On and off over the past two years, the MTA and Pamela Geller, head of a prominent anti-Islam organization, have squared off over bus ads. Geller wanted to run a series of placards on the outsides of buses that the MTA claimed violated its advertising policies, and although the MTA seeming faced a tall legal order, the agency turned down the ads anyway. Late last week, a federal judge ruled that effort unconstituional and enjoined the MTA from enforcing its advertising policy.
In a way, the outcome of this case preordained. Geller opted to try to buy bus placards because the Second Circuit had previously declared them to be designated public forums and thus subject to strict scrutiny and sweeping free speech protections. In a 35-page opinion [pdf], that’s exactly what District Judge Paul Engelmayer decided on Friday.
“MTA does not offer any justification for selectively allowing demeaning speech to appear on the exterior of its buses, let alone demonstrate that its content-based restriction on transit advertising is narrowly tailored to serve a compelling governmental interest, as is necessary to survive strict scrutiny,” he wrote. “Whatever weight might be assigned to the governmental interest in banning demeaning speech on the exterior of New York City buses on an even-handed basis, there is no good reason for protecting some individuals and groups, but not others, from such abuse. MTA’s nodemeaning standard, as currently formulated, is, therefore, inconsistent with the First Amendment.”
The MTA’s problem is one many government and quasi-government agencies face. How do you craft a policy that does not run afoul of the First Amendment when your advertising space spans various public spaces and audiences? The MTA, whose own internal guidelines prohibit ads that demean an individual’s or group’s “race, color, religion, national origin, ancestry, gender, age, disability or sexual orientation,” has not achieved this goal. “It is unavoidably clear that MTA’s nodemeaning standard differentiates based on the content of the proposed ad,” Engelmayer wrote. “Outside of these ‘specified disfavored topics,’ MTA’s standard permits all other demeaning ads.” Such a content-based determination violates the First Amendment.
So what happens next? Does Pam Geller run her ads calling all Muslims uncivilized savages on buses across the city? Not quite. Engelmayer stayed his decision for 30 days, and the MTA is currently assessing its advertising policy and whether or not it wishes to pursue an appeal. Meanwhile, the judge seemed to leave the MTA with something of an opening:
In holding today that MTA’s no-demeaning standard violates the First Amendment, the Court does not impugn in the slightest the motives of MTA and its officials—either those who put the standard into place or those who applied it to the AFDI Ad. Quite the contrary: From the testimony and evidence, it is apparent that, in promulgating and applying the no-demeaning standard, MTA has aspired to hold ads on public buses to a standard of civility. Its goal of preventing ads on city bus exteriors from being used as a medium for abuse and division in this diverse metropolis is entirely laudable. It appears likely that MTA drafted the standard in question with an eye toward the groups it felt most likely to be targeted by demeaning ads, without adequately considering the First Amendment implications under R.A.V. of such a selective prohibition…
Today’s ruling does not disable city authorities from adopting rules that hold ads and commentary on the exteriors of buses to a standard of civility. And in resolving this case on the narrow ground that the no-demeaning standard as currently drafted is impermissibly content-based, the Court pointedly does not reach any of the broader grounds for invalidation urged by AFDI under the First Amendment. Today’s ruling instead leaves—and is intended to leave—MTA the latitude to investigate and experiment with alternative mechanisms for using ad space on the exteriors of city buses productively, profitably, and constitutionally, while ensuring that this space is not used as a tool for disparagement and division.
And so that’s where we leave things. The MTA has been temporarily enjoined for enforcing its policy, and the case moves forward as the authority searches fo a constitutionally permissible standard and procedure.