Do You Have a Right To Run Subway Ads Criticizing High Subway Fares?
A rider advocacy group says the Montreal's transit agency violated its free speech rights by refusing to run ads critical of recent fare hikes.
Montreal's public transit agency is proving to be a prickly pear by refusing to allow a local rider advocacy group to post ads criticizing recent fare hikes at bus stops and rail stations. Those riders are now challenging the agency's decision in court, arguing that it violates Canada's free speech protections.
The ads, proposed by the rider advocacy nonprofit ATCRS, criticized Metropolitan Regional Transportation Authority's (ARTM, in French) decision to raise fares starting this month.
"Logical? Not to us. Let us denounce the rate hike imposed by ARTM" reads an English translation of the ads.
ATCRS proposed the ads in early June. A few weeks later, the Montreal Transit Company (in French, STM), which operates transit in the region, rejected them on the grounds that they "denigrated public transit."
In response, ATCRS filed an application for judicial review in the Montreal Division of the Superior Court of Quebec against STM and two third-party companies.
"This is a blatant violation of our freedom of expression," said Axel Fournier, a spokesman for the group. They're being represented by attorney Samuel Bachand and the Alberta-based Justice Centre for Constitutional Freedoms, a public interest law firm.
Their application argues that the agency's rejection of their ads is "illegal and unreasonable."
"The purpose of the advertisement is to defend the affordability of public transit, which is far from denigrating it," reads the application. It also argues that STM's rejection of the ads is unconstitutional. They cite a previous case out of British Columbia, where the Vancouver transit agency's policy of rejecting ads with political content was ruled an unconstitutional restriction on expression.
That precedent might give them more of a fighting chance than if the same case were playing out in the U.S.
American courts have generally given transit agencies wide latitude to reject ads. The U.S. Supreme Court has ruled that ads on buses and trains are "nonpublic forums." That means public transit agencies can exclude whole categories of ads, including political ads, provided they're acting reasonably. Courts have also given transit agencies a huge amount of discretion when deciding what counts as a reasonable rejection of an ad.
In 2017, the American Civil Liberties Union (ACLU) sued D.C.'s regional transit agency WMATA for rejecting ads from right-wing provocateur Milo Yiannopoulos, animal rights group PETA, an abortion provider, and the ACLU itself (which had tried to run ads featuring the plain text of the First Amendment).
A district court rejected the ACLU's request for a preliminary injunction* in 2018, saying that WMATA, in rejecting ads for Yiannopoulos' book Dangerous, acted "reasonably in excluding those advertisements, in view of its stated objective to reduce community and employee opposition, to diminish security risks, and to avoid vandalism and the burdens of administrative review." The case is ongoing.
PETA has two separate ongoing lawsuits against transit agencies in Maryland and Los Angeles for rejecting its ads.
In addition to the free speech concerns raised by public transit agencies' rejection of ads, it doesn't seem like a good business practice currently. From Montreal to Maryland, transit ridership took a nosedive during COVID-19. Commuters haven't returned to pre-pandemic levels yet, nor have the fares they paid.
Transit agencies are trying to fill the fiscal hole that's left with fare hikes, service cuts, and asks for more subsidies. Ad sales are one way that transit agencies could try to shore up their budget without hitting up taxpayers for more money.
But in Montreal at least, STM appears more interested in protecting itself from criticism.
*CORRECTION: The district court had not rejected the ACLU's request for a summary judgment; they had requested a preliminary injunction.
