With a New M.T.A. Ad Policy, Thinking About the First Amendment

By CLYDE HABERMAN

Should you wish to place an advertisement in the subways or on buses, there are a few things you need to know.

The Day

Clyde Haberman offers his take on the news.

The ad must not be “false, misleading or deceptive.” So says the Metropolitan Transportation Authority in its guidelines, and who can argue with that? The material also must not promote “unlawful or illegal goods, services or activities.” Fair enough.

Tobacco products are out of the question. No surprise there. So are images of minors in sexually suggestive clothes or poses. Quite right. And don't even think about an ad that features “sexual or excretory activities” shown in “a patently offensive manner.” Makes you wonder if it's possible to show “excretory activities” in a patently inoffensive manner.

There are other prohibiti ons, one of which was newly codified by the transportation authority's board just the other day. It bans ads that “the M.T.A. reasonably foresees would imminently incite or provoke violence or other immediate breach of the peace, and so harm, disrupt or interfere with safe, efficient and orderly transportation operations.”

This rule has potential trouble written all over it.

It has already come under fire from tabloid editorialists, who raise a reasonable First Amendment question that is probably being asked by other New Yorkers as well:

Has the authority effectively handed veto power over free expression to any extremist who threatens to bomb a subway station or set fire to a bus because he or she or can't abide the message on a poster?

The authority isn't eager for a public discussion of what sort of ad might qualify as creating an imminent threat. For that matter, it doesn't offer a definition of violence or o f breach of the peace, terms that can encompass broad ranges of action. Does mere yelling breach the peace? Some might say yes.

Still, it doesn't take much imagination to guess what could cross a red line, to use an expression that is in vogue in a different context. Almost certain to be rejected as incendiary would be an ad deemed to mock Muhammad, like the Danish cartoons that sparked riots in the Islamic world. But wouldn't that amount to blatant caving in to threats, even if in the name of promoting civil discourse?

“We believe that we've always had the power to withhold advertisements which in the judgment of our security professionals would present an imminent threat of violence,” Adam Lisberg, an authority spokesman, said on Monday. All that the newly adopted rule does is “make it explicit,” he said.

Banning a particular ad is “not something the M.T.A. would ever undertake lightly,” Mr. Lisberg added. “It would be done in consultatio n with our security professionals when they would foresee an actual risk of physical violence, not merely the threat of vandalism.”

Vandalism is what happened last week to subway posters that called on people to “support the civilized man” over “the savage” - to “support Israel” and “defeat jihad.” Those words went up after a federal judge ruled over the summer that the transit agency had run afoul of the First Amendment when it rejected the ads as violating its ban on messages that “demean” individuals or groups.

So last Thursday the authority's board scrapped the “demean” rule. Instead, it adopted the imminent-threat-of-violence standard.

You have to wonder why transit officials don't reject these noncommercial “issue ads” altogether, and stick to less nettlesome dollars-and-cents messages hawking new movies and negligence lawyers. Advertising of all types, the authority says, covers about 1 percent of its annual budget of roughly $13 billion. Issue ads provide about 1 percent of that 1 percent. That comes to $1.3 million, a drop in the bucket. The authority runs through that in less than an hour.

If it wished, the authority said the other day, it could confine itself to commercial ads and avoid First Amendment agita. But that would be too limiting, it said. It preferred to adhere to a policy of permitting advertisements that “express views on a wide range of public matters.”

But the price of accepting subway placards with noncontroversial messages â€" say, an appeal for blood donations â€" is having also to put up with something like a “savage” poster, no matter how much it is bound to offend some people. That, almost by definition, is a recipe for trouble.

The authority no doubt wishes that such irksome ads would disappear. It's not interested in making waves, and that's perfectly understandable. It's in the business of a running a railroad safely, not arguing t he world. What's far from clear, though, is whether all it has done with this new imminent-threat rule is replace one constitutionally suspect guideline with another.