Broadsheet bullies? Designated public forum and established newspapers' efforts to rid Philadelphia's public transit system of a government-sponsored competitor.

AuthorMugmon, Michael A.


Almost as if a young mother had left her newborn child in a basket on the city's doorstep, I first noticed the bouncing baby of a newspaper on the ground outside the 22nd Street subway-surface station before my early morning ride to school. Tightly bundled against numerous other copies of the color tabloid, the newspaper's flag effectively doubled as a pinned note addressed to the newspaper's finders. Name? TPI Metro PA, or Metro for short. Date of birth? Monday, January 24, 2000. Birthplace? Philadelphia.

In August 1999, Metro's parents--the Southeastern Pennsylvania Transportation Authority (SEPTA) and publisher Transit Publications Inc., Metro PA ("TPI Metro PA")--had entered into a contract providing for SEPTA's exclusive distribution of Metro in SEPTA's paid areas, including platforms, buses, and trains. (1) Because these areas were expressly off limits to all other newspapers, Metro would, for all intents and purposes, gain a captive audience of transit riders at the expense of established newspapers' readership--a valuable commodity in the late twentieth century's shrinking newspaper market. (2) Fearing perhaps that Philadelphians would adopt Metro as their own and lavish their attentions--and precious advertising dollars--on it, the City of Brotherly Love's established media conglomerates did not take kindly to their upstart sibling.

Three days before Metro's parents introduced their newspaper to the city, Philadelphia Newspapers, Inc., The New York Times Co., and the Gannett Satellite Information Network, Inc. (which publishes USA Today and The Reporter of Lansdale, Pennsylvania), filed suit against one of Metro's parents--SEPTA--in United States District Court for the Eastern District of Pennsylvania. (3) Arguing that SEPTA's contract with TPI Metro PA to "distribute a SEPTA-sponsored newspaper in areas in which no other newspapers are permitted to be distributed, violates the First ... Amendment," the news organizations sought a temporary restraining order and/or a preliminary injunction to prevent the government agency from distributing the new publication. (4) The publishers also charged that the contract gave SEPTA unconstitutional editorial control over the newspaper's content, (5) and that it burdened their constitutional right to distribute and circulate newspapers. (6) Most intriguing, the newspapers suggested that SEPTA potentially created a designated public forum "by intentionally opening a nontraditional forum for public discourse [to Metro]." (7) If SEPTA indeed fashioned a designated public forum on platforms and in transit vehicles, the government agency could not exclude other newspapers constitutionally unless the distribution restriction was content-neutral, served a compelling interest and was narrowly tailored to achieve that interest, and left open substantial other means for communication. (8)

Holding that the publishers had "failed to satisfy their burden of demonstrating that there is a reasonable probability of success on the merits and that Plaintiffs will suffer immediate and irreparable harm," U.S. District Court Judge Robert F. Kelly quickly denied the publishers' request. (9) The newspapers appealed to the U.S. Court of Appeals for the Third Circuit and concurrently asked Judge Kelly for a temporary restraining order pending the appeal of his initial injunction denial--a request he denied on February 2, 2000. (10) Nearly three weeks later, a three-judge panel of the Court of Appeals denied the newspapers' request to bar SEPTA temporarily from distributing Metro in areas forbidden to other publications. (11) The combatants lay dormant--waiting for the district court to hear the case on its merits--until November 5, 2001, when SEPTA and the publishers reached an out-of-court settlement ending the dispute. (12) Under the terms of the agreement, SEPTA may not give Metro any distribution preference on its property, except on buses, for eighteen months; should SEPTA want to afford Metro special distribution treatment following the expiration of that eighteen-month window, the agency must give the newspapers ninety days' notice or face the prospect of a renewed legal challenge. (13) Nonetheless, the out-of-court settlement did not constitutionally ratify SEPTA's actions, and no court has ever debated the constitutional merits of the case.

Although the newspapers' publishers invoked grand and righteous First Amendment tenets in their briefs, (14) this Comment focuses on a distinct--and possibly dispositive--aspect of First Amendment jurisprudence: public forum doctrine, and specifically the designated public forum doctrine.

More specifically, this Comment discusses the public forum doctrine and how it pertains to a deal between a public transit system and a private newspaper. Part I will explore how and why SEPTA inked a distribution deal with a private media organization. This portion first addresses SEPTA's motives for distributing a newspaper throughout its system, as well as the agency's historical approach to regulating expression, particularly newspaper and handbill distribution. An analysis of two recent agency-specific cases that directly pertain to public forums and expression within the SEPTA system prove helpful in understanding the approach SEPTA took in inking a distribution deal. (15) This Part then progresses to the agency-promulgated SEPTA Rules Relating to Constitutionally Protected Activities, (16) which govern the regulation of expressive conduct in paid areas and on platforms, and which were developed in response to constitutional challenges to SEPTA's expression policies. Finally, Part I will probe the details of the contract between SEPTA and TPI Metro PA, which simultaneously attempts both to satisfy the SEPTA Rules Relating to Constitutionally Protected Activities and to circumvent them.

Part II investigates public forum doctrine generally and designated public forum more specifically, looking into how a government agency transforms a nonpublic forum into a designated public forum. In Part III, this Comment analyzes how the designated public forum doctrine might have been applied in the SEPTA scenario, and more broadly, how it should apply in situations where a government agency has teamed up with a private newspaper in exclusive distribution deals. In this final Part, the Comment also touches on public policy concerns regarding a court's finding that a government agency created a designated public forum by signing an exclusive distribution deal.

This Comment, however, does not look into the constitutionality of a government contracting with a private newspaper; it focuses only on public forum issues once a government agency and private publisher have completed the deal. Metro has enjoyed tremendous success abroad and in Philadelphia thus far, (17) and it is assumed for the purposes of this Comment that the American subsidiary of Metro's publisher could have financially withstood a court challenge yielding an adverse result and continued to print. It is further assumed that its publisher will seek to expand into other American markets and will face similar fights. (18) Thus, this Comment centers around what happens when the deal is done; the issue then becomes whether, once a public transit system has agreed to an exclusive distribution deal, other newspaper publishers have the constitutional right to distribute and circulate their publications in areas expressly off-limits to outside newspapers.

Before delving into the history behind the arrangement, one should ask: Why does designated public forum doctrine even matter with regard to these deals? The initial application of the public forum doctrine in this realm will almost certainly dictate how courts will view exclusive distribution deals between private publications and public transit systems (if not all government agencies) across the nation. When one considers that the newspapers' suit against SEPTA indirectly headed off a deal between Metro and the Massachusetts Bay Transit Authority in Boston, (19) and that Metro's handlers tentatively plan to expand into public transit systems in New York City, Chicago, and San Francisco, (20) the significance of these deals becomes substantially more evident. A victory for Metro in any jurisdiction would essentially mean that the newspaper's publisher would likely face minimal subsequent legal challenges in striking exclusive distribution deals with other public transit systems. Not only would the result set a symbolic legal standard for the purposes of persuasive authority, but a transportation agency victory would undoubtedly raise the ire of national media conglomerates, (21) whose monopolistic newspapers (22) would face competition that could result in the loss of precious readership. (23) Because SEPTA's sponsorship of one newspaper to the exclusion of all others represents the first time a government agency has effectively controlled a private newspaper, the Philadelphia deal is utterly novel--and utterly important insofar as public forum doctrine is concerned, for the Supreme Court has never applied forum analysis to the platforms and paid areas of a public transit system. (24)


    1. SEPTA's Historical Approach to Restricting Expression

      Established by the Pennsylvania Urban Mass Transportation Law, (25) SEPTA is the country's fifth-largest public transportation system. (26) Serving "nearly one million" commuters daily throughout the 2200-square-mile, five-county metropolitan area, (27) the government agency reigns over public transportation in Philadelphia and its surroundings, providing extensive bus, subway, regional rail, subway-surface trolley, and paratransit service. (28) With such a broad service area and large ridership base, SEPTA unquestionably has a deep interest in ensuring its riders' safe passage from one destination to another. (29)

      With such a sentiment in mind, SEPTA officials have long...

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