Wednesday, June 3, 2015

Why the woman who doesn't want us to censor her commute got it wrong

J5, my father-in-law, forwarded me an op-ed by former NY lieutenant governor Betsy McCaughey who took umbrage with the actions taken by NYCMTA and now WMATA to try to keep anti-Islamic messaging off of their fleets. 

This got posted to a NYC bus

He was correct in thinking I would be intrigued because for about eight months, I oversaw the sale of exterior advertising on a public transit fleet.

McCaughey wasn't so much hung up on telling us that we should embrace anti-Islamic messaging itself so much as we should be upset by government's effort to exercise censorship on public transit buses. Shouldn't public transit operators be expected to uphold advertising space on their vehicles as a venue for the freedom of speech protected within the First Amendment in our Bill of Rights?

The Supreme Court ruled forty years ago that a city's transit system, including the revenue-generating out of home ad spaces, is not a forum for public debate. What got established over time, through case law (and described/analyzed in this TCRP Legal Research Digest) was that agencies could only accept commercial advertising in order to ensure this did not transition into a forum for public debate. And if such a transition occurred, then the agency forfeits its right to regulate advertising content, and to enforce prohibitions on accepting ads promoting products like alcohol and drugs... or messaging that is highly incendiary, like the anti-Islamic ads posted reluctantly by NYCMTA.

Unfortunately for the NYCMTA, its ad space inventory was declared a public forum in 1998 because it was not consistent in keeping their spaces a zone for commercial messages only. This can happen unwittingly when an operator accepts ads for a 'good cause', like promoting a charity, with no clear commercial transaction. And so, despite public outcry, it has no choice but to post this content.

Speaking of Ms. McCaughey, who seems more gung-ho on her agenda (she is a strict constructionist who seems to think that today's Court would reverse its decision from the 70s) has not had to respond to personally constituents who demand the removal of ads that invoke violence, display misogynistic and violent acts against women, or are simply disgusting like this one for FX's The Strain that appeared in LA (but not on my agency's fleet) last summer. I challenge her to get on the phone to say TMBDFY (That Must Be Difficult For You) to the people who were seriously grossed out by this campaign:
So damn gross. 
Agencies which do not accept non-commercial advertising are able to push back: they can reject creative,  require early pull downs of ads, or reject clients altogether depending on their intent. I understand and I believe in First Amendment rights. I also hope I did an ok job of giving the low down. 

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