New York’s Metropolitan Transit Authority (MTA) has backed down once again after initially taking a position restrictive of free speech, when it refused to post advertisements critical of subway crowding. Proponents of the advertisements -- the Straphangers Campaign, a subway riders advocacy group, and the Regional Plan Association, a group of bankers, planners, and builders -- sought to place posters in nearly 2,300 subway cars.

    One proposed poster showed a jam-packed subway car and likened the crowding to cattle-car conditions and "animal cruelty." The poster proclaimed: "With livestock it’s called animal cruelty. With people it’s called a morning commute." Beneath the headline, the ad suggested that subway overcrowding could be reduced and wait times shortened by bringing more subway cars into the system and by running trains more often. The advertisement urged riders to "fight for better transit" and to "send the politicians a message loud and clear." It also called for other specific improvements. A second poster showed a state-of-the-art subway station and train with the headline: "It’s modern. It’s reliable. Unfortunately, it’s not in New York."

    MTA initially declined to post either ad, stating that the ads violated an MTA rule against posting material directly adverse to the Authority’s commercial or administrative interests. It later relented and allowed the first ad. On March 17, 2000, after the New York Civil Liberties Union sued MTA on First Amendment grounds for refusing to place the second ad, MTA decided to allow the first ad as well. The advertisements appeared for one month in 2,280 subway cars, about 40 percent of the fleet.

    MTA’s latest defeat came on the heels of its earlier decision not to post a New York magazine ad that said New York magazine was one of the few things in New York for which Mayor Rudolph Giuliani had not taken credit. The city lost that lawsuit on First Amendment grounds when the U.S. Court of Appeals for the Second Circuit held that the advertising space located on the outside of New York’s Metropolitan Transit Authority buses is a designated public forum. That court declined to decide whether the speech at issue was commercial speech. Nonetheless, the court declared that there is "no reason why the requirement of procedural safeguards should be relaxed whether the speech is commercial or not." New York Magazine v. Metropolitan Transit Authority, 136 F.3d 123 (2d Cir. 1998), cert. denied, 119 S. Ct. 68 (1998).

    Meanwhile in 2000, the National Abortion Federation (NAF) prevailed in a legal challenge brought against similar actions by the Metropolitan Atlanta Rapid Transit Authority (MARTA). National Abortion Federation v. Metropolitan Atlanta Rapid Transit Authority, 112 F. Supp. 2d 1320 (N.D. Ga. 2000). MARTA had rejected two pro-choice advertisements, based on its policy prohibiting advertising on matters of public controversy.

    Like the New York Magazine court, a federal trial court in Atlanta held that MARTA’s advertising space constituted a limited public forum because MARTA had permitted advertising on subjects ranging from AIDS awareness to racial and religious tolerance to homosexual rights. The court then strictly scrutinized MARTA’s rejection of the NAF ads, and found that MARTA’s asserted interest in protecting its employees and passengers from violence was too remote because MARTA failed to present any evidence that the ads provoked the threat of violence. Thus, the court ruled that MARTA may not reject NAF’s ads based upon their content.