The U.S. Supreme Court may well wade into the troubled waters of advertising on city transportation if it decides to review a case involving the rejection of highly charged political ads in Boston.
The Massachusetts Bay Transportation Authority (MBTA) accepted an advertisement from the Committee for Peace in Israel and Palestine, featuring four maps at various points in time, noting “ Palestinian Loss of Land – 1946 to 2010. 4.7 Million Palestinians are Classified by the U.N. as Refugees.”
The American Freedom Defense Initiative (AFDI) then submitted several ads to the MBTA, including two that were rejected. The two ads read: “In any war between the civilized man and the savage, support the civilized man.” One ad ended with “Support Israel Defeat Jihad.” The second with “Defeat violent Jihad. Support Israel.”
The AFDI proposed advertisements were modifications of a quote attributed to political theorist Ann Rand about the 1973 Arab-Israeli war. The MBTA rejected the two ads from AFDI based on a guideline prohibit ads that demean or disparage individuals or groups.
Federal courts of appeals are divided on how they approach First Amendment problems arising from government agency’s policies on transit ads – typically, a precursor to consideration of the issue by the Supreme Court.
AFDI sued in federal court, contending a violation of the First Amendment. Both a federal district court and the 1st U.S. Circuit Court of Appeals ruled in favor of MBTA and against AFDI. The 1st Circuit in its opinion ruled that the MBTA’s advertising program was a nonpublic forum – a type of government property that by tradition or by designation had not been opened up for speech of all types.
The AFDI and its founders Pamela Geller and Robert Spencer have filed a petition asking the U.S. Supreme Court to review the decision.
In its petition, the AFDI claims MBTA created a “designated public forum” by accepting a political ad from the Committee for Peace in Israel and Palestine.
The AFDI also argues that even if the transportation advertising program is considered a nonpublic forum, the MBTA still violated the First Amendment. Even in a nonpublic forum, government restrictions on speech must be reasonable and viewpoint neutral. The AFDI argues that by accepting a pro-Palestinian ad and rejected two pro-Israeli ads, the MBTA has committed the cardinal First Amendment sin of viewpoint discrimination.
The U.S. Supreme Court last heard a city transit ad case in Lehman v. City of Shaker Heights (1974). In that case, the Court held 5-4 that a city could reject a proposed ad from a political candidate. “No First Amendment forum is here to be found,” wrote Justice Harry Blackmun. “The city consciously has limited access to its transit system advertising space in order to minimize chances of abuse, the appearance of favoritism, and the risk of imposing upon a captive audience.”
It is questionable whether Lehman offers much support for the dispute between MBTA and AFDI, because it is clear that the MBTA did accept some political and ideological signs.
This last term, the Court sidestepped deeper First Amendment questions in the context of specialty license plates in Walker v. Sons of Confederate Veterans by proclaiming that the license plates were a form of government speech. However, the government speech defense likely would not apply here at all, because it is clear that the ads are the speech of different groups rather than a form of government identification like license plates.
David L. Hudson Jr. is the First Amendment Ombudsman for the Newseum Institute.