MTA faces First Amendment scrutiny over revised ad policyBy
I’m a bit swamped this week as I’m heading out for vacation on Thursday afternoon. I’ll do my best to expand on some of these topics as the week goes on, but for now, I’d like to offer up a short post on a topic I’ve covered in the past: MTA advertising.
As part of a back and forth with Pamela Geller’s group, the MTA has struggled to craft a constitutionally-acceptable ad policy that doesn’t infringe on First Amendment protections. The agency tried to amend its policy in late 2012 but has been engaged in protracted legal wrangling over the revised versions. Recently, a federal judge found that the MTA had to run anti-Muslim ads under its policy, and in response, the MTA has barred all political advertising from appearing in ads. (Check out the revised policy in this pdf).
On its surface, this strikes me as an impermissible content-based restriction on free speech, but recent Sixth Circuit jurisprudence may say otherwise. A case out of Southern Michigan found that SMART could bar all political speech as it did not consider buses to be public forums. The Second Circuit hasn’t been as forgiving, and I wouldn’t be surprised to see this matter head to the Supreme Court. (WNYC delves into the legal theorizing over the constitutionality of the MTA’s moves.)
Geller has already said she plans to sue the agency over its latest revisions, and so far, the MTA has yet to win a case against her group. As a lawyer, I’ve always been intrigued by this give-and-take, and I’ll keep an eye out on this story as it unfolds in the coming months.