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Judge lets Tippecanoe Right to Life free speech case proceed

November 9, 2018

A Tippecanoe County anti-abortion group’s free speech lawsuit against the local public transportation company will continue after a district court judge denied Greater Lafayette Public Transportation Corporation’s motion for judgment on the pleadings.

Tippecanoe County Right to Life sued the public transportation company, known as CityBus, after CityBus general manager Martin Sennett denied Right to Life’s request to place an ad on the side of local buses. The ad consisted of three images: an ultrasound of an early-stage fetus with the word “Me,” an ultrasound of a developed fetus with the words “Me, again,” and a newborn baby with the words “Still me.”

Sennett denied the requested ad because it expressed a political viewpoint, which he said was in violation of CityBus’ advertising policy. Right to Life, however, filed a suit alleging a First Amendment violation.

CityBus moved for judgment on the pleadings, arguing that because it offers an advertising appeals process that was not used here, Tippecanoe County Right to Life is not challenging a final decision. But Indiana Northern District Judge Joseph S. Van Bokkelen denied that motion, noting that the appeals process is an administrative remedy.

“The disposition of CityBus’s motion to dismiss TCRTL’s complaint hinges on whether the appeal process is a step in arriving at a final decision, in which case the rejection of the ad without appeal would not be a final decision, or an administrative remedy for a decision already made, which need not be pursued before filing a section 1983 action,” Van Bokkelen wrote.

“There is no doubt that Sennett’s initial decision to reject the ad amounted to a definitive position that inflicted an actual, concrete injury and that CityBus’s appeal procedure is an administrative remedy for one aggrieved by such a decision,” he continued, referring to Williamson County Regional Planning Com’n v. Hamilton Bank, 473 U.S. 172, 193 (1985). “Thus, TCRTL was not required to resort to that procedure before bringing this section 1983 action.”

The case is Tippecanoe County Right to Life Inc. v. Greater Lafayette Public Transportation Corporation, d/b/a CityBus, 4:18-cv-52.

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