Home Subway Advertising After a court ruling, a slightly revised ad policy

After a court ruling, a slightly revised ad policy

by Benjamin Kabak

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.

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John-2 September 28, 2012 - 11:52 am

Pam Geller’s anti-Muslim ads are as much about publicizing Pam Geller as they are about promoting her cause — she’s going to make sure everyone knows about her ads and just as importantly, knows who put up the ads. Ditto Mona Eltahawy and her “I’m An Activist!” spray-paint performance earlier this week — it was as much about getting herself more TV pundit facetime on the cable news channels as it was about opposing the ad.

That’s the problem the MTA faces, when the subways become the battleground for people trying to not just to make ideological point but to promote themselves in the media by using the MTA’s facilities. There’s really no easy answer to this — the courts have told the MTA they can’t violate the First Amendment by not allowing the ads, so all that’s left is basically treating the controversial ones like the old warnings on the cigarette ads, or like the MPAA and TV networks do with their ratings systems by putting their own version of G, PG-13, R or NC-17 on the subway ads.

Alon Levy September 28, 2012 - 2:38 pm

Ben, and other lawyers in this forum: do you believe the policy is constitutional?

AK September 29, 2012 - 12:05 am

No. I believe it is (a) still unconstitutionally vague and (b) that the disclaimer violates the free speech rights of the advertiser by forcing them to promulgate a government message, not unlike the striking down of the City laws regulating so-called “crisis pregnancy centers.” See: http://www.nytimes.com/2011/07.....nters.html.

Government may only force a private actor to speak under limited circumstances, including situations that are designed to limit consumer fraud. For instance, on legal ads on the subway, you will see disclaimers about past performance not guaranteeing future results. You will NOT see such a disclaimer on an ad for a college.

“Disclaiming” is not a neutral act. When attached to some messages and not others, it acts as an implicit message of disapproval and that is not something the government can do.

Nathanael October 3, 2012 - 9:50 pm

The City laws regulating so-called “crisis pregnancy centers” *were* specifically designed to limit consumer fraud (“crisis pregnancy centers” are basically consumer fraud, from start to finish) and so those laws should never have been struck down.

The MTA policy’s vagueness is in requiring this disclaimer on SOME ads. I think you would agree with me that if the MTA required this disclaimer on ALL ads, including commercial ads, that would pass muster.

Personally I think the MTA should do exactly that. An ad for, say, Exxon Mobil or Marlboro is just as suspicious as an anti-Muslim ad, and deserves the same disclaimer.

AK October 4, 2012 - 12:05 pm

While I disagree with you about the CPC laws (which I believe were properly found unconstitutional (other, more narrowly crafted laws COULD pass constitutional muster)), I do agree that a disclaimer on ALL ads would satisfy the First Amendment.

MTA faces First Amendment scrutiny over revised ad policy :: Second Ave. Sagas May 4, 2015 - 12:57 am

[…] 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. […]


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