New York Transit Authority Changes Rules on Ads, Embracing the Heckler's Veto

[Note: This post has been corrected. Material that has been revised is in boldface.]

As Tim Cavanaugh noted last week, New York City's Metropolitan Transportation Authority (MTA) has revised its guidelines for bus and subway ads after a controversy over an ad that urges the public to side with "the civilized man" rather than "the savage" by "support[ing] Israel" and "defeat[ing] jihad." The MTA had been forced to accept the Ayn Rand–quoting ad, sponsored by Pamela Geller's American Freedom Defense Initiative (AFDI), when a federal judge ruled that the excuse for rejecting it—that it "demeaned" people based on religion, ancestry, or national origin—was constitutionally invalid. Although the AFDI ads have not been banned and will be running through this month, the MTA's new rule—banning ads it "reasonably foresees would imminently incite or provoke violence or other immediate breach of the peace”—poses an even bigger threat to freedom of speech, embracing a heckler's veto by basing censorship decisions on subjective predictions of people's hostile reactions to controversial opinions.

In a July 20 ruling, U.S. District Judge Paul Engelmayer described the AFDI ad as "core political speech," expressing "a pro-Israel perspective on the Israeli/Palestinian conflict" in response to "political ads on the same subject that have appeared in the same space." He noted that the U.S. Court of Appeals for the 2nd Circuit (which includes New York) has deemed the MTA's advertising space a "designated public forum," meaning that content-based restrictions are subject to strict scrutiny. Engelmayer concluded that the MTA's regulation—which banned ads that "demean an individual or group of individuals on account of race, color, religion, national origin, ancestry, gender, age, disability or sexual orientation"—failed that test:

Under MTA’s no-demeaning standard, an advertiser willing to pay for the privilege is today at liberty to place a demeaning ad on the side or back of a city bus that states any of the following: "Southerners are bigots"; "Upper West Siders are elitist snobs"; "Fat people are slobs"; "Blondes are bimbos"; "Lawyers are sleazebags"; or "The store clerks at Gristedes are rude and lazy." The regulation also does not prohibit an ad that expresses: "Democrats are communists"; "Republicans are heartless"; or "Tea Party adherents are barbaric." The standard would also countenance an ad that argues: "Proponents [or opponents] of the new health care law are brain-damaged." Strikingly, as MTA conceded at argument, its no-demeaning standard currently permits a bus ad even to target an individual private citizen for abuse in the most vile of terms. For example: "John Doe is a child-abuser"; "Jane Doe runs a Ponzi scheme"; or "My neighbors, the Does, are horrible parents."...

Under that regulation, an ad on a public bus may not call a person or group "savage" based on his or her religion or nationality, or because the person or group falls within the other seven proscribed categories delineated in the regulation. But such an ad may otherwise call another person or group a "savage" or "savages" on any other basis—because they are a neighbor, a family, a school, an employer, an employee, a company, a union, a community group, a charity, an interest group, a believer in a cause, or a political foe....

MTA does not offer any justification for selectively allowing demeaning speech to appear on the exterior of its buses, let alone demonstrate that its content-based restriction on transit advertising is narrowly tailored to serve a compelling governmental interest, as is necessary to survive strict scrutiny.

Last Thursday the MTA's board unanimously replaced this arbitrarily narrow policy with an alarmingly broad one that empowers people who react violently to perceived insults. Instead of banning the AFDI ad because it demeans Muslims, the MTA will now reject any ad that, in the MTA's view, is likely to "imminently incite or provoke violence or other immediate breach of the peace." In other words, the MTA is implicitly endorsing the "demeaning" message it tried to suppress, agreeing that people offended by the AFDI ad are apt to act like savages—by vandalizing the signs, for example. Indeed, the logic of this new policy suggests that people can get rid of speech they don't like by painting over or tearing down a poster or two, thereby triggering a system-wide ban, since such vandalism would be clear evidence that an ad tends to incite lawless behavior. [An MTA spokesman says the AFDI ads "are in compliance with our revised standards."]

It is hard to see how this new ad rule can be upheld, given the dim view that the Supreme Court takes of regulations that allow "a single, private actor to unilaterally silence a speaker even as to willing listeners." The MTA policy compounds the dangers posed by the heckler's veto because it does not even require an actual breach of the peace—just a supposedly "reasonable" prediction of one. The authority's judgments about which messages are unacceptably provocative are likely to be influenced by the political prejudices of the people making the decisions. 

The Washington Metropolitian Area Transit Authority (WMATA) also has rejected the AFDI ad (after initially accepting it), citing concerns about "security and safety" in light of violent protests against The Innocence of Muslims. WMATA worried that the ads might "expose passengers to terrorism and threaten their safety"—a rationale (the terrorist's veto) similar to the MTA's (the vandal's veto). Tomorrow U.S. District Court Judge Rosemary M. Collyer is scheduled to hear the AFDI's arguments for an injunction against WMATA's decision.

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  • Rich||

    But the MTA's new rationale—that it "reasonably foresees" the ad "would imminently incite or provoke violence or other immediate breach of the peace"—poses an even bigger threat to freedom of speech

    Well, then the MTA should also "reasonably foresee" that their new policy "would imminently incite or provoke violence or other immediate breach of the peace" due to an even bigger threat to freedom of speech.

  • Pro Libertate||

    That's not going to hold up to challenge. And they'll be biased in the application of that rule, anyway, which will further kill it.

  • John||

    This is how Republics die.

  • Drax the Destroyer||

    It's hard to kill the already dead.

  • SugarFree||

    Shot them in the head. Don't you people know basic science?

  • Drax the Destroyer||

    Difference between a corpse and a zombie. One's moving, t'other ain't.

  • SugarFree||

    A corpse is little more than a lazy zombie.

  • ||

    Why do MTAs exist in the first place? What cataclysmic retard thought such entities would be a good idea?

  • John||

    Why do you hate trains Res?

  • ||

    It's just my deep hatred of black people and little children and grannies and stuff. I want them to walk, while I ride around in my sixteen-septillion-dollar flying aircraft carrier.

  • Doctor Whom||

    Haven't you noticed how much better the buses are under WMATA than they were under private control? That's funny; neither have I.

  • John||

  • Enough About Palin||

    Blocked. What is it?

  • John||

    The lament of a hipster to the tune of Bohemian Rhapsody. Pretty clever.

    This is my real life
    This isn’t fantasy
    Bought a new condo
    To escape from the “townies”
    Coke and Pad Thai, my jeans are so tight; can’t breathe.
    I’m not a poor boy, I just appear to be
    Because I’m a lazy bum, nasal tone, always high, skin that glows.
    Even if my art sucks – doesn’t really matter to me, to me.

    Mama, I’m not a man
    He smashed a brick over my head
    “End of story” is what he said.
    Mama, Brooklyn life is fun
    But now I need your 401 K.
    Mama, yahhhh-aaa-ahhh
    You’re so mean, I’m gonna cry,
    If my rent checks not here this time tomorrow
    Carry on, carry on
    There’s always Western Union.

    Its late, I should go home
    I’ll take the L that should be fine
    Don’t have to be at work at nine
    Goodbye, everybody
    We’re children of the corn
    Gotta go and pick out tomorrow’s hipster uniform.
    Mama, yahhhhhaaaa,
    I don’t want to lie,
    I wear thick frames but I don’t need glasses at all.

  • Enough About Palin||

    I see these fuckers on the train all the time. Knit stocking caps when it's 95 degrees outside. It just screams "I'm a douche!"

  • Raston Bot||

    We’re children of the corn

    i don't know what that meant but it made me laugh.

  • Paul.||

    Mona Eltahwy, the woman at the center of the MTA controversy, tweeting an article about the horror of a 9 and 10 year old arrested for Blasphemy in Egypt.

    http://blog.foreignpolicy.com/.....y_in_egypt

  • Brutus||

    If they'd have just used pink spray paint, the little moppets would have been fine.

  • ant1sthenes||

    Why is that surprising? Clearly, given that it was motivating the little tykes to lawlessness, Egypt should ban the Koran.

  • Brutus||

    Seems like the MTA is desperately trying to be the last one eaten by the crocodile.

    You know, if Neville Chamberlain would have just been nicer to that little feller what did all that mischief in Europe, things might not have turned out as bad as they did.

  • Paul.||

    Here's another re-tweet by Mona Eltahawy, protesting the censoring of a film:

    Maggie Morgan‏@magmorgan

    Filmmaker @amrmsalama 's new script has been rejected by the censor several times. Let's make noise. pic.twitter.com/vh5cP8hn

    I get the impression that Eltahawy doesn't like the suppression of messages which offend other people. Funny that.

  • Brutus||

    She must really dig jihadists, then, given that she took great offense at someone calling them savages. But wouldn't a jihadist approve of film censorship and tossing kids in the pokey for pissing on a Koran?

  • The Late P Brooks||

    They should ban ads with sexy goodlooking girls in them, because it causes ugly fat hags emotional discomfort.

  • Raston Bot||

    those 'unhinged empire' posters all over the metro offend me. maybe i'll spray paint over them so the WMATA will take them all down.

  • Loki||

    the MTA's new rationale—that it "reasonably foresees" the ad "would imminently incite or provoke violence or other immediate breach of the peace"

    Define "reasonably foresee". Stupid assed weasel words like that really just mean "anything that makes us feel bad will be banned". Fuck these stupid shitstains up their ass with a broken off broom handle.*

    *censored by the MTA

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