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44. Is the organization likely to prevail?
The organization sued the administrator in an appropriate court for a declaration that her denial of the organization's request for placard space for the reasons she gave violated the First Amendment as made applicable to the states by the Fourteenth Amendment.
The administrator denied the organization's request, stating that the proposed placard would be offensive to the circus, which had paid a substantial sum to place its placards on the buses, and that a circus employee had told her that none of the photographs on the organization's placard depicted animals belonging to this particular circus.
After a circus bought space on the buses for placards advertising its upcoming performances, an animal rights organization asked to buy space for a placard with photographs showing the mistreatment of animals in circus shows.
A city owned and operated a municipal bus system. The city sold space on its buses for the posting of placards. Under the relevant city ordinance, the administrator of the bus system had sole discretion to decide which placards could be posted on the buses, and the administrator's decision was final. Although most of the placards that appeared on city buses were commercial advertisements, the administrator had often sold space on the buses for placards promoting various political, charitable, and religious causes.
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The city administrator's denial of space to the organization was based on the content of the placard and therefore triggered strict scrutiny, which requires that the denial be necessary to serve a compelling government interest. The reasons cited for the city's denial of the organization's request do not implicate compelling government interests that would justify a content-based speech restriction.
A is incorrect. The mere reasonableness of the administrator's denial is insufficient justification to satisfy strict scrutiny.
B is incorrect. The false or misleading nature of speech in some instances may deprive it of protection under the First Amendment (e.g., commercial speech). However, there is no general constitutional requirement that a public official deny the use of public facilities for the propagation of a message that he or she believes may create a false or misleading impression. Indeed, in many instances, denial of a public forum on such a basis would constitute a content-based restriction of speech, in violation of the First Amendment.
D is incorrect. This choice overstates First Amendment protection of the expressive uses of public property in two respects. First, not all public property qualifies as a public forum, and government custodians have broad discretion to disallow the expressive use of non-forum property. Second, government custodians also have considerable discretion to enforce content-neutral restrictions of the expressive use of property that qualifies as a public forum.