MTA Votes to Ban All Political Advertising After Judge OKs "Hamas Killing Jews" on City Buses

[brooklynite]

Source: WNBC

The nation's largest mass transit system has voted to ban all political advertising on its subways and buses after a judge ruled that a pro-Israel group was allowed to display an advertisement containing the phrase "Hamas Killing Jews" on New York City buses.

The resolution passed Wednesday by a vote of 9-2 at the MTA's board meeting after the finance committee approved it earlier in the week. The cash-strapped agency says such advertising only accounts for less than $1 million of its annual advertising revenue of $138 million.

"Advertisements expressing viewpoint messages, regardless of the viewpoint being expressed, would no longer be accepted," the MTA's general counsel, Jerome Page, told the committee on Monday.

Read more: http://www.nbcnewyork.com/news/local/MTA-Political-Advertising-Ban-Pro-Israel-Subway-Bus-301651991.html

[still_one]

1. excellent decision

[brooklynite]

3. Horrible decision...

...banning the speech WE disagree with is always easy.

[Cal Carpenter]

5. This isn't banning speech

This is halting certain paid advertisements. There is a clear difference.

[Jim Lane]

9. Yes, it is banning speech, but it may be permissible.

A policy of "We'll accept no paid advertising, period" would be clearly constitutional.

A policy of "We'll accept campaign ads from Democrats and Republicans but not from wackos like the Libertarians or the Greens" would be clearly unconstitutional. The point is that, once the MTA chooses to accept some ads, then accepting some and banning others raises First Amendment issues.

The actual policy adopted comes under the heading of subject-matter restriction. It's content-based, and so triggers First Amendment scrutiny, but it's viewpoint-neutral (as long as it's applied fairly). It bans ads denouncing Muslims, it bans ads denouncing Pam Geller as an Islamophobe, it bans ads calling global warming a hoax, it bans ads calling global warming a crisis, etc.

Thus, I disagree with you (apparently you think the MTA should have complete latitude in banning ads) and with brooklynite (who apparently thinks that the policy is wrong because it would ban ads with which MTA disagrees, even though it would also ban ads with which MTA agrees). Subject-matter restriction is an in-between area, just because of that combination of factors (content-based but viewpoint-neutral).

In a quick check I found a law review casenote stating that "the Supreme Court’s jurisprudence on the subject-matter–content-based distinction is rather murky." I haven't researched the point more thoroughly. I'm pretty sure that other municipal agencies have imposed various restrictions on acceptable advertising, so there are probably some informative precedents. I suspect that the absolutist answers on both sides are probably wrong. The result may depend on the nature of the restriction and -- an important factor -- on the government interest that is served by it.

[still_one]

14. No it is not. This is a company policy. The government does NOT tell a business what it can or

cannot advertise.

Are you suggesting that the government should tell a company that they must accept all advertisements?

[Jim Lane]

16. This is not a private company. It *is* the government.

The MTA is the Metropolitan Transportation Authority. A typical private company has shareholders who elect a board of directors. The MTA, which was created by the state legislature, has no shareholders. Its governing board consists of members nominated by various public officeholders and confirmed by the New York State Senate. It runs the principal mass transit systems in and around New York City.

You're correct that, as a general rule, a government shouldn't tell a private company that it must accept all advertisements. That doesn't apply here, however. The MTA, as a governmental entity, is subject to the First Amendment, as a private company would not be.

[still_one]

18. It is the Metropolitan Transportation Authority that determines advertising policy, not the local

Government, unless they change the rules

So if there is a problem with that, maybe they should argue with the board or sue the board

The board has always had that authority, and it isn't the first time they haven't accepted an ad

[Jim Lane]

19. The First Amendment applies to ALL governmental entities

The Constitution contemplates the federal government and the state governments. That's all. Any state that wanted to could abolish all local governments and run everything out of the state capital. It would be lunacy but it would comply with the Constitution.

Instead, of course, the states choose to create local governments. What the state may not do directly it may not do indirectly. That's why municipal and county governments, as creatures of the state, are also bound by the First Amendment.

In New York, as in other states, the creation of other governmental entities isn't limited to county and municipal governments. There are assorted unified school districts, bistate agencies, and, as here, public benefit corporations. The form of the entity doesn't matter. If it's created and ultimately controlled by the state government -- as the MTA most assuredly is -- then it's a governmental entity and it's subject to the First Amendment.

There can be gray areas about how the First Amendment applies to particular policies that restrict speech. As to whether the MTA is bound by the First Amendment, however, I assure you that there is absolutely no gray area.

On your view, the MTA would be within its rights to say "We'll accept campaign ads from Republicans but not from Democrats or anyone else." That is not the law. You're right that a private company like Breitbart could adopt that policy but the MTA could not.

[still_one]

20. The MTAs list of banned items include: violent images

that could scare children, material that could incite the or provoke violence, and ads for escort services and tobacco products

If those that they believe the first amendment rights are being violated by the MTA not accepting certain ads, let them file an injunction to force them to display all ads.

[Jim Lane]

22. You seem to be signing on to the absolutist viewpoint, which is not the law.

As H. L. Mencken wrote, "For every complex problem there is an answer that is clear, simple, and wrong."

Here there are actually two such answers:
1) The MTA has complete discretion to ban any ads it chooses on any grounds it chooses, as if it were a private company.
2) The MTA has absolutely no discretion. If it accepts any ads at all, then it must accept every single ad that's submitted, provided the check clears.

Each of these answers would be clear and simple, and would have the virtue of being easy to apply. Each, however, is wrong, at least in the current state of First Amendment jurisprudence. Furthermore, each would lead to very bad consequences, and so neither of them should become the law.

Of course, once you reject both simplistic answers, you face all kinds of difficult distinctions and gray areas. For example, speech that incites violence can be prohibited, but only if the incitement is direct and imminent. If an unpopular prisoner is being held in a lightly guarded jail, and a large angry mob is assembling outside, and a speaker starts urging them to storm the building, overpower the guards, and kill the prisoner, then that can be prohibited. This hypothetical, BTW, is how Joseph Smith, the founder of the LDS Church, was murdered. On the other hand, if someone hands out fliers saying that Catholics obey a foreign prince (the Pope) and are therefore disloyal and there shouldn't be any Catholics allowed to live in the United States, that's hate speech but it's probably protected. It might have an effect of inciting violence against Catholics, but the effect is too distant and attenuated to justify the curtailment of free speech. The Supreme Court has struggled over the decades to articulate exactly where this line should be drawn.

There are similar difficult issues of line-drawing with regard to other First Amendment issues. For example, commercial speech, like the product advertisements you refer to, is treated differently in some respects -- but "differently" doesn't mean that it's open season on regulating such speech.

If you reject both absolutist positions, as the Supreme Court has done, then you're left with some cases in which each side can put in a lengthy and well-reasoned brief that makes its case, and the ultimate decision might be by a vote of five to four. That's the price you pay for recognizing the validity of Mencken's point.

[still_one]

23. I hear you, but if those believing their 1st amendment rights arr

being infringed upon by not accepting this ad, the only option they have is an injunction to force the MTA to display it. If the MTA believes it could incite violence, which they have set up a policy not to accept such ads, then they are free to appeal the decision to a higher court

I personally believe nothing more will happen in regard to this case, but who knows

I do appreciate your clear explanations, that actually provides a very good perspective

[Jim Lane]

24. This new policy was just adopted. There might well be litigation over it.

There was litigation over the MTA's previous refusal to accept the ad. A governmental entity that refuses to accept a particular ad is in a better position to defend its action if the refusal is grounded in a policy of general applicability, rather than appearing to be solely a reaction to this particular case. The MTA has improved its legal position by adopting a policy, but whether its policy passes muster under the First Amendment can still be debated.

Another possibility is that the MTA wins now (by winning the next lawsuit or by not being sued in the first place), but loses down the road if experience under the new policy shows that the MTA doesn't apply it neutrally. If the MTA rejects Geller's anti-Muslim ad but accepts an ad from the Koch brothers calling climate change a hoax, then it's not actually following a policy of rejecting all "viewpoint" advertising and it can't simply point to its stated policy to defeat Geller's suit.

[still_one]

29. Well then it is going to be interesting

[LiberalElite]

31. The MTA is a "public benefit corporation" -

created by the governor. http://en.wikipedia.org/wiki/Public-benefit_corporation

[still_one]

32. Thanks. That has been explained to me

[LiberalElite]

33. ok -

[still_one]

34. The MTA still has a policy on what ads they will accept, so it will be interesting to see if that

holds up in the courts

[geek tragedy]

8. it's not discriminating against any particular viewpoint. nt

[brooklynite]

10. It is reducing the outlets for speech...

A poster on a bus is a lot cheaper than a privately owned billboard in Times Square.

If ads are going to be sold at all (and they are -- the MTA needs the money), any message should be open for inclusion.

[geek tragedy]

12. I don't think political messages have any place on city property. nt

[still_one]

13. This is a public transportation system, that serves the public. Are you saying that the government

should dictate company policy, and that the must accept all advertisements?

Because that is an over-reach

[LeftishBrit]

2. Good decision

[Behind the Aegis]

4. Smart move.

[Archae]

6. Hamas is an anti-Jewish group. We all know this, they don't exactly make it a secret.

So why do we "need" ads saying so?

These ads are created by a group co-founded by, and headed by Pam Gellar, who won't be satisfied until all Muslims are dead and Islam is outlawed worldwide.

[brooklynite]

11. Everyone knows what Coca Cola tastes like, and that it's cold and refreshing...

Why do we "need" ads saying so?

[frylock]

17. because it sells Coke..

what is that dickhead Gellar attempting to sell, other than her special brand of hate?

[brooklynite]

21. And she should have every right to do so...

should a conservative administration have the right to block the "sale" of ideas like gay rights?

[LeftishBrit]

26. First of all, there's a huge difference between advocating hate and advocating rights

Secondly, putting the adverts on public transport means that the passengers become linked to a mobile message, good or bad, without having a choice about whether they want to be. I would not think that a bus is the appropriate place for a very controversial message, even one that I'd approve of, such as 'Vote Labour' - Tories should not be required to be linked to such a message. Putting such messages on your own car is one thing; but a bus or train should not be used for such purposes. JMO.

[brooklynite]

27. All -you- have to do is turn your head and look at another ad.

Plenty of atheist groups have been denied ad space in the south, because their message is considered "hateful" of religion.

[Comrade Grumpy]

30. Poor Pam Geller. All she has to do is find somewhere else to peddle her bigoted garbage.

[still_one]

15. This has everything to do with a company being allowed to set a policy on the types of ads it will

allow.

[LeftishBrit]

25. Exactly

They are trying to link ALL Muslims with Hamas and similar or worse groups.

[closeupready]

7. Good. Very happy to hear this.

K&R

[ManiacJoe]

28. "No politics" is common ad policy for

bus systems owned and run by the city/county governments.