When the MTA lost its court ruling over Pamela Geller’s anti-Jihad advertising on First Amendment grounds, Judge Paul Engelmayer told the authority to amend its advertising policy or else. The MTA Board didn’t have a chance to address the issue until yesterday, a few days after the ads debuted and were defaced. With one person in jail over the ads, the MTA announced yesterday a revised advertising policy.
Faced with the need to eliminate the “no demeaning ads” standard due to its lack of constitutionality, the MTA has instead opted for a more inclusive policy, albeit on with a disclaimer. With board members speaking out against limiting both the revenue from advertising and the use of public space to express unpopular, but constitutionally protected, viewpoints, the MTA will allow viewpoint advertising. The agency will require a conspicuous disclaimer that says, “This is a paid advertisement sponsored by [Sponsor]. The display of this advertisement does not imply MTA’s endorsement of any views expressed.”
While the MTA could still appeal the district court’s ruling, it does not plan to do so. Such a case would likely not be a winning one, and litigation costs would be steep. The MTA further clarified its new position:
To be clear, the MTA does not believe the First Amendment compels the MTA to open up its ad spaces in this way to a wide range of expressive communications. MTA could, for example, adopt a narrower commercially oriented ad policy, one that limited the range of ads it will display to those selling a product or service, and by doing so, avoid having to run demeaning or divisive ads such as the AFDI ad that resulted in litigation. But the MTA for decades has permitted its ad spaces to serve a broader communicative function than mere commercial advertising, and the Board, today reaffirms that tradition of tolerating a wide spectrum of types of ads, including ads that express views on a wide range of public matters.
With that choice also come First Amendment limitations that constrain the MTA’s ability to disallow particular ads because their messages are uncivil or divisive. We had thought this did not mean having to run divisive ads that demeaned others, but the recent litigation tells us otherwise. A cost of opening our ad space to a variety of viewpoints on matters of public concern is that we cannot readily close that space to certain advertisements on account of their expression of divisive or even venomous messages.
We deplore such hate messages and remain hopeful that the vast majority of advertisers in our buses,subways, trains and stationswill remain responsible and respectful of their audiences. And when, as there inevitably will be, a very few sponsors of ads stray from civility, we have every confidence that our customers will understand that in our enlightened civil democracy, the answer to distasteful and uncivil speech is more, and more civilized, speech.
In response to the new policy — which still limits a wide array of false or misleading ads and offensive and mature content — the Straphangers Campaign sent out a list of questions: ” How will MTA determine if the ad contains “religious, religious, or moral” expression?, they asked. “What is the definition of a “conspicuous” legend? How much of the ad space would be devoted to the legend? What should be done in the case where there are many sponsors?” In 2000, the Straphangers were involved in another legal fight over MTA advertising when the authority refused to run an ad comparing subway crowding to cattle cars.
Gene Russianoff’s questions do seem reasonable, but so too does the MTA’s new policy. This should, for now, allow everyone to move forward with a policy that protects free speech, whether the reader agrees with it or not, and protects against future litigation as well.