Imagine a DASH bus rolling through downtown Los Angeles streets with an ad on its sides promoting the annual AIDS Walk, which raises millions for AIDS awareness and prevention programs. Then imagine that same bus, a few months later, with an ad proclaiming that AIDS is retribution for the sin of homosexuality.
Farfetched? Maybe, but on this coming Tuesday the City Council is scheduled to consider a motion exempting the AIDS Walk ads from a prohibition against non-commercial advertising on the city’s buses and transit vehicles. This motion by Councilmen Paul Krekorian and Paul Koretz arrives along with a warning from the city’s Department of Transportation that allowing non-commercial advertising could mean the city wouldn’t be able to reject ads with “offensive and inappropriate” speech.
This warning isn’t purely speculative. Late last year, a federal judge in New York slapped down that city’s transit authority for trying to reject ads from a pro-Israel group that many muslims and others found demeaning. The ads, which seemed to characterize Israel’s enemies as savages, also stirred objections in Chicago and San Francisco, although threats of legal action prompted those cities to allow the ads on its trains and buses.
Courts have long held that cities can regulate the size and placement of advertising signs and even prohibit entire classes of signage as long as the regulations are content-neutral. In other words, a city can specify the size and placement of ads in its transit system, but it cannot say, for exmaple, that an ad for Coca-Cola is okay but an ad for Pepsi isn’t.
Of course a city doesn’t really care whether a particular ad is for Coca-Cola or Pepsi or some other product, as long as it is legal. That doesn’t hold true, however, for non-commercial advertising that espouses views that citizens may vew as offensive or inflammatory. That’s why L.A., as well as other cities in the area and elsewhere, have banned non-commercial advertising in their transit systems, a blanket prohibition that meets the constitutional test of content neutrality.
In fact, that’s exactly what Chicago did in the wake of the brouhaha over the pro-Israel ads, revised its policy to prohibit non-commercial advertising in the city’s transit system. San Francisco, where the same group behind the pro-Israel ads then submitted ads with blatantly anti-gay quotations from muslim clerics and other muslim figures, is still wrestling with the issue. And in New York, where the federal judge’s ruling seemed to sympathize with the city even while ruling against it, the transit authority adopted a disclaimer to be made part of all ad copy.
That disclaimer reads, This is a paid advertisement sponsored by (name of sponsor). The display of this advertisement does not imply MTA’s endorsement of any views expressed” It seems unlikely, however, that this will assuage people offended by the content of a provocative ad, and the New York court decision is probably far from the last word on the subject, legal or otherwise.
The view put forward by the plaintiffs in the New York case, as well as a number of free speech advocates, is that buses and trains are public gathering spaces where ads ought to enjoy the same First Amendment protections as individuals, meaning that almost anything short of hardcore pornography or an incitement to riot cannot be banned. And the emergence of organizations able to spend unlimited money on political causes makes transit advertising a tempting venue.
Hardly anone would fault the L.A. City Council for wanting to support a worthwhile cause like the Oct. 13 AIDS Walk. This seems to be the sentiment behind the Krekorian/Koretz motion to exempt the event from the non-commercial ad ban, even though doing so may open a Pandora’s box the city could find hard to close.
In addition to the proposed exemption, the motion directs city officials, including the Department of Transportation and City Attorney, to “develop a more flexible, sustainable policy that will allow for reasonable non-commercial advertising by non-profits on city-owned transit vehicles.”
Can such a policy be successfully crafted? The issue was discussed earlier this month by the City Council’s Transportation Committee, where the Department of Transportation staff delivered its warning that exempting AIDS Walk could lead to the city being unable to control what is displayed on the sides of its buses. If that’s true, is the City Council willing to pay that price in order to support non-profits promoting good causes?
The MTA, which operates the vast majority of buses and trains in the city, allows only commercial advertising on those vehicles. Nearby Santa Monica, which operates its own bus line in that city as well as L.A., does not allow any non-commercial advertising. By doing so, they have avoided the controversies that have arisen in New York, Chicago, San Francisco and elsewhere.
San Francisco, in particular, has been plagued by the issue. Two years ago, a group called the Second Amendment Foundation submitted ads for a conference that featured a woman toting a shotgun even though the city had a policy forbidding ads promoting the use of firearms. Under the threat of legal action, the ads were accepted and displayed at transit locations around the city.
To some who may not be aware of this history or the finer points of law, it makes no sense to ban messages promoting a worthy, non-profit cause while allowing city DASH and commuter buses to be festooned with ads for commercial products and services, some of which may be of questionable value and even potentially harmful.
That, in fact, raises a question that isn’t a central part of the ongoing discussion but perhaps should be: What responsibility does a city or other governmental body bear for the content of advertising on its property, whether the advertising is commercial or non-commercial? What about fast food, which has been implicated in the rise of obesity and diabetes? What about alcohol, which costs governments billions for law enforcement and emergency and medical services? What about movies and TV shows depicting acts of violence, most often with firearms, when gun violence exacts a serious toll on some neighborhoods?
But back to Tuesday’s council meeting. It’s obvious that the councilmen wanting to give AIDS Walk a break are acting with nothing but good intentions. Unfortunately, we all know where good intentions sometimes lead.
*************************by Dennis Hathaway