Trojan Iron Horse

by Jim Mathews / President & CEO

Before I arrived at this Association 12 years ago, I was a newsman. By the time I left my former employers, I had written more than 45,000 articles of one sort or another (not my number, but calculated by a very dear colleague who presented it with great fanfare and some amusement during my going-away do). In other words, I spent three decades of my life supporting my family under the benevolent protection of the First Amendment. When it comes to free speech, I AM an absolutist.

Even so, I have to raise a few questions about the Big Boy locomotive celebration in Scranton, Pa., at the Steamtown National Historic Site. See, Steamtown is operated by the National Park Service, an arm of the Federal government and supported through a mix of appropriated taxpayer dollars and fees for permits, parking, entrance, and the like. It’s where Big Boy’s other surviving (but not operating) sibling, 4012, has been restored for public viewing.

Naturally, as Union Pacific’s genuinely majestic Big Boy made its way from Omaha on to Norfolk Southern territory to wow the crowds in Ohio, New York State, and now in Pennsylvania, the plan was to stage a “reunion” of the two massive machines.

So far, so cool.

They even handed out these retro-flavored postcards (see the picture above) as a commemorative keepsake. Even cooler!

But let’s flip it over and see what’s on the back.

Hoo boy.

This postcard explicitly says the UP–NS combination “will transform the U.S. supply chain” and asks visitors to “encourage members of Congress to support this merger.” Merger advocacy, not neutral commemoration. My wife, who many of you have met at our Association events from time to time, nailed it when we talked about the postcards this morning: “Trojan Iron Horse.” (Those of you who know her know that of the two of us she is superior in every respect, including, evidently, headline-crafting...)

I’m not saying this was illegal, or against the rules. There are things I don’t know about the specifics, so I don’t have enough facts to draw that conclusion. But boy, do I sure have questions.

On one hand, as an arm of the Federal government the Park Service has to recognize and respect First Amendment activity on park land, including “distribution of printed matter,” “demonstrations,” and “speechmaking,” and Steamtown’s own permits page says such requests must be treated equally. Like nearly every other Federal venue, permits may regulate time, place, number, facilities, and equipment, but not the content of the message. (Click this link to read the permits page.) That means the Park Service can’t just say, “We dislike pro-merger advocacy, therefore no postcards.” In fact, I would have opposed that kind of content-based restriction if it had surfaced in advance.

But the Code of Federal Regulations is also pretty clear that commercial purposes have to be pretty limited. 36 CFR § 5.1 says commercial notices or advertisements may not be displayed, posted, or distributed on Federally controlled park land unless the superintendent has given prior written permission. More important, that permission is limited to goods, services, or facilities available within the park and necessary or desirable for visitor convenience. Think “hot dog stand,” or “rain ponchos.”

The Park Service’s own advertising memo reads that rule strictly and says Park Service or partner publications distributed in parks may not include advertisements for goods, services, or facilities outside park boundaries; it also warns against any kind of Park Service distribution that would look like endorsement.

If UP or NS employees privately handed these out in a designated area under a permit, National Park Service probably had to allow it on a viewpoint-neutral basis consistent with the First Amendment. Ugly? Yes. A publicity stunt? Absolutely. Illegal? Harder to say. A lot stranger things have happened lately...

If these postcards were handed out as part of the official National Park Service-managed visitor experience, at Park Service entry points, in visitor-center space, by Park Service staff or volunteers, or under a special-event arrangement that didn't authorize advocacy material, then it becomes much more problematic.

At that point the question is not “may a private party advocate on federal land?” The question becomes “did the Park Service allow a corporate merger campaign to be embedded in an official NPS event, while using Federal property and visitor flow to generate political support?”

So, here’s what I’d really like to know: Was Union Pacific, Norfolk Southern, or any contractor or affiliate authorized to distribute merger-advocacy postcards or QR-code materials at Steamtown during the Big Boy 4014 visit? If so, under what authority: the special-event agreement, a First Amendment permit under 36 CFR §§ 2.51/2.52, written permission under 36 CFR § 5.1, or some other instrument?

Don’t misunderstand me. Park Service property doesn’t have to be entirely message-free. But the government can’t turn a National Park site into a one-sided corporate advocacy platform while denying comparable access to the other side, especially given that the corporate advocacy concerns a mega-merger under active review by Federal regulators.

If the millions of Americans who want, need, and deserve a modern, well-supported, and growing passenger-rail network wanted to distribute opposing or, at least, cautionary material to the general public -- say, at some kind of educational event -- would the Park Service or Steamtown provide the same website presence, physical access, locations, timing, and visitor-facing opportunity?