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.”