buses.4 A rider may see the


       3
         In Lehman, the Supreme Court upheld a prohibition on
political advertisements in buses’ “car card” interior
advertising spaces. 418 U.S. at 299, 303–04 (plurality opinion).
A plurality held the prohibition was reasonable in part because
captive riders would otherwise be “subjected to the blare of
political propaganda.” Id. at 304. In his concurrence in the
judgment, Justice Douglas agreed—not because political ads
were especially objectionable, but because riders were a
captive audience. Id. at 307–08 (Douglas, J., concurring in the
judgment). Lehman predates modern public forum analysis but
has been retconned into that framework. See Int’l Soc’y for
Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992);
Cornelius, 473 U.S. at 803–04.
       4
         Paradoxically, COLTS insists the forum is limited to
the exterior ad space. We define the relevant forum by the
access the speaker seeks. Cornelius, 473 U.S. at 801. But here
Freethought didn’t specify whether it sought access to the
exterior or interior space and COLTS rejected the ad out of
hand, so the parties never discussed placement. We agree with



                               27
ad for a few moments as the bus approaches or while boarding,
but is not subjected to it while riding the bus. Such contact is
hardly as intrusive as, say, solicitation. See Int’l Soc’y for
Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 689 (1992)
(O’Connor, J., concurring); Erznoznik v. City of Jacksonville,
422 U.S. 205, 209 n.5 (1975) (“[B]oth the plurality and
concurring opinions [in Lehman] recognized that the degree of
captivity and the resultant intrusion on privacy is significantly
greater for a passenger on a bus than for a person on the
street.”). To be sure, the captive audience concern does apply
to part of COLTS’s forum (the interior space). But Lehman is
“properly . . . viewed as [a] narrow exception[] to the general
prohibition against subject-matter distinctions.” Consol.
Edison Co. of N.Y. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 530,
539 (1980). “The plain, if at times disquieting, truth is that in
our pluralistic society, constantly proliferating new and
ingenious forms of expression, ‘we are inescapably captive
audiences for many purposes.’” Erznoznik, 422 U.S. at 210
(quoting Rowan v. U.S. Post Office Dep’t, 397 U.S. 728, 736
(1970)). And the traditional rule is that offended observers
must “avoid further bombardment of their sensibilities simply
by averting their eyes.” Lehman, 418 U.S. at 320 (Brennan, J.,
dissenting) (quoting Cohen v. California, 403 U.S. 15, 21
(1971)). For those reasons and the ones that follow, we do not




Freethought that the forum includes both spaces, which are
governed by the same policy. Cf. Christ’s Bride, 148 F.3d at
248 n.2. Since COLTS doesn’t view the two spaces as different
enough to warrant different treatment, we see no reason why it
should benefit from rejecting Freethought’s ad before the
parties ever discussed what kind of ad it would be.

                               28
think solicitude for a (partially) captive audience can bear the
weight of COLTS’s restrictions.

       Beyond the thin support for its concerns, COLTS’s
enforcement is scattershot at best. COLTS ran an ad
encouraging parents to immunize their children—an ad it
maintains it would not run today. App. 49–50, 1141. That’s
presumably because vaccination has become a contentious
social and political issue. See Freethought, 327 F. Supp. 3d at
781 (“COLTS admittedly ran the immunization advertisement
without a clear understanding of the controversial nature of the
subject matter at the time . . . .”). How did Wintermantel learn
of this debate? Through “[f]riends with kids, and news[]
media.” App. 1141. We don’t blame Wintermantel for doing
her level best, but this episode reveals the arbitrariness in
COLTS’s approach. See Mansky, 138 S. Ct. at 1890 (“[T]hat
measure may turn in significant part on the background
knowledge and media consumption of the particular [official]
applying it.”).

        It’s also unclear whether and when information about an
advertiser beyond the face of the ad is relevant. At least under
the 2011 policy, COLTS would sometimes access the
advertiser’s website before rejecting an ad. For example, it
excluded the facially permissible “Wilkes-Barre Scranton
Night Out” because its website showed the event promoted
drinking. See App. 1074–75. The same scrutiny wasn’t applied
to the racist and anti-Semitic blog—much to COLTS’s horror
when it was shown the bigoted website during this litigation.
While COLTS says that under the 2013 policy it no longer
considers anything beyond the face of an ad, there was
deposition testimony that COLTS accepted Freethought’s
fourth ad in part because the “website did not encourage
debate.” App. 1358. And when Wintermantel emailed

                              29
COLTS’s lawyer about the ad, she referenced Freethought’s
website and its definition of the organization. The lawyer’s
response—“[w]e have to research this,” App. 1528—also
suggested they would go beyond the face of the ad. These
inconsistencies raise the specter of arbitrary censorship. An
obscure religious reference may be allowed, while the same
message from a better-known faith tradition is excluded. Even
worse, officials may selectively decide to dig deeper when they
receive proposals from disfavored groups.

        Given all that, COLTS’s reasonableness argument is
threadbare. And it reaches its breaking point when we come to
the religious speech ban. COLTS likely could exclude many
ads that might upset its riders through more targeted
prohibitions. See Archdiocese of Wash. v. Wash. Metro. Area
Transit Auth., 910 F.3d 1248, 1254 n.3 (D.C. Cir. 2018)
(Griffith, J., dissenting from denial of rehearing en banc)
(“WMATA was concerned about the public response to ads on
controversial issues, but as the Archdiocese points out,
WMATA’s policies separately address issue-oriented ads
without any need for its ban on religious speech.”); Am.
Freedom Def. Initiative v. Wash. Metro. Area Transit Auth., 901
F.3d 356, 370 (D.C. Cir. 2018) (“WMATA decided to refuse
AFDI’s advertisements only because of their political
nature.”), cert. denied, 2019 WL 400746 (U.S. June 3, 2019);
Am. Freedom Def. Initiative v. Suburban Mobility Auth. for
Reg’l Transp. (SMART), 698 F.3d 885, 894 (6th Cir. 2012)
(“Because the ban on political advertising was permissible, it
was reasonable for SMART to turn down the fatwa
advertisement as political.”).

       Instead, COLTS banned all religious messages. Even if
that weren’t viewpoint discrimination, it is unreasonable to so
broadly single out for exclusion speech entitled to special

                              30
protection. See Ridley v. Mass. Bay Transp. Auth., 390 F.3d 65,
100 (1st Cir. 2004) (Torruella, J., concurring in part and
dissenting in part) (“Simply put, the First Amendment does not
recognize state authority to regulate religious expression
merely because it might offend other persons.”); Hedges, 9
F.3d at 1298 (“Even when the government may forbid a
category of speech outright, it may not discriminate on account
of the speaker’s viewpoint. Especially not on account of a
religious subject matter, which the free exercise clause of the
first amendment singles out for protection.” (citation omitted));
see also Murdock v. Pennsylvania, 319 U.S. 105, 109 (1943)
(religious advertising “occupies the same high estate under the
First Amendment as do worship in the churches and preaching
from the pulpits”); cf. Trinity Lutheran Church of Columbia,
Inc. v. Comer, 137 S. Ct. 2012, 2019 (2017) (“The Free
Exercise Clause ‘protect[s] religious observers against unequal
treatment’ and subjects to the strictest scrutiny laws that target
the religious for ‘special disabilities’ based on their ‘religious
status.’” (quoting Church of Lukumi Babalu Aye, Inc. v.
Hialeah, 508 U.S. 520, 533, 542 (1993))).

       COLTS argues with some force that its blanket ban
serves valid interests in appearing neutral. But the “‘guarantee
of neutrality is respected, not offended’ when religious persons
benefit incidentally from ‘neutral criteria and evenhanded
policies.’” Tenafly Eruv Ass’n, Inc. v. Borough of Tenafly, 309
F.3d 144, 177 (3d Cir. 2002) (quoting Good News Club, 533
U.S. at 114). There’s nothing neutral about prohibiting all
religious speech as “disruptive.”

       Moreover, under COLTS’s current approach, it must
distinguish messages that are “about” religion from those that
address a permitted topic from a religious perspective.
Assuming that distinction is viable, we question whether it is

                               31
reasonable to ask officials to draw it. True, reasonableness
review imposes a light burden. NAACP, 834 F.3d at 449. And
we do not suggest there is any one way that COLTS had to
pursue its interests. But COLTS bears the burden to show that
extirpating religion from its forum was reasonable. Id. at 443.
For all the reasons we have stated, we hold it has not done so.

                               VII

         Having prevailed on the merits, Freethought must show
it is entitled to a permanent injunction as a matter of discretion.
See eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391
(2006); Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139,
157 (2010). It must show that (1) it has suffered irreparable
injury; (2) there is no adequate remedy at law; (3) the balance
of hardships tips in its favor; and (4) granting an injunction
would not be against the public interest. eBay, 547 U.S. at 391.
Each element is satisfied.

       The first two elements “typically constitute two sides of
the same inquiry, for the ‘availability of adequate monetary
damages belies a claim of irreparable injury.’” TD Bank NA v.
Hill, 928 F.3d 259, 282 (3d Cir. 2019) (quoting Bennington
Foods LLC v. St. Croix Renaissance, Grp., LLP, 528 F.3d 176,
179 (3d Cir. 2008)). Freethought’s ad has already been rejected
once under the 2013 policy, which remains in effect. No
remedy at law can cure Freethought’s First Amendment injury
or give it the prospective relief it seeks. See Elrod v. Burns, 427
U.S. 347, 373 (1976) (“The loss of First Amendment freedoms,
for even minimal periods of time, unquestionably constitutes
irreparable injury.”). To receive full relief, Freethought must
be allowed to run its “Atheists” ad. Similarly, the balance of
hardships tips in Freethought’s favor. COLTS’s “need to
redraft one part of [the 2013 policy] . . . hardly compare[s] to

                                32
the deprivation of [Freethought] and . . . other potential
speakers’ constitutional right to engage in free speech.” Barrett
v. Walker Cty. Sch. Dist., 872 F.3d 1209, 1229–30 (11th Cir.
2017). Finally, we state the obvious by noting that the public
interest is not disserved by enforcing the First Amendment’s
core protection against viewpoint discrimination.

                        *      *       *

       The 2013 policy’s ban on speech related to religion
discriminates on the basis of viewpoint. And it is not a
permissible limitation on COLTS’s forum, however that forum
is characterized. We will reverse the judgment of the District
Court and instruct it to grant declaratory relief and issue an
injunction barring enforcement of the 2013 policy’s religious
speech ban against Freethought.




                               33
COWEN, Circuit Judge, dissenting.

       The majority concludes that COLTS’s policy
discriminates based on viewpoint and that, even if the policy
were viewpoint neutral, it fails to survive scrutiny as a
content-based restriction. However, I do not believe that the
transit system’s policy rises to the level of viewpoint
discrimination. As the D.C. Circuit has recently explained,
there is a critical difference between the prohibition of
religious (and atheistic) perspectives on otherwise permissible
subject       matters—which          constitutes     viewpoint
discrimination—and the exclusion of religion itself as a
subject matter—which does not. This case clearly implicates
a subject-matter prohibition. Furthermore, COLTS satisfies
its burden of showing that its policy is reasonable (and I
conclude that it has closed the forum). Accordingly, I must
respectfully dissent.

                              I.

        According to the majority, its holding that COLTS’s
2013 Policy facially discriminates against religious and
atheistic viewpoints on the various topics otherwise permitted
in the forum “diverges from a recent decision of the United
States Court of Appeals for the D.C. Circuit, Archdiocese of
Washington v. Washington Metropolitan Area Transit
Authority, 897 F.3d 314 (D.C. Cir. 2018), petition for cert.
filed, No. 18-1455 (May 20, 2019).” (Majority Opinion at
17-18.) Among other things, it asserts that the purported
“prerogative” to exclude religion as a subject matter is
premised on dictum in Rosenberger v. Rector and Visitors of
University of Virginia, 515 U.S. 819 (1995), which the
Supreme Court disclaimed in Good News Club v. Milford
Central School, 533 U.S. 98 (2001). “[T]o the extent the D.C.
Circuit reasoned that religious speech on a permissible topic
may be censored if it is not ‘primarily’ about that topic, see
Archdiocese of Wash, 897 F.3d at 329, we disagree with that
too. As the Supreme Court explained in Good News Club,
that a message on a permitted topic is ‘quintessentially
religious’ or ‘decidedly religious in nature’ does not relegate
it to second-class status. See 533 U.S. at 111.” (Id. at 21.) In
the end, the majority determines that Freethought’s “Atheists”
advertisement, although it relates to the subject matter of
religion, communicates a viewpoint on other subject matters
permitted in the forum.

       To addition to disagreeing with its assessment of the
“Atheists” advertisement, I reject the majority’s reading of
the existing case law as well as (on a more fundamental level)
its understanding of the fundamental concepts of viewpoint
and subject matter. In short, like its Washington, D.C.
counterpart, COLTS “may exclude religion as a subject
matter from its advertising space.” Archdiocese of Wash.,
897 F.3d at 319.

       Initially, the majority places special emphasis on the
Supreme Court’s decision in Good News Club. It, however,
has read too much into this opinion. In Rosenberger, the
Supreme Court stated that, “[b]y the very terms of the SAF
prohibition, the University does not exclude religion as a
subject matter but selects for disfavored treatment those
student journalistic efforts with religious editorial
viewpoints.” Rosenberger, 515 U.S. at 831. In Good News
Club, the Court did explain that, “[a]though in Rosenberger
there was no prohibition on religion as a subject matter, our
holding did not rely on this factor,” Good News Club, 533




                               2
U.S. at 110, and rejected the notion that “something that is
quintessentially religious’ or ‘decidedly religious in nature”
cannot “also be characterized properly as the teaching of
morals and character development from a particular
viewpoint,” id. at 111 (citing Good News Club v. Milford
Cent. Sch., 202 F.3d 502, 512 (2d Cir. 2000) (Jacobs, J.,
dissenting)).    It did not “disclaim” the government’s
prerogative or power to ban a particular subject matter
without thereby engaging in unconstitutional viewpoint
discrimination.     Nor did the Good News Club Court
specifically examine the question of how to treat speech on
the subject matter of religion that is “not ‘primarily’ about”
some other permissible topic (id. (quoting Archdiocese of
Wash., 897 F.3d at 329).) On the contrary, the Court’s
reasoning is premised on the fundamental distinction between
viewpoint and subject matter. It explained that Rosenberger
“concluded simply that the university’s denial of funding to
print Wide Awake was viewpoint discrimination, just as the
school district’s refusal to allow Lamb’s Chapel to show its
films was viewpoint discrimination.” Id. at 110 (emphasis
added) (citing Rosenberger, 515 U.S. at 831). The Supreme
Court then rejected the Second Circuit’s belief that the highly
religious aspects of the Good News Club’s teaching of morals
and character development effectively “tainted” its expression
so that it no longer constituted a viewpoint on the otherwise
permissible subject matter of moral and character education,
e.g.:

      What matters for purposes of the Free Speech
      Clause is that we can see no logical difference
      in kind between the invocation of Christianity
      by the Club and the invocation of teamwork,
      loyalty, or patriotism by other associations to




                              3
      provide a foundation for their lessons. It is
      apparent that the unstated principle of the Court
      of Appeals’ reasoning is its conclusion that any
      time religious instruction and prayer are used to
      discuss morals and character, the discussion is
      simply not a “pure” discussion of those issues.
      According to the Court of Appeals, reliance on
      Christian principles taints moral and character
      instruction in a way that other foundations for
      thought or viewpoints do not. We, however,
      have never reached such a conclusion. Instead,
      we reaffirm our holdings in Lamb’s Chapel and
      Rosenberger that speech discussing otherwise
      permissible subjects cannot be excluded from a
      limited public forum on the ground that the
      subject is discussed from a religious viewpoint.
      Thus, we conclude that Milford’s exclusion of
      the Club from use of the school, pursuant to its
      community        use      policy,     constitutes
      impermissible viewpoint discrimination.

Id. at 111-12 (footnote omitted); see also, e.g., Child
Evangelism Fellowship of N.J., Inc. v. Stafford Twp. Sch.
Dist., 386 F.3d 514, 528 (3d Cir. 2004) (observing that Good
News Club rejected Second Circuit’s position that something
that is quintessentially religious or decidedly religious in
nature cannot also be characterized as teaching of morals and
character from particular viewpoint and that what ultimately
mattered was lack of logical difference between invocation of
Christianity and invocation of teamwork, loyalty, or
patriotism as foundation for such teaching). The Supreme
Court then proceeded to distinguish the club’s activities from
“mere religious worship, divorced from any teaching of moral




                              4
values.” Good News Club, 533 U.S. at 112 n.4 (further
noting that Second Circuit never determined that activities
actually constituted religious worship and explaining that,
“[r]egardless of the label Justice Souter wishes to use [i.e., an
evangelical service of worship], what matters is the substance
of the Club’s activities, which we conclude are materially
indistinguishable from the activities in Lamb’s Chapel and
Rosenberger”).

       This narrower reading of Good News Club is
consistent with basic First Amendment principles. As Judge
Wilkins succinctly put it, the “[f]orum doctrine’s boundary
between permissible subject-matter restrictions and
impermissible viewpoint discrimination is a load-bearing wall
in the First Amendment’s structure.” Archdiocese of Wash.,
897 F.3d at 339 (Wilkins, J., concurring).

        Even the majority appears to recognize that there is a
well-established and fundamental distinction between subject-
matter and viewpoint restrictions. It certainly may be
difficult to distinguish subject matter from viewpoint,
especially where the subject matter at issue constitutes both a
comprehensive body of thought (i.e., a subject matter) and a
source for points of view from which to discuss a variety of
other subject matters (i.e., viewpoints).           See, e.g.,
Rosenberger, 515 U.S. at 830-31. But it is well established
that “a government may sometimes impose content or speaker
limitations that protect the use of its property,” while, “no
matter what kind of property is at issue, viewpoint
discrimination is out of bounds.” (Id. at 11 (citing Minn.
Voters All. v. Mansky, 138 S. Ct. 1876, 1885 (2018)).)
Accordingly:




                               5
      [T]he Supreme Court has repeatedly upheld and
      applied the distinction between subject matter
      and viewpoint. See, e.g., Mansky, 138 S. Ct. at
      1885 (“[O]ur decisions have long recognized
      that the government may impose some content-
      based restrictions in nonpublic forum[s].”);
      Reed v. Town of Gilbert, [135 S. Ct. 2218,
      2230] (2015) (“Government discrimination
      among viewpoints—or the regulation of speech
      based on the specific motivating ideology or the
      opinion or perspective of the speaker—is a
      more blatant and egregious form of content
      discrimination” than subject-matter restrictions
      (quotation marks omitted)); Rosenberger, [515
      U.S. at 830-31] (distinguishing between
      restricting religious subject matter and religious
      viewpoints).

Archdiocese of Wash., 897 F.3d at 338-39 (Wilkins, J.,
concurring). “[T]he speech restrictions struck down in
Lamb’s Chapel, Rosenberger, and Good News Club each
singled out religious viewpoints that otherwise fell within
prospectively defined, permissible subject matter. Stated
otherwise, those decisions involved rules that permitted
private speakers to discuss categories A, B, and C, but when a
speaker sought to discuss C from a pro-religious perspective,
they were improperly prohibited from doing so.” Id. at 338
(Wilkins, J., concurring). In contrast, WMATA barred
advertisements that promote or oppose any religion, religious
practice, or belief: “Guideline 12 is thus a categorical
subject-matter restriction by its own terms: It prohibits any
advertisement whatsoever on the subject of religious or anti-
religious advocacy, whether favoring or opposing religion in




                              6
general, or any particular religion, belief, or practice.”1 Id. at
337 (Wilkins, J., concurring) (citing Rosenberger, 515 U.S. at
831); see also, e.g., id. at 325 (“But far from being an
abrogation of the distinction between permissible subject
matter rules and impermissible viewpoint discrimination,
each of these cases represents an application of the Supreme
Court’s viewpoint discrimination analysis, of which
Guideline 12 does not run afoul.”); Child Evangelism
Fellowship, 386 F.3d at 528 (“Cases such as Lamb’s Chapel,
Rosenberger, and Good News Club establish that if
government permits the discussion of a topic from a secular
perspective, it may not shut out speech that discusses the
same topic from a religious perspective.”).

       This distinction between viewpoint and subject matter
actually encourages the government to open (or keep open)

       1
           According to the majority, the D.C. Circuit’s
reasoning echoes the dissent in Rosenberger. But the
Supreme Court majority obviously did not believe it was
eviscerating the basic distinction between viewpoint and
subject matter. After all, Rosenberger explained, inter alia,
that religion—even though it may be “a comprehensive body
of thought” or “a vast area of inquiry”—“also provides, as it
did here, a specific premise, a perspective, a standpoint from
which a variety of subjects may be discussed and
considered.” Rosenberger, 515 U.S. at 831 (emphasis added).
“The prohibited perspective, not the general subject matter,
resulted in the refusal to make third-party payments for the
subjects discussed were otherwise within the approved
category of publications.” Id. Likewise, neither I nor the
D.C. Circuit take issue with Rosenberger’s recognition that
not “all debate is bipolar.” Id.




                                7
forums to speech that they might otherwise completely
exclude. The principle that the government may restrict
speech in a non-public forum so long as it maintains
viewpoint neutrality and acts reasonably “‘encourage[s] the
government to open its property to some expressive activity
in cases where, if faced with an all or nothing choice, it might
not open the property at all.’” Archdiocese of Wash., 897
F.3d at 324 (quoting Ark. Educ. Television Comm’n v.
Forbes, 523 U.S. 666, 680 (1998))). The government is also
required to establish prospective and categorical subject
matter regulations, thereby preserving its ability to manage
potentially sensitive non-public forums while cabining its
discretion to censor. Id. at 324-25 (further noting importance
of such constraint in context of religious speech given
constitutional commitment to religious liberty and role of
religiously motivated dissent in landmark free speech case
law); see also, e.g., id. at 337 (Wilkins, J., concurring)
(observing that requirement to set prospective and categorical
rules provides public with notice of what speech is allowed
and constrains discretion of government to pick favorites on
ad hoc basis). One basic premise of the First Amendment is
to encourage more— not less—speech. See, e.g., Citizens
United v. FEC, 558 U.S. 310, 361 (2010) (“[I]t is our law and
tradition that more speech, not less, is the governing rule.”).
Yet “[w]ithout reasonable control over the content of private
speech in nonpublic forums, government may elect to close a
forum entirely rather than deal with the administrative burden
or floodgate consequences of accepting private speech
without effective subject-matter restrictions.” Archdiocese of
Wash., 897 F.3d at 337 (Wilkins, J., concurring). In fact, the
majority suggests that COLTS would have to exclude even
more speech if it wished to adopt a constitutionally effective
subject-matter limitation.




                               8
        Furthermore, the majority’s approach “offers no
principled reason for excepting religion from the general
proposition that governments may exclude subjects in their
non-public forums.” Id. at 325. The majority suggests that
religious advertisements are “entitled to special protection”
(id. at 30-31 (citing Ridley v. Mass. Bay Transp. Auth., 390
F.3d 65, 100 (1st Cir. 2004) (Torruella, J., concurring in part
and dissenting in part); Hedges v. Wauconda Cmty. Unit Sch.
Dist. No. 118, 9 F.3d 1295, 1298 (7th Cir. 1993); Murdock v.
Pennsylvania, 319 U.S. 105, 109 (1943); Trinity Lutheran
Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2019
(2017)))—over and above the protection accorded to “issue-
oriented” or political advertisements (id. at 29-30 (citing
Archdiocese of Wash. v. Wash. Metro. Area Transit Auth.,
910 F.3d 1248, 1254 n.3 (D.C. Cir. 2018) (Griffith, J.,
dissenting from denial of rehearing en banc); Am. Freedom
Def. Initiative v. Wash. Metro. Area Transit Auth., 901 F.3d
356, 370 (D.C. Cir. 2018), cert. denied, 139 S. Ct. 2665
(2019); Am. Freedom Def. Initiative v. Suburban Mobility
Auth. for Reg’l Transp., 698 F.3d 885, 894 (6th Cir. 2012))).
Like the D.C. Circuit, I agree that the protection of religious
expression is of critical importance. See, e.g., id. at 324-25.
Yet the same thing could be said about political speech. Like
religion, politics “also provides . . . a specific premise, a
perspective, a standpoint from which a variety of subjects
may be discussed and considered,’” Rosenberger, 515 U.S. at
825. “If there is any fixed star in our constitutional
constellation, it is that no official, high or petty, can prescribe
what shall be orthodox in politics, nationalism, religion, or
other matters of opinion.” W. Va. Bd. of Educ. v. Barnette,
319 U.S. 624, 642 (1943) (emphasis added); see also, e.g.,
Archdiocese of Wash., 897 F.3d at 339 (Wilkins, J.,




                                9
concurring) (“After all, political speech has frequently been
designated as the most highly protected form of First
Amendment expression.” (citing Pursuing America’s
Greatness v. FEC, 831 F.3d 500, 508 (D.C. Cir. 2016)). Bans
on political speech in non-public forums have been upheld,
and a more expansive approach to viewpoint discrimination
may force the complete closure of non-public forums to all
private speech. See, e.g., Archdiocese of Wash., 897 F.3d at
325 (“Although religious speech might be an exception either
because it is highly valuable or because it receives specific
protection in the First Amendment, the same can be said of
political speech on which the Supreme Court has upheld bans
against constitutional challenges. See, e.g., Ark. Educ.
Television Comm’n, [523 U.S. at 669]; [Cornelius v. NAACP
Legal Def. & Educ. Fund, Inc., 473 U.S. 788 (1985)]. The
Archdiocese’s position could have sweeping implications for
what speech a government may be compelled to allow once it
allows any at all, even forcing a choice between opening non-
public forums to almost any private speech or none, which the
Supreme Court acknowledged in Arkansas Educational
Television Commission, [523 U.S. at 680], was not merely
hypothetical.”).

       The majority calls into question D.C. Circuit’s
indication that speech on an impermissible subject matter
may be barred if it does not also “primarily” relate to a
permissible subject matter. In addition to reading too much
into the Supreme Court’s Good News Club opinion, the
majority overlooks the D.C. Circuit’s reference to whether the
advertisement is “recognizably” about a permissible topic.
Id. at 329. Judge Wilkins also aptly observes that “such
alleged ‘viewpoint’ discrimination could always be reverse-
engineered by comparing a prohibited statement with any




                             10
permitted statement—real or hypothetical—and finding some
kind of subject-matter commonality between the two.” Id. at
338 (Wilkins, J., concurring).          Such an expansive
understanding (especially because it must logically extend to
other subject matters like politics) would effectively make it
impossible to establish any content requirements for non-
public forums or otherwise cause governmental entities to
close their forums to yet more and more topics for
expression.2

       Applying the D.C. Circuit’s approach, I see no
meaningful difference between the advertisements and
policies at issue in the WMATA proceeding and in this case.
Accordingly, the District Court did not err by rejecting
Freethought’s claim of viewpoint discrimination.




       2
         I further note that Freethought’s briefing in this case
does not really take issue with the D.C. Circuit’s “subject
matter” approach—and instead endeavors to distinguish
COLTS’s policy from the policy adopted by the WMATA.
(See, e.g., Appellant’s Brief at 29-30 (“COLTS’ ‘religious’
provision goes far beyond prohibiting advertisements on the
topics of religion or atheism. It also prohibits advertisements
on any topic that contains any reference to the existence of
religion or atheism. Cf., Archdiocese of Wash. v. Wash.
Metro. Area Transit Auth., 877 F.3d 1066, 1067 (D.C. Cir.
2017) [(denying motion for injunction pending appeal)]
(‘WMATA does not exclude religious speakers from
advertising when their proposed messages comport with the
allowed categories of speech.’).” (citations omitted)).)




                              11
       Initially, both the “religion” provisions as well as the
respective forums are very similar.3 Like other public transit
agencies around the country, both COLTS and WMATA
(which previously had maintained designated public forums
on their advertising space) have attempted to address (or to
prevent in the future) problems arising from various
inflammatory advertisements (see, e.g., id. at 6
(“[Wintermantel] began researching other transit systems’
policies and identified controversies in other cities kindled by
inflammatory ad campaigns.”)).         See, e.g., id. at 319
(“Beginning in 2010, WMATA began to reconsider its

       3
         The majority takes issue with the D.C. Circuit’s
“choice to conduct a forum analysis before determining
whether the policy discriminated on the basis of viewpoint.”
(Majority Opinion at 19.) I completely agree that viewpoint
discrimination is not permitted in any forum. But this does
not mean that the nature and scope of the forum is irrelevant
to the determination of whether there is viewpoint
discrimination. Even the majority considers whether the
range of subject matters permitted in the forum at issue
includes a topic the speaker wants to address. Furthermore,
“[a]lthough observing that ‘Lamb’s Chapel, Rosenberger, and
Good News Club, read together, draw into question whether a
blanket ban such as Vermont’s on all religious messages in a
forum that has otherwise been broadly opened to expression
on a wide variety of subjects can neatly be classified as purely
a “subject matter” restriction for purposes of First
Amendment analysis,’ the [Second Circuit] declined to
‘address bans on religious speech in forums limited to
discussion of certain, designated topics.’” Archdiocese of
Wash., 897 F.3d at 327 (quoting Byrne v. Rutledge, 623 F.3d
46, 58-59 (2d Cir. 2010)).




                              12
approach as a result of near-monthly complaints from its
employees, riders, elected officials, and community and
business leaders about its advertisements. . . . The Metro
Transit Police Department and the United States Department
of Homeland Security ‘feared that certain ads would, due to
world events, incite individuals to violence on the system and
harm WMATA employees and customers.’ . . . . Additionally,
a survey showed that ‘98% of the public was familiar with the
types of ads found on buses, in trains, and in stations,’ that
‘58% opposed issue-oriented ads,’ and that ‘46% were
extremely opposed to . . . issue-oriented ads.’” (citations
omitted)). Accordingly, the 2013 COLTS Policy prohibits
the following advertisements:

    for tobacco or alcohol or for businesses that
     primarily traffic in such goods;
    that promotes the use of firearms or firearm-
     related products or for businesses that primarily
     traffic in such goods;
    that are obscene, pornographic, or promotes or
     depict sexually-oriented goods or services or for
     businesses that primarily traffic in such goods
     or services or that appeal to prurient interests;
    that promotes violence or sexual conduct;
    that are deemed defamatory, illegal, fraudulent,
     misleading or false;
    that proposes a transaction or activity that is
     prohibited by federal, state or local law;
    that exploit the likeness, picture, image or name
     of any person, and/or trademark, trade name,
     copyrighted materials or other intellectual
     property of a third party, without adequate proof
     of express written authorization to do so;




                             13
    that contain, employ or imply profane or vulgar
     words;
    that demean or disparage a person, group of
     persons, business or group of businesses;
    that, if permitted, could reasonably subject
     COLTS to civil or criminal liability;
    that are political in nature or contain political
     messages, including advertisements involving
     political figures or candidates for public offices,
     advertisements involving political parties or
     political affiliations, and/or advertisements
     involving an issue reasonably deemed by
     COLTS to be political in nature in that it
     directly or indirectly implicates the action,
     inaction, prospective action, or policies of a
     governmental entity.
    that promote the existence or non-existence of a
     supreme deity, deities, being or beings; that
     address, promote, criticize or attack a religion
     or religions, religious beliefs or lack of religious
     beliefs; that directly quote or cite scriptures,
     religious text or texts involving religious beliefs
     or lack of religious beliefs; or are otherwise
     religious in nature.

(JA687-JA688.) “WMATA adopted Guidelines Governing
Commercial Advertising, employing broad subject-matter
prohibitions in order to maintain viewpoint neutrality and
avoid ad hoc prohibitions about which ads are benign and
which are not.” Archdiocese of Wash., 897 F.3d at 318-19.
Like COLTS’s ban on advertisements that promote, criticize,
or attack a religion, religions, religious beliefs, or the lack of
religious beliefs, “Guideline 12 states: ‘Advertisements that




                               14
promote or oppose any religion, religious practice or belief
are prohibited.’” Id. The WMATA Guidelines also included
the following prohibitions:

      9.   Advertisements intended to influence
      members of the public regarding an issue on
      which there are varying opinions are prohibited.

      10. Advertisements of tobacco products are
      prohibited . . . .

      11. Advertisements that support or oppose any
      political party or candidate are prohibited.

      13. Advertisements that support or oppose an
      industry position or industry goal without any
      direct commercial benefit to the advertiser are
      prohibited.

      14.    Advertisements that are intended to
      influence public policy are prohibited.

Archdiocese of Wash. v. Wash. Metro. Area. Transit Auth.,
281 F. Supp. 3d 88, 96 (D.D.C. 2017) (Guideline 12 omitted)
(citation omitted).

       The WMATA’s Guidelines—and consequently
COLTS’s equivalent standards—are unlike the policies at
issue in Lamb’s Chapel, Rosenberger, and Good News Club.
“To the extent those cases can be read to blur the line
between religion-as-subject-matter and a religious viewpoint,
the Supreme Court’s analysis emphasizes the breadth of the
forums involved: the “broad range” of activities in service of




                             15
“educational purpose” contemplated in Rosenberger, [515
U.S. at 824], and the capacious range of ‘social, civic, and
recreational meetings and entertainments, and other uses
pertaining to the welfare of the community’ that might have
been permitted in [Lamb’s Chapel v. Center Moriches Union
Free School Dist., 508 U.S. 384, 386 (1993)], and Good
News Club, [533 U.S. at 102].” Archdiocese of Wash., 897
F.3d at 327. “By contrast, [WMATA’s forum as well as
COLTS’s forum—consisting of advertising space—are] not
so broad, much less inviting through [their] advertisements
public debate on religion.” Id.

       The Archdiocese of Washington’s proposed
“evangelistic ad” depicted “‘a starry night and the silhouettes
of three shepherds and sheep on a hill facing a bright shining
star high in the sky, along with the words “Find the Perfect
Gift”’” (and included a web address and social media
hashtag). (Majority Opinion at 18 (quoting Archdiocese of
Wash., 897 F.3d at 320).) The D.C. Circuit persuasively
rejected the Archdiocese’s argument that its advertisement
addressed permissible topics like charitable giving (as well as
an amici’s assertion that its advertisement exhorting viewers
to visit the Franciscan Monastery of the Holy Land in
America expressed its religious viewpoint on places to visit):

      These contentions are unpersuasive because the
      subjects on which the Archdiocese and the
      Monastery claim they wish to speak through
      advertisements on WMATA buses are either not
      subjects within the forum or are not subjects on
      which they have shown they could not speak
      under Guideline 12.




                              16
             The Archdiocese’s “Find the Perfect
      Gift” ad is not primarily or recognizably about
      charitable giving, as it is not primarily or
      recognizably about opening hours or places to
      visit.     Like the Monastery’s ad, the
      Archdiocese’s ad is a religious ad, an
      exhortation, repeatedly acknowledged by the
      Archdiocese to be part of its evangelization
      effort to attend mass at Catholic churches in
      connection with Advent. The imagery of the
      Archdiocese’s “Find the Perfect Gift” ad is
      evocative not of the desirability of charitable
      giving, but rather the saving grace of Christ,
      which is not a subject included in the WMATA
      forum. Had the Archdiocese wished to submit
      an ad encouraging charitable giving, nothing in
      the record suggests it could not do so.
      WMATA accepted the ad of the Salvation
      Army, a religious organization whose ad
      exhorted giving to charity but contained only
      non-religious      imagery.            WMATA
      acknowledged in the district court, and again in
      this court that it would not reject as running
      afoul of Guideline 12 an ad from the
      Archdiocese that read “[P]lease [G]ive to
      Catholic Charities.”

Id. at 329 (further rejecting Archdiocese’s theory that
commercial advertising promoting Christmastime sales
expressed view on how to celebrate Christmas); see also, e.g.,
id. at 330 (“The Archdiocese’s suggestion that WMATA has
been inconsistent because it accepted an ad from a yoga
studio containing the slogan ‘Muscle + Mantra,’ ignores that




                             17
ad is not recognizably religious as the Archdiocese’s ad
plainly is, by its own characterization.”).

       Freethought’s proposed advertisement says in big print
“Atheists,” and provides the name of the organization and a
website. In fact, it goes to the very heart of the subject matter
of religion—the existence or non-existence of a deity. The
2013 Policy expressly bars advertising “that promote the
existence or non-existence of a supreme deity, deities, beings
or beings” (JA687), and COLTS stipulated at trial that it
rejected the proposed advertisement because “the proposed
advertisement addressed the non-existence of a deity” (JA61;
see also, e.g., JA701 (letter rejecting earlier proposed
“Atheists” advertisement because “COLTS does not accept
advertisements that promote the belief that ‘there is no God’
or advertisements that promote the belief that ‘there is a
God’”). Freethought engages in debates over the existence or
non-existence of God. “A typical consequence of the
appearance of Freethought at an event is the discussion of
whether or not God exists.” Ne. Pa. Freethought Soc’y v.
Cty. of Lackawanna Transit Sys., 327 F. Supp. 3d 767, 771
(M.D. Pa. 2018). In turn, the proposed advertisement does
not reference, to give just a couple of examples, either
instruction in morals and character or the desirability of
charitable giving from an atheistic point of view.
Accordingly, I believe that—just like the Archdiocese of
Washington’s “Find the Perfect Gift” submission—
Freethought’s advertisement clearly implicates the prohibited
subject matter of religion.


                               II.




                               18
       The majority concludes that, even if COLTS’s
religious speech ban were viewpoint neutral and COLTS’s
advertising space were now a limited or non-public forum,4 it

       4
         Unlike the majority, I believe that COLTS effectively
closed the forum at issue here. While COLTS had previously
opened its advertising space as a designated public forum, it
“may limit or close the forum at any time” (Majority Opinion
at 22 n.2 (citing United States v. Bjerke, 796 F.2d 643, 647
(3d Cir. 1986))). See, e.g., Archdiocese of Wash., 897 F.3d at
323 (“Having plainly evinced its intent in 2015 to close
WMATA’s advertising space to certain subjects, the Board of
Directors converted that space into a non-public forum in the
manner contemplated by the Supreme Court.” (citing
Cornelius, 473 U.S. at 803-04)); Ridley, 390 F.3d at 77 (“The
government is free to change the nature of any nontraditional
forum as it wishes. Thus, even if MBTA’s previous intent
was to maintain a designated public forum, it would be free to
decide in good faith to close the forum at any time. There is
no evidence that the 2003 changes were adopted as a mere
pretext to reject plaintiff’s advertisements.” (citing Cornelius,
473 U.S. at 802)). Even setting aside the purportedly
deficient language identified by the majority, the 2013 Policy
sets forth a number of categorical subject-matter limitations,
excluding, among other topics, advertisements on the topic of
religion as well as political advertising (i.e., advertisements
“that are political in nature or contain political messages,
including advertisements involving political figures or
candidates for public offices, [and/or] advertisements
involving political parties or political affiliations” (JA687)).
As I explain in more detail in my reasonableness analysis,
COLTS properly sought to address issues affecting transit
agencies throughout the country, including threats, boycotts,




                               19
does not survive scrutiny as a content-based restriction. I do
not agree.

       The reasonableness standard is more exacting than the
rational basis inquiry, and the government bears the burden of
proof. See, e.g., NAACP v. City of Philadelphia, 834 F.3d
435, 441-45 (3d Cir. 2016). Nevertheless, “[r]easonableness
is a relatively low bar.” Id. at 443. “Unlike with strict
scrutiny, this review does not require narrow tailoring or the
absence of less restrictive alternatives.         Indeed, the
‘Government’s decision to restrict access . . . need only be
reasonable; it need not be the most reasonable or the only
reasonable limitation.’” Id. at 441 (quoting Cornelius, 473
U.S. at 808). COLTS has a two-step burden to meet: (1)
“The evidence or commonsense inferences must allow us to
grasp the purpose to which [COLTS] has devoted the forum;”
and (2) “the evidence or commonsense inferences also must
provide a way of tying the limitation on speech to the forum’s
purpose.” Id. at 445 (quoting Greer v. Spock, 424 U.S. 828,
836 (1976)); see also, e.g., Mansky, 138 S. Ct. at 1888
(“Although there is no requirement of narrow tailoring in a
nonpublic forum, the State must be able to articulate some
sensible basis for distinguishing what may come in from what
must stay out.” (citing Cornelius, 473 U.S. at 808-09)).

       Significantly, the majority appears to agree that
COLTS satisfies the first step, identifying raising revenue and
maintaining or increasing ridership as purposes of the forum.
It properly rejects Freethought’s assertion that the ridership
interest should be disregarded “because COLTS stipulated
that they were not goals when it first opened its ad space and


and vandalism.




                              20
when it enacted the 2011 policy.” (Majority Opinion at 23-
24.) “But we assess both the speech forum and the broader
government property of which it is part. See Cornelius, 473
U.S. at 801-02. An advertising program that deters all or
many riders is inconsistent with the purpose of a public bus.
See NAACP, 834 F.3d at 445-46 (holding commonsense
inferences can support explanation of forum’s purpose).” (Id.
at 24.)

       Having satisfied the initial step of the reasonableness
inquiry, COLTS must establish—with either record evidence
or common sense—an adequate connection between the
forum’s purposes and the speech limitation. I believe that it
does.

        “[T]he record demonstrates that the advertising policy,
at its core, was enacted to avoid controversy on the buses for
the safety and comfort of passengers. This, in turn, was to
maintain ridership and, as a result, revenue.” Ne. Pa.
Freethought Soc’y, 327 F. Supp. 3d at 775 n.5. As the
majority acknowledges, the government may exclude speech
“because its controversial nature adversely impacts the
forum’s other purposes” (even though this sort of exclusion
must be treated with a degree of skepticism). United Food &
Commercial Workers Union, Local 1099 v. Sw. Ohio Reg’l
Transit Auth., 163 F.3d 341, 356 (6th Cir. 1998) (“We note,
however, that the Supreme Court has suggested that
excluding speech because its controversial nature adversely
impacts the forum’s other purposes constitutes a reasonable
restriction on access to a nonpublic forum.” (citing Cornelius,
473 U.S. at 811)); see also, e.g., NAACP, 834 F.3d at 446
(“We note at the outset that, although the City is permitted
under the right circumstances to dedicate a limited public or




                              21
nonpublic forum to controversy avoidance, this objective is
nebulous and not susceptible to objective verification. As a
result, Supreme Court guidance cautions against readily
drawing inferences, in the absence of evidence, that
controversy avoidance renders the ban constitutional.” (citing
Cornelius, 473 U.S. at 812; Metromedia, Inc. v. City of San
Diego, 453 U.S. 490, 510 (1981) (plurality opinion)).

       COLTS reasonably asserts that heated debates on its
buses could deter riders, distract the drivers, endanger
passengers, and reduce revenue. “COLTS cited disruptions
on other transit systems in formulating its policy—disruptions
that led to anonymous threats against buses, as well as
boycotts and vandalism.” (Id. at 25.) It is certainly
reasonable to infer that these problems could spread onto the
buses themselves—and that such disturbances could then cost
the transit system both riders and money. A government
“need not wait until havoc is wreaked to restrict access to a
nonpublic forum.” Cornelius, 473 U.S. at 810 (citing Perry
Educ. Ass’n v. Perry Local Educators’ Ass’n, 37, 52 n.12
(1983)).

       In Lehman, “Justice Douglas provided the fifth vote
for the outcome in a concurring opinion that focused heavily
on the issue of captive audiences.” NAACP, 834 F.3d at 448
n.6 (citing Lehman v. City of Shaker Heights, 418 U.S. 298,
308 (1974) (Douglas, J., concurring in judgment)). At least
part of COLTS’s forum clearly implicates Justice Douglas’s
concern. (See, e.g., id. at 28 (“To be sure, the captive
audience concern does apply to part of COLTS’s forum (the
interior space).”).) “In asking us to force the system to accept
[its] message as a vindication of [its] constitutional rights,
[Freethought] overlooks the constitutional rights of the




                              22
commuters. While [Freethought] clearly has a right to
express [its] views to those who wish to listen, [it] has no
right to force [its] message upon an audience incapable of
declining to receive it.” Lehman, 418 U.S. at 307 (Douglas,
J., concurring in judgment) (further noting that public transit
is practical necessity for many people).

       The majority also admits that “COLTS argues with
some force that its blanket ban [on religious speech] serves
valid interests in appearing neutral.” (Id. at 31.) We have
recognized that “[t]he desire to avoid potentially disruptive
controversy and maintain the appearance of neutrality is
sufficient justification for excluding speakers from a [limited
forum].” Student Coalition for Peace v. Lower Merion Sch.
Dist. Bd. of Sch. Directors,. 776 F.2d 431, 437 (3d Cir. 1985)
(citing Lehman, 418 U.S. at 304). As the Ninth Circuit
explained in a decision upholding a transit system’s ban on
non-commercial bus advertising, “[t]he city’s interests in
protecting revenue and maintaining neutrality on political and
religious issues are especially strong.” Children of the
Rosary v. City of Phoenix, 154 F.3d 972, 979 (9th Cir. 1998).
“[I]n fact, Mr. Vacula testified that he wants the government
to remain neutral on matters of religion,” Ne. Pa. Freethought
Soc’y, 327 F. Supp. 3d at 782.

       In conclusion, “reasonableness review imposes a light
burden” (id. (citing NAACP, 834 F.3d at 449)), and I believe
that COLTS meets this burden. At some points, the majority
seems to hold the transit agency to a higher burden, indicating
inter alia that it could exclude many controversial
advertisements through more targeted restrictions. See, e.g.,
NAACP, 834 F.3d at 441 (pointing out that reasonableness
review does not require narrow tailoring or absence of less




                              23
restrictive alternatives). In any event, our sister circuits have
upheld similar speech restrictions in the public transit context.
See, e.g., Archdiocese of Wash., 897 F.3d at 329-31; Am.
Freedom Def. Initiative. 698 F.3d at 892-95; Ridley, 390 F.3d
at 93; Children of the Rosary, 154 F.3d at 978-79. In
Archdiocese of Washington, the D.C. Circuit persuasively
explained why the WMATA’s decision to ban advertisements
on the subject matter of religion was reasonable. “In 2015,
WMATA decided to avoid the divisiveness caused by certain
advertisements and specifically to avoid the inflamed
passions surrounding religion.” Archdiocese of Wash., 897
F.3d at 330. While WMATA actually received complaints
regarding prior controversial advertisements, COLTS
reasonably relied on reports of problems plaguing other
transit agencies (including WMATA) throughout the country
concerning       controversial   advertisements,      such     as
advertisements regarding the non-existence of God. Like
WMATA, “[COLTS’s] closure of its forum is reasonable in
light of its core purpose and experience.”5 Id.


                              III.




       5
         I also agree with the District Court that “COLTS
revised their 2011 Policy and, in the 2013 Policy, took away
COLTS’ unfettered discretion to refuse advertisements.” Ne.
Pa. Freethought Soc’y, 327 F. Supp. 3d at 784; see also, e.g.,
Archdiocese of Wash., 897 F.3d at 330 (upholding
WMATA’s policy because it articulated sensible basis for
distinguishing prohibited and permissible speech).




                               24
      For the foregoing reasons, I would affirm the final
judgment entered by the District Court in favor of COLTS
and against Freethought.




                           25
