Federal Court Strikes Down N.Y. City Bus Policy That Bans “Demean[ing]” Speech About Religions, Racial Groups, Etc.

The policy banned exterior bus ads that supposedly “demean an individual or group on account of ‘race, color, religion, national origin, ancestry, gender, age, disability or sexual orientation,'” and the New York Metropolitan Transportation Authority cited the policy in refusing to run this ad:

“Elaborating on the basis for rejecting the AFDI Ad, [the MTA official] stated that the use of ‘savage’ and ‘Jihad’ to identify those who fail to support Israel ‘demeans a group (or groups) of individuals on account of their religion, national origin, or ancestry, including Palestinians or other Arabs or Muslims who do not share AFDI’s views on Israel.'”

Today’s American Freedom Defense Initiative v. Metropolitan Transportation Authority (S.D.N.Y. July 20, 2012) holds that the policy violates the First Amendment. Following New York Magazine v. Metropolitan Transportation Authority (2d Cir. 1998), the court concludes that the advertising space is a so-called “designated public forum”:

[In New York Magazine,] the Second Circuit held that the advertising space on the exteriors of public buses was a designated public forum. In so holding, the Court emphasized that MTA “accepts both political and commercial advertising” in that space, with the knowledge that “clashes of opinion and controversy” in political advertising could have adverse commercial effect. Opening up its ad space up to potentially controversial political speech, a practice “inconsistent with sound commercial practice,” was the action of a regulator, not a commercial proprietor. The Second Circuit found further support for this conclusion in the specific advertising standard at issue in the case, which prohibited ads which “violate[] New York Civil Rights Law § 50.” Because MTA’s articulated interest in applying that standard was to assure compliance with law, MTA was properly held to be acting in a regulatory, not a commercial, role.

The court then concludes that content-based speech restrictions in a designated public forum are unconstitutional unless they pass “strict scrutiny” — i.e., unless they are narrowly tailored to a compelling government interest — and this restriction can’t satisfy that very demanding test. And this restriction, the court says, is content-based, because it leaves people free to demean other people based on other attributes, such as political affiliation, place of residence, occupation, and so forth, but not based on the prohibited attributes, such as religion and race. A broader restriction on “demeaning” anyone, the court says, might be permissible:

Today’s ruling does not disable city authorities from adopting rules that hold ads and commentary on the exteriors of buses to a standard of civility. See, e.g., Ridley v. Mass. Bay Transp. Auth., 390 F.3d 65, 90 (1st Cir. 2004) (upholding transit authority’s regulation that prohibited, without further limitation, “advertisements that ‘demean[] or disparage[] individual or group of individuals’”). [Footnote: The First Circuit so ruled in Ridley after holding, based on a close examination of the history, usage, and close regulation of the advertising space in question, that the government had not created a designated public forum.]

Or maybe not: Later the court notes that it is not deciding whether “even an across-the-board ban on demeaning speech is itself content-based and subject to strict scrutiny, because such a ban draws a line between demeaning and non-demeaning content” and whether “a ban on demeaning speech is impermissibly viewpoint-based, because it uniquely prohibits a form of harsh condemnation.” But in any event, a ban on demeaning individuals or groups based on a particular set of attributes is content-based, thus triggers strict scrutiny, and is unconstitutional in a designated public forum such as this one.

A few thoughts:

1. I sympathize with the arguments that the government, acting as service provider, should be able to exclude material that is likely to greatly alienate or offend some of its customers, while still making money from material that won’t have that effect. But the Court has indeed held that viewpoint-based restrictions, even on government property that isn’t a “traditional public forum,” are unconstitutional; and this also makes some sense, given just how much money and property the government owns (especially once one goes beyond just access to physical property, and gets to access to broadly available government benefit programs, such as charitable tax exemptions). Under this doctrine, I think a ban on “demean[ing]” speech about religions, races, and the like is unconstitutionally viewpoint-based, given that positive speech about various groups — or about tolerance, equality, and so on — is allowed.

2. I’m not sure that advertising space should be consider a “designated public forum,” in which strict scrutiny applies to all content-based restrictions, as opposed to a “limited public forum,” in which the government can impose content-based but viewpoint-neutral restrictions. This having been said, the district court points out that Second Circuit precedent (which is binding on federal district courts in New York) treats this very program as a designated public forum.

3. If the space is indeed a designated public forum, then I think even a ban on all disparaging speech would be content-based — when we say that speech is disparaging, we are making a statement about the content of its message, and its communicative impact. What’s more, I think such a ban would even be viewpoint-based, since it targets negative viewpoints about people or groups and not positive viewpoints. So while I think a ban on particular vulgarities would be content-based but viewpoint-neutral, so the government could ban them in a limited public forum, a ban on disparaging speech would be viewpoint-based. (That’s true even of a courthouse, where Cohen wore his famous “Fuck the Draft” jacket; the Court in Cohen v. California made clear that it wasn’t passing on the constitutionality of bans on vulgarities in courthouses, since the law in Cohen was read by the state as banning vulgarity in public generally.) I therefore think that, both under the district court’s view that the ad program was a designated public forum, and under the view that the ad program was a limited public forum, even the broad ban on demeaning speech about anyone would be unconstitutional.

So I think the court reached the right result given the Supreme Court’s caselaw, and did so for what is, given Second Circuit caselaw, the right reason.

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