dissenting:
Because I believe that Amtrak, a governmental entity now authoritatively determined to be subject to First Amendment limitations, see Lebron v. National R.R. Passenger Corp., — U.S. —, 115 S.Ct. 961, 130 L.Ed.2d 902 (1995), has violated the First Amendment by its rejection of the political advertisement that Michael Lebrón contracted to display on a billboard in Penn Station, I respectfully dissent.
The Court’s dismissal of Lebron’s lawsuit rests on two premises, both of which, in my view, are flawed. The first concerns the identification of the forum for purposes of applying public forum analysis. The second concerns the standard for determining whether a governmental actor’s policy for rejecting advertisements violates First Amendment requirements.
1. The relevant forum. The premise of the Court’s identification of the relevant forum is that, in advertising cases, a court should consider the particular billboard on which an applicant wishes to display a message. Proceeding from this premise, the Court narrows its inquiry to “the Spectacular,” the large billboard high on the west wall of the rotunda of the upper level of Penn Station. No prior case has taken such a restricted view of the relevant forum, and I think it can be readily demonstrated that the Court’s premise is incorrect.
The Supreme Court has instructed that the relevant forum is to be determined by “the access sought by the speaker.” Cornelius v. NAACP Legal Defense and Educational Fund, Inc., 473 U.S. 788, 801, 105 S.Ct. 3439, 3448, 87 L.Ed.2d 567 (1985). The meaning of that instruction is made clear by the facts of Cornelius. The plaintiff sought access to what the Court called “a particular means of communication,” id. — the Combined Federal Campaign, a charity drive aimed at federal employees. The Court ruled that the charity campaign itself was the relevant forum, rather than the entirety of the federal workplace. The cases relied on by Cornelius further illuminate the Court’s meaning. In Perry Education Assn. v. Perry Local Educators’ Assn., 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983), the Court confined its inquiry to a school district’s interschool mail system, rather than all parts of school property. Cornelius referred to the mail system as “a particular means of communication.” 473 U.S. at 801, 105 S.Ct. at 3448 (emphasis added). In Lehman v. City of Shaker Heights, 418 U.S. 298, 94 S.Ct. 2714, 41 *661L.Ed.2d 770 (1974), the Court confined its inquiry to advertising space on city-owned buses.
All of these cases focus on a means of communication, not the particular location where an advertiser prefers to display its ad. It is unimaginable that in Cornelius the Court would have permitted one political party to solicit funds through the Combined Federal Campaign at one side of the lobby of a federal building while denying another party the opportunity to solicit funds through the Campaign at the other side, or that in Perry the Court would have permitted one group to place a political message in the mail boxes of one school while denying another group a similar right at other schools, or that in Lehman the Court would have permitted political ads on one bus while prohibiting political ads on other buses.
The two cases relied on by the majority in the pending appeal, both interestingly and accurately cited with a signal meaning “compare,” are also instructive. In Air Line Pilots Assn. v. Dept of Aviation, 45 F.3d 1144 (7th Cir.1995), the Court focused on diorama display cases throughout an airport, rather than the entirety of the airport. The Court did not limit its analysis to one display case. In Hubbard Broadcasting, Inc. v. Metropolitan Sports Facilities Commission, 797 F.2d 552 (9th Cir.), cert. denied, 479 U.S. 986, 107 S.Ct. 576, 93 L.Ed.2d 579 (1986), the Court focused on all advertising space in a sports arena, rather than the entirety of the arena. The Court did not limit its analysis to one portion of the advertising space.
Nevertheless, the Court in the pending case limits its public forum analysis to the one billboard in Penn Station on which Le-brón wishes to display his ad — the so-called “Spectacular.” There is no question that this billboard is bigger than any other in Penn Station, more visible, and, if one can afford it, more desirable. But public forum analysis cannot be so particularized as to focus on one of several billboards on government property, no matter how preferable that one billboard’s size and location may be to an advertiser. The reason can be readily demonstrated. As everyone who has ever walked through Penn Station knows, the Spectacular is high atop the west wall of the station’s rotunda, and two small billboards are high atop the north and south walls of the same rotunda. If Amtrak had permitted the Democratic Party to place political ads on either of the two smaller billboards in the rotunda, can it be seriously argued that any court would limit its forum analysis to the one large billboard and permit Amtrak to deny the Republican Party the opportunity to place its political ad on the Spectacular, just because no political ad had previously been on that precise space?
The relevant forum must be at least advertising space in the rotunda of Penn Station— the means of communication to which Lebrón sought access. Once the forum is defined to have at least this scope, Amtrak’s violation of the First Amendment is evident because it has leased advertising space on a kiosk in the rotunda for The Plain Truth, a magazine the Court acknowledges is devoted to “political and social issues.” It is clearly unconstitutional for Amtrak to permit its advertising space in the rotunda to be used to convey the message of The Plain Truth and deny space in the same rotunda to the message that Lebrón believes conveys the plain truth about the brewers of Coors Beer.
2. Amtrak’s policy. Even if the relevant forum is the one billboard space known as the Spectacular, the Court’s second premise — that the scope and lawfulness of Amtrak’s exercise of discretion regarding political ads may be ascertained solely from its past practice — is also unsound. The proper inquiry, the Supreme Court has instructed, focuses not solely on past practice but on “policy and practice,” Cornelius, 473 U.S. at 802, 105 S.Ct. at 3449; see Lehman, 418 U.S. at 303, 94 S.Ct. at 2717 (“policies and practices”). If it were the ease that the only evidence of Amtrak’s approach to political ads was its past practice, an inquiry confined to that practice would be defensible. But the record in this case contains more evidence, and the District Court made findings based on that evidence that are not even arguably clearly erroneous.
First, the agreement between Amtrak and Transportation Displays Incorporated (TDI), the leasing agent for billboards in Penn Sta*662tion, states, “All advertising material, exhibit material, notices and advertisements, and their manner of presentation and design, shall be subject to approval by Amtrak, which may disapprove any such items at its own discretion.” Lebron v. National R.R. Passenger Corp., 811 F.Supp. 993, 1002 (S.D.N.Y.1993). It is difficult to imagine a more standardless statement of policy. Second, as the District Court found, neither the key Amtrak official responsible for supervising Amtrak’s arrangements with TDI nor any of the executives of TDI knew of any prohibition on political advertising at any of Amtrak’s facilities. Id. Third, other key Amtrak officials could not agree on what Amtrak’s policy was. One testified that the policy prohibited only those advertisements that were both “political and divisive or objectionable,” while another could not say what the policy meant. Id. Fourth, the guidelines of Amtrak’s leasing agent, TDI, do not prohibit political advertisements but merely consider them commercial and therefore subject to full rate charge. Id. at 1003.
In view of this evidence, the District Court’s findings that Amtrak’s alleged policy against political ads was unwritten, unclear, and undisseminated provide ample basis for the Court’s ultimate conclusion that the policy permitted the unfettered exercise of discretion and created the risk of abuse that the First Amendment prohibits. See Lebron v. Washington Metropolitan Area Transit Authority, 749 F.2d 893, 899 (D.C.Cir.1984).
Disregarding the evidence and the District Judge’s findings, this Court ascertains Amtrak’s policy solely by looking to the past practice of not yet contracting for a political ad on the Spectacular. But where a policy is unwritten, unclear, and undisseminated, the fact that it has not yet been used discrimina-torily does not save it from invalidation under the First Amendment. The vice of conferring unfettered discretion on government officials to determine which messages may be conveyed is not avoided by their past pattern of not making a discriminatory decision. The vice inheres in the opportunity for discrimination, and the First Amendment requires that opportunity to be held to an acceptable minimum by a clear and well understood policy that appropriately limits the discretion of the officials who must administer it. See Gentile v. State Bar of Nevada, 501 U.S. 1030, 1051, 111 S.Ct. 2720, 2732, 115 L.Ed.2d 888 (1991) (imprecise standards concerning permissible statements by lawyers); Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 755-59, 108 S.Ct. 2138, 2143-45, 100 L.Ed.2d 771 (1988) (unfettered discretion to permit newspaper dispensing devices on governmental property). As the Supreme Court has observed,
The prohibition against vague regulations of speech is based in part on the need to eliminate the impermissible risk of discriminatory enforcement_ The question is not whether discriminatory enforcement occurred here, and we assume it did not, but whether the Rule is so imprecise that discriminatory enforcement is a real possibility.”
Gentile, 501 U.S. at 1051, 111 S.Ct. at 2732 (citations omitted). In some cases, it might be possible to infer the existence of a policy that passes constitutional muster from a record consisting solely of a pattern of past practice. But in the pending case such a policy cannot be inferred from past practice in the face of substantial evidence that has persuaded a District Judge to make findings that the alleged policy was not understood by the officials responsible for administering it.
Wholly apart from the absence of a clear, understandable, and understood policy, Le-brón might be correct that, to the extent that the defendant’s policy purports to bar political ads, it is a viewpoint-based discrimination that violates the First Amendment. See Air Line Pilots Assn. v. Department of Aviation, 45 F.3d 1144 (7th Cir.1995). As Lebron contends, the defendants are willing to display an ad urging the public to buy Coor’s beer but are unwilling to display his ad urging the public not to do so. He makes a substantial argument that viewpoint-based discrimination is occurring when government allows an ad promoting the sale of a product, but purports to prohibit an ad opposing a product because of the views of its manufacturer. Presumably, Amtrak would allow an ad opposing the sale of Coor’s beer because of its alcoholic content or for any reason unrelated *663to the views of its manufacturer. I need not decide whether to accept Lebron’s argument since his other positions are well supported on this record.
In my view, the District Court’s findings, fully supported by the evidence, entitled Le-brón to prevail on his claim that Amtrak’s refusal to permit display of his ad violated the First Amendment. At a minimum, he is entitled to a declaration that Amtrak has violated the First Amendment, damages (to the extent, if any, not precluded by F.D.I.C. v. Meyer, — U.S. —, —, 114 S.Ct. 996, 1004-06, 127 L.Ed.2d 308 (1994)), and equitable relief requiring promulgation and dissemination of a clear policy concerning political ads. Since the Court concludes that Amtrak has no liability at all, I need not consider the further issue of whether the equitable relief ought to include a requirement that Lebron’s ad be displayed. My statement from the prior appeal, 12 F.3d at 394 (Newman, C.J., dissenting), quoted by the Court out of its context, was directed solely at the issue of the possible scope of relief, not the issue of liability on which the Court today rules.
I respectfully dissent.