Mass transit systems are more than a way to carry people to and from work; they also provide a prized platform for advertisers who covet the attention of a captive commuter audience. But what if a public transit agency worries that an advertisement will offend or scandalize some of its riders? An ad that is racist, say. Or one that takes a controversial position on a provocative issue. Can it refuse such advertising?
Not if it picks or chooses based on the ad's point of view. That sort of favoritism violates the 1st Amendment. And that is precisely what the American Civil Liberties Union says the transit agency that serves the nation's capital has been doing.
In a complaint filed in federal court, the ACLU faults the Washington Metropolitan Area Transit Authority for rejecting or removing several ads: one for an abortion pill; one for "Dangerous," a book by right-wing provocateur Milo Yiannopoulos; a series of public-service announcements by People for the Ethical Treatment of Animals (including one with a pig saying: "I'm ME, Not MEAT."); and a display of the text of the 1st Amendment in English, Spanish and Arabic. The last ad had been submitted by the ACLU itself.
The ads for the Yiannopoulos book, which featured the author's face and short blurbs from reviews, were removed from subway stations and cars because of protests after the transit agency originally decided that they met its guidelines.
The transit agency once permitted a wide variety of commercial and noncommercial messages on its buses and subway cars and in its stations. But in 2015, after a pro-Israel group sought to display an ad featuring a caricature of the prophet Muhammad, the agency stopped accepting "issue-oriented advertising."
It later adopted additional guidelines that banned ads "intended to influence members of the public regarding an issue on which there are varying opinions." Also prohibited were ads that "support or oppose an industry position or industry goal without any direct commercial benefit to the advertiser" and "medical and health-related messages" that weren't accepted by the American Medical Assn. and/or the Food and Drug Administration.
The agency insists that its advertising guidelines are "reasonable and viewpoint-neutral." But the ACLU complaint strongly suggests that, even within these restrictions, the transit agency acted inconsistently.
For example, the suit says, the agency refused the ACLU's 1st Amendment ad because it violated the rule against "issue-oriented" ads; yet, the lawsuit says, the agency accepted other such ads, including one showing a crowd of demonstrators holding signs saying "Black Lives Matter." And though the agency removed the ad for Yiannopoulos' book, it accepted one for a play called "The Originalist," about the late Supreme Court Justice Antonin Scalia.
The ACLU deserves praise for flagging what it says are inconsistencies in the transit agency's implementation of its "viewpoint-neutral" policy. Certainly the agency should be consistent and not accept, say, one ad for a book or play while rejecting another.
But in criticizing the transit agency's guidelines, the ACLU flirts with a breathtakingly broad definition of "issue advertising" — one that could make it difficult for transit agencies to decide to limit advertising on their systems to purely commercial ads.
That's a choice the Los Angeles County Metropolitan Transportation Authority has made. Its advertising policy forbids "messages [that] take positions on issues of public debate." Similarly, the City of Los Angeles Department of Transportation has adopted a policy for advertising on its vehicles that bans ads expressing or advocating positions on public issues. Courts have deemed that to be acceptable as long as all viewpoints — rather than just certain ones — are prohibited.
But the ACLU says that such distinctions between commercial ads and "advocacy" ads are a bad idea, because even non-issue ads — say, a defense contractor's ad for a weapons system — have political ramifications.
Even an ad for McDonald's is "political" to vegetarians. Does this mean that a transit agency that accepts an ad for McDonald's hamburgers must also accept an issue ad from a vegetarian advocacy group because a hamburger ad by definition is advocating the "industry position" that people should eat meat?
If every commercial ad is also an issue ad, a transit agency that wanted to avoid issue ads would have to avoid all advertising.
We recognize that advertisements for commercial products (such as Yiannopoulos' book or a medical service) can raise 1st Amendment questions involving viewpoint discrimination. Transit agencies can also run afoul of the 1st Amendment with vaguely worded policies that can result in viewpoint discrimination.
But obliterating the distinction between commercial advertising and political or issue advertising — a distinction that has been recognized by the courts — could mean less of both.