Appeal from the United States District Court for the Eastern District of Wisconsin. No. 03 C 536-Lynn Adelman, Judge.
The opinion of the court was delivered by: Evans, Circuit Judge.
ARGUED SEPTEMBER 28, 2005
Before FLAUM, Chief Judge, and MANION and EVANS, Circuit Judges.
In this case, filed pursuant to 42 U.S.C. § 1983, Gail Anderson alleges that Milwaukee County and Milwaukee Transport Services, Inc., the operator of the Milwaukee County bus system, violated her First and Fourteenth Amendment rights by their "tariff," which prohibits the distribution of literature on county buses.
Ms. Anderson, a woman in her mid-fifties, lives in Milwaukee. She doesn't drive a car and so is a regular customer on Milwaukee's buses. But she is not, it would appear, your typical bus rider. As anyone who rides buses in urban communities knows, most passengers mind their own business. Most avoid conversation, and many even avoid eye-contact, with other passengers. Not Ms. Anderson. She (here, of course, we take her allegations as true) has a "sincerely held religious belief" and a wish to "share her faith with those sitting next to her on the bus by talking to them and giving them religious literature." She also wants to give her literature to other passengers who pass by her seat on the bus. It's unclear just how long, and how often, she has followed her urge to share her views with other riders.
Ms. Anderson's urge to "share her faith" and the bus company's tariff collided on July 8, 2003. On that day, she boarded a bus and took a seat near the front. From there, she attempted to hand out copies of a book, later identified as "The Book of Hope." The book contains stories from the Bible. In the past, she says she has been allowed to hand out the book on the bus, but this time the driver, Rozell Smith, observed what she was doing and asked her to stop. Despite repeated requests, Ms. Anderson did not stop and, in fact, said, "I will not stop." At this point, Smith did not know the book contained religious material.
Because Ms. Anderson refused to stop handing out copies of her book, Smith called the transit system dispatch office. He spoke to dispatcher Valdis Salmins. The transcript of the call is as follows:
Operator: . . . 63 on 63, bus 4442, badge 2637. . . . OK,
I want the company rules on passing out literature on the bus, there. I'm sure we have some kind of regulation, there. Is that possible for people to pass out literature, all different types of literature, over?
Dispatch: That's a negative. There is no solicitation of any kind allowed on our buses. (S0) whether it's free or for charge or whatever. . . . Nothing is to be given out on the buses.
Operator: Well, that's affirmative on that. I thought that was a rule. I got a lady on here who's passing out books on the bus, annoying the passengers, and I told her that she couldn't do that. She told me I couldn't stop her from doing that, over.
Dispatch: Ok, I'll send the CPOs to intercept you. If she gets off before you're intercepted, please give us a call back.
Mr. Salmins called system security. The transcript ...