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Women's Health Link, Inc. v. Fort Wayne Pub. Transp. Corp.

United States District Court, N.D. Indiana, Fort Wayne Division

September 11, 2014

WOMEN'S HEALTH LINK, INC., Plaintiff
v.
FORT WAYNE PUBLIC TRANSPORTATION CORP., Defendant

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[Copyrighted Material Omitted]

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For Women's Health Link Inc, Plaintiff: Jeremy D Tedesco PHV, Jonathan A Scruggs PHV, LEAD ATTORNEYS, PRO HAC VICE, Alliance Defending Freedom - Sco/AZ, Scottsdale, AZ; Rory T Gray PHV, LEAD ATTORNEYS, PRO HAC VICE, David A Cortman, Alliance Defending Freedom - Law/GA, Lawrenceville, GA; Thomas M Dixon, LEAD ATTORNEY, Dixon Wright & Associates PC, Osceola, IN.

For Fort Wayne Public Transportation Corp, Defendant: F L Dennis Logan, Mark W Baeverstad, LEAD ATTORNEYS, Jessica Lauren Pixler, Rothberg Logan & Warsco LLP - FW/IN, Fort Wayne, IN.

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OPINION AND ORDER

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

Women's Health Link, Inc., which provides counseling with a " life-affirming perspective" for pregnant women, wants a preliminary injunction requiring Fort Wayne Public Transportation Corp. to allow Women's Health Link's public service advertisement on city buses the Transportation Corporation operate. The Transportation Corporation, which is better known as " Citilink," says that it rejected the Women's Health Link ad because of its viewpoint-neutral policy not to accept public service announcements that express or advocate positions on political, religious, or moral issues. Women's Health Link says Citilink already has allowed such ads on its buses. Based on the limited record of a sort often seen at the preliminary injunction, the court denies the preliminary injunction motion because Women's Health Link hasn't shown a reasonable probability of success on its contention that Citilink hasn't applied its rules consistently and neutrality. Along the way, the court also denies Citilink's motion to dismiss Women's Health Link's case.

I

A preliminary injunction ususally preserves the status quo until the case can be heard, but in a proper case, a preliminary injunction can require a defendant to do what the plaintiff wants the defendant to do. A court considering a motion for a preliminary injunction looks at (among a few other factors) the likelihood that the plaintiff will have proven its case when the case runs its full course, whether the plaintiff is threatened with injury for which an award of damages would be inadequate, and the risk of harms to each side arising from a mistaken ruling on the injunction request: how badly the plaintiff would be harmed in the time between a mistaken denial of a preliminary injunction and the end of the case, as opposed to how badly the defendant would be harmed in the time between a mistaken grant of a preliminary injunction and the end of the case. The plaintiff's likelihood of success on the merits of its claim frames the analysis: a plaintiff who shows a strong likelihood of succeeding on the merits of the claim can get a preliminary injunction with a lesser showing with respect to the balance of harms, while a plaintiff with a weak likelihood of success on the merits needs a greater showing with respect to the balance of harms. Kraft Foods Group Brands LLC v. Cracker Barrel Old Country Store, Inc., 735 F.3d 735, 740 (7th Cir. 2013); Promatek Indus., Ltd. v. Equitrac Corp., 300 F.3d 808, 811 (7th Cir. 2002). In the final analysis, the plaintiff - Women's Health Link in our case -bears the burden of persuading the court that a preliminary injunction is appropriate. Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) (quoting

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C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2947, at 129-130 (2d ed. 1995)).

The facts set out in the next several paragraphs might turn out to be wrong. Motions for preliminary injunction arise when a case is young, and decisions ordinarily are made on a slice of the information that ultimately will come to light by the end of the case. But a decision of this sort requires a court to apply the law to a given set of facts, and at this early stage of the case, a court can only identify what the facts appear to be at this point.

The board of directors for the Fort Wayne Public Transportation Corporation adopted its policy about advertising on buses in March 2011. The resolution that adopted the policy explained that the board intended Citilink buses and facilities to be non-pulic forums subject to viewpoint-neutral guidelines. The Board expressed its intent to " avoid any endorsement, implied or otherwise, of any of the products, services, or messages advertised" with the hope of maximizing advertising revenue while maximizing ridership.

For purposes of today's issues, only parts of the policy need be explained.

1. The policy set forth fourteen categories of advertising Citilink won't accept, the last of which was " Non-commercial" : " The subject matter and intent of the advertisement is non-commercial 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."
2. Citilink might accept public service announcements by governmental entities, schools, or nonprofit organizations. Citilink can reject such PSAs for a variety of identified reasons, such as if the PSA contained false/misleading/deceptive speech, doesn't clearly identify the advertiser, or if the PSA expresses or advocates opinions or positions on " political, religious, or moral issues."
3. Proposed ads or PSAs have to be submitted to Citilink for review. Citilink is to notify the applicant promptly whether the ad is acceptable or might fall within one of the policy's prohibitions. Citilink can, but doesn't have to, recommend changes to a noncompliant submission.
4. If the submission is declined, the advertiser can appeal to Citilink board of directors' advertising committee within 30 days. The committee must then meet and report back to the advertiser within 5 days.

Becky Rogness submitted a proposed ad to Citilink in November 2013. Ms. Rogness was a member of the Women's Health Link board of directors and also the communications manager for the Allen County Right to Life organization. Ms. Rogness's signature block in her email to Citilink disclosed both those categories and included a website: www.ichooselife.org. The email was sent from this address: 'becky.rogness@ichooselife.org." The proposed ad consisted of a head shot of a young woman, with the words, " You are not alone. Free resource for women seeking health care." On a banner along the bottom of the ad were the Women's Health Link logo, website, and phone number.

Citilink assistant manager Betsy Kachmar told Ms. Rogness that the ad looked fine and that Ms. Rogness should fill out the contract and send it in. Ms. Rogness did so immediately. When Ms. Kachmar received the contract, she noted that the street address and phone number in the contract were the same as the Allen County Right to Life address and the phone number in Ms. Rogness's earlier signature

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block. Ms. Kachmar says that all of this left her uncertain about the advertiser's true identity and the relationship between Women's Health Link and Allen County Right to Life. So she went to the website listed in the proposed ad and learned that Women's Health Link provided " life-affirming" (which Ms. Kachmar construed as " against abortion" ) referral resources without charge.

Ms. Kachmar notified Ms. Rogness that the Women's Health Link ad was unacceptable, and followed with an email explaining that Citilink's advertising policy said that Citilink wouldn't accept " noncommercial" ads.

Less than two weeks later, Julie Perkins emailed the same " You are not alone" ad to Ms. Kachmar and asked that Citilink post it as a public service announcement. The email's signature identified Ms. Perkins as Women's Health Link's executive director. The street address listed on the contract Ms. Perkins submitted was the same address listed on the first ...


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