Karma reasons for concrete message



    Posts: 1247
  • Darwins +89/-0

I like that some of you are so gung ho about the awesomeness of free speech but seem wholly unprepared to grapple the obvious fact that in no place is freedom of speech absolute.  That HAL would claim that Quesi is somehow "against" free speech because she doesn't share his simplistic view is actually kind of laughable.

When we're discussing free speech, the thing to remember is this.  There are different spheres of life in which restrictions to free speech might apply.  I don't think it's all that obvious that this sign should be legally protected speech.  To begin with, the Supreme Court has long recognized that there is a difference between things like say, billboard ads and newspaper ads.  Going back to Packer Corporation v. Utah (1932), the court recognized that:

Billboards, street car signs, and placards and such are in a class by themselves. They are wholly intrastate, and the restrictions apply without discrimination to all in the same class. Advertisements of this sort are constantly before the eyes of observers on the streets and in street cars to be seen without the exercise of choice or volition on their part. Other forms of advertising are ordinarily seen as a matter of choice on the part of the observer. The young people as well as the adults have the message of the billboard thrust upon them by all the arts and devices that skill can produce. In the case of newspapers and magazines, there must be some seeking by the one who is to see and read the advertisement. The radio can be turned off, but not so the billboard or street car placard. These distinctions clearly place this kind of advertisement in a position to be classified so that regulations or prohibitions may be imposed upon all within the class. This is impossible with respect to newspapers or magazines.

With mass transit systems in particuar, the Court has ruled (in Lehman v. Shaker Heights (1974)) that mass transit systems are not public forums and therefore have the authority to regulate what sorts of advertisements they display.  Right now, there's a little flap over Santa Monica's policy, for example.  They used to run ads for AIDS Walk LA but they've rejected them this year, citing a policy against non-commercial advertisements that they'd had on the books but had not been enforceing until this year.  The policy and the decision are designed to avoid controversies like the one in New York or San Francisco.  Designing a policy that would allow for public service messages but prevent ads like this from running is apparently kind of tricky.  So no, there is not some blanket freedom of speech protection for ads on the subway.  If New York had a policy like Santa Monica's, the ad could have probably been rejected without much hope for a court challenge.

In examining this case in particular, I think that it's helpful to separate this advertisement from the violence that's taking place in the Middle East and North Africa right now.  This ad isn't about that.  This ad predates that.  The city of San Francisco unsuccessfully tried to block the same ad a little while back.  This ad is about the Israeli-Palestinian conflict.  It calls Palestinians savages specifically, while also suggesting that Muslims or perhaps Arabs in general are savages.  This ad is demeaning and offensive.  And as such, I don't see why the transit authority, recognizing the special nature of these sorts of public displays, shouldn't reject the ad.

Basically this:

We don't see sexually explicit advertisements on the subways or buses, (which serve as school transportation to more than one million school kids per day) because there are guidelines. 

So they don't just take "anybody's money."  They have a criteria of what is acceptable.  And if an ad which depicts an ethnic minority as "savage" falls within the acceptable criteria, it is time to revise the criteria.


Uh, yea it is, they seek it out to get transportation. Duh.

I don't think you understand what mass transit really is for people like myself that rely on it.  In every place I've ever lived, if you don't own a car then public transportation isn't something you "seek out" in the way that you and I have sought out this forum.  It's something you rely on to get you around town.  Not using public transportation means that you are constricted in where you can live, where you can work or go to school, where you can shop, etc.  The Court recognizes this in Lehman, referring to the commuters as a "captive audience."  Furthermore, this campaign has also bought ads on the sides of buses, which no one needs to seek out to see.


Changed Change Reason Date