Column: The Subway as Savage Soapbox (New York Law Journal)

The New York City subway system is the world’s largest. Beyond being a transportation marvel, however, it is a vibrant free-speech market in which millions of people every day are treated to a dizzying array of human expression. For those of us who ride the train regularly, not only do we see every imaginable commercial advertisement, but we also experience music, proselytizing, poetry, artwork, and advocacy ads.

As with so much of New York City, this wildly divergent speech co-exists in a largely harmonious fashion. But every now and then a dispute erupts that reminds us how fragile this marketplace can be. Just last week, the Metropolitan Transportation Authority was poised to ban all advocacy ads in response to litigation brought in the Southern District of New York over the MTA’s rejection of an ad that characterized Muslims as savages.

Coming on the heels of the attack on American embassies and consulates in the Mideast and the murder of the American ambassador to Libya because of a crude anti-Muslim video, the MTA’s consideration of a complete ban on advocacy ads was a true test of our city’s commitment to free speech.

Happily, the MTA last Thursday rejected a ban of all advocacy ads. But the very fact that it was possible that the agency could consider a total ban warrants an examination of the law governing free speech rights in the subway and of the litigation that led to last week’s decision. And though the agency chose to continue allowing advocacy ads, it did impose a requirement that speakers identify themselves on their ads, a measure that raises separate constitutional concerns. Before turning to these matters, a little background is in order.

The Subway Speech Regime

Though the New York City subway system dates back to 1904, it was not until 1994 that the MTA adopted written standards governing advertising in the subways (as well as in other parts of the MTA system). Those standards barred eight categories of advertisements, including those that (1) contain, false, misleading or deceptive claims; (2) promote unlawful or illegal goods, services or activities; (3) inaccurately imply or declare MTA’s endorsement of the subject of the advertisements; (4) contain obscene materials as defined under New York Penal Law; (5) advertise commercial material unsuitable for minors under New York Penal Law; (6) display offensive sexual material; (7) are libelous or violate a New York Civil Rights Law provision barring the unauthorized use a person’s name or likeness; or (8) commercially promote tobacco or tobacco products.

Three years later, the MTA added to its list of prohibited advertisements those that depict a minor in a sexually suggestive manner; are adverse to the MTA’s commercial or administrative interests, or its employees’ morale; contain violent images; promote an escort or dating service; or is an ad that the public would find to be offensive or improper. But most relevant to the savages dispute, the 1997 revisions also added a prohibition for ads that “contain[ ] images or information that demean an individual or group of individuals on account of race, color, religion, national origin, ancestry, gender, age, disability or sexual orientation.”

Earlier Subway Disputes

The “savage” ad was not the first New York City subway ad to prompt First Amendment litigation, and I was involved in two earlier cases. In March 2000 I filed suit in the Southern District on behalf of the Regional Plan Association and the Straphangers Campaign after the MTA rejected an ad the groups wanted to run opposing a proposal pending in Albany at the time to end the planned Second Avenue line at 72nd Street instead of extending it all the way down to the Financial District. The ad, which was intended to highlight the overcrowding that would result if the full line were not built, featured a large photograph of a packed subway car and carried the text, “With livestock it’s called animal cruelty. With people it’s called a morning commute.” The MTA had rejected the ad on the grounds it was contrary to the agency’s commercial interests, one of the categories of ads barred by the original 1994 standards.

That case ended quickly when Southern District Judge Allen Schwartz ordered that MTA board chairman Virgil Conway attend a settlement conference. The late Judge Schwartz, who could be wickedly funny, related a story to Mr. Conway about a man who had served a long prison term and upon his release went to a restaurant and was perusing the menu. “Don’t see anything I don’t like,” said the man in Judge Schwartz’s story. The judge then turned to the complaint and the ad and repeated the line to Mr. Conway. He and his lawyers left the room to confer, returning shortly to announce the MTA would allow the ad to run. To this day, that ad hangs on a wall in my office.

Three years earlier, in a dispute that led to the one Second Circuit decision about MTA transit system advertising, the MTA rejected an ad from New York Magazine that described the magazine, in reference to then Mayor Rudolph Giuliani, as “Possibly the only good thing in New York Rudy hasn’t taken credit for.” The mayor, who was engaged in a pitched battle against the First Amendment, objected to the ad as unlawfully capitalizing on his name for the magazine’s commercial benefit, another form of ad barred by the 1994 standards. In response, the MTA pulled the ad, and the magazine, happy for the publicity, sued. (The NYCLU participated as amicus curiae.)

In an opinion that opened with, “Who would have dreamed that the Mayor would object to more publicity?,” Southern District Judge Shira Schindlin found that the MTA had violated the First Amendment in rejecting the ad. The agency appealed, and the Second Circuit affirmed. That affirmance would play a large role in the “savage” ad at the center of the most recent controversy.

The Savage Ad

The most recent dispute dates back to September of last year, when a pro-Israeli advocacy organization, the American Freedom Defense Initiative, proposed running an ad with the text, “In any war between the civilized man and the savage, support the civilized man.” Beneath that were two stars of David on either side of the words, “Support Israel.” And below that were the words, “Defeat Jihad.” Finally, at the bottom was the group’s name and three website addresses.

The MTA rejected the ad, invoking the provision added in 1997 barring ads that “contain[] images or information that demean an individual or group of individuals on account of race, color, religion, national origin, ancestry, gender, age, disability or sexual orientation.” Specifically, the agency concluded the ad demeaned Muslims.

The group then filed suit in the Southern District and sought a preliminary injunction. After holding an evidentiary hearing in April, Judge Paul Engelmayer granted the injunction in July.

First Amendment disputes like this involve a very specific doctrinal approach. Public streets and parks are characterized as “traditional” public forums, and government efforts to restrict speech in that type of forum face the most stringent scrutiny. But when a speaker seeks to use other forms of government property, such as a transit system, First Amendment analysis speaks of a second and third type of forum. As Judge Engelmayer explained:

The second category, the designated public forum, refers to government property which, although not a traditional public forum, has been “intentionally opened up for that purpose.” Because the government, as property owner, has opened up a designated public forum to the same breadth of expressive speech as found in traditional public forums, the same standards apply: Any content-based restrictions on speech must survive strict scrutiny, meaning they must be narrowly tailored to serve a compelling government interest, and content-neutral time, place, and manner restrictions are permissible only if they are narrowly tailored and leave open other avenues for expression.

The final category of governmental property identified by the Supreme Court consists of non-public forums. Non-public forums are property that “the government has not opened for expressive activity by members of the public.” Examples include airport terminals, military bases and restricted access military stores, and jailhouse grounds. Restrictions on speech in non-public forums must only be “reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.”

The threshold question for Judge Engelmayer was whether, as the MTA asserted, the transit system was a “non-public” forum or, as the group contended, a “designated” public forum, a distinction that would be pivotal given the much higher scrutiny of speech restrictions in a designated public forum. On this point, Judge Engelmayer had little difficulty because the Second Circuit had faced that issue in the New York Magazine case. There, the Court of Appeals held that the MTA had created a designated public forum. Though the MTA argued that forum law had changed since New York Magazine so as to nullify the ruling in that case, Judge Engelmayer rejected that argument.

Having concluded the transit system remains a designated public forum, the judge then turned to the question whether the MTA standard banning demeaning ads was a content-based restriction subject to strict – and presumptively fatal – scrutiny. On this point, the key issue was whether the standard’s application only to ads that demean “on account of race, color, religion, national origin, ancestry, gender, age, disability or sexual orientation” made the standard a content-based one.

This issue, Judge Engelayer concluded, was controlled by the Supreme Court’s 1992 decision in R.A.V. v. City of St. Paul, a cross-burning case where the Court had found unconstitutional a disorderly conduct statute that singled out bias-motivated conduct. The MTA standard was indistinguishably content-based:

To illustrate the point concretely, under MTA’s no-demeaning standard, an advertiser willing to pay for the privilege is today at liberty to place a demeaning ad on the side or back of a city bus that states any of the following: “Southerners are bigots”; “Upper West Siders are elitist snobs”; “Fat people are slobs”; “Blondes are bimbos”; “Lawyers are sleazebags”; or “The store clerks at Gristedes are rude and lazy.” The regulation also does not prohibit an ad that expresses: “Democrats are communists”; “Republicans are heartless”; or “Tea Party adherents are barbaric .” The standard would also countenance an ad that argues: “Proponents [or opponents] of the new health care law are brain-damaged.” Strikingly, as MTA conceded at argument, its no-demeaning standard currently permits a bus ad even to target an individual private citizen for abuse in the most vile of terms. For example: “John Doe is a child-abuser”; “Jane Doe runs a Ponzi scheme”; or “My neighbors, the Does, are horrible parents.”

Given this, the judge readily concluded that the MTA standard could not survive strict scrutiny. As he explained, “Whatever weight might be assigned to the government interest in banning demeaning speech . . . on an even-handed basis, there is no good reason for protecting some individuals and groups, but not others, from such abuse.” He therefore ordered the MTA to run the ad.

The Fallout

The “savage” ad went up in 10 subway stations last week, prompting vandalism, civil disobedience, and enormous press attention for the pro-Israeli group. This came just two weeks after an anti-Muslim video had sparked widespread violence in the Mideast, including the murder of Christopher Stevens, the American ambassador to Libya.

Against this backdrop, the MTA met last Thursday to consider revising its standards and possibly ban all advocacy ads, a position it might have believed it could take under a 1995 Second Circuit case that allowed Amtrak to bar all such ads from an area of Penn Station. The agency declined to do this, however. In announcing its decision, the agency commendably declared that “in our enlightened civil democracy, the answer to distasteful and uncivil speech is more, and more civilized, speech.”

Nonetheless, the MTA did make one change and will now require that all advocacy ads include the following: “This is a paid advertisement sponsored by []. The display of this advertisement does not imply MTA’s endorsement of any views expressed.”

While a vast improvement over a ban on advocacy ads, this new requirement does implicate the constitutional right to anonymous speech. It is unclear, however, how the recognized right to engage in anonymous political speech in a traditional public forum, like a sidewalk, would be viewed in the context of a designated public forums, like a transit system. Moreover, the MTA can and should eliminate this problem entirely by making exceptions in the rare cases where an advocate or advocacy group has a legitimate need to speak anonymously. In those instances, it would be sufficient simply to have the ad state it does not imply any MTA endorsement without also naming the speaker.

Christopher Dunn is the associate legal director of the New York Civil Liberties Union.