What rights do public transit systems have to limit the types of advertising that run on their buses, subways, and other platforms? When political candidates, advocacy organizations, religious groups, and marketers of controversial products try to advertise in government-run media space, they often get caught up by government-imposed advertising policies that prohibit certain types of content.
Over the last several years, for example, the Washington Metropolitan Transit Authority rejected a Christmas-themed ad from the Archdiocese of Washington, the Massachusetts Bay Transportation Authority rejected an ad from co-working space The Wing about "mansplaining," the Southeastern Pennsylvania Transportation Authority rejected an ad from The Center for Investigative Reporting that discussed the fact that people of color are more likely to be denied mortgages, and New York's Metropolitan Transportation Authority rejected ads for sex toys (and then later changed its mind).
In a recent case, Shore Transit, which operates the public bus system for a number of counties in Maryland, rejected two advertisements from People for the Ethical Treatment of Animals. Both ads included the text, "No one needs to kill to eat. Close the slaughterhouses: Save the workers, their families, and the animals." One ad includes an image of a child holding a chicken and the other has the word "kill" superimposed on a bloody cleaver.
Shore Transit rejected the advertisements, saying "We find them too offensive for our market and political in nature." PETA sued, alleging that Shore Transit's refusal to run these ads violated its First Amendment rights. Shore Transit moved to dismiss, and the United States District Court for the District of Maryland denied the motion, holding that PETA has sufficiently alleged that Shore Transit violated its First Amendment rights because Shore Transit's policies "fair to provide workable standards and are viewpoint discriminatory."
The policies enforced by Shore Transit prohibited the acceptance of "political ads" and also permitted the rejection of ads that are "controversial, offensive, objectionable or in poor taste."
For purposes of the motion to dismiss, the heart of the issue was whether, assuming that Shore Transit is operating a nonpublic form, "the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral." Here, the court held that Shore Transit failed to satisfy that standard.
First, the court determined that PETA had sufficiently alleged that Shore Transit's advertising policies failed to provide objective or workable rules. The court explained, "the prohibition on advertisements that are 'political,' 'controversial, offensive, objectionable, or in poor taste' fails to provide a sensible basis for distinguishing what may come in from what must stay out."
Second, the court found that the policies were also viewpoint discriminatory. The court explained the terms "controversial," "offensive," "objectionable," and "poor taste" allow Shore Transit to reject advertising based on its "own assessment of what may be offensive -- providing ample opportunity for Defendants to improperly exclude speech on the basis of viewpoint." The court concluded, "the perceived offensiveness of the advertisements cannot serve as a viewpoint neutral reason for rejecting them."
People for the Ethical Treatment of Animals v. Shore Transit, 2022 WL 170645 (D. Md. 2022).
"the perceived offensiveness of the advertisements cannot serve as a viewpoint neutral reason for rejecting them"