Women's Health Link, Inc. v. Fort Wayne Public Transportation Corp.

155 F. Supp. 3d 843, 44 Media L. Rep. (BNA) 1171, 2016 U.S. Dist. LEXIS 713, 2016 WL 67288
CourtDistrict Court, N.D. Indiana
DecidedJanuary 5, 2016
DocketCIVIL NO. 1:14-CV-107 RLM
StatusPublished
Cited by1 cases

This text of 155 F. Supp. 3d 843 (Women's Health Link, Inc. v. Fort Wayne Public Transportation Corp.) is published on Counsel Stack Legal Research, covering District Court, N.D. Indiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Women's Health Link, Inc. v. Fort Wayne Public Transportation Corp., 155 F. Supp. 3d 843, 44 Media L. Rep. (BNA) 1171, 2016 U.S. Dist. LEXIS 713, 2016 WL 67288 (N.D. Ind. 2016).

Opinion

OPINION AND ORDER

Robert L. Miller Jr., Judge, United States District Court

Women’s Health Link, Inc., wants to advertise its counseling services on buses operated by the Fort Wayne Public Transportation Corporation. The bus operation is commonly called “Citilink.” Citilink refused to allow the advertisements, relying on its advertising policy. Women’s Health Link contends that the advertising policy is unconstitutional, at least as Citilink applied the policy to its request. Both sides moved for summary judgment, and the court heard oral argument on May 11, 2015. For the following reasons, the court grants the defendant’s motion for summary judgment [Doc. No. 51] and denies the plaintiffs motion [Doc. No. 54].

Summary judgment is appropriate when the record before the court shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A genuine issue of material fact exists whenever there is enough evidence for a jury to return a verdict for nonmov-ing party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A summary judgment accepts the non-movant’s evidence as true and draws all reasonable inferences in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Weigle v. SPX Corp., 729 F.3d 724, 730 (7th Cir.2013). That both sides have moved for summary judgment doesn’t change the standard. Market Street Assoc. Ltd. Partnership v. Frey, 941 F.2d 588, 590 (7th Cir.1991) (“The filing of cross motions for summary judgment must be distinguished from the case [845]*845in which the parties stipulate that the judge may enter final judgment on the record compiled in the summary judgment proceedings.”). Nothing in this record suggests the existence of a genuine issue of material fact.

In November 2013, Becky Rogness, a member of the Women’s Health Link Board of Directors and Communications Manager for Allen County Right to Life, contacted Citilink’s Assistant Manager, Betsy Kachmar, about placing an advertisement for Women’s Health Link in Citil-ink buses. The proposed advertisement contained a head shot of a young woman, and stated: “You are not alone. Free resource for women seeking health care.” The Women’s Health Link logo, website (womenshealthlink.org), and phone number appeared on a large banner at the bottom of the advertisement.

Ms. Kachmar emailed Ms. Rogness on November 6, 2013, telling her that the “ad looks fine ... You can just scan & email the contract ... & I’ll sign & send back.” Ms. Rogness completed the Transit Advertising Contract on behalf of Women’s Health Link, and sent it to Ms. Kachmar the next day.

A week later, Ms. Kachmar notified Ms. Rogness that: “the proposed Women’s Health Link advertisement does not meet the commercial requirement (l(n)) in our advertising policy (see attached) ... I am therefore not able to enter into a contract to post this proposed advertisement in our buses.” Paragraph l(n) of Citilink’s policy provides, “1. Restrictions: Citilink WILL NOT display or maintain any advertising that falls within one or more of the following categories: ... (n) Non-commercial. The subject matter and intent of the advertisement is noncommercial and does not promote for sale, lease or other form of financial benefit a product, service, event, or other property interest in primarily a commercial manner for primarily a commercial purpose.”

In response, Women’s Health Link Executive Director Julie Perkins completed and signed a new Transit Advertising Contract on November 25, 2013, in which she clarified that Women’s Health Link was “requesting space to display our proposed public service announcement pursuant to section 2 of Citilink’s Policy Governing All Advertising in an upon Citilink Vehicles and Facilities.” Ms. Perkins emailed the new contract and the proposed advertisement to Ms. Kachmar the next day. Section 2 of the Citilink policy provides, “Public Service Announcements. Citilink may make advertising space available for pubic service announcements by governmental entities, academic institutions, or nonprofit organizations. Such announcements are subject to the provisions set forth in Section 1(a) through 1(1) above and shall not express or advocate opinions or positions upon political, religious, or moral issues.”

In a December 2, 2013 email, Ms. Kach-mar told Ms. Perkins that. “We feel that this ad does not educate the general public or raise awareness regarding a significant social issue in a viewpoint neutral manner. We do not choose to post this ad as a PSA.”

Paragraph 4 of the Citilink policy provides a right of appeal from the rejection of a proposed advertisement: “Advertisers may appeal the rejection of advertising to the Advertising Committee of the Citilink Board of Directors by notifying the General Manager, in writing, within 30 days of the rejection. The Committee Chair will schedule a meeting and notify the advertiser of the decision within five days of the meeting date.” Women’s Health Link didn’t exercise that right to appeal; instead, it filed this suit against Citilink under 42 U.S.C. § 1983, alleging that Citilink violated its constitutional rights by refus[846]*846ing to display an advertisement/public service announcement for its free referral service for women seeking “life-affirming health care related services.” The complaint explained that Women’s Health Link provides women with referrals for gynecological care, prenatal care, primary medical care, housing, emotional needs, mammograms, financial issues, birth control information, sexual assault help, sexual education, adverse prenatal diagnoses, veterans services, adoption, tests for sexually transmitted diseases, spiritual care, and mental health care.

Women’s Health Link alleges that Citil-ink violated its First Amendment rights to freedom of speech and freedom of association (Counts 1 and 2) and its Fourteenth Amendment rights to due process and equal protection (Counts 3 and 4) when it:

(1) adopted policies and engaged in practices that restricted protected speech and weren’t narrowly tailored to serve a compelling state interest;
(2) allowed other non-profit organizations and government entities (ie., the State of Indiana, Parkview Health, the Foundation for Fighting Blindness, and United Way) to place health care related public service announcements in Citilink buses, but denied Women’s Health Link equal access to that space because of its “life-affirming” viewpoint and association with Allen County Right to Life; and
(3) failed to provide any substantive or procedural guidelines for its officials to follow in deciding whether to permit or deny a public service announcement, and granted itself “unbridled discretion” to accept or reject a public service announcement if it is “considered objectionable by Citilink” and “reserve[d] the right to suspend, modify, or revoke the application of any or all of [its advertising] policy as it deems necessary to..

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Bluebook (online)
155 F. Supp. 3d 843, 44 Media L. Rep. (BNA) 1171, 2016 U.S. Dist. LEXIS 713, 2016 WL 67288, Counsel Stack Legal Research, https://law.counselstack.com/opinion/womens-health-link-inc-v-fort-wayne-public-transportation-corp-innd-2016.