The Orthodox Jewish synagogue known as Young Israel of Tampa
hosts various events to celebrate Jewish holidays. Young Israel has been
holding an event called “Chanukah on Ice” for the last fourteen years as a family
celebration intended to share the Jewish faith with their community. In 2020, Young
Israel submitted and application to promote Chanukah on Ice on a local bus
route operated by Hillsborough Area Regional Transit (HART). The proposed
advertisement included a picture of a menorah and said, “Ice skating to Jewish
Music around the flaming menorah”. At the time, HART had a policy banning any
advertisement that aims to promote alcohol, tobacco, illegal drugs, obscenity,
nudity, pornography, politics, and religion. Since their policy forbids any
religious advertisements, Young Israel’s proposal was denied. Rabbi Rivkin, vice
president of Young Israel of Tampa, appealed to the CEO of HART but was still
denied. The CEO required that for their proposal to accepted them must remove the image of the menorah and any
reference to the lighting of the menorah. Rabbi Rivkin and his synagogue refused
this request and filed a lawsuit against HART on the grounds that their policy
and their denial of Young Israel’s advertisement violates the First Amendment.
The essential question in regards to this case is did Hillsborough
Area Regional Transit violate Young Israel’s First Amendment right of Free
Speech? The United States District Court for the Middle District of Florida granted
summary judgement in favor of Young Israel a little less than a year after the
initial lawsuit was filed on February 5, 2021. The court ruled that HART’s
policy was unconstitutional because it not only violates the Free Speech Clause,
but it also violates the Free Exercise Clause by singling religion out for “disfavored
treatment”. The policy violates the Free Speech Clause because it places “an
unreasonable restriction based on content” and “discriminates based on viewpoint”.
The court explains that there is no evidence to suggest religious speech would disrupt
its transit system and therefore is placing an unreasonable restriction on the
synagogue. Additionally, HART allows advertisements for various subjects and to
ban ads that address those subjects from a religious viewpoint constitutes
viewpoint discrimination and is not permissible under the constitution.
I agree with the decision of the court for this case. HART’s bus routes act similar to a limited open forum because they allow a wide array of advertisements to be bought and displayed. When they denied Young Israel’s advertisement proposal, they explicitly stated that it was due to the religious nature of the material. This is a constitutional violation because people cannot be excluded from utilizing a limited open forum when the same event or message would be allowed if it wasn’t presented from a religious viewpoint. We see this precedent utilized in Lamb’s Chapel v. Moriches Union Free School when a church was denied access from showing a religious film on school premises after hours. The same principles apply to this case. HART must act neutrally between non-religion and religion. There is no doubt that they would have allowed the promotion of any event like this so long as it was not religious in nature. However, because the ad takes a religious perspective, their proposal was declined. Denying access to a limited public forum because of religion is not a neutral act between non-religion and religion. In the end, this amounts to viewpoint discrimination since the only reason that Young Israel’s proposal was denied was due to the religious viewpoint of the advertisement proposed. Additionally, there is no legitimate argument that allowing this advertisement would constitute an establishment of religion. Similar to the Lamb’s Chapel, I believe the court would argue that no reasonable person would believe this event was endorsed or sponsored by HART. However, the Supreme Court is taking on Shurtleff v. Boston, which is a case very similar to this one, and they’ll have to decide if it is constitutional for the City of Boston to refuse flying a private religious organizations flag depicting a cross in front of City Hall. I think the court will rule similarly to how they have in previous cases like Lamb’s Chapel v. Moriches Union Free School, but perhaps they won’t and decisions like this one will be appealed.
Links to references and related pages:
Decision in Young Israel of Tampa v. Hillsborough Area Regional Transit
7 comments:
I disagree and believe that HART should not be required to post an ad with religious promotion. The rule about what they can post also prohibits the promotion of politics and other things which makes the rules neutral. You said that they denied because it was a religious ad and therefore it is a constitutional violation. The rules seems to me to be neutral and religion just happens to be one of the many things that are not allowed to be advertised. Based on this I do not think HART has to advertise religion if it goes against their neutral rule.
HART should definitely not be forced to put up their advertisement. the company strictly outlines in their policy "no religious ads", and they have made no exceptions for anyone else so the Jews, in this case, asking for preferential treatment, not equal treatment which is unfair and not within the scope of the First Amendment since the public transportation company would be promoting an organized religious activity through allowing said advertising. Further, The Jewish community or anyone for a matter of fact has no right to advertise with HART specifically. They could go to any other company, that is private and advertise with them or elsewhere.
I disagree with the court decision to require HART to post ad's with religious content. I think the bus serves as a limited public forum whose content is justifiably monitored by the state. HART's connection to the state results in its strict obligation to stay neutral in religious affairs. Neutrality; however, was interpreted by the court as reason to accommodate the Young Israel Temple. I would take a separationist perspective and interpret neutrality as eliminating any religious content within the limited public forum. On the other hand, I think the court presented a good case and make valid points. I think the argument that HART violated Young Israel's free exercise would make sense if the forum in which the add was placed was privately owned. HART; however, is a state run and funded service. Allowing the temples ad could lead to a slippery slope where the whole bus is filled with religious ads. Also, the state could be perceived as establishing or promoting Judaism if it is the only religious ad posted.
This immediately reminded me of Shurtleff v. City of Boston case, surrounding the flag flying of a religious group outside of Boston's city hall. Yet, in the case of Shurtleff, the rules regarding religious messages were not made clear until after the application was sent in and denied. The case is different here since HART had clearly defined rules that said they would not approve a religious-minded message. Therefore due to the rule being established before Young Israel of Tampa submitted their application, I think the rule is neutral and not targeted "disfavored treatment" to religious groups.
I also disagree with the court's ruling here on multiple grounds. It is extremely important to understand that HART is a state run service that is looking to avoid violating the establishment clause of the first amendment. I do believe that since they were forced to run Young Israel's advertisement, that they would have a legitimate argument saying that they were breaking the establishment clause. The court ruled that HART's denial of allowing the advertisement was a free speech issue, and that Young Israel was being discriminated against simply because their speech was religious. But it is clear that the state-run service was acting neutral. They had restrictions on all types of ads, both non-religious and religious. Because of this, they are in the right in not allowing Young Israel's advertisement. However, due to the accommodationist nature of courts in modern times, a questionable ruling like this should have been expected and is probably celebrated by many who champion religious freedom through expression and speech.
When I first read your post, I agreed with your perspective and that of the court. However, after reading the comments, I disagree with the decision of the court. HART should not be required to post the Jewish poster, especially if they are not posting any other religious content. This prioritizes Jewish posters and also is unfair to other religious organizations. Since HART states that they do not post anything related to religious organizations, I disagree with the ruling of the court.
While I personally believe that there should be government/authority's discretion in regards to advertising religious symbols on public property and as such believe HART was in the right, historically and legally the court is correct in noting that it constitutes a minor hassle and the bus advertisement system being an open public forum fits into previous cases we have examined. It may incidentally make others believe the local government or HART system are in support of these religions, this is not their chief concern and could likewise be applied to per-say a misunderstood advertisement for a shoe company having direct government support and establishment. In essence, I agree that legally HART was in the wrong and that the Chanukah on Ice advertisement does not necessarily serve as government endorsement, but I also believe that this is opening the door for other less clear advertisements walking the line of perceived establishment.
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