February 18, 1999

Roger Sweeney
Executive Director
PSTA Board of Directors
14840 49th Street North
St. Petersburg, FL 33708

RE: Former Scientologists Speaking Out Advertisements

Dear Mr. Sweeny:

As you know, I represent Frank Oliver and the Former Scientologists Speaking Out (FSSO), a non-profit organization which had paid for bus advertising for three days in December 1998.

Since the PSTA's rules and regulations governing bus advertising at that time, which are the same rules in effect today, permit commercial and non-commercial advertising and only prohibit political advertising in reference to campaigns, the removal of these advertisements not only violated your own internal regulations, but also violated the First Amendment Rights of my clients subjecting the PSTA to liability under Title VII, 42 U.S.C.A. §1983, et seq. These advertisements fell within the category of non-commercial messages expressing the viewpoint of my clients.

The obvious illegality of the PSTA's actions is demonstrated by the fact that you first relied upon the Florida Statute cited by the Church of Scientology, i.e., Florida Statute § 836.11, since it is interesting that your own counsel, Mr. Zimmet, did not rely upon that statute at the board hearing, but rather on federal court decisions.

As in the case of New York Magazine v. Metropolitran Transportation Authority, 136 F.3rd 123 (2d Cir. 1998), the only issue is whether PSTA's conduct in removing the advertisement from the exterior advertising space on its buses deprived Mr. Oliver and FSSO of their First Amendment rights. Since both commercial and non-commercial advertising is permitted, the court will declare the buses are public fora.

Where the government acted for the purpose of benefitting the public, the court has found a public forum.
New York Magazine, et 129,

Merely limiting a category of speech does not make the forum a non-public forum. New York Magazine, et 129. Otherwise, it would permit the government to convert a public forum into a non-public forum as soon as the government did what is supposed to be impermissible in a designated public forum, i.e., exclude speech based on content. Fortunately for your board, there are several recent decisions to guide you, i.e., New York Magazine v. Metropolitan Transportation Authority, 136 F.3d 123 (2d Cir. 1998); Christ's Bride Ministries, Inc. v. Southeastern Pennsylvania Transportation Authority, 148 F.3d 242 (3d Cir. 1998) and Children of the Rosary v. City of Phoenix, 154 F.3d 972 (9th Cir. 1998).

In New York Magazine, the appellate federal court held that in reviewing the U.S. Supreme COurt decisions, advertising space on buses is indeed a "designated public forum" which then subjects the advertising space to government restriction infringing upon First Amendment rights. Even if it is not a designated public forum, the government cannot preclude advertising whether commercial or noncommercial unless it acts reasonably and with procedural safeguards.

In Christ's Bride, the federal district court found that the subway advertising space is not a public forum because the transportation authority "presented ample evidence that it retained firm control over the types of advertising which may be displayed in its stations. It has rules and standards." However, the federal appellate decision overturned the trial court finding that the subway advertising space, even with all of its rules and regulations and firm control was indeed a public forum.

Prohibiting political speech and perhaps now, noncommercial advertising, will not ease your burden. In fact, it will require more procedural safeguards and higher scrutiny by the court. Excluding speech based on content is known as prior restraint. The board cannot simply exclude advertising based upon content without enormous procedural safeguards requiring the scrutiny of the court. A board cannot regulate itself.

(If the property is deemd non-public and non-public forum)" ... the government may limit speech in a non-public forum if the limitation is reasonable, and not based on the speaker's viewpoint."

Terry Education Association v. Perry Local Educators Association, 460 U.S. 37: 45-56, 103 S.Ct. 948, 944-955, 74 L.Ed.2d 7984 (1983).

As you can see by the above cases, which entails a long history of United States Supreme Court decisions which would condemn the actions of your board without question, whether the buses are deemed to be public fora or non-public fora, the rules and regulations which you develop must never be based upon content or the speakers viewpoint.

We see no reason why the requirement of procedural safeguards should be relaxed whether a speech is commercial or not. We consider prior restraints to be particularly abhorrent to the First Amendment in part because they vest in government agencies the power to determine important constitutional questions properly vested in the judiciary.

New York Magazine, et 131.

Also in New York Magazine, the transit authority tried to enforce the state law and in doing so, removed advertising a magazine which on its front cover was critical of the mayor of New York. The court held that an enforcement of a statute is no excuse to remove advertising. The transit authority merely needs to rely upon its indemnity clause with the advertising agency.

Advertising determined to be controversial by the transit authority will not pass constitutional muster.

United Food & Commercial Workers' Union v. Southwest Ohio Regional Transit Authority, (Fed. 6th Circ. 1998)

Awaiting the Board's reply at the meeting of February 24, 1999, I remain

Sincerely yours,

Kennan George Dandar