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MTA faces First Amendment scrutiny over revised ad policy

by Benjamin Kabak

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.

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Dave May 4, 2015 - 11:53 am

People need to realize that they do not have a right not to be offended. Once people realize this, free speech issues will be much easier to resolve.

Will May 5, 2015 - 7:45 am

I think we can be offended, we can agree that this is offensive, and that we can try and keep this hateful material off of public transportation. That we can keep our buses and subways from doing their dirty work and spreading their message. I would rather raise fares ave ban advertising than accept this ad campaign. They can exercise their right to hate speech with a sign they’re holding in a public place, so we can see their faces.

Rob May 4, 2015 - 2:26 pm

They are not “anti-Muslim ads”. You might say something like “anti-muslim terrorist”, but not what you did.

Will May 5, 2015 - 7:38 am

These ads are equating all devout Muslims and a peaceful advocacy groups with terrorism. Or all Muslims with anti-Semitism. That’s pretty bigoted.

Bolwerk May 5, 2015 - 9:16 am

Pamela Geller’s campaign is nothing more than a crowdsourced Randian spergout. The whole point is to antagonize Muslims, maybe into blowing things up in NYC. Of course, it won’t really make a difference to that end because, to anybody who cares, we were already the nutsack of the great satan ripe for kicking. (Many of Pamela Geller’s Middle Amerikan RWA brethren feel the same way.)

And there is a silver lining. The Muslim community in NYC has actually been very, uh, laissez-faire about her babblings. Overall they’re setting a good example for Muslims in certain other places.

Larry Littlefield May 5, 2015 - 9:34 am

Right. I get the feeling they’d like nothing better than to have a few Muslim nuts murder some non-Muslim, and a few non-Muslim nuts murder some Muslims, so her dream of tribal war could come true. These folks would be right at home in the Middle East.

Eric May 5, 2015 - 12:28 pm

“A case out of Southern Michigan found that SMART could bar all political speech as it did not consider buses to be public forums.”

This makes a lot of sense. Buses or trains make terrible public forums, because you can only see one side of the argument at a time, and you may never see the other side even if it exists. And the MTA, as much as a private company, has to worry about its image and should not have to run ads that most people see as ugly and degrading. So common sense says that the MTA should be able to ban political ads as long as all political positions are banned. Hopefully the Constitution can catch up to common sense.

Nathanael May 11, 2015 - 11:56 pm

Perhaps the most logical thing to do would be for the MTA to stop carrying paid ads and only carry public service announcements which reflect the official views of the MTA.

Nobody could really fault that policy.

Chaz Antonelli May 27, 2015 - 5:13 pm

Anything could offend someone. There’s no winning here.

Mark March 22, 2023 - 10:09 am

Yep, especially in those days. There are like a dozen+ articles at https://firstamendmentcoalition.org/ every week on it though, feels like much more than it used to be.


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