The Greater Richmond Transit Company operates the public transit system in Richmond, Virginia.  One of the ways that it derives revenue is that it sells advertising space on its buses.  Richmond Transit has an advertising policy which prohibits various types of advertising content, including ads promoting alcohol and tobacco, pornography, and "political ads."  

White Coat Waste Project is a non-profit that advocates for ending animal experimentation that is funded by taxpayers.  White Coat tried to run an ad on Richmond Transit's buses, targeting a medical center, which stated, "Stop Taxpayer-Funded Dog Experiments!"  Richmond Transit rejected the ad on the grounds that it was political, and White Coat sued, asserting that Richmond Transit's prohibition on political advertising violates the First Amendment.  

On appeal to the Fourth Circuit, the court first determined that Richmond Transit was acting on behalf of the state, so therefore the First Amendment's prohibition on governmental abridgement of speech applied.  

When the government designates property -- that is not traditionally associated with free expression -- as a public forum, the court evaluates the level of First Amendment protection provided based on the type of forum that it is.  Here, the court determined that bus advertising was a "nonpublic forum," which is, essentially, public property that is not traditionally one which was used as a forum for public communication.  In nonpublic forums, the government has a larger ability to limit speech, but those limits still must be reasonable and viewpoint-neutral.

So, was Richmond Transit's decision to reject White Coat's ad "reasonable"?  The Supreme Court has explained that, in order for this type of decision to be reasonable, the policy on which the decision is based must be "capable of reasoned application."  In other words, "the State must be able to articulate some sensible basis for distinguishing what may come in from what must stay out."  Here, the Fourth Circuit noted that although Richmond Transit bans all "political" ads, it has no formal definition of the term, and no written guidelines clarifying how the standard is to be applied.  The court also noted that, when making decisions about whether to accept or reject ads on the basis of being "political," Richmond Transit hasn't relied on the plain meaning of the term -- since it has accepted advertising for a vice-presidential debate, advertising for a pro-free-speech art exhibit, and advertising that encouraged people to spay and neuter their dogs.  The court concluded, then, that "Richmond Transit's vaguely defined policies and even vaguer unwritten rules make it impossible for a reasonable person to identify what violates their advertising policy and what does not."  The court further held that the policy itself was not only impermissibly applied as it relates to White Coat, but that it is facially invalid as well.  

The Fourth Circuit concluded with, "While transit companies may prohibit transit advertising, they must do so by enacting a neutral policy capable of reasoned application.  Otherwise, such a prohibition abridges would-be advertisers' freedom of speech and is facially unconstitutional under the First Amendment."  

White Coat Waste Project v. Greater Richmond Transit Company, 2022 WL 1592591 (4th Cir. 2022).