Next Stop Censorship: A Facial Challenge to the Metropolitan Transportation Authority's Newly Adopted Advertising Standards
Garvey, Michael J., St. John's Law Review
The New York Metropolitan Transportation Authority (the "MTA") recently adopted new rules allowing it to control the content of a wide array of advertisements displayed on its properties. The new rules permit the MTA to reject certain controversial advertisements upon a determination by an MTA official that the advertisement falls into one of six broad categories. Before the new standards were adopted, the MTA's only criteria for accepting advertisements were that the advertisements not be obscene or false. Since it commenced selling advertising space, the MTA has, in fact, displayed numerous political and noncommercial advertisements.1
This Note examines the constitutionality of the MTA's advertising standards and concludes that they are facially violative of the First Amendment.2 Part I details the newly adopted standards and the procedure by which the MTA intends to implement them. Part II establishes that the MTA is a state actor and therefore is required to comport with the First Amendment. Part III asserts that the MTA advertising standards effectuate a prior restraint on protected speech and therefore are subject to a facial constitutional attack. Part IV applies the public forum doctrine to the MTA's advertising spaces; this section determines that courts are divided as to the nature of the limited public forum, especially as applied to advertising spaces managed by government agencies. Part V examines the facial constitutionality of the standards in the context of both a public and non-public forum. If a court determines that the advertising spaces on MTA properties are limited public fora, the standards will be found to be facially unconstitutional.
1. THE NEW MTA ADVERTISING STANDARDS
A. Content and Context Restrictions
On September 30, 1997, the MTA enacted new advertising standards giving it substantial discretion over the content of advertisements it chooses to display.3 The old standards prohibited advertisements that were obscene or false.4 The new standards were promulgated in response to numerous complaints the MTA had received about its advertisements.5 The MTA designed six new categories of advertisements that could be constitutionally prohibited.6
The 1997 standards added six new categories of advertisements that may be rejected by the MTA. In addition to being able to reject obscene or false advertisements, the MTA may now reject an advertisement that (a) "contains an image of a person, who appears to be a minor, in sexually suggestive dress, pose, or context"; (b) is, or contains information in it that is, "directly adverse to the commercial or administrative interests of the MTA or is harmful to the morale of MTA employees"; (c) "contains images or information that demean an individual or group of individuals on account of race, color, religion, national origin, ancestry, gender, age, disability or sexual orientation"; (d) "contains images. . . that are so violent, frightening, or otherwise disturbing as to be harmful to minors"; (e) "promotes an escort service, dating service, or sexually oriented business"; or (f) "contains images or information that would be deemed by a significant segment of the public to be patently offensive, improper, or in bad taste."7 The advertising standards do not define any of the various terms of art used in these regulations.
B. Approval Procedures
Under the new standards, once an advertiser contracts with the MTA to advertise on its property, the advertiser must submit the advertisement to the MTA advertising contractor so that the contractor may determine whether the advertisement falls, or may fall, within any of the aforementioned categories.8 If the contractor makes such a finding, they must notify the MTA.9 If the MTA concurs with its contractor, it has the option of discussing alternate designs with the advertiser and allowing the advertiser an opportunity to submit a revised advertisement. …