Case Name: Lebron v. National Railroad Passenger Corp.
Citation: 69 F.3d 650 (2d Cir. 1995); 89 F.3d 39 (2d Cir. 1995)
Topics: Public Forum; Content/Viewpoint Neutrality
Lebron, an artist who created political billboard displays, entered into a leasing agreement with Transportation Displays, Inc. (TDI), which managed the leasing of advertising space for Amtrak, to rent the Spectacular, a large display in Penn Station in New York for January and February 1993. By the terms of the lease, all advertising was subject to the approval of TDI and Amtrak, and they had the right to terminate the contract if they found the advertising to be objectionable for any reason. Lebron’s display was “an allegory about the destructive influence of a powerful, urban, materialistic and individualistic culture on rural, community based, family-oriented and religious cultures.” Upon seeing the display, TDI offered Lebron any of 500 alternative billboard sites in New York City (none of which were in Penn Station), but Lebron rejected the offer, citing the unique location and size of the Spectacular. Amtrak then rejected Lebron’s display. Though Amtrak had previously leased advertising space to various noncommercial groups, the Spectacular had only been used for commercial advertising.
The court considered Amtrak a government actor for First Amendment purposes. Thus, Lebron sought access to government property. Property can be classified as a public forum (property traditionally open to First Amendment activity), designated public forum (property the state has opened for expressive activity by all or part of the public), limited public forum (property opened to expressive activity by the public for a limited purpose), or nonpublic forum (property not traditionally open for expressive activity by the public). Regulations of each forum type are subject to a different standard, with public forum regulations subject to the strictest standard.
To determine the forum type, the court examined the policy and practice of Amtrak to find whether it intended to make a place not traditionally open to assembly and debate a public forum. The court found that Amtrak’s policy with the Spectacular was clear: it had never opened the Spectacular for anything except purely commercial advertising. Because of this practice, the Spectacular was not a public forum. Rather, the Court concluded that the Spectacular was a nonpublic forum, or perhaps a limited public forum opened purely for commercial speech. Therefore, Amtrak’s policy of excluding noncommercial advertisements from the Spectacular would be upheld if the policy were viewpoint neutral and reasonable in relation to the forum’s purpose. The Court found no evidence (either written or provided by testimony) that the regulation as applied was not viewpoint neutral, particularly considering Amtrak’s historical refusal to accept political advertisements. Additionally, Amtrak was engaged in commerce as a government controlled and financed public facility, and acted reasonably in seeking to avoid the potential embarrassment and criticism that may accompany a political display that favored any political view. Therefore, Amtrak was permitted to reject Lebron’s proposed display for the Spectacular.
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