No, pasting over anti-Islam ads with images of 'Ms. Marvel' isn't free speech

|The Volokh Conspiracy |

(Handout courtesy of Marvel Entertainment)
(Handout courtesy of Marvel Entertainment)

A group that is sharply critical of Islam recently bought space for anti-Islam ads on San Francisco buses. San Francisco had a First Amendment obligation to allow such ads; as a court recently held, once a city opens up a bus advertising program, it may not reject such ads based on their anti-Islam viewpoint.

But earlier this week, some people pasted over parts of the ads with a picture of Ms. Marvel, a Muslim American superhero recently introduced by Marvel Entertainment, and with stickers bearing various messages, including "Free Speech Isn't a License to Spread Hate." Is this action itself constitutionally protected free speech, as some have suggested?

No—just as it wouldn't be protected free speech to take a pro-religious-tolerance advertisement (or a mosque advertisement) and paste anti-Islam messages over it. People have no right to just attach their own messages to city vehicles. Indeed, attaching messages that write over lawfully purchased advertising messages likely qualifies as "[d]amag[ing]" another's property, or as "[d]efac[ing]" it by "mark[ing]" over it. (Attaching stickers is considered "mark[ing]" property, and marking is considered defacing even if it's easy to remove. The statute I cite requires that the defacing or damaging be done "maliciously," but that would likely be understood here as simply requiring that the defacing or damaging was done intentionally, rather than by accident.)

Now a government entity could permit people to freely write things on certain government property, or attach things, even when it obscures what other people have written or attached. For instance, some universities have "free speech walls" that are designed for that; likewise, if chalking sidewalks is generally allowed, then overwriting someone else's chalking with your own might be, too. But I highly doubt that San Francisco has opened up its buses for everyone to paste materials on. Instead, it has allowed people to buy advertising space, without letting others paste over that advertising space.

So the pasting over the ads is illegal. Moreover, the city has to treat this sort of defacement the same way it would treat defacement of other speech. If, for instance, the city has a practice of removing such material pasted over ads, and replacing the original ads that were legally paid for, then the city has to do the same here. Conversely, if the city decides to tolerate and not remove such pasted-on material—and its advertising contract lets it do so—then the city has to equally tolerate any anti-Islam material pasted over other ads in the future.

"[T]he fitting remedy for evil counsels is good ones," Justice Brandeis wrote in Whitney v. California. But that means that people have to put up their good counsels in places where such counsels are legally allowed. It doesn't mean that people can just overwrite other people's messages—whether on private property or government property—that they see as "evil" with other messages that they see as "good." And if San Francisco decides to tolerate such overwriting of ad space on its buses, it would have to do that in a viewpoint-neutral way.