BERLIN– The latest round in a federal lawsuit challenging the Lower Shore’s public transportation system’s decision not to accept advertising from an animal rights group went to the plaintiffs this week as a judge denied the defendants’ motion to dismiss the case.
Last August, the People for the Ethical Treatment of Animals (PETA) filed suit in U.S. District Court against Shore Transit and the Tri-County Council of the Lower Eastern Shore seeking injunctions after the quasi-government entities denied their application to place advertising on Shore Transit buses. PETA then renewed its application this summer, asserting Shore Transit’s denial violated First and Fourteenth Amendment rights to free speech and expression.
When Shore Transit and its parent Tri-County Council did not respond the PETA’s second application, the animal rights advocacy group filed suit in U.S. District Court seeking preliminary and permanent injunctions against the transit system’s advertising policies. PETA desired to place ads on the buses which featured the slogan “No one Needs to Kill to Eat,” advocating the closure of animal slaughterhouses. Shore Transit denied the application, citing its policy that prohibits ads that it deems are political, controversial, offensive, objectionable or in poor taste.
PETA’s proposed advertisements each included the text “No One Needs to Kill to Eat,” and “Close the Slaughterhouses, Save the Workers, their Families and the Animals.” One of the proposed advertisements has the word “kill” superimposed on a bloody cleaver, while the other proposed advertisement includes an image of a child holding a chicken, according to court documents.
In September, the defendants filed a motion to dismiss the case on several grounds. For one, the Tri-County Council and Shore Transit assert PETA’s suit suggests closing some of the very businesses across the Lower Shore that the transportation system serves. Secondly, the motion to dismiss states PETA’s claims of First Amendment violations are simply not justified.
“Shore Transit’s policy of prohibiting political advertisements is constitutionally permissible, and PETA’s claims, to the extent it challenges the application of Shore Transit’s ban on political advertisements, should be dismissed,” the motion read. “PETA alleges that this provision of Shore Transit’s constitutes viewpoint discrimination in violation of the First Amendment. This is not the case.”
However, a federal court judge this week denied the defendants’ motion to dismiss the case, meaning it will go on. It was the second defeat for the defendants in the case. In October, the federal judge issued a preliminary injunction against the defendants in the case. In memorandum in support of denying the motion to dismiss, the federal judge asserts the defendants have not clearly established reasons for dismissing the case at this time.
“PETA alleges that the defendants have violated its First and Fourteenth Amendment rights in rejecting its proposed advertisements and in prohibiting advertisements that the defendants deem to be political, controversial, offensive, objectionable or in poor taste,” the memorandum reads. “PETA sufficiently alleges that the defendants have violated its First Amendment rights because the prohibitions fail to provide workable standards and are viewpoint discretionary. Further, for similar reasons, PETA has sufficiently alleged that the defendants’ prohibitions are unconstitutionally vague. As such, PETA’s claims will survive dismissal.”
The federal judge’s ruling asserts the case somewhat involves a distinction between what constitutes a public or non-public forum.
“Here, the parties do not dispute that PETA’s proposed advertisements constitute projected speech and the court finds that PETA was engaged in protected speech,” the memorandum reads. “Next, the court must identify the nature of the forum, because to the extent to which the government may limit access depends on whether the forum is public or non-public. Shore Transit’s advertising space is likely a non-public forum and, as alleged, the defendants’ advertising prohibitions are not reasonable or viewpoint neutral, as is required for a non-public forum. Thus, the court will not dismiss PETA’s First Amendment claims against the defendants.”
The federal judge’s memorandum in support of denying the defendants’ motion to the dismiss suggests some level of understanding with Shore Transit’s advertising. Nonetheless, the judge ruled the motion should be denied and the case should move forward.
“While the court is certainly sympathetic that the defendants may have an interest in limiting graphic or gory imagery on its buses, the manner in which the defendants have done so appears to be neither viewpoint neutral,” the memorandum reads. “PETA’s First Amendment claims, therefore, survive dismissal.”
