“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties.

Trump 3rd Circuit judge David Porter cast the deciding vote in Northeastern Pennsylvania Freethought Society v. County of Lackawanna Transit System in September to reverse a lower court and require a public transit system to display anti- and pro-religious ads. This was despite the fact that the bus system had adopted a policy attempting to limit its ad space primarily to commercial ads, as other transit systems have done. A judge appointed by President Reagan strongly dissented.

In 2013, following the example of other public transit systems, the County of Lackawanna Transit System (COLTS) in Pennsylvania adopted a revised policy designed to limit ads on its buses primarily to commercial ads, excluding ads on such topics as politics and religion. Although criticized by advocates across the ideological spectrum, such policies have generally been sustained by lower courts based on a 1974 Supreme Court decision that allowed a public transit company to determine that its ad space was a closed forum limited to commercial ads so long as the exclusion of issue ads was reasonable and neutral as to viewpoint. Most recently, the DC Circuit upheld such a policy concerning the DC-area transit system, despite a dissent joined by a Trump judge that argued that the system was required to run a pro-religious ad.

The Northeastern Pennsylvania Freethought Society (Freethought), a group that promotes atheism, filed suit against COLTS for rejecting pro-atheism ads and challenged the 2013 policy. After a one-day trial, the Pennsylvania federal district court ruled for COLTS, finding that the transit system’s ad space was a limited forum and that the restrictions were reasonable and viewpoint neutral, since they “put the entire subject of religion out of bounds,” in accordance with prior cases.

Freethought appealed and in a 2-1 decision in which Porter was the deciding vote, the 3rd Circuit reversed. Based on the majority’s interpretation of prior precedent, it ruled that the exclusion of religion as a topic for ads “discriminates on the basis of viewpoint.”

Judge Robert Cowen, who was appointed by President Reagan, strongly dissented. He explained that the majority had disregarded the principle that there is a “critical difference” between “prohibiting religious (and atheistic) perspectives on otherwise permissible subject matters – which constitutes viewpoint discrimination,” as opposed to “the exclusion of religion itself as a subject matter—which does not.” The COLTS policy was clearly such a subject matter prohibition, and the transit system demonstrated that it had closed its forum and its restrictions were reasonable because they were related to its interests in “appearing neutral,” avoiding “potentially disruptive controversy,” and maintaining ridership and revenue, as other courts had held.

Judge Cowen was particularly critical of the majority for suggesting that “religious advertisements are entitled to special protection.” Although he agreed that protecting religious expression is “of crucial importance,” he noted that “the same thing could be said about political speech.” The majority’s “expansive approach to viewpoint discrimination,” he further noted, could “force the complete closure” of government forums like transit system ad space and thus ban “all private speech” from such ad space. As a result of Porter’s deciding vote, however, precisely that danger has been created, and government entities like transit systems are required to privilege speech on religion as opposed to other topics in their ad space and other forums for “no principled reason.”