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PETA’s free speech claim against Salisbury agency can proceed, judge rules

“While the court is certainly sympathetic that defendants (Shore Transit) may have an interest in limiting graphic or gory imagery on its buses, the manner in which defendants allegedly have done so appears to be neither viewpoint neutral nor reasonable,” wrote U.S. District Chief Judge James K. Bredar. (The Daily Record/File Photo)

People for the Ethical Treatment of Animals can proceed to trial on its claim that the Salisbury area transit agency violated PETA’s constitutional right to free speech by rejecting its request to post “Close the slaughterhouses” signs on public buses on the poultry-farm-rich lower Eastern Shore, a federal judge has ruled.

Chief U.S. District Judge James K. Bredar last week denied Shore Transit’s motion to dismiss PETA’s bid for a court order requiring the agency to post the signs, ruling the animal rights group has sufficiently alleged that the signs were rejected because of the message they conveyed.

PETA has also sufficiently claimed that Shore Transit’s standard of prohibiting signs it deems “political” or “controversial, offensive, objectionable or in poor taste” is unconstitutionally vague, enabling the agency to arbitrarily restrict speech, Bredar wrote in a memorandum.

Bredar’s denial of the dismissal motion was a preliminary victory for PETA in its effort to post signs stating that “No One Needs to Kill to Eat. Close the slaughterhouses: Save the workers, their families, and the animals.”

Other planned signs at issue in the First Amendment case contain a photo of a young girl holding a chicken; another has the word “kill” superimposed over a bloody butcher’s knife.

“While the court is certainly sympathetic that defendants (Shore Transit) may have an interest in limiting graphic or gory imagery on its buses, the manner in which defendants allegedly have done so appears to be neither viewpoint neutral nor reasonable,” wrote Bredar, who sits in the federal courthouse in Baltimore. “PETA’s First Amendment claims therefore survive dismissal.”

Asher Smith, PETA’s litigation director, hailed Bredar’s denial of the dismissal motion.

“Shore Transit’s unconstitutional ad policy lets officials decide what’s too ‘offensive’ for the public to see, even if it’s just a simple appeal to go vegan,” Smith said in a statement. “This policy must be struck down in the name of free speech, and PETA must be allowed to advocate for animals through its ads on Shore Transit.”

Brad Bellacicco, Shore Transit’s director, declined to comment Monday on PETA’s First Amendment lawsuit.

According to PETA’s complaint, Shore Transit contracts with Vector Media to sell advertising on the buses, which serve Somerset, Wicomico and Worcester counties. Under the contract, Shore Transit may reject any advertisement it “determines to be controversial, offensive, objectionable or in poor taste,” PETA stated.

Shore Transit told PETA in May 2020 that its message would not be carried on city buses because it was “too offensive for our market and political in nature,” according to the complaint. PETA said it followed up the next month with a letter demanding the agency’s reconsideration and containing the group’s First Amendment concerns.

But the agency never responded, prompting the lawsuit, PETA added.

“The (Shore Transit) advertisements were intended to advocate the closure of the slaughterhouses on the Eastern Shore and to encourage viewers not to purchase or eat animal food products,” PETA’s attorneys Brian M. Hauss and Robin R. Cockey wrote in the group’s complaint.

“Shore Transit’s advertising policy, and (its) denial of PETA’s proposed advertisements pursuant to that advertising policy, violate PETA’s rights under the … United States Constitution,” added Hauss, of the American Civil Liberties Union, and Cockey, of Cockey, Brennan & Maloney PC in Salisbury. “The policy’s sweeping prohibitions afford enforcement officials unfettered discretion; they are also incapable of reasoned application, content and viewpoint discriminatory, substantially overbroad and unconstitutionally vague.”

In its unsuccessful motion to dismiss, Shore Transit stated that signs on its buses are limited to commercial advertising and that its blanket ban on political ads does not discriminate on the viewpoint expressed.

“(S)hore Transit’s prohibition against political advertisements is relatively straightforward and prohibits the placement of political advertisements on its vehicles,” wrote the agency’s attorney, Kevin Karpinski.

“Although PETA’s advertisements do not specifically contain an endorsement of a political candidate, they clearly implicate a political agenda, in that they contain inherently political language,” added Karpinski, of Karpinski, Cornbrooks & Karp PA in Baltimore. “The advertisements’ references to closing slaughterhouses is political in nature, and Shore Transit appropriately rejected PETA’s advertisements for that reason.”

Bredar rejected that argument, saying that a policy banning political advertising lends itself to unconstitutional viewpoint discrimination as the determination and breadth of what constitutes a political ad is left to the governmental agency.

“Far from helping defendants in this case, this lack of limitations may enable defendants to allow their own politics to shape their views on what counts as ‘political,’” Bredar wrote.

“While an endorsement of a political candidate is plainly ‘political,’ it is not so obvious that the statement ‘Close the slaughterhouse: Save the workers, their families, and the animals’ is ‘inherently political,’ as defendants suggest,” Bredar added. “Given the wide variety of issues that enter the political arena at local, state, and national levels, absent further objective criteria, it is unclear how an entity charged with excluding ‘political’ speech could do so in a principled way, or how an advertiser is to know what topics fall under this umbrella.”

The case is docketed in U.S. District Court as People for the Ethical Treatment of Animals Inc. v. Shore Transit, et al., No. 1:21-cv-02083-JKB.