American Freedom Defense Initiative

Sometimes embracing free speech means sharing the subway with an ad that churns your stomach.

Let’s get this out of the way up front: This is a shitty ad.

The implication, via Ayn Rand quote, that Muslims are “savages” is offensive and racist. And this is probably not the kind of sentiment most of us would want conveyed to out-of-towners or foreigners traveling the streets of San Francisco or the New York subway.

That said, this ad – which has in fact been seen around San Francisco and New York – enjoys a certain protection when plastered onto the side of property owned by a public transit agency. Call this one of the costs of freedom: For all the benefits you enjoy in America thanks to the First Amendment, every now and then you may have to sit across a subway car during your morning commute from an exasperating, bigoted ad.

This idea isn’t easy to swallow, and it raises some unnerving implications. Can public transit agencies reject any ads other than the obvious obscenity-filled ones? Surely some messages are so awful that we as a society shouldn’t have to provide a public asset like a subway car to broadcast them all over town. Right?

“What makes this subway media case interesting and more complicated is that we’re talking about what some people would consider hate speech,” says Richard Kaplar, vice president of the Media Institute. “The courts have been fairly clear – and the Supreme Court in particular – that it’s willing to tolerate a pretty high level of so-called hate speech under the greater good of protecting other types of speech.”

Government entities in particular can’t censor someone just because his opinions are offensive to other people. And transit agencies are a form of government, too. For decades, they have landed in court again and again parsing variations on this question. Can a public bus refuse to carry a political ad, a Planned Parenthood poster, a message deriding Muslims? “These bus ad cases,” says David Hudson, a scholar with the First Amendment Center, “have raised some very thorny First Amendment issues and a lot of litigation.”

A famous earlier case from this same canon also involved the New York Metropolitan Transportation Authority, which declined back in 1997 to carry this ad for New York magazine:

In that case, the offended party was Mayor Rudolph Giuliani himself, who believed that the derisive nickname used in the ad violated a New York civil rights law. He directed the city’s transit agency stop running the ads. The Second Circuit court disagreed.

This latest case comes thanks to a group called the American Freedom Defense Initiative, which paid to run the above pro-Israel ads in New York and, earlier, San Francisco. New York’s MTA initially rejected the ads as demeaning to an individual group of people on account of their religion or national origin. The American Freedom Defense Initiative then sued. And a federal judge ruled over the summer [PDF] that the MTA had to accept the ads, to the surprise of the MTA itself.  

The MTA has long run both commercial ads and those of a “viewpoint” or advocacy nature (an agency spokesman tells us that about 1 percent of all of its ads are pushing a viewpoint instead of a product or service, and all that advertising together accounts for just 1 percent of the MTA’s operating budget). Since the late 90s, the MTA has had a policy prohibiting "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.”

The Muslim ad pretty clearly falls under that category, but the District Court struck down the entire demeaning standard.

“If by policy or practice they’ve opened [ads] up for people to display different messages, then the First Amendment comes into play,” Hudson says. “It raises the most fundamental of all First Amendment, free speech questions, which is that the government generally may not discriminate on the basis of viewpoint.”

The MTA policy specifically banned demeaning groups by their religion or gender. But what about demeaning people because of where they live, or what they do for a living? As Judge Paul Engelmayer wrote in his ruling, the MTA’s policy would prohibit implying that Muslims are savages but not that “Southerners are bigots, “blondes are bimbos” or “fat people are slobs.” This is, in essence, the very definition of a government entity discriminating on the basis of viewpoint.

Greyhound would not be held to the same standard. But the side of an MTA bus or a train platform is a “public forum” in the eyes of the Constitution, a kind of modern-day version of the old town-square soapbox. Many of these transit ad cases have also centered on the very type of speech that the First Amendment was designed to protect – not commercial speech about NBA jerseys or new iPhones for sale, but speech about politics, policy and messy issues of public debate.

Consider this ad:

The Pittsburgh League of Young Voters and the ACLU of Pennsylvania wanted to run these bus ads in 2006 educating ex-offenders about their voting rights. The Port Authority of Allegheny County rejected them, on the grounds that it only accepted commercial ads. The ACLU was able to find examples to the contrary. Eventually, last year, a U.S. Court of Appeals ruled that the Port Authority had violated the groups’ free speech rights by rejecting the ad because of its viewpoint. [PFD]

Across the country in Seattle earlier this year, the non-profit coalition Working Washington tried to place this ad calling for “good jobs” at the Seattle-Tacoma Airport on Central Puget Sound Regional Transit Authority light-rail lines running to the airport:

Sound Transit rejected them, arguing that they didn’t accept "political advertising" (ironically, the airport itself ran the ads inside the baggage claim terminal). The transit authority, like many others have tried to do, argued that it wanted to stay "neutral" on “controversial” issues.

“That sort of language is pretty ripe for a legal challenge,” Kaplar says, “because then you have the question of how do you define what ‘controversial’ means? Is this arbitrary and subjective?”

The ACLU of Washington sued over the case. A District Court sided with Sound Transit over the summer, and now the case is facing appeal.

As an even more ambiguous illustration of what may be considered too “controversial,” earlier this year the County of Lackawanna Transit System in Pennsylvania rejected this ad:

All of these cases underscore that free-speech battles over transit ads are not simply about how we handle racism. Other messages that transit riders may find of great public value are closely tied – at least legally speaking – to that "savage" pro-Israel ad. These other ads contain messages about voting rights, worker conditions, AIDS prevention and female reproductive health. The safest path for transit agencies lies in a blanket ban against everything but commercial advertising.

But what would we give up if our buses and trains ran only commercial ads? We might lose information about childhood literacy campaigns, and public health PSAs, and teen depression hotlines. Would it really be preferable, in the name of avoiding difficult First Amendment questions, to limit all this prime advertising space instead to companies hawking sports apparel and cell phone plans?

In New York, that pro-Israel ad not surprisingly prompted an uproar. The MTA board met last week (amidst hecklers) to consider revising its ad policy in light of the new court ruling and latest controversy. Among their options, officials considered accepting only commercial ads.

"But the MTA for decades has permitted its ad spaces to serve a broader communicative function than mere commercial advertising," the agency said in a statement afterward, "and the Board, today reaffirms that tradition of tolerating a wide spectrum of types of ads, including ads that express views on a wide range of public matters."

That choice, the board acknowledged, comes with "First Amendment limitations" on the MTA’s ability to reject uncivil or divisive ads. But the board did, however, make two notable changes. In the future, viewpoint ads will have to run with the following note:

This is a paid advertisement sponsored by [Sponsor]. The display of this advertisement does not imply MTA's endorsement of any views expressed.

In the long tradition of free-speech advocacy, the MTA is trying to combat bigoted speech with more speech, in this case a disclaimer. But the MTA also adopted one more dubious change. With future ads, the MTA will now prohibit messages that it "reasonably foresees would imminently incite or provoke violence or other immediate breach of the peace." And it maintains the right to retroactively remove ads that prompt violence.

This decision takes on a particularly murky meaning in light of the deadly riots overseas ignited by a low-rent YouTube video. In the Internet age, an ad on a New York subway car could prompt violence anywhere. But Americans have generally rejected the "heckler’s veto," the idea that a person can be silenced because others might be offended – and act out on that offense. The new MTA policy, writes Jacob Sullum at Reason, "empowers people who react violently to perceived insults." This could create, he writes, not just a heckler’s veto, but a vandal’s veto, or a rioter’s veto, or a terrorist's veto, in the case the Washington Metropolitan Area Transit Authorty, which has also rejected the pro-Isreal ads out of fear of a terrorist attack.

Aaron Donovan, an MTA spokesman, said the new policy likely would not have prohibited the "savage" ad that caused the court case in the first place (those ads are still up in the New York subway). And future ads, he said, will be considered on a case-by-case basis under the new test for inciting imminent violence.

But this, too, sounds like an inevitable invitation for yet another court case.

"There will always be some ad that offends somebody somewhere, so we can’t just start banning ads left and right because somebody is going to be offended," Kaplar says. "That’s just the price we pay for having a First Amendment that protects all kinds of speech."

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