“We’ve seen all too clearly how easy it is for censorship to take place in the recent case involving the anti-war billboard dust-up with Clear Channel Communications,” said Donna Lieberman, Executive Director of the NYCLU. “These advertising channels on the so-called Street Furniture will provide an important medium of expression in New York and, as such, should remain free from the monopolistic control of one commercial entity.”
The Department of Transportation has recently issued a Request for Proposal (RFP) for control over Street Furniture. The requirements for installing and maintaining these structures will also give the franchise the authority to sell advertising on these structures, with the revenue divided between the franchisee and the City. Although, by its terms, the RFP does not grant an exclusive franchise to a single entity, as a practical matter, such exclusiveness may be unavoidable.
We conclude this because each bidder is expected to provide quantities of each type of “furniture” equal to the City’s entire need for that type of furniture. Given the size of this need, it appears that exclusive control must be given to one business. That business would, in effect, have exclusive control over the content expression on these advertising panels.
The City should retain ultimate editorial authority for this medium. In doing so, anyone who wishes to advertise on Street Furniture can do so by following “public forum” principles. Categories of advertising could be limited, and content could not be censored without City authority. Most of the advertising should be subject to a prohibition against viewpoint and even content-discrimination.
The City should stand firm in providing the widest possible diversity of expression in this medium. Maintaining ultimate control over who gets to advertise would be a first step in reaching this goal.
