In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16‐1195
WOMEN’S HEALTH LINK, INC.,
Plaintiff‐Appellant,
v.
FORT WAYNE PUBLIC TRANSPORTATION CORP.,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Fort Wayne Division.
No. 1:14‐cv‐00107‐RLM — Robert L. Miller, Jr., Judge.
____________________
ARGUED JUNE 2, 2016 — DECIDED JUNE 22, 2016
____________________
Before POSNER and SYKES, Circuit Judges, and YANDLE,
District Judge.*
POSNER, Circuit Judge. The defendant, colloquially re‐
ferred to as “Citilink,” is a municipal corporation that pro‐
vides bus service in Fort Wayne, Indiana, and also has regu‐
latory authority over advertisements both inside the buses
and on the buses’ exterior. The plaintiff is a nonprofit corpo‐
* Of the Southern District of Illinois, sitting by designation.
2 No. 16‐1195
ration (which we’ll call Health Link for the sake of brevity)
that provides health care for women in Fort Wayne. It want‐
ed to post the following advertisement in Citilink’s buses:
Citilink refused to allow the ad to be posted. It forbids
public service ads that “express or advocate opinions or po‐
sitions upon political, religious, or moral issues.” Although
the proposed ad did not express or advocate any such opin‐
ion or position, Citilink discovered that Health Link, alt‐
hough it provides a variety of uncontroversial health ser‐
vices, mainly in the form of referrals to providers of health
care, is pro‐life and so suggests (though not in the ad) that
women with unplanned or crisis pregnancies consider
health care and related services that provide alternatives to
abortion, such as adoption counseling. Since abortion is gen‐
erally regarded as a moral issue, Citilink concluded that
Health Link’s proposed ad was ineligible to appear in or on
Citilink buses, even though the ad itself—as any reader of
No. 16‐1195 3
this opinion can see—contains not the faintest reference to
abortion or its alternatives.
Furthermore, anyone seeing the ad (were it to be posted
in the bus) who navigated to its Web address—
womenshealthlink.org (visited June 22, 2016, as were the
other websites cited in this opinion)—would find no sugges‐
tion that Health Link is pro‐life without clicking, in the web‐
site, a link labeled “Get Help,” and then within “Get Help”
another link, labeled “Diaper Project,” where the viewer
learns that Health Link gives diapers to pregnant women
who carry their babies to term rather than aborting them. In
a pamphlet available for download, underneath the heading
“Help You Can Count On—Medical,” the words “abortion”
and “adoption” appear, but just the words—there is no am‐
plification. And finally in a link labeled “About Us” appears
the statement that “Women’s Health Link is leading Fort
Wayne to become a community of choice for life affirming
healthcare for young women,” but “life affirming” is not de‐
fined, nor does it necessarily refer to abortion, see, e.g.,
“Life‐Affirming,” Merriam‐Webster Dictionary, www.merriam
‐webster.com/dictionary/life‐affirming. Absent from the
website (as from the ad) is any discussion of abortion.
The basis on which Citilink refused to allow the ad to be
posted in its buses appears to have been the mention of “life
affirming healthcare” or more likely a connection between
Health Link and Allen County Right to Life—the person
who first emailed Citilink about the ad did so from an Allen
County Right to Life email account, and the two organiza‐
tions share a street address. Yet neither the ad nor Health
Link’s website mentions Allen County Right to Life, though
the link between the two entities was a clue that “life affirm‐
4 No. 16‐1195
ing healthcare” in Health Link’s website might well be a pro‐
life slogan.
It is against this background that Health Link has sued
Citilink charging it with, among other violations of constitu‐
tional rights, arbitrarily denying freedom of expression, the
arbitrariness consisting in the fact that Health Link’s pro‐
posed ad complies fully with the conditions set forth in Citi‐
link’s rules. It 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.
The parties have treated us to an unedifying tour of what
is called “forum analysis.” As we explained in Illinois
Dunesland Preservation Society v. Illinois Dept. of Natural Re‐
sources, 584 F.3d 719, 722–24 (7th Cir. 2009), the Supreme
Court has created a methodology for analyzing the public’s
right to access government property for expressive purpos‐
es, where “forum” denotes public property usable for ex‐
pressive activity by members of the public (“private speech”
in forum jargon). The methodology distinguishes a “tradi‐
tional public forum” from a “designated public forum” and
both from a “nonpublic forum.” See Perry Education Associa‐
tion v. Perry Local Educators’ Association, 460 U.S. 37, 44–46
(1983).
A traditional public forum is a street, sidewalk, or park,
or some other type of public property that like a street,
sidewalk, or park has for a very long time (“time out of
mind,” as some cases put it, or “from time immemorial,” as
No. 16‐1195 5
others say) been used for expressive activity, such as
marches, picketing, and leafletting. See, e.g., id. at 45. A des‐
ignated public forum, illustrated by a public theater, is a fa‐
cility that the government has created to be, or has subse‐
quently opened for use as, a site for expressive activity. Usu‐
ally, as in the case of a public theater, “designated forums”
are available for specified forms of private expressive activi‐
ty or at specified times: plays, in the case of a theater, rather
than political speeches. Such limitations are permitted; the
public owner of a theater need not throw it open for political
rallies even though it is physically suited for being so used.
But the government is not allowed to discriminate among
the plays performed in the theater on the basis of the ideas
or opinions that the plays express. See Southeastern Promo‐
tions, Ltd. v. Conrad, 420 U.S. 546, 559 (1975). “Once a forum
is opened up to assembly or speaking by some groups, gov‐
ernment may not prohibit others from assembling or speak‐
ing on the basis of what they intend to say.” Police Dept. of
City of Chicago v. Mosley, 408 U.S 92, 95–96 (1972).
The third category—the “nonpublic forum”—consists of
government‐owned facilities like the Justice Department’s
auditorium that could be and sometimes are used for private
expressive activities but are not primarily intended for such
use. Government can limit private expression in such a facil‐
ity to expression that furthers the purpose for which the fa‐
cility was created. Cornelius v. NAACP Legal Defense & Educa‐
tional Fund, Inc., 473 U.S. 788, 800 (1985).
Some decisions recognize a fourth category, variously
called a “limited designated public forum” (what Shake‐
speare’s Polonius would have called “a vile phrase”), a “lim‐
ited public forum,” or a “limited forum.” The terms denote a
6 No. 16‐1195
public facility limited to the discussion of certain subjects or
reserved for some types or classes of speaker, such as an
open space in a state university in which members of the
university community and their guests—but not uninvited
outsiders—are allowed to give talks. See Gilles v. Blanchard,
477 F.3d 466, 473–74 (7th Cir. 2007).
It is difficult to discern the difference between such re‐
strictions and the selection that the director of a state theater
has to make among theater groups clamoring for access to
the stage. Indeed it is rather difficult to see what work “fo‐
rum analysis” in general does. It is obvious both that every
public site of private expression has to be regulated to some
extent and that the character of permitted regulation will
vary with the differences among the different types of site.
Street demonstrations have to be regulated to prevent block‐
ing traffic, and the use of a state theater has to be regulated
to ration the use of a limited facility and maintain quality,
and obviously the regulations will be very different. The
constant, however, is that regulation is not to be used as a
weapon to stifle speech just because it is unpopular. And
that means that we don’t have to decide which type of forum
makes the best fit with the display surfaces in and on Citi‐
link’s buses; for its refusal to allow Health Link’s ad to be
displayed is an unjustifiable, because arbitrary and discrimi‐
natory, restriction of free speech.
We remind the reader that the refusal to publish the ad
had nothing to do with its contents, which are as we’ve seen
innocuous. Compare American Freedom Defense Initiative v.
Suburban Mobility Authority for Regional Transportation
(SMART), 698 F.3d 885, 888, 892–96 (6th Cir. 2012), uphold‐
ing a transit authority’s decision to bar, as a violation of the
No. 16‐1195 7
authority’s ban on political and moral advertisements, an
advertisement that read: “Fatwa on your head? Is your fami‐
ly or community threatening you? Leaving Islam? Got Ques‐
tions? Get Answers! RefugefromIslam.com.” Health Link’s
ad, in contrast to the Fatwa ad, is not political, religious, or
moral––types of ad that Citilink bans, whether validly or in‐
validly, from its buses.
We know that Health Link is pro‐life, but nothing in the
ad reveals that, and Citilink’s official “Policy Governing All
Advertising in or upon Citilink Vehicles and Facilities” is
limited to material forbidden to be contained in ads in or on
its buses. Prohibited is an advertisement that “contains pro‐
fane language,” or “contains an image or description of vio‐
lence,” or constitutes “material that incites, describes, de‐
picts, or represents sexual activities or images or description
of human sexuality or anatomy in a way that the average
adult, applying contemporary community standards, would
find appeals to the prurient interest,” or is libelous, or en‐
courages passengers on Citilink’s buses to disregard transit
safety, and so on. There is nothing wrong with these prohibi‐
tions. Government is not required to allow every interior
surface of a government facility to be plastered over with
obscene, libelous, threatening, vicious, or bigoted placards
and pictures. Lehman v. City of Shaker Heights, 418 U.S. 298
(1974); Illinois Dunesland Preservation Society v. Illinois Dept. of
Natural Resources, supra, 584 F.3d at 724. But none of the pro‐
hibitions listed in Citilink’s unexceptionable table of exclu‐
sions is violated by Health Link’s proposed ad, the banning
of which can only be deemed discriminatory.
Nothing in Citilink’s statement of policy suggests a con‐
cern with what may lie behind an innocuous ad—which
8 No. 16‐1195
might be a website containing forbidden matter or an organ‐
ization that violated one or more of the restrictions in Citi‐
link’s advertising policy. Nothing in Health Link’s proposed
ad violates any of the restrictions. Probably nothing in its
website either, but the website’s content is irrelevant be‐
cause, to repeat, Citilink’s policy does not extend to web‐
sites.
And if one looks up the list of organizations permitted to
advertise in or on Citilink’s buses, one finds a number that
for aught that appears engage in activities that could be con‐
sidered to be, or to have a flavor of, the moral, the religious,
or the political, including services for immigrant communi‐
ties, a crusade against crime, advocacy of vaccination, pro‐
motion of health care, get‐out‐the‐vote campaigns, and a law
firm that specializes in disability cases and advertises itself—
in apparent violation of Citilink’s ad policy—as consistent
with “Christian character.” Above all, Citilink allows United
Way to advertise in its buses even though the website of
United Way of Allen County lists a number both of abortion
providers, and of health services that have a “pro‐life per‐
spective”—and some local United Ways have provided fi‐
nancial support for Planned Parenthood.
But this is an aside. What is important is not what other
advertisers are permitted to do but that Citilink’s ad censor‐
ship policy is limited to ad content, and the content of
Health Link’s proposed ad lacks the faintest suggestion of a
political, religious, or moral aim or agenda. The district
judge missed this essential point, stating that Citilink’s “re‐
strictions on non‐commercial, political, religious, and moral
speech apply to the advertiser, not to the service providers
listed on their websites.” No, the restrictions are limited to
No. 16‐1195 9
the advertisement; and the ban on non‐commercial speech in
the bus ads is inapplicable to public service announcements,
such as Health Link’s proposed ad.
Once a government entity has created a facility (the ad
spaces in and on its buses, in this case) for communicative
activity, it “must respect the lawful boundaries it has itself
set.” Rosenberger v. Rector & Visitors of University of Virginia,
515 U.S. 819, 829 (1995). Citilink’s refusal to post the ad was
groundless discrimination against constitutionally protected
speech. Cf. Shuttlesworth v. City of Birmingham, 394 U.S. 147
(1969).
The judgment in favor of Citilink is reversed with in‐
structions to enter judgment for the plaintiff enjoining Citi‐
link’s refusing to post the plaintiff’s proposed ad in its buses.