In February, we tried to tell the people of Philadelphia something our journalists had uncovered: that black residents were 2.7 times as likely to have their conventional mortgage loans denied as their white counterparts.

We approached Philadelphia’s transit agency to purchase advertising in bus interiors and bus shelters. But it immediately denied our application, calling it “political” and “issue-based” advertising.

Now, with the help of the American Civil Liberties Union, we’re suing the Southeastern Pennsylvania Transportation Authority for violating our First Amendment rights.

The litigation joins a growing number of First Amendment lawsuits involving advertisements in public transit systems. However, this case also has broad implications for investigative news organizations that report on political issues and want to promote their work.

On Feb. 15, Reveal from The Center for Investigative Reporting published an investigation showing that African Americans and Latinos are routinely denied conventional mortgage loans at rates far higher than their white counterparts in Philadelphia and 60 other metro areas across America. The investigation, Kept Out, was based on an analysis of 31 million public records. Local and national officials since have cited the story in calling for investigations and reform.

Our lawsuit alleges that the transportation authority violated the First Amendment, primarily under the public forum doctrine. The doctrine holds that once the government opens a space for people to speak about a subject, it cannot discriminate among speakers. So, for instance, if the government permits a public school to be open after hours for student activities, it cannot pick and choose the types of clubs allowed to use the space.

The transit authority previously has been sued on similar grounds. In 2014, the American Freedom Defense Initiative, an activist organization that opposes “global jihad and Islamic supremacism,” successfully sued the agency for prohibiting an incendiary poster on its trains. In response, the agency changed its policies to exclude all political speech from its ad spaces. But the policy instead now gives “unfettered discretion to (the transit authority) to censor a breathtakingly broad range of speech,” to determine what is or isn’t political, according to our lawsuit.

In addition to the public forum violation cited in the lawsuit, the agency’s denial raises three other background issues that, while not included in the complaint, raise concerns unique to an investigative newsroom.

First, the transit agency implied that we are an advocacy organization, saying the ad was political and issue-based because it “takes a position on issues that are matters of political, economic, and social debate” and “the very purpose of the advertisement is to change regulation.” The agency then cited our About Us page, which says, “our reporting ignites real-world change.”

We are not an advocacy organization. But like all investigative newsrooms, we uncover facts and abuses that often lead the public to seek political and social change. The mortgage disparities advertisement was based on statistics obtained from public records and analyzed through a process used by government officials and professional experts. While our reporters publish news – based on facts and statistics – we do not advocate for change. In fact, we can’t, according to our policy.

Secondly, the lack of access to the transit agency’s public forum could be seen as government suppression of material it considers offensive in advance of publication, also known as a prior restraint. The U.S. Supreme Court repeatedly has stressed that the First Amendment imposes a heavy burden on government officials who wish to stop publications that encourage public debate.

The last background issue stems from the 1936 case Grosjean v. American Press Co., in which the Supreme Court found that an exceptional tax on the news media was unconstitutional. Because the purpose of investigative journalism is to report on matters of public debate and the Philadelphia transit agency’s policies prohibit all advertisements that touch on such issues, the policy – while not a direct tax – could impede investigative newsrooms by barring them from promoting their work.

The lawsuit was filed in the U.S. District Court for the Eastern District of Pennsylvania by Mary Catherine Roper and Molly Tack-Hooper of the ACLU of Pennsylvania; Brian Hauss and Jacob Hutt of the ACLU; John S. Stapleton, Dylan J. Steinberg and Rebecca Santoro Melley of Hangley Aronchick Segal Pudlin & Schiller; Seth F. Kreimer of the University of Pennsylvania Law School; and D. Victoria Baranetsky, general counsel at CIR. To view the complaint, visit aclupa.org/CIRvSEPTA.

D. Victoria Baranetsky

vbaranetsky@revealnews.org

Victoria Baranetsky is general counsel at The Center for Investigative Reporting, where she counsels reporters on newsgathering, libel, privacy, subpoenas, and other newsroom matters.  Prior to CIR, Victoria served as a First Amendment Fellow at The New York Times, a fellow at the Reporters Committee for Freedom of the Press, and a legal counsel at the Wikimedia Foundation. After graduating from Harvard Law School Baranetsky received a master’s degree in philosophy from Oxford University and clerked on the U.S. Second Circuit Court of Appeals. She holds a bachelor’s degree from Columbia University, a graduate degree from Columbia Journalism School, and currently, is a fellow at the Tow Center for Digital Journalism at Columbia University. She is barred in California, New York and New Jersey. She also teaches media law at Berkeley Law School as an adjunct professor.