First Amendment

Sex Toy Company Sues New York Subway for Screwing With Its First Amendment Rights

In a letter to Dame explaining why the ads had been rejected, the MTA cited longstanding rules against ads "promoting a sexually oriented business."

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Subway riders in New York City will see ads for condoms, erectile dysfunction pills, breast enhancement surgery, and sexually suggestive imagery hawking everything from the Museum of Sex to upcoming film releases.

But guess what is apparently too much for the innocent eyes of New Yorkers? Female sex toys.

The Metropolitan Transit Authority (MTA), which runs the New York subway system and city bus lines, was hit with a First Amendment lawsuit on Tuesday after allegedly refusing to run a series of ads for Dame, a Brooklyn-based vibrator-maker founded by a Columbia University grad.

The lawsuit claims MTA's refusal to run Dame's ads is a violation of "the First Amendment, due process, equal protection, and common sense" and claims that the company spent more than $150,000 making changes to proposed ads to comport with MTA-issued feedback before being told the ads were not going to be permitted anyway. That's an "arbitrary and unlawful decision," Dame's attorney contends.

In a letter to Dame explaining why the ads had been rejected, the MTA cited longstanding rules against ads "promoting a sexually oriented business."

"The MTA is living in a Victorian era," Richard Emery, an attorney representing Dame, told Reuters. "It has a male-oriented censorship scheme that is discriminating against women's sexual pleasure, and emphasizing male control of women's sexuality."

Dame first attempted to place an ad with the MTA in July 2018, submitting six possible ads for MTA vetting. Two months later, after receiving feedback from the MTA about suggestive double-meanings in the ads—each featured some version of a joke about women "getting off" the subway—Dame submitted a new set of ads with less obvious undertones. "The O-line is running express," read one. Another claimed "91 percent of male riders get where they are going, while 60 percent of women don't."

When those ads were also rejected—the MTA claimed they "entangle the MTA experience with the ad messaging," according to the lawsuit—Dame submitted a third set of proposals that featured pictures of various sex toys and the company's name without the colorful or suggestive text. Those were also rejected by the MTA, which sent a letter to Dame executives claiming the ads could not run because of the longstanding ban against "promoting a sexually oriented business" on public transportation, according to the lawsuit.

That leaves the MTA in the seemingly untenable position of claiming that photos of small plastic widgets are somehow more obviously sexual in nature than ads containing obviously phallic cacti, or close-ups of breasts—which feature prominently in MTA-approved ads submitted as part of the Dame lawsuit.

United States District Court of Southern New York; Dame Products v. MTA, Complaint

It is perhaps not quite as absurd at the public transit agency in Washington, D.C., which has banned ads for Christmas gifts and as well as ads promoting right-wing troll Milo Yiannopoulos's book, but it's close.

Regardless of how the lawsuit shakes out, the decision to ban Dame's ads from the New York City subway doesn't look good for the MTA. It's not clear that the ban was motivated by sexism, as the lawsuit claims, but it does appear that the MTA's advertisement-approving bureaucrats could benefit from being more intimate with the First Amendment.

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