Developing and Implementing a Transit Advertising Policy (2010)

Below is the uncorrected machine-read text of this chapter, intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text of each book. Because it is UNCORRECTED material, please consider the following text as a useful but insufficient proxy for the authoritative book pages.

11 The court reviewed the language of the restriction in the act to determine what was actually prohibited. The court concluded that the restriction did not attempt to stop a transit agency from expressing all views about controlled substances; instead, it prohibited only speech that promoted legalization or medical use of a controlled substance.93 Furthermore, the court concluded that the government had failed to articulate a legitimate inter- est in restricting the type of speech at issue, other than the fact that it disapproved of the message presented by the nonprofit organizations.94 Therefore, based on this reasoning, the court held that the restriction on speech found in the act amounted to unconstitutional view- point-discrimination. ADVERTISEMENT POLICY SURVEY Overview In addition to the review of relevant case law, a sur- vey was disseminated nationally to mass transit agen- cies of various sizes. Its purpose was to gather informa- tion about the challenges facing administrators when evaluating proposed advertising.95 The following agen- cies were selected to participate in the survey: • New York City Transit • CTA • Los Angeles Department of Transportation (LADOT) • San Diego Metropolitan Transit System • Dallas Area Rapid Transit • Connecticut Transit • Central Florida Regional Transportation Authority • New Jersey Transit Authority • St. Louis Regional Transit • Central New York Regional Transportation Au- thority • Central Ohio Transit Authority • SEPTA • Transit Services—City of Tempe • Kansas City Transportation Authority • Atlanta Rapid Transit System • San Francisco Bay Area Transit Authority • San Francisco Municipal Transportation Agency (SFMTA) • WMATA • Detroit Department of Transportation • Memphis Area Transit Authority • Miami Transit Authority • Nashville Metropolitan Transit Authority • Milwaukee County Transit System (MCTS) • Transit Authority of Northern Kentucky Of these agencies, detailed responses were provided by representatives of the Milwaukee County Transit 93 Id. at 78. 94 Id. at 86. 95 See App. A. System, SFMTA, New Jersey Transit, LADOT, SEPTA, and CTA. Each responding agency offered unique in- formation concerning the operation of their respective advertising program. The written survey focused on each agency’s formal, written, advertising policy (if one existed) to gauge what content-based restrictions were permitted. Infor- mation was sought regarding any legal consequences following an agency’s decisions to restrict certain com- mercial speech and the disposition of any formal pro- ceedings. In addition, each agency was requested to provide information about its day-to-day operations and practices. Lastly, each agency was invited to recom- mend best practices it had found useful in its assess- ment of proposed advertising pieces. The information gleaned from the six survey re- sponses demonstrates a variation in the types of adver- tisements the transit agencies restricted. Specifically, of the six, four had policy restrictions against advertise- ments promoting alcoholic beverages, five restricted tobacco products, three restricted adult-oriented prod- ucts, two restricted political advertising, one restricted unappealing or garish ad designs, and four restricted generally vulgar or offensive content. Conversely, no agency enforced restrictions against reproductive ad- vertisements or those dealing with sexuality, and non- profit advertisements were widely accepted unless the speech at issue fell into one of the other restricted cate- gories. The foregoing results are illustrated in the fol- lowing graph:

12 Policy Restrictions These agencies generally viewed their policies as only minimally (33 percent) or moderately (67 percent) restrictive when compared to other agencies with formal restrictions in place. Not one agency felt it was unnecessarily or unlawfully restrictive of the speech displayed in its advertising spaces, which included both nonpublic and public forums. Advertising Policy Speech Restrictions

13 The responding agencies were equally divided in their forum classifications: half classified themselves as designated public forums and half as nonpublic forums. Forum Classifications It should be noted that the classification of each agency is based on the responses of those surveyed and not a legal classification determined by a court of competent jurisdiction. One interesting aspect of the survey is the equal split between forum classification among the agencies. As the case law above explains, the risk of increased litigation over policy restrictions often depends upon the type of forum classification (nonpublic forums being favorable to agencies and designated public forums being favorable to a party challenging the agency). These findings suggest that some agencies are not aware of the legal ramifications associated with forum classification. It also suggests that certain agencies, when deciding to display their advertising to the public, incorporate other concerns beyond litigation. The agencies examined varied in size and location, and their operations differed greatly. A closer look at this sampling of mass transit agencies demonstrates the unique obstacles facing agencies with formal or ambiguous protocols in place. Milwaukee County Transit System The MCTS solicits various types of advertisements for its in-bus, on-bus, and bus shelter spaces. The agency has a policy in effect that permits commercial and not-for-profit advertising. MCTS accepts adver- tisements from tobacco companies, advertisements re- lating to human reproduction, and political campaign materials, as well as nonprofit postings. MCTS prohib- its advertisements promoting the use or sale of alcoholic beverages and adult-oriented products. The agency also prohibits unappealing or garish ad designs and ads con- taining what it believes to be vulgar or offensive con- tent. MCTS states that the policy it employs is the deter- mining factor in accepting or rejecting advertisements. The agency considers its policy to be moderately restric- tive on speech contained in ads. The policy employed by the agency to accept or reject ads consists of the agency reviewing the ads when they are submitted. If anything considered questionable is submitted, the marketing director is alerted and the issue is discussed with vari- ous transit officials. The agency has rejected advertise- ments on various grounds; specific examples include an advertisement that was deemed too sexually explicit and another that did not portray the transit system favorably. The agency responded that it has never been sued as a result of accepting or rejecting a controversial adver- tisement. Moreover, MCTS considers its advertising spaces to be nonpublic forums. The agency explained that the advertising spaces used follow the same re- strictions as other spaces such as billboards. When surveyed on the various legal issues that agencies encounter, MCTS responded that it has never dealt with any issues as a result of its policy being too vague or its transit officials having too much discretion

14 over the review process of an advertisement. The agency also stated that it does not accept viewpoint dis- crimination, nor has it ever amended its policy as a re- sult of a lawsuit in this matter. Finally, MCTS was asked about the most challeng- ing issues the agency faces when reviewing and select- ing advertisements. MCTS responded that the public sometimes holds MCTS to different standards than other advertising businesses since it is a government entity, and the different perception makes it difficult to run an effective advertising program. San Francisco Municipal Transportation Agency The SFMTA solicits advertisements for buses, trains, and bus shelter spaces. The agency has a policy in effect that does not restrict advertisements solely to commer- cial advertising. The policy restricts alcoholic and to- bacco products, adult-oriented products, political adver- tising, defamatory advertisements, advertisements involving the use of firearms, and copyrighted material. The policy does not restrict advertisements related to human reproduction/sexuality, unappealing or garish ad designs, and vulgar or offensive content. The review process of the advertisements is controlled by a contrac- tor hired by SFMTA. The contractor is required to make all determinations, referring to SFMTA’s advertising policy when needed. The agency does not make any con- tent-based determinations on its own. New Jersey Transit Authority New Jersey Transit solicits advertisements for buses, railways, light-rail, and various station and plat- form spaces. It has a policy in effect that does not re- strict the advertising space to only commercial advertis- ing. The policy prohibits advertisements for tobacco products, advertisements which contain false or mis- leading information, advertisements that promote ille- gal activity, advertisements that portray endorsement by the agency without permission, obscene material, advertisements that display weapons aimed at the viewer in a menacing manner, any controversial adver- tisements that would promote potential vandalism of advertising materials and agency property, and any advertisement that is not in the best interest of public transportation.96 The policy does not prohibit adver- tisements for alcoholic beverages, products related to human reproduction/sexuality, and adult-oriented products, or political advertising, nonprofit advertising, unappealing or garish ad designs, and vulgar or offen- sive content. New Jersey Transit cited only one advertisement that was rejected; the ad directly competed against sev- eral New Jersey Transit bus routes. The agency has never been sued over a controversial advertisement. Los Angeles Department of Transportation The LADOT solicits advertisements for bus spaces. It currently has a policy in effect that does not limit its 96 See App. B for an example of New Jersey Transit’s policy. advertising space to commercial advertising. The policy restricts advertisements for alcoholic beverages, tobacco products, and adult-oriented products, as well as politi- cal advertising, and vulgar or offensive content. The policy does not prohibit advertisements for products related to human reproduction/sexuality, nonprofit ad- vertising, and unappealing or garish ad designs. The evaluation of the advertising content for display is con- ducted by a contractor. The contractor reviews the con- tent of the submitted advertisements and accepts or rejects each advertisement based on LADOT’s written policy. The agency has never been sued over a controversial advertisement. However, LADOT stated that it occa- sionally deals with issues regarding free speech. The agency has never dealt with legal issues concerning vague policy terms in the context of evaluating content. Moreover, the agency has never dealt with the issue of transit officials having too much discretion in the selec- tion process, nor has LADOT ever amended its adver- tisement policy as a result of any lawsuits filed against it. When asked about the type of forum classification it considers its advertising spaces to be, the agency re- sponded that its spaces are classified as designated pub- lic forums. When asked how its policy compared to those of other transit agencies, LADOT responded that it considers its policy to be minimally restrictive on speech contained in advertisements. LADOT stated that the most challenging issue it faces is interpreting the policy through a subjective manner in the context of approving advertising content for display. When asked about its best practices, the agency stated that hiring a contractor was important. In addition, LADOT considered performance standards and revenue expectations to be essential elements of its advertising policies. Southeastern Pennsylvania Transportation Authority SEPTA solicits advertisements for bus, train, trolley system, station, and billboard spaces. SEPTA has a written advertisement policy in effect, and the policy does not limit advertising to commercial advertising. SEPTA currently restricts advertisements for tobacco products, advertisements for firearms, and advertise- ments that contain vulgar or offensive content. The policy does not restrict ads for alcoholic beverages, products related to human reproduction/sexuality, and adult-oriented products, or political advertising, non- profit advertising, and unappealing or garish ad de- signs. During the process for evaluating the content of the advertisements, SEPTA’s senior advertising specialist reviews and approves the submitted advertisements for display. In deciding whether to accept or reject an ad- vertisement, SEPTA will consider whether the ad is offensive to the public or displays graphic violence. Ap- plying this standard to a specific example, SEPTA pre- viously rejected an advertisement for a malt liquor.