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Entertainment Software Association v. Chicago Transit Authority

January 7, 2010

ENTERTAINMENT SOFTWARE ASSOCIATION, PLAINTIFF,
v.
CHICAGO TRANSIT AUTHORITY, DEFENDANT.



The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER

This case presents the question whether Defendant Chicago Transit Authority ("CTA"), a governmental entity, may prohibit commercial advertisements for mature-content video games on its trains, buses and facilities without running afoul of the First Amendment. On January 1, 2009, the CTA implemented an ordinance prohibiting any advertisement which "markets or identifies" a video or computer game with a "Mature" ("M") or "Adults Only" ("AO") rating. The CTA has no similar restrictions on advertisements for films or televison shows with adult ratings or content, nor does the CTA have any restrictions on political speech or issue advocacy. Plaintiff Entertainment Software Association ("ESA"), an industry group of game makers and sellers, filed this facial challenge to the CTA ordinance under the First and Fourteenth Amendments to the United States Constitution. In August 2009, Plaintiff ESA filed a motion seeking a preliminary injunction to enjoin the CTA from enforcing the ordinance. For reasons explained herein, the court grants Plaintiff's motion for a preliminary injunction.

BACKGROUND

I. The CTA's Function and Advertising System

The CTA is a municipal corporation created by Illinois statute. 70 ILCS 3605/1 et seq. It operates the second largest public transportation system in the United States, carrying roughly 1.7 million passengers on its trains and busses every weekday. (Ex. A to Def's Br, O'Keefe Decl. at ¶ 2.) A number of those passengers on any given day are children. According to Monica O'Keefe, Manager of Media Sales for the CTA, over 96 percent of Chicago's schools and public parks are within two blocks of a CTA bus stop or rail station, and the CTA experiences a regular influx of school children immediately before and after school hours. (Id. at ¶ 3.)

To supplement the revenue it generates from fares, the CTA sells advertising space in its stations and on the inside and outside of its buses and rail cars. (Id. at ¶ 4.) For much of its history, the CTA had no clear, consistently-enforced policy for accepting or rejecting the advertisements it displayed in these areas. See Planned Parenthood Ass'n/Chicago Area v. Chicago Transit Authority, 767 F.2d 1225, 1229-30 (7th Cir. 1985). As a result, in 1985, the Seventh Circuit concluded that the CTA advertising system had become a designated public forum for expression. Id. at 1232. In Planned Parenthood, the CTA refused to display advertisements for family planning services based on its stated policy of rejecting "controversial" ads. Finding that the CTA's "controversial" standard was applied arbitrarily, the Court of Appeals held that the CTA was obligated to post the ads. Because the CTA had opened itself to a "wide variety of commercial, political-candidate, and public issue advertising," the court found that the CTA advertising system had become a public forum and, thus, was not free to refuse ads based on content. Id. at 1227.

II. The CTA's Recent Advertising Guidelines

In 1991, ostensibly in an effort to limit the types of ads that the system was compelled to accept, the Chicago Transit Board, CTA's governing body, adopted a series of guidelines for advertisements to be submitted and displayed on CTA property. (Ordinance No. 91-169, Ex. A to O'Keefe Decl.)*fn1 The ordinance states, in part:

WHEREAS, The Chicago Transit Board has determined to create certain exceptions to the non-public forum status of CTA property and to permit certain forms of public service, commercial, and other advertising in or upon CTA buses, rapid transit cars, and vehicles and facilities . . .

1. All advertising must comply with all applicable laws and with all ordinances, rules, regulations, requirements, and specifications promulgated by the Chicago Transit Authority ("CTA").[*fn2 ]

3. All commercial advertising must be truthful. False, deceptive, or misleading commercial advertising is not permitted. . . . Commercial advertising that proposes transactions which would constitute unlawful discrimination or would be illegal for any other reason is not permitted.

4. Advertising that is legally obscene is not permitted. In addition, sexually explicit advertising depicting nudity (male or female genitals, pubic areas, or buttocks with less than fully opaque covering; female breasts with less than fully opaque covering or any part of the areolae or nipples; or the covered genitals in a discernibly turgid or otherwise recognizable state) or sexual intercourse or other sexual acts is not permitted.

5. Advertising that portrays graphic violence, such as through the depiction of human or animal bodies, body parts, or fetuses in states of mutilation, dismemberment, disfigurement or decomposition, is not permitted.

6. Advertising that is directed to inciting or producing imminent lawless action and is likely to incite or produce such action, including but not limited to unlawful action based on a person's race, color, sex, age, religion, disability, national origin, ancestry, sexual orientation, marital or parental status, military discharge status, or source of income, is not permitted.

7. If advertising contains a testimonial, then the sponsor shall provide to the CTA documentation that the person making the testimonial has authorized its use in advertising.

8. Advertising cannot encourage persons to refrain from using safety precautions normally used in transit-related activities, such as awaiting, boarding, riding upon, or debarking from transit vehicles.

12. The placement of non-public-service advertising shall take precedence over placement of public service advertising.[*fn3 ]

(Id.) The ordinance further instructs that advertisements "shall be accepted for posting" unless the Executive Director of the CTA notifies the advertiser within 15 days of submission of an ad that the ad fails to meet one of these guidelines. (Id. at § 4.)

In 1997, citing the fact that a number of CTA passengers were minors who could not legally purchase tobacco or alcohol, the CTA also enacted a total ban on advertisements for tobacco products and alcoholic beverages. (Ordinance 97-144, Ex. A to O'Keefe Decl.) Other than the guidelines and the alcohol and tobacco ban, the CTA had no other regulations restricting the ...


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