The opinion of the court was delivered by: Shadur, District Judge.
[EDITOR'S NOTE: THIS PAGE CONTAINED AND
ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Planned Parenthood Association/Chicago Area ("PPA") sues the
Chicago Transit Authority ("CTA"), its governing body Chicago
Transit Board ("Board"),*fn1 its Executive Director Bernard
J. Ford ("Ford") and its former Public Affairs Director
Michael Horowitz ("Horowitz")*fn2 and Winston Network, Inc.
("Winston") under 42 U.S.C. § 1983, 1985(3) and 1986. PPA
charges violation of its First and Fourteenth Amendment
rights*fn3 by defendants' refusal to accept PPA's advertising
for display on CTA buses, trains and facilities. PPA has
requested both injunctive relief and damages.
In accordance with Fed.R.Civ.P. 52(a) this Court finds the
facts as set forth in the following Findings of Fact
("Findings") and states the following Conclusions of Law
("Conclusions ").*fn4 By agreement of the parties, in
accordance with Rule 65(a)(2) the trial of this action on the
merits has been advanced and consolidated with the hearing of
PPA's application for a preliminary injunction, with the issue
of damages deferred for a later hearing. Accordingly these
Findings and Conclusions serve as this Court's final
determination as to injunctive relief.
1. PPA is an Illinois not-for-profit corporation affiliated
with Planned Parenthood Federation of America. PPA provides
educational, counseling, referral and medical services related
to family planning and medically-approved birth control
through four clinics in Chicago and one clinic in a Chicago
suburb (Tr. 21-22).
2. CTA is a municipal corporation, created by the Illinois
General Assembly, which owns and operates a transit system
serving the public in metropolitan Chicago (CTA Ans. ¶ 5).
3. Board's Members (see n. 1) are appointed by the Mayor of
the City of Chicago and the Governor of Illinois. Board
governs and administers CTA through its members and agents
(CTA Ans. ¶ 6).
4. Winston, which does business in Illinois and has an
office in Chicago, is a private corporation engaged in the
transit and outdoor advertising business. It has an exclusive
contract with CTA (the "Contract," CTA Ex. 47) to place cards,
signs and other forms of advertising in or on
buses, rapid transit cars and other CTA property (Winston Ans.
Sale of CTA Advertising Space
5. Winston, acting under the Contract, sells or leases space
in and on CTA buses and transit cars and other CTA property
for the display of cards and signs containing messages
(Winston Ans. ¶ 12; Tr. 63; CTA Ex. 47). Only Contract ¶ 8
contains any restriction on the type of advertising Winston can
accept for placement on CTA property:
All advertising displays . . . shall be of
reputable character, and if any immoral, vulgar
or disreputable advertisements are . . .
placed . . ., [Winston] shall remove the same
immediately . . .
6. CTA did not expressly reserve authority in the Contract
to review or to approve requests to advertise or the messages
themselves before their posting on CTA property. However, it
has been the long-standing practice for CTA to review and
approve messages submitted by not-for-profit organizations
before posting of those messages on CTA property (Tr. 75, 96,
103, 110; CTA Ex. 7). It is not however standard practice for
CTA to review or to approve, before their posting on CTA
property, commercial or political candidate messages or other
message for which full rates are paid. Such messages are
routinely approved or disapproved by Winston sales account
executives based upon the creditworthiness of the advertiser
and the sales account executive's subjective judgment about the
contents of the message (Tr. 72-72, 104; Sullivan Dep. 41-42,
46; Dyson Dep. 21-26). On no occasion has CTA reviewed or
approved political candidates' messages before their posting on
CTA property. In the few instances where Winston has referred
commercial messages to CTA for prior review or approval, in
Winston's view the messages raised questions of vulgarity,
immorality or legality (CTA Exs. 7, 10, 11, 31, 48, 49).
7. By the literal terms of the Contract, CTA, Board and all
other CTA-affiliated defendants delegated to Winston the
authority to accept or reject requests for CTA display space
without any review by CTA or any objective guidelines for such
acceptance or rejection (Tr. 70-71, 80-81; CTA Ex. 47). At
least in those instances where Winston obtains CTA review for
an advertising request, Winston acts as CTA's agent (Tr. 24,
63-65, 70-72, 75-81, 106).*fn5
8. CTA has displayed cards and signs (PPA Group Exs. 1 and
2) advertising, and communicating with the public as to:
(a) a wide variety of products and services,
including health care, cigarettes, liquor, and
lawyers' and doctors' services;
(b) political candidates;
(f) prevention and cure of disease (including
(g) labor unions for county and city workers;
(h) religious organizations;
(i) non-discrimination in ...