The MTA’s Ban on ‘Political’ Ads Has Turned It Into the Free-Speech Police
By Allegra Kirkland
The Nation.com
The words were written in foot-high block print: beware the muslims are coming! And below, in smaller font: “And they shall strike with hugs so fierce, you’ll end up calling your grandmother and telling her you love her.”
The advertisement was to appear in New York City subway stations and trains. Delighted to learn of the relatively low price to advertise with the Metropolitan Transit Authority (MTA), comics Negin Farsad and Dean Obeidallah raised $20,000 in November 2014 to spend on different versions of this ad, one of which suggested that the “ugly truth” about Muslims was that they have good frittata recipes. The campaign was intended to promote the Netflix run of their documentary The Muslims Are Coming, which followed a troupe of Muslim-American comedians as they toured the heartland of America performing shows meant to counter the negative stereotypes about Islam.
But in April 2015, shortly before the ads were to go up, the MTA board passed a policy banning any ad that is “political in nature” from its system. Under the ban, ads cannot express or promote an opinion on a host of topics, including “disputed economic, political, moral, religious or social issues.”
The MTA told Farsad and Obeidallah that this meant that the Muslims Are Coming ads—approved after months of exchanges between the MTA; its advertising agency, Outfront Media; and the comedians—were no longer allowed. Farsad and Obeidallah countered that the message of their campaign was apolitical, asserting simply that Muslims are “normal.” Incensed, they sued the agency and won.
“Us being banned was totally out of left field,” says Farsad, a petite woman in red-framed glasses, a cherry-red trench coat, and red tights, speaking during an interview at a sun-drenched East Village coffee shop. “Because we’d been working with the MTA for five months. It had been approved. We were so heavily scrutinized.”
The board’s decision to ban political ads came in the wake of a number of high-profile legal battles pitting the transit agency against free-speech groups. With Islamophobia climbing to a fever pitch in recent years, the MTA has faced a notable uptick of ads disparaging Muslims. The agency has historically allowed all manner of speech, no matter how provocative, but in 2012 and again in 2015, it rejected Islamophobic ads from the American Freedom Defense Initiative, a prominent anti-Islam group headed by right-wing blogger Pamela Geller. Some at the agency worried that these ads—one of which called Muslims “savages” and another of which accused them of “killing Jews” to get “closer to Allah”—could incite violence. The AFDI sued on free-speech grounds and won both times.
The MTA considered the lawsuits a costly distraction. Banning all political speech, the thinking went, would prevent potential safety risks and allow MTA officials and board members to devote time to their core responsibility: operating the nation’s largest transit agency.
Yet over a year after the ban passed, the MTA’s First Amendment concerns haven’t gone away. Ads promoting a $15 minimum wage (from the union-run Amalgamated Bank) and warning about wage theft (from the Freelancers Union) were initially approved, only to be pulled from the system after they were displayed. And in the case of the Muslims Are Coming ads, District Judge Colleen McMahon wrote that the MTA’s decision not to run ads for commercial products that “gently mock prejudice” was “arbitrary” and “untethered to any articulated or articulable standard.”
In March 2016—months after McMahon’s ruling came down, and long after the Netflix run of their documentary had ended—Obeidallah and Farsad saw their posters go up in the subway. They hung there through the month, alongside posters for the New York State Lotto and the Casper mattress company.
To Obeidallah, their successful legal fight proved that “there’s no bright line with free speech,” something the continued controversies surrounding the MTA’s political-speech ban confirm. For legal observers, Obeidallah and Farsad’s lawsuit not only laid bare questions about how a publicly funded government agency can determine what is “political,” but also exposed the legal gray areas coloring the MTA’s right to police speech. Should the MTA be in the business of deciding what New Yorkers are allowed to see?
* * *
The MTA has been a designated as a public forum since ads first made an appearance on the city’s subways in 1904. Defined as a “forum set aside by government for expressive activities,” this meant that all speech was constitutionally protected in its system. While the agency faced periodic controversies for approving clothing ads deemed overly racy or rejecting campaigns critical of its overcrowded subway cars, political speech has always been protected.
With the 2015 ban, however, the agency declared itself a “limited public forum”—a key distinction in the eyes of the law.
Ken Paulson, president of the nonpartisan First Amendment Center, said that although this designation is usually made by the courts, a municipality or a public entity can decide to ban all political ads as long as it does so in a consistent way. Viewpoint discrimination is forbidden.
“The key is that it has to be a real shift in guidelines and not a temporary move to dodge a particularly onerous advertiser,” Paulson said.
MTA officials acknowledge that making this shift is easier said than done.
“There will inevitably be controversies over proposed advertisements in the future, but we will continue working hard to ensure we follow our standards barring political ads in a manner that is thorough, even-handed and fair,” MTA spokesman Kevin Ortiz said in an e-mail.
Critics question whether the MTA, in trying to keep hate speech out of New York’s buses and subways, hasn’t eliminated a platform for broad swaths of useful, educational, or simply benign speech.
“Issue-based” advertising constituted less than 1 percent of the more than 252,000 ads that the MTA ran last year, accounting for only a tiny fraction of the $158 million pulled in from ad licenses. But ads promoting LGBTQ rights or calling Muslims “savages” aren’t the only forms of “political” speech.
Commercial ads for films, books, Spotify playlists, and even underwear routinely traffic in political language and symbolism. The MTA’s new guidelines prohibit ads that “prominently or predominantly advocate or express a political message,” but the definition of “prominently or predominantly” is ultimately subjective.
“That’s why there were so many Supreme Court rulings on obscenity: because no one could figure out what it was,” says Bill Henderson, the executive director of the Permanent Citizens Advisory Committee to the MTA, a watchdog group. “Is this ‘politics,’ is this ‘commerce,’ or is this a mixture? How far can you go into politics without going over the line as far as our policy goes? I think it’s almost inevitable that someone has to step in and draw the line.”
Farsad echoed this concern, arguing that the Muslims Are Coming campaign demonstrates the MTA’s lack of clarity on the division between political and commercial speech. “We were trying to promote our movie. So if what the MTA needs is a capitalist imperative, there was one,” she points out. “And it was evidenced by the fact that our website was on every poster.”
During the case, Farsad and Obeidallah snapped photos of ads in the subways that they called “clearly political” and showed them to their lawyers. One promoted a GOP presidential debate on CNN and featured John Kasich, Ted Cruz, and Donald Trump. Another, for the Amazon series The Man in the High Castle, contained Nazi imagery. “That hurt them in the midst of it, and they made some of those ads come down,” Obeidallah said.
Free-speech advocates say that these kinds of calls make the MTA vulnerable to future legal challenges.
“The MTA has really created more problems, in some ways, by getting into this controversy,” says Mariko Hirose, a senior civil-rights attorney with the New York Civil Liberties Union. “And the difficulties that the MTA has had enforcing their policy goes to the point that maybe they shouldn’t be in the business of trying to decide what subway riders should or should not see.”
* * *
New York is hardly the only municipality grappling with controversial ads in its transit system. In the past three years, agencies in five other cities passed similar bans on political speech.
At the heart of many of these disputes is Pamela Geller’s AFDI. Like New York, the bans in Chicago, Philadelphia, and Washington, DC, came in response to the group’s anti-Islam ads, which Geller has also tried, with mixed success, to run in Miami, Detroit, Boston, Seattle, and Los Angeles—cities that have long prohibited political advertising on their transit systems.
“We didn’t want anything to do with the hate ads, and we looked at our policy and made what our board felt were appropriate adjustments,” says Fran Kelly, assistant general manager of Philly’s Southeastern Pennsylvania Transportation Authority, or SEPTA.
The ban in Philadelphia went into effect shortly after SEPTA lost a lawsuit to the AFDI, forcing the agency to display ads saying “Islamic Jew-hatred” was “in the Quran.” According to Kelly, this was the first suit that SEPTA had faced over any ad.
Washington, DC’s Metro, which had already tangled with the AFDI in court, banned political speech in 2015 after the group tried to place ads featuring a cartoon of the Prophet Muhammad.
Geller, for her part, thinks the campaigns have been a boon to the AFDI and said in a curt e-mail that her group is “working on legal challenges to attempts to block our ads in various cities.”
“These bans are in violation of the First Amendment, and are inconsistently enforced, with Leftist and Islamic supremacist groups still able to run their ads,” Geller wrote. “The campaigns have immensely helped our organization, as people are relieved to see that one group still dares to tell truths that have been deemed politically incorrect.”
(In her e-mail, Geller accidentally included a copy of an exchange with another AFDI staffer in which she’d written: “The Nation – I don’t want to give her anything – that’s why these answers are terse.”)
Typically, municipal transit agencies contract with an outside advertising company. Vendors send their proposals to the ad agency, which must enforce a set of guidelines laid out by the transit board: no nudity, no profanity, no disparaging specific groups, and so forth.
When agencies like Outfront, the company hired by the MTA, receive a potentially controversial ad, they work directly with the vendor to try to moderate the language to fit the transit agency’s requirements. If a vendor refuses, or tries to push an ad that could threaten the security of passengers, Outfront gets transit officials involved.
That’s where things get subjective. Under political-speech bans, the agency’s legal counsel, communications teams, and security officials often weigh in. In some cases, individual officials are the deciding voice on whether or not an ad is “political.”
In New York City, that job falls to the MTA’s director of real estate, Jeffrey Rosen. Rosen was named by the AFDI as the individual who ultimately turned down the ads accusing Muslims of waging jihad against Jews. “[I]n the end, the decision not to approve AFDI’s proposed advertisement was mine,” he said in the group’s 2015 lawsuit.
Rosen was also referenced in the Muslims Are Coming case. And in a separate incident last year, he used his authority to request the removal of an ad campaign by Amalgamated Bank that Outfront had approved. After spotting an ad in a subway station promoting a $15 minimum wage, Rosen notified the agency and requested that the six-figure campaign be pulled immediately.
“It is sort of striking that the director of real estate becomes the city censor about what may or may not be seen,” says Floyd Abrams, a noted First Amendment lawyer.
Rosen declined to be interviewed for this article.
MTA officials, like those at public transit agencies across the country, are stretched thin. “We’ve had a lot on our plate, from fares to service to union contracts to various litigations to billions of dollars of procurements,” allows Jonathan Ballan, one of the three board members to vote against the ban. Dealing with peaking ridership, chronic budget shortfalls, and a worn-out, century-old infrastructure have left MTA executives and board members with scant time to debate First Amendment principles.
And in some cities, a similar ban does seem to have alleviated transit officials’ administrative burden. “I was spending a good deal of time addressing ads under the ‘demeaning and disparaging’ standard,” says John Englander, general counsel for the Massachusetts Bay Transportation Authority (MBTA), Boston’s transit agency. “And I have far less issues where calls have to be made under the new standard.”
In New York City, however, where 5.7 million people use the system every day and the posters plastered on subways, buses, and stations serve as a public bulletin board of sorts, debates over the MTA’s policy continue.
* * *
Political-speech bans on public transit rely on a decades-old Supreme Court case, Lehman v. City of Shaker Heights. In 1974, a candidate for the Ohio House of Representatives sued Shaker Heights over its designation of its transit system as a limited public forum, arguing that forbidding free speech on a public train was akin to doing so on a street corner or in a meeting hall.
The justices ruled in a 5–4 decision that it was not. Forcing political ads on a “captive audience” inside a train car was not within the candidate’s “constitutional right.” Three of the Court’s conservative members—Chief Justice Warren Burger, Byron White, and William Rehnquist—joined liberals William O. Douglas and Harry Blackmun to uphold Shaker Heights’ ban on political ads.
This is the standard on which the MTA’s policy rests.
While some free-speech experts, like the First Amendment Center’s Paulson, believe the Lehman ruling renders the issue “a relatively settled matter,” a patchwork of recent court rulings suggest otherwise.
Federal courts ruled differently on whether the same AFDI ad calling Muslims “savages” could run in Boston and New York. A Michigan judge decided in 2011 that the state’s Suburban Mobility Authority for Regional Transportation system violated its own ban on noncommercial speech by accepting a pro-atheist ad campaign. SMART was forced to run an AFDI ad as a result, but a Sixth Circuit judge reversed the court’s ruling a year later, upholding the system’s status as a “nonpublic forum.”
This year alone, the Supreme Court has turned down two cases involving free speech on public transit. In March, the court denied a writ of certiorari in response to a case involving AFDI ads in Seattle’s transit system, allowing a lower court’s decision to stand. In a rare move, however, Justices Clarence Thomas and Samuel Alito submitted a dissent.
“I see no sound reason to shy away from this First Amendment case,” their dissent read. “It raises an important constitutional question on which there is an acknowledged and well developed division among the Courts of Appeals. One of this Court’s most basic functions is to resolve this kind of question.”
Abrams, the First Amendment lawyer, believes that one of these cases will eventually make it back to the Court.
“It’s my view that a time may come in which the Supreme Court may recognize the inconsistency in saying that, when a state has signage laws which provide more protection for commercial than political speech, that is violative of the First Amendment. That is the law,” Abrams says.
Allan Cappelli is an eight-year veteran of the MTA board who opposed the political-speech ban. “I believe ultimately that the courts are going to strike it down, and we’re going to be back to where we were,” Cappelli says. “At some point, a case is going to go up, and I believe we’re going to lose.”
As the justices who signed on to the Court’s majority opinion in the 1974 Lehman case suggests, the push to reopen the subways to more speech transcends ideological lines. The New York Times editorial board, for example, has called for the ban to be lifted.
“People on the left and the right share this opinion,” says Jonathan Ballan, the MTA board member who led the charge against the ban. “It doesn’t cut across traditional boundaries.”
To live in a city is to be confronted with all manner of speech—provocative, hateful, sexually suggestive, even violent. To date, scant evidence has suggested that viewing an unsavory ad on a crowded subway car will bring strangers to blows.
“These are New York City subways,” says Hirose, the NYCLU attorney. “People in this city are seeing all sorts of messages, all sorts of speech everywhere. Some of it is very sensitive. But it’s something that city people are used to.”
Outside a Starbucks nestled in the shadows of the 59th Street Bridge, Dean Obeidallah said that other New Yorkers should have the option that he and Farsad had to “reach millions” of public-transit riders.
“I’d defend the Klan, I’d defend neo-Nazis, I’d defend Pam Geller—which to me are all cut from the same cloth,” Obeidallah said as the traffic roared past. “They have the right to speech. We don’t censor; we answer it with more speech—funnier speech, smarter speech. When you get into a public space, there has to be very broad leeway with what you put up.”
Source: www.thenation.com