Gail Anderson v. MILWAUKEE COUNTY and MILWAUKEE TRANSPORT SERVICES , INC .

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1267
G AIL A NDERSON ,
Plaintiff-Appellant,
v.
M ILWAUKEE C OUNTY and M ILWAUKEE
T RANSPORT S ERVICES , I NC .,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 03 C 536—Lynn Adelman, Judge.
____________
A RGUED S EPTEMBER 28, 2005—D ECIDED J ANUARY 11, 2006
____________
Before F LAUM , Chief Judge, and M ANION and E VANS ,
Circuit Judges.
E VANS , Circuit Judge. In this case, filed pursuant to
42 U.S.C. § 1983, Gail Anderson alleges that Milwaukee
County and Milwaukee Transport Services, Inc., the
operator of the Milwaukee County bus system, violated
her First and Fourteenth Amendment rights by their
“tariff,” which prohibits the distribution of literature on
county buses.
Ms. Anderson, a woman in her mid-fifties, lives in
Milwaukee. She doesn’t drive a car and so is a regular
customer on Milwaukee’s buses. But she is not, it would

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2 No. 05-1267
appear, your typical bus rider. As anyone who rides buses
in urban communities knows, most passengers mind their
own business. Most avoid conversation, and many even
avoid eye-contact, with other passengers. Not Ms. Ander-
son. She (here, of course, we take her allegations as true)
has a “sincerely held religious belief” and a wish to “share
her faith with those sitting next to her on the bus by talking
to them and giving them religious literature.” She also
wants to give her literature to other passengers who pass by
her seat on the bus. It’s unclear just how long, and how
often, she has followed her urge to share her views with
other riders.
Ms. Anderson’s urge to “share her faith” and the bus
company’s tariff collided on July 8, 2003. On that day, she
boarded a bus and took a seat near the front. From there,
she attempted to hand out copies of a book, later identi-
fied as “The Book of Hope.” The book contains stories from
the Bible. In the past, she says she has been allowed to
hand out the book on the bus, but this time the driver,
Rozell Smith, observed what she was doing and asked her
to stop. Despite repeated requests, Ms. Anderson did not
stop and, in fact, said, “I will not stop.” At this point, Smith
did not know the book contained religious material.
Because Ms. Anderson refused to stop handing out copies
of her book, Smith called the transit system dispatch office.
He spoke to dispatcher Valdis Salmins. The transcript of
the call is as follows:
Operator: . . . 63 on 63, bus 4442, badge 2637. . . . OK,
I want the company rules on passing out
literature on the bus, there. I’m sure we
have some kind of regulation, there. Is that
possible for people to pass out literature, all
different types of literature, over?
Dispatch: That’s a negative. There is no solicitation of
any kind allowed on our buses. (S0)

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No. 05-1267 3
whether it’s free or for charge or what-
ever. . . . Nothing is to be given out on the
buses.
Operator: Well, that’s affirmative on that. I thought
that was a rule. I got a lady on here who’s
passing out books on the bus, annoying
the passengers, and I told her that she
couldn’t do that. She told me I couldn’t stop
her from doing that, over.
Dispatch: Ok, I’ll send the CPOs to intercept you. If
she gets off before you’re intercepted, please
give us a call back.
Operator: Roger.
Mr. Salmins called system security. The transcript of that
call:
CPO: CPO 8, dispatch . . . we’re in the downtown
area, what do you have?
Dispatch: EB from 107th and Silver Spring, I have
vehicle 4442, 63 on 63, badge 2037. Female
on board trying to hand out booklets. I don’t
know if they’re religious or political, or
what, but no solicitation allowed on
our buses whatsoever.
Two security officers intercepted the bus, boarded it,
approached Ms. Anderson, and asked whether they could
talk to her off the bus. At that point, they did not know
what she was handing out. After she was off the bus, Ms.
Anderson told the officers about “The Book of Hope.” The
officers explained to her that the Transit System had a rule
against distributing literature on buses. They asked her
whether she wanted to board the next bus to continue her
trip. Being within six blocks of her home, she decided to
walk.

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4 No. 05-1267
The “rule” discussed by the bus driver and the dispatcher
is one of the “Passenger Tariffs,” under which the bus
system operates. The tariffs set out fare information and
rules regarding passenger conduct. Tariff 116 says “No
person furnished transportation under fares named in
this tariff shall be permitted to enter or remain in the
system’s buses: (a) For purpose of distributing any form
of advertising or literature.”
Based on these facts, the district judge (the Honorable
Lynn Adelman) granted the defendants’ motion for sum-
mary judgment. Ms. Anderson now appeals, claiming that
the tariff is impermissibly vague, overbroad, and unreason-
able. She also claims it discriminates against religious
literature. We review a summary judgment determina-
tion as well as any questions of constitutional law under the
de novo standard of review. Weinberg v. City of Chicago, 310
F.3d 1029, 1035 (7th Cir. 2002).
We will turn first to Ms. Anderson’s claims that the tariff,
on its face, is unconstitutionally vague and overbroad. The
tariff is vague, she says, because it is unclear what “distrib-
uting” means. She poses several hypothetical examples. For
instance, is handing out one book distributing? A bus
company witness said no. But, she asks, is handing out one
item a day for more than one day considered distribution?
How about the businessman who hands a seat mate his
business card? Her examples of the outer limits of possible
meanings of the word “distributing” fall short of convincing
us that the tariff is unconstitutionally vague. Common
sense must not be and should not be suspended when
judging the constitutionality of a rule or statute.
A law is void for vagueness if it fails to give fair warn-
ing of what is prohibited, if it fails to provide explicit
standards for the persons responsible for enforcement
and thus creates a risk of discriminatory enforcement,
and if its lack of clarity chills lawful behavior. Grayned v.

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No. 05-1267 5
1 We take the background facts from a Supreme Court decision in
the same case—Frisby v. Schultz, 487 U.S. 474 (1988).
City of Rockford, 408 U.S. 104 (1972). On the other hand,
the Court has said that “perfect clarity and precise guidance
have never been required even of regulations that restrict
expressive activity.” Ward v. Rock Against Racism, 491 U.S.
781, 794 (1989). There are, of course, limits to how precise
language can be in the context of a law, ordinance, or, for
that matter, a bus system tariff. In United States Civil
Service Commission v. National Association of Letter
Carriers, 413 U.S. 548, 578-79 (1973), the Court remarked
that “there are limitations in the English language with
respect to being both specific and manageably brief . . . .”
Looking at the Civil Service Rules interpreting the then-
existing version of the Hatch Act, 5 U.S.C. § 7324(a)(2), the
Court said the “ordinary person exercising ordinary com-
mon sense” knows perfectly well what they mean.
Ms. Anderson’s arguments that the tariff is vague are
reminiscent of those in Schultz v. Frisby, 877 F.2d 6, 8 (7th
Cir. 1989), which involved abortion opponents who
wished to picket the home of an abortion provider. 1 The
plaintiffs claimed that an ordinance which outlawed
picketing that was “directed at” a particular home was
unconstitutionally vague. We set out their concern:
Will it be enough to go ‘round and ‘round the block?
Could the picketers march in front of the five houses on
either side of the [providers’]? May they stop for one
minute, or two, or five, in front of the . . . place before
moving along? Surely they can’t evade the law by
standing in front of the . . . home and occasionally
jumping one house on either side. How much longer
must the route be?
We rejected these concerns in favor of common sense:

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6 No. 05-1267
No matter how clear the ordinance seems, a hundred
nice questions may follow in its wake. The Constitution
does not require [the town] to answer each of these
before it may enforce the law. Incompleteness is a curse
of language, as of human imagination. To say that
precision is a precondition to enforcement is to say that
no ordinance regulating speech may stand—a proposi-
tion the Supreme Court has rejected over and again.
Id. In our case, we cannot imagine that the tariff would
have a chilling effect, for instance, on a bus-riding business-
man who wanted to hand his business card to a seat mate.
In short, we do not find the ordinance unconstitutionally
vague.
Neither can the tariff be seen as facially overbroad. The
overbreadth doctrine allows a plaintiff to ask that a law
be struck down based not on how it affects the plaintiff
but on how it might be applied to third parties not before
the court. Because that is “strong medicine,” the “over-
breadth of a statute must not only be real, but substantial
as well, judged in relation to the statute’s plainly legitimate
sweep.” Broadrick v. Oklahoma, 413 U.S. 601, 614-615
(1973). Again, in Virginia v. Hicks, 539 U.S. 113 (2003), the
Court emphasized that to be overbroad, the law’s applica-
tion to protected speech must be substantial. That simply
is not the case here. The tariff is narrowly drawn and
applies—as we shall see—in a limited environment. More
importantly, Ms. Anderson has not shown that the tariff
would significantly affect the rights of individuals not
before us in any way differently from the way it affects her.
Accordingly, as the Court said in City Council v. Taxpayers
for Vincent, 466 U.S. 789, 802 (1984), “It would therefore be
inappropriate in this case to entertain an overbreadth
challenge to the ordinance.”
Ms. Anderson’s primary contention is that to the extent
the tariff prevents her from sitting on the bus and hand-

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No. 05-1267 7
ing out literature, it is unconstitutional as applied to
her. We agree that her activities are a form of speech
protected under the First Amendment. Further, the bus is a
governmentally controlled forum. But, it is well-settled that
the government is not required to permit all forms of speech
on all of the property it owns. Int’l Soc’y for Krishna
Consciousness, Inc. v. Lee, 505 U.S. 672 (1992). We use
“forum analysis” to determine when the government’s
interest in limiting the use of its property to its intended
purpose outweighs the interests of those wishing to use the
property for other purposes, such as First Amendment
activities. Cornelius v. NAACP Legal Def. & Educ. Fund,
Inc., 473 U.S. 788 (1985). Under this approach, on property
that has traditionally been available for public expression,
regulation of speech is subject to the highest scrutiny.
Similarly, the government is bound by the same standard
in the “designated public forum”—property the government
has opened up for limited or unlimited public expressive
activity. Finally, there is the “nonpublic forum”; that is,
“[p]ublic property which is not by tradition or designation
a forum for public communication . . . .” Perry Educ. Ass’n
v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46 (1983). As
Ms. Anderson properly concedes, the interior of a city-
operated transit vehicle is a nonpublic forum. See Lehman
v. City of Shaker Heights, 418 U.S. 298 (1974).
In a nonpublic forum, the government may restrict speech
to a greater extent than in a public or designated public
forum. Restrictions must be viewpoint-neutral
and reasonable. In other words, restrictions need only
pass the test of reasonableness so long as they are not
an attempt to stifle a viewpoint based on its content. Int’l
Soc’y for Krishna Consciousness, Inc. v. Lee at 683. A
restriction does not need to be “the most reasonable or
the only reasonable limitation”; it does not need to be
narrowly tailored; nor does the governmental interest
need to be compelling. Cornelius at 808-809. In fact,

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8 No. 05-1267
simple common sense is sufficient to uphold a regulation
under reasonableness review. United States v. Kokinda, 497
U.S. 720, 734 (1990). Using this approach, the Court has
found reasonable, for instance, a ban on soliciting in an
airport terminal, Int’l Soc’y for Krishna Consciousness, Inc.
v. Lee, and a restriction on political advertising on public
transit. Lehman v. City of Shaker Heights. See also Chil-
dren of the Rosary v. City of Phoenix, 154 F.3d 972 (9th Cir.
1998). In Chicago Acorn v. Metropolitan Pier and Exposition
Authority, 150 F.3d 695, 704 (7th Cir. 1998), we found that
leafleting should not be permitted in places where “pedes-
trian traffic will be obstructed.” See also Hawkins v. City
and County of Denver, 170 F.3d 1281 (10th Cir. 1999).
Here, the restriction is clearly reasonable. Bus passengers
are a captive audience. While riding on the bus, many
passengers have an interest in avoiding unwel-
come communications. It is reasonable for the bus company
to attempt to ensure their comfort. In Lehman, the Court
concluded that a city was entitled to protect unwilling
viewers against intrusive advertising on its buses in order
to provide rapid, convenient, pleasant, and inexpensive
public transportation for them. It is also reasonable to wish
to avoid disagreements among passengers which the
distribution of literature might inspire. Furthermore, the
bus company has an interest in passenger safety. The
company expresses concern that a driver could be distracted
by literature distribution and that abandoned literature can
cause a safety hazard and certainly a littering problem.
Given the nature of the forum, a ban on the distribution of
literature on buses passes constitutional muster.
Finally, Ms. Anderson also seems to claim that the
restriction as applied in this case is, in fact, content-based
and therefore unconstitutional. She says there is an
“unwritten scheme” by which there are exceptions from
the total ban on literature distribution—exceptions
which arise out of the discretion bus operators have to

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No. 05-1267 9
choose which people they will ask to stop distributing
literature. She says that discretionary enforcement of
the tariff results in discrimination against religious litera-
ture; therefore, the tariff is subject to strict scru-
tiny analysis. We see no factual basis for this claim. As
we said, at the time the driver asked her to stop passing out
her book, he had no idea what it was about. Neither did the
security officers who took Ms. Anderson off the bus. Fur-
thermore, Ms. Anderson offers no evidence that anyone has
been allowed to distribute nonreligious literature on the
bus. Her main support for her claim that enforcement is
discriminatory is that the bus company has a rack behind
the driver’s seat which holds copies of bus route schedules
and monthly newsletters. She says that if the company can
provide that literature, she can pass out her book. We reject
this contention out of hand. The comparison between
passively providing bus riders with schedules and informa-
tion about the very system on which they are riding cannot
be compared to a passenger distributing literature of any
kind. Ms. Anderson’s argument on this point rests on thin
air.
Ms. Anderson has failed in her attack on the tariff,
and accordingly we A FFIRM the judgment of the district
court.

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10 No. 05-1267
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-11-06

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