defendants represent the current official policy of CTA and
Board and were undertaken pursuant to and in execution of a
current policy and practice of CTA and Board (Winston Ans.
¶ 40; CTA Ans. ¶ 40).
28. In refusing to sell or lease PPA space for its display
cards, CTA acted in knowing and intentional or reckless
disregard of the constitutional rights of both PPA and the
potential viewers of PPA's display cards (PPA Exs. 11, 17; Tr.
29. PPA provides information important for persons to make
informed decisions about procreation, contraception and other
personal matters. Given PPA's reasonable belief as to the
importance of access to CTA advertising in that respect (see
n. 7), PPA has suffered and will continue to suffer
irreparable injury because of CTA's refusal to allow PPA to
present its messages on CTA vehicles.
Conclusions of Law
1. This Court has jurisdiction of this action under
28 U.S.C. § 1343. Venue is proper in the Northern District of
Illinois under 28 U.S.C. § 1391.
2. PPA is a "person" within the meaning of 42 U.S.C. § 1983
3. Liability for a violation of Section 1983 extends to all
Board members and all other CTA-affiliated individual
defendants, because all admit to having acted within the scope
of their employment or authority and "under color of state
law" in rejecting PPA's messages.
4. CTA is liable under Section 1983 because it is a
municipal corporation that acted directly, under a current
municipal policy, custom or practice, to cause the rejection
of PPA's messages. Monell v. Department of Social Services of
the City of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037,
56 L.Ed.2d 611 (1978).
5. Winston is liable under Section 1983 (at least for
injunctive purposes) because it acted as an agent of CTA and
Board when it rejected or participated in the rejection of
PPA's messages and because it acted jointly with CTA and Board
in rejecting PPA's messages.*fn15 Adickes v. Kress & Co.,
398 U.S. 144, 152, 90 S.Ct. 1598, 1605, 26 L.Ed.2d 142 (1970);
Potenza v. Schoessling, 541 F.2d 670, 671-72 (7th Cir. 1976);
Tomkins v. Village of Tinley Park, 566 F. Supp. 70, 74 (N.D.
6. Public forums exist by either tradition or designation.
Perry Education Association v. Perry Local Education
Association, 460 U.S. 37, 103 S.Ct. 948, 955, 74 L.Ed.2d 794
(1983). Historically streets, sidewalks and parks have been
recognized as traditional public forums for expressive conduct,
Hague v. CIO, 307 U.S. 496, 515-16, 59 S.Ct. 954, 963-64, 83
L.Ed. 1423 (1939), while "public property which the state has
opened for use by the public as a place for expressive
activity" constitutes a designated public forum for First
Amendment purposes "even if [the state] was not required to
create the forum in the first place." Perry, 103 S.Ct. at 955.
7. Other courts that have considered the public forum issue
in the context of transit advertising have held that where, as
here, a transit system has opened its message space to some
forms of protected speech (that is, has created a public
forum), the system may not refuse to accept other forms of
protected speech. See Impeach Nixon Committee v. Buck,
498 F.2d 37, 38 (7th Cir. 1974), cert. granted, 416 U.S. 978, 94 S.Ct.
2378, 40 L.Ed.2d 756 (1974), remanded, 419 U.S. 891, 95 S.Ct.
169, 42 L.Ed.2d 136 (1974) (dismissed as moot by the Seventh
Circuit in unpublished order of
Dec. 5, 1979); Coalition For Abortion Rights and Against
Sterilization Abuse v. Niagara Frontier Transportation
Authority, 584 F. Supp. 985 (W.D.N.Y. 1984) (unconstitutional to
reject message promoting abortion); Gay Activists Alliance of
Washington, D.C., Inc. v. Washington Metropolitan Area Transit
Authority, Civ. No. 78-2217, slip op. at 9-11 (D.D.C. July 5,
1979) (unconstitutional to reject message stating "Someone in
your life is Gay").
8. CTA has created a public forum by opening its message
space to a wide variety of protected speech, including
political candidate messages, religious messages, messages by
trade unions and other not-for-profit organizations and
associations, other issue-oriented messages of various sorts
and commercial messages of all sorts, all as detailed in
Findings 8 and 21. See McCreary v. Stone, 575 F. Supp. 1112,
1123-25 (S.D.N.Y. 1983).
9. Lehman v. City of Shaker Heights, 418 U.S. 298, 94 S.Ct.
2714, 41 L.Ed.2d 770 (1974), the only Supreme Court transit
case, found message space on a public bus to be a nonpublic
forum under the circumstances before the Court. In Lehman the
transit authority (in sharp contrast to CTA here) had a 26-year
written policy prohibiting acceptance of all political issue
and political candidate messages, in compliance with which
policy the transit authority had never accepted any political
issue or political candidate messages. What the Lehman Court
held was only that car card space on buses and trains was not a
traditional public forum like "meeting halls, parks, street
corners or other public thoroughfare" (id. 418 U.S. at 303, 94
S.Ct. at 2717), so a political candidate had no inherent right
10. However, Lehman's precedential value is limited to
"unique fact situations" involving government-created forums
(see Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 514
n. 19, 101 S.Ct. 2882, 2896 n. 19, 69 L.Ed.2d 800 (1981)).
Lehman held (1) as a matter of law car card space on transit
vehicles was not a traditional public forum, and (2) as a
matter of fact the Shaker Heights transit system had not been
designated as a public forum. It did not hold that as a matter
of law a transit system could not be designated as a public
forum. Whether such designation has in fact occurred in this
case is a matter this Court has resolved in the affirmative,
for the reasons stated in these Findings and Conclusions.
Accordingly Lehman neither forecloses nor indeed derogates from
this Court's determination here. By contrast with the present
case, the "unique fact situation" presented by Lehman was one
in which a transit system had a long-standing
consistently-applied written policy of not accepting any
political messages or other messages involving protected
11. Lehman is also inapplicable to bar the result reached
(a) It does not at all address the issue
whether a public transit system may permit some
political speech while rejecting other political
(b) CTA, unlike the Shaker Heights Transit
System, has no "sharply defined criteria for
determining whether to accept or reject
advertisements dealing with controversial
political and social issues." Gay Activists
(c) CTA's prohibition of speech associated with
the abortion issue is a selective exclusion of a
particular subject of public import, rather than
a blanket prohibition of all speech involving
subjects of public import. Id.
(d) This Court holds there are no "essential
differences between [PPA's] announcement and the
other advertisements [allowed by CTA] as far as
their [free-speech-exercising and potentially
controversial] nature is concerned." Impeach Nixon
Committee, 498 F.2d at 38.
12. Once the state creates a public forum by designation and
so long as it retains the open character of the facility, "it
is bound by the same standards as apply in a traditional
public forum." Perry, 103 S.Ct. at 955. Accord, Widmar v.
Vincent, 454 U.S. 263, 267-70, 102 S.Ct. 269, 272-74, 70
L.Ed.2d 440 (1981) (when
university had opened its meeting facility to student groups,
it could not exclude student religious groups); cf.
Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 555-59,
95 S.Ct. 1239, 1244-46, 43 L.Ed.2d 448 (1975) (city could not
exclude production of "Hair" from a municipal theatre without
satisfying constitutional safeguards applicable to prior
restraints). Only two types of restrictions on speech are
allowed in a public forum: (a) content-neutral time, place or
manner restrictions and (b) content-based regulations narrowly
drawn to achieve a compelling state interest. Perry, 103 S.Ct.
13. CTA has by its conduct created a public forum by
designation in its message space (see Conclusion 8). Having
done so, CTA has not denied PPA access to CTA message space
because of a narrowly-tailored content-neutral time, place or
manner restriction of the type that can be enforced in a
public forum. CTA's restriction is unquestionably
content-based. See Police Department of City of Chicago v.
Mosley, 408 U.S. 92, 95-96, 92 S.Ct. 2286, 2289-90, 33 L.Ed.2d
212 (1972). CTA has violated PPA's First Amendment free speech
rights by preventing PPA's access to that forum because of the
content of PPA's speech and the nature of the speaker, even
though CTA has attempted to exclude speeches on both sides of
the issue.*fn16 Consolidated Edison Co. v. Public Service
Commission, 447 U.S. 530, 537-38, 100 S.Ct. 2326, 2333, 65
L.Ed.2d 319 (1980).
14. CTA's reasons advanced as "justification" for its
content-based regulation prohibiting abortion-related
advertising are all predicated on predicted adverse reactions
from persons with opposing views (see Finding 25). Wholly
apart from the speculative (though possibly self-fulfilling)
nature of those reasons (see Finding 26), they are not
compelling state interests that justify restricting speech. As
the Court said in Terminiello v. Chicago, 337 U.S. 1, 4-5, 69
S.Ct. 894, 895-896, 93 L.Ed. 1131 (1949):
Accordingly a function of free speech under our
system of government is to invite dispute. It may
indeed best serve its high purpose when it
induces a condition of unrest, creates
dissatisfaction with conditions as they are, or
even stirs people to anger. Speech is often
provocative and challenging. It may strike at
prejudices and preconceptions and have profound
unsettling effects as it presses for acceptance
of an idea. That is why freedom of speech, though
not absolute, Chaplinsky v. New Hampshire, supra
[315 U.S. 568] pp. 571-572 [62 S.Ct. 766, 768-769,
86 L.Ed. 1031], is nevertheless protected against
censorship or punishment, unless shown likely to
produce a clear and present danger of a serious
substantive evil that rises far above public
inconvenience, annoyance, or unrest. See Bridges v.
California, 314 U.S. 252, 262 [62 S.Ct. 190, 193,
86 L.Ed. 192]; Craig v. Harney, 331 U.S. 367, 373
[67 S.Ct. 1249, 1253, 91 L.Ed. 1546]. There is no
room under our Constitution for a more restrictive
view. For the alternative would lead to
standardization of ideas either by legislatures,
courts, or dominant political or community groups.
Accord, Collin v. Smith,