Southeastern Pennsylvania Transportation Authority v. Center for Investigative Reporting

This Court long ago determined that public transit authorities have the discretion to prohibit all “political” advertising in their vehicles. Lehman v. City of Shaker Heights, 418 U.S. 298, 299-301 (1974). Under Lehman, a transit authority that “categorically prohibits advertising involving political speech” does not violate the First Amendment. AFDI v. King Cnty., Wash., 136 S. Ct. 1022, 1023 (2016) (Thomas, J., joined by Alito, J., dissenting from denial of certiorari). In Minnesota Voters Alliance v. Mansky, this Court found that a state law banning “political” apparel in polling places was not “capable of reasoned application.” 138 S. Ct. 1876, 92 (2018). But that decision did not find all categorical bans on “political” speech incapable of reasoned application. Indeed, that decision cited Lehman as one example of a restriction on political speech this Court has “long recognized that the government may impose.” Id. at 1885-86 (citing Lehman, 418 U.S. at 303-304 (plurality opinion); id. at 307-308 (Douglas, J., concurring in judgment)). Two courts of appeals, including the Third Circuit in the decision below, have now disregarded Lehman and held that, under Mansky, transit authorities no longer have the discretionto categorically prohibit political advertisements. The question presented is: 1. Whether this Court’s decision in Mansky overruled or abrogated the Court’s holding in Lehman that transit authorities have the discretion to categorically prohibit political advertisements.