When an animal rights group wanted to pay GRTC to carry its message opposing publicly funded experiments on dogs and other animals, the company said, “No way” in rejecting it as too political.

Five years later, a Richmond-based appeals court has found that GRTC violated the U.S. Constitution with its vague and arbitrary ban on such ads, clearing the way for the White Coat Waste Project and other groups with viewpoints, including the NAACP and other civil rights organizations, to advertise on buses in Virginia’s capital city.

Writing for a three-judge panel, U.S. Fourth Circuit Appeals Court Judge Julian N. Richardson found that “while transit companies may prohibit political advertising, (GRTC’s) policy as it currently exists is unreasonable and unconstitutional as applied to every would-be advertiser.”

Judge Richardson was joined by Chief Judge Roger L. Gregory and Judge Paul V. Niemeyer in striking down GRTC’s policy as a violation of the First Amendment, a ruling that would affect similar transit bans in areas under the court’s jurisdiction, stretching from Maryland to South Carolina.

The opinion was released Friday, May 20. GRTC, which is represented by the Office of the City Attorney, has not commented.

The ruling mirrors the opinions that appellate judges in at least four other circuits have issued in in striking down similar bans transit companies had imposed to bar viewpoint messages.

In his 38-page opinion, Judge Richardson rejected GRTC’s defense that it was a private company that was not obliged to obey the First Amendment.

Instead, he upheld a lower court’s finding that the 49-year-old company is a government-created operation that is subject to constitutional requirements.

While the three judges agreed that buses are not public forums like sidewalks that must be open to any and all ads, Judge Richardson found that the ban on political speech that GRTC has sought to uphold “is incapable of reasoned constitutional application.”

As written, the opinion only affects political ads but would not appear to affect GRTC’s bans on ads for candidates for public office, for alcohol and tobacco products or for pornography or ads that “contain vulgarity.”

GRTC’s policy “declares its intent not to allow any of its vehicles or property to become a public forum for dissemination, debate, or discussion of public issues, but fails to define what could constitute “political ads or public issues,” Judge Richardson noted.

“Faced with a broad, undefined standard and the directive to keep (GRTC’s) buses from becoming a forum to discuss ‘public issues’ (whatever that might mean),” he wrote that GRTC “employees have done their best to flesh out a reasonable test.

“But those attempts have fallen short. (GRTC’s) actions make it clear that it does not rely on the plain meaning of ‘political,’ as it has consistently run ads that relate to the government or politics,” he continued.

“For example, (GRTC) ran an advertisement for the vice-presidential debate, which is certainly ‘relating to . . . politics.’ It also ran an advertisement for a pro-free26 speech art exhibit. And it has indicated that advertisements of the government itself are often permitted as ‘public service’ announcements.”

The judge noted that GRTC makes arbitrary distinctions. He wrote that an ad stating “Support our troops” would be acceptable if run by the U.S. government, but (GRTC) would reject the same message as unacceptably political if run by an individual or private organization.

GRTC also would ban ads calling for a boycott of the NFL or McDonald’s as political, he stated, which evidences that

ads related to the government or politics is not the standard that GRTC uses.

As an employee testified during the case, GRTC bans viewpoint ads.

“What does it mean for an advertisement to express a viewpoint?” Judge Richardson wrote in seeking to spotlight the problem.

“Consider two hypothetical advertisements. One, issued by McDonald’s, says, ‘Eat at McDonald’s.’ Another, issued by an animal rights group, says, ‘Don’t Eat at McDonald’s.’ These two advertisements express opposite viewpoints on the same issue. Yet it would seem, based on (GRTC’s) responses, the first ad would be accepted, but the second could be rejected as political,” Judge Richardson wrote, “but it is hard to discern precisely why.”

In his view, the McDonald’s ad would be acceptable because it is selling a product or service, while the anti-McDonald’s ad does not, a distinction he found unacceptable.

He noted that appears to be the reason that GRTC approved an advertisement encouraging spaying and neutering of dogs from Gracie’s Guardians, which provides spaying and neutering services, while rejecting White Coat’s advertisement, which, despite its similar topic, did not promote a particular product or service.

“The only way (GRTC) can legitimately employ its political advertising policy moving forward is to modify it in some way—to make it more clear, less discretionary, and more reasonable.”