Free speech has come a long way through hurdles and bumps as a result of the Internet. Many postings are challenged as well are ads online. The Seventh Circuit Court of Appeals had to struggle with such an issue in a case that arose from a municipal ad.
Judge Posner in his analysis of the prohibition by Fort Wayne Public Transportation Corp. of Health Link’s ad stressed the purpose of the prohibition. In that, it stated that “Citilink refused to allow the ad to be posted. It forbids public service ads that “express or advocate opinions or positions upon political, religious, or moral issues.” The court noted that indeed the ad did not state or express an advocacy for any position.
The court as well noted that despite the ads’ absence of claiming and stressing an opinion or advocacy, Citilink became aware that Health Link was among other provided healthcare services, was also providing services that were alternatives to abortion including adoption counseling. Based on Citilink’s consideration that abortion is a moral issue, and Health Link provided services among which provided counseling services for an alternative to abortion, it deemed Health Link’s ad prohibitive. As such, it determines that Health Link ads should not be displayed on the buses throughout Fort Wayne’s transportation system run by Citilink.
Health Link argued that the First Amendment was intended to protect free speech for all people, regardless of their political or religious stance. If the City of Fort Wayne were to allow similar if not nearly identical ads of other nonprofits providing services, it cannot be allowed to single out Women’s Health Link for purposes of censorship. The plaintiff further stated that “government has a responsibility to ensure that all organizations benefit from community advertising.”
The court took note of the purposes of the municipality to run ads on buses as a source to raise funds. It is common that ads should not advocate “political, religious, or moral issues.” This type of restriction, as the court well noted, is based on the advertisement. The restriction should not be based on the advertiser or what the advertiser does among its many services offered to the community at large. The ad plainly stated offering “Free resource for women seeking health care,” which anyone would ascribe to be an acceptable value free service.
However, in making the distinction on the basis of the prohibition being on the advertisement and not on the advertiser, the court determined that what Citilink was prohibiting was based not on the advertisement, but the restriction was being applied on the advertiser and its affiliations and what services it provides. Citilink disapproved of one of many of Health Link’s provided services within the panoply of women’s health care available services. The court stressed that as the content of the ad was not objectionable and the ad did not express a religious or political and moral issue, the only basis of Fort Wayne to seek to restrict the ad was by essentially restricting an organization’s right to free expression because of the organization’s affiliations. This “going behind” approach to restricting ads was determined by the court as objectionable.
Judge Posner clearly articulated that regulation cannot and should not be used to stifle free speech, so long as the ad did not violate the rule of the city. In doing so, the city’s actions, the court stated, were unjustifiable, arbitrary, and a discriminatory restriction of Health Link’s speech.
 Women’s Health Link, Inc. v. Fort Wayne Public Transportation Corp., No 16-1195 (7th Cir. June 22, 2016). On appeal from 1:14-cv-0107 (NDIN)