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Column: Surrendering the Public Square of the Subway to Bigotry (New York Law Journal)

By Christopher Dunn

In late April, New York’s Metropolitan Transportation Authority voted to ban all advocacy ads from MTA property, including the New York City subway and bus systems, and last Thursday Washington, D.C.’s Metro system adopted a similar ban. In both instances the agencies were responding to controversial ads proposed by an anti-Muslim group that has been running similar ads across the country and that sponsored an anti-Muslim event in Texas last month that ended in the shooting death of an assailant who apparently was targeting the event.

Transit systems have been a First Amendment flashpoint for decades, but many transit agencies have adopted a commendable free-speech approach. Indeed, as recently as September 2012 the MTA, faced with different anti-Muslim ads, rejected a proposal to ban advocacy ads, declaring that “in our enlightened civil democracy, the answer to distasteful and uncivil speech is more, and more civilized, speech.” But as in many walks of life, victories in the civil liberties world are often fragile, and the free-speech protections in our nation’s transit systems are now unraveling. Given that transit systems – most notably the enormous New York City subway and bus system – serve as a public square for many millions of people every day, the prospect of political speech disappearing from these systems poses an enormous threat to free speech and public discourse.

Despite the vital role that transit systems play in the exchange of ideas and opinions, First Amendment challenges to across-the-board bans on political speech face considerable obstacles. Though litigants often have succeeded in challenging the rejection of specific ads by agencies that generally allow political ads, they have had little success challenging bans on categories of speech (such as political ads) or even on specific topics (such as abortion). Forty years ago the Supreme Court, in a plurality opinion, upheld a ban on advocacy ads by a municipal transit system, twenty years ago the Second Circuit upheld a similar ban by Amtrak, and just two weeks ago the Second Circuit reaffirmed the principles underlying these earlier decisions. Nonetheless, the recently-adopted bans are distinguishable, and a case now pending before the Supreme Court could alter the legal landscape.

Buses in Shaker Heights and the “Spectacular” in Penn Station
The Supreme Court’s foray into transit system bans on political ads came in 1974 when the transit system in Shaker Heights, Ohio (a Cleveland suburb) rejected an advertisement that contained a photograph of Harry Lehman, a candidate for a state legislative seat, and the message, “”HARRY J. LEHMAN IS OLD-FASHIONED! ABOUT HONESTY, INTEGRITY AND GOOD GOVERNMENT.” The transit system accepted a wide range of commercial and public-service ads but barred all political ads and had never before accepted a political ad.

In Lehman v. City of Shaker Heights,1 a plurality of the Court rejected Lehman’s claim that the First Amendment required the transit agency to run political ads since it ran commercial ones. In a brief opinion, which predates the elaborate forum doctrine that currently controls these types of disputes, the plurality analyzed Lehman’s claims as follows:

Here, we have no open spaces, no meeting hall, park, street corner, or other public thoroughfare. Instead, the city is engaged in commerce. It must provide rapid, convenient, pleasant, and inexpensive service to the commuters of Shaker Heights. The car card space, although incidental to the provision of public transportation, is a part of the commercial venture. In much the same way that a newspaper or periodical, or even a radio or television station, need not accept every proffer of advertising from the general public, a city transit system has discretion to develop and make reasonable choices concerning the type of advertising that may be displayed in its vehicles.

Because state action exists, however, the policies and practices governing access to the transit system’s advertising space must not be arbitrary, capricious, or invidious. Here, the city has decided that “[p]urveyors of goods and services saleable in commerce may purchase advertising space on an equal basis, whether they be house builders or butchers.” This decision is little different from deciding to impose a 10-, 25-, or 35-cent fare, or from changing schedules or the location of bus stops. Revenue earned from long-term commercial advertising could be jeopardized by a requirement that short-term candidacy or issue-oriented advertisements be displayed on car cards. Users would be subjected to the blare of political propaganda. There could be lurking doubts about favoritism, and sticky administrative problems might arise in parceling out limited space to eager politicians. In these circumstances, the managerial decision to limit car card space to innocuous and less controversial commercial and service oriented advertising does not rise to the dignity of a First Amendment violation. Were we to hold to the contrary, display cases in public hospitals, libraries, office buildings, military compounds, and other public facilities immediately would become Hyde Parks open to every would-be pamphleteer and politician. This the Constitution does not require.

Two decades later the Second Circuit took up the issue of a transit-system ban on noncommercial speech in a dispute over Amtrak’s rejection of an ad proposed to run on the “Spectacular,” a back-lit display space over 100 feet wide and ten feet tall in Manhattan’s bustling Pennsylvania Station. As described by the District Court, the proposed ad was an attack on the conservatives views of the family that owned Coors beer:

The work is a photomontage, accompanied by considerable text. Taking off on a widely circulated Coors beer advertisement which proclaims Coors to be the “Right Beer,” Lebron’s piece is captioned “Is it the Right’s Beer Now?” It includes photographic images of convivial drinkers of Coors beer, juxtaposed with a Nicaraguan village scene in which peasants are menaced by a can of Coors that hurtles towards them, leaving behind a tail of fire, as if it were a missile. The accompanying text, appearing on either end of the montage, criticizes the Coors family for its support of right-wing causes, particularly the contras in Nicaragua. Again taking off on Coors’ advertising which uses the slogan of “Silver Bullet” for its beer cans, the text proclaims that Coors is “The Silver Bullet that aims The Far Right’s political agenda at the heart of America.”

Amtrak rejected the ad, and the Second Circuit upheld that decision in Lebron v. National Railroad Passenger Corp.2 At the outset, the Court noted that Amtrak had a policy of barring all political ads from the Spectacular and that only commercial ads had run on the lighted billboard for the twenty-six years of its existence. It then described the “public-forum doctrine,” which had developed since Lehman and which now governs all speech disputes involved public and government property:

Under this approach, regulation of speech on government property that has traditionally been available for public expression is subject to the highest scrutiny. Such regulations survive only if they are narrowly drawn to achieve a compelling state interest. The second category of public property is the designated public forum, whether of a limited or unlimited character – property that the state has opened for expressive activity by part or all of the public. Regulation of such property is subject to the same limitations as that governing a traditional public forum. Finally, there is all remaining public property. Limitations on expressive activity conducted on this last category of property must survive only a much more limited review. The challenged regulation need only be reasonable, as long as the regulation is not an effort to suppress the speaker’s activity due to disagreement with the speaker’s view.

Given Amtrak’s policy of barring all political speech from the Spectacular, the Second Circuit concluded that the display was most likely a “non-public forum” or at most a “limited” one opened purely for commercial speech. In light of that conclusion, controlling forum doctrine provided that the policy needed only to be “viewpoint-neutral and reasonable in relation to the forum’s purpose.” The ban satisfied the first standard as it did not allow political ads expressing any viewpoint. As for the ban’s reasonableness, the Second Circuit relied heavily on the analysis in Lehman, concluding that Amtrak’s interests made it reasonable to bar all advocacy on the Spectacular: “Amtrak’s position as a government controlled and financed public facility, used daily by thousands of people, made it highly advisable to avoid the criticism and the embarrassments of allowing any display seeming to favor any political view.”

License Plate Speech
Since Lebron the Second Circuit has not revisited the issue of categorical speech bans in transit systems. Two weeks ago, however, the Court issued a decision in Children First Foundation, Inc. v. Fiala3 upholding New York State’s refusal to approve an advocacy license plate, and its analysis in that case may have repercussions for any federal challenge brought against the recently adopted MTA ban.

Like many states, New York has a program under which groups can arrange to have custom plates made available for members of the public or individuals can obtain specialized plates unique to the person. As with transit-system advertising programs, these specialty license plate programs have generated considerable First Amendment litigation, with the May 22 Second Circuit ruling addressing New York’s rejection of a request by an anti-abortion group for the state to issue custom plates bearing the expression “Choose Life.”

To be sure, license-plate disputes present different issues than do transit ad ones, but there are important overlaps, as evidenced by the Second Circuit’s recent decision. Most significantly, both are subject to forum analysis, with governments arguing that license-plate programs and transit systems advertising spaces are “nonpublic” forums subject to the minimal First Amendment protections and free-speech advocates vigorously attempting to avoid that characterization. In the New York case, the Second Circuit concluded that the license-plate program was a nonpublic forum because the state tightly regulated the advocacy it permitted on license plates and barred various categories of speech. In so holding, the Court expressly contrasted the license-plate regime with the MTA advertising regime that existed before the recent policy change:

By way of comparison, . . . the advertising space on the outside of MTA buses is a designated public forum, because the MTA accepts both political and commercial advertising. . . . Unlike [the MTA regime], New York’s custom license plate program does not invite clashes of opinion and controversy. Instead, the DMV did precisely the opposite by consistently excluding controversial political speech from the custom plate program.

Not only does this open the door to the argument that MTA advertising space could now be viewed as a nonpublic forum in light of the ban on all political speech, but the Second Circuit’s in the license plate case also repeatedly emphasized the latitude given to the government in regulating speech in a nonpublic forum. Of particular import is the Court’s conclusion that the ban on the “Choose Life” custom plate was reasonable in light of the state’s claimed concern about “road rage,” a concern that echoes the MTA’s claim that the anti-Muslim ads it had rejected would cause violence.

Looking Forward
These decisions from the Supreme Court and Second Circuit pose obstacles to a federal challenge to the MTA’s new policy, but there are grounds for distinguishing the cases. Beyond being a plurality opinion issued before the advent of contemporary forum doctrine, Lehman dealt with an electioneering ad, and election-related speech long has been subject to greater regulation than general advocacy speech. And both Lehman and Lebron dealt with agencies that had never permitted political or advocacy ads of any type, while the MTA allowed such ads for over 100 years, changing its policy only in response to a specific ad to which it objected. In addition, the specific MTA policy is rife with ambiguity that runs squarely into well-established First Amendment principles. Finally, the Supreme Court has pending before it now a challenge involving Texas’s rejection of a Confederacy-related custom license plate, and the Court’s decision could open the door to greater First Amendment protections to speech in nonpublic forums.

Whatever the prospects of legal challenges, it remains important that free-speech advocates continue pressing transit systems to recognize their key role in public discourse. While it may be convenient in the short run for them to shut out political and advocacy ads, it would be a terrible loss for the free exchange of ideas that has been at the core of our society for nearly 250 years.

*Christopher Dunn is the associate legal director of the New York Civil Liberties Union and teaches in the Civil Rights Clinic at New York University Law School. He can be reached at

1 418 U.S. 298 (1974) (plurality).
2 69 F.3d 650 (2d Cir. 1993).
3 No. 11-5199 (2nd Cir., May 22, 2015).

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