A history of being unable to turn down advertisements


In 2008, an alluring ad for vodka loomed over a staircase at Broadway/Lafayette. (Photo by flickr user Dom Dada)

Since day one, subway advertising has been controversial. Today, we argue over religious themes and offensive images, but back in the early days of the subway, potential straphangers were outraged that ads would be thrust upon them. The revenue, said Squire Vickers, could serve as “a balm for hurt minds.”

When news broke yesterday that the authority had approved an anti-mosque ad sponsored by a right-wing organization based out of New Hampshire, a mix of support and outrage developed. Some believed the ad should stand on grounds of free speech and tolerance; others were dismayed that a callous and wrong-headed message would see the light of day; still others support the message and the medium. The MTA, as Michael Grynbaum reports today, had very little say in the matter.

In a piece that delves into legal history without getting too technical, Grynbaum explores how the authority hasn’t had much success in turning down advertisements. It has tried to beef up its review powers, but every time a decision is challenged in court, the MTA loses. Grynbaum reports:

The authority adopted rules in 1997 that allowed transit officials to reject advertising they considered obscene, deceptive or “directly adverse to the commercial or administrative interests of the M.T.A.,” among other reasons. (The guidelines were prompted in part by complaints about a racy Calvin Klein underwear ad.)

But transit officials have faced legal challenges before, and in those challenges the authority tends to lose. New York magazine successfully sued the authority in 1997 after transit officials removed ads poking fun at Mayor Rudolph W. Giuliani, at the mayor’s request. (The Supreme Court rejected an appeal.)

An ad submitted by riders’ advocates in 2000, which compared the morning commute to a packed ride in a cattle car, was initially rejected because it might discourage people from riding the subway. Those objections were quickly dropped after the New York Civil Liberties Union brought a lawsuit claiming censorship.

In June, the authority removed a Georgi vodka ad featuring a swimsuit model from some city buses after complaints from Hasidic leaders in Brooklyn. “We try to limit more suggestive ads upon neighborhood request,” the authority said in a statement. This week, the executives of Georgi Vodka said they wondered why the twin towers image made the cut and their company’s bikini ad did not. “We didn’t feel they came to bat for us,” said Phyllis Valenti, executive vice president for Star Industries, which owns the vodka. But she said lawyers had advised the company not to sue.

The real issue with the MTA’s ability to review and ultimately reject ads is constitutional in its scope. The MTA is a government actor and thus cannot enact regulations that limit the freedom of speech we enjoy as a First Amendment right. Even though advertising doesn’t enjoy the same broad protections that other speech does, as long as the ad is not misleading or defamatory, the MTA must allow it to proceed. For nearly $10,000, Pamela Geller’s ad will stand.

MTA officials recognize the intractable position in which the law places them. Plus, in age of uncertain economics, the revenue is still a balm for hurt minds. “We do the best we can within our guidelines, with the understanding that in a lot of cases, we’ll have to put up ads that we may or may not agree with,” Jeremy Soffin said to The Times. “There will always be cases where people disagree…You have people who are purposely trying to be provocative, and sometimes, frankly, more interested in the publicity that comes with the conflict, as opposed to the benefit of actually running the ad.”

Categories : Subway Advertising

8 Responses to “A history of being unable to turn down advertisements”

  1. Al D says:

    That’s just it. The ad IS misleading and should be removed on these grounds. The ad is quite clear that the mosque is to be located AT Ground Zero when in fact it is to be 2 blocks from Ground Zero. In fact, Ms. Palin and Mr. Gingrich talk about the mosque being at Ground Zero, so, along with Ms. Geller, they are all ‘misunderinformed’.

  2. Alon Levy says:

    IANAL, but I believe the Geller ad would be subject to stronger free speech rules than is ordinary, because it’s political. The Supreme Court has recently allowed a very broad right to spend money on political speech, including campaign commercials.

    If I were the MTA, I wouldn’t even try. Yes, the ad is fraudulent. Yes, Geller is a neo-fascist. None of this matters. The MTA wouldn’t be able to find a rational basis for not letting her advertise. Nor should it. One of the reasons the fascists are much weaker in North America than in Sub-Scandinavian Europe is that European censorship gives them a moral high ground, letting them claim victimhood and pretend to be rebellious against authority.

    • SEAN says:

      Forgive me if I sound idiotic, but aren’t the Pamela Geller’s & the like trying to pull that here?

      • Alon Levy says:

        Yes, they are. They’re imitating a lot of tactics of the European extreme right. However, they’re not very successful. The Cordoba Center is just one news cycle. In the longer term, the main racial issues in the US are not about Islam, but about Hispanics and Arizona-style anti-immigrant laws.

  3. sharon says:

    Just hope this anti-islamic ads don’t draw terrorists to go after the subway

  4. AK says:

    Ben’s description of the MTA’s constitutional obligation omits a significant fact: that the MTA could, within constitutional bounds, refuse to publish ALL ads of a political/religious nature. What it cannot do is acccept certain political/religious ads (which it has in the past), and refuse to accept this advertisment on the basis of viewpoint. That is the lesson of the seminal Supreme Court case in the field: Lehman v. Shaker Heights, 418 U.S. 298 (1974). In that case, the Supreme Court held that ad spaces on public transit is NOT a public forum akin to a sidewalk/park (where all speakers must be free to gather, save for limited time, place, and manner restrictions). Instead, the Court declared:

    “Here, we have no open spaces, no meeting hall, park, street corner, or other public thoroughfare. Instead, the city is engaged in commerce. It must provide rapid, convenient, pleasant, and inexpensive service to the commuters of Shaker Heights. The car card space, although incidental to the provision of public transportation, is a part of the commercial venture. In much the same way that a newspaper or periodical, or even a radio or television station, need not accept every proffer of advertising from the general public, a city transit system has discretion to develop and make reasonable choices concerning the type of advertising that may be displayed in its vehicles.”

    Id. at 303.

    The Court concluded:

    “In these circumstances, the managerial decision to limit car card space to innocuous and less controversial commercial and service oriented advertising [Shaker Heights had a ban on political/religious ads] does not rise to the dignity of a First Amendment violation. Were we to hold to the contrary, display cases in public hospitals, libraries, office buildings, military compounds, and other public facilities immediately would become Hyde Parks open to every would-be pamphleteer and politician. This the Constitution does not require.”

    Id. at 304.

    Contrast Lehman with Planned Parenthood Ass’n/Chicago Area v. Chicago Transit Authority, 592 F.Supp. 544 (D.C.Ill.,1984), aff’d Planned Parenthood Ass’n/Chicago Area v. Chicago Transit Authority, 767 F.2d 1225 (7th Circ. 1985), in which the Chicago Transit Authority, which ALLOWED political/religious ads, was found to have violated the First Amendment by not permitting Planned Parenthood to advertise in the transit system.

    That court concluded:

    “CTA’s purported policy of rejecting controversial public issue messages has been selectively applied in an arbitrary, capricious and invidiously discriminatory manner. CTA has applied the claimed policy to reject messages that relate to only one subject matter: the so-called abortion issue.” Id. at 549.

    For additional support, see, e.g. Coalition for Abortion Rights and Against Sterilization Abuse v. Niagara Frontier Transp. Authority, 584 F.Supp. 985 (N.D.N.Y. 1984); Gay Activists Alliance of Washington, D.C., Inc. v. Washington Metropolitan Transit Authority, No. 78-2217, slip op. (D.C.D.C. July 5, 1979) (advertisement for gay rights could not be banned); Kissinger v. New York City Transit Authority, 274 F.Supp. 438 (S.D.N.Y. 1967).


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