7th Circuit: Women’s services ad can be posted in buses

The 7th Circuit Court of Appeals found a women’s health organization can advertise on city buses because its ad does not violate any of the transit company’s ad policies, overturning a Northern District of Indiana decision.

Women’s Health Link Inc. submitted an advertisement to the Fort Wayne Public Transportation Corp., locally referred to as Citilink, for its services. The ad did not mention Health Link is a pro-life organization in any way, but Citilink refused the ad. Citilink forbids public service ads that “express or advocate opinions or positions upon political, religious or moral issues.”

Citilink discovered Health Link suggests women with unplanned or crisis pregnancies consider alternatives to abortion such as adoption counseling. Since abortion is generally regarded as a moral issue, it concluded Health Link’s ad could not appear on its buses. Health Link sued Citilink alleging violations of constitutional rights and arbitrarily denying freedom of expression.

Judge Richard Posner wrote in a decision for the 7th Circuit panel the ad “is a public service announcement that does not so much as hint at advocating or endorsing any political, moral, or religious position. Even if one goes behind the ad to the organization’s website, one must go to the mission statement and the “Diaper Project” pages for an indication of a pro?life position. Yet the district judge granted summary judgment in favor of Citilink. He shouldn’t have.”

Posner wrote that Citlink’s “refusal to allow Health Link’s ad to be displayed is an unjustifiable, because arbitrary and discriminatory, restriction of free speech.” The denial of the ad had nothing to do with its contents, but only because the organization is pro-life, and mentions as much on its website. Citlink’s policy only bans controversial statements on advertisements, not on websites behind the ads.

Posner also pointed out that many other companies that could be construed to have a political message are allowed to advertise on Citilink, including services for immigrants, advocacy of vaccination, and a law firm that advertises itself as consistent with “Christian character.”

“Citilink’s refusal to post the ad was groundless discrimination against constitutionally protected speech,” Posner concluded citing Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969).  

The case is Women’s Health Link Inc. v. Fort Wayne Public Transportation Corp., 16-1195.


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