By Robert M. O'Neil

One would hardly have expected to find New York City Mayor Rudy Giuliani on the right side of a commercial speech issue. The person who not so long ago ordered New York magazine's satirical ads about himself removed from all city buses seemed incorrigible.

Yet in the latest round, the mayor's position represents at least a draw and maybe even better. And for once he managed to avoid a federal court judgment against the city on First Amendment grounds.

People for the Ethical Treatment of Animals (PETA) has become ever bolder of late in its efforts to raise human consciousness about the plight of simpler creatures, especially those raised on farms for human consumption and nurture. Soon after Giuliani announced that he had been diagnosed with prostate cancer, PETA launched a new campaign at his expense.

As a crude parody of the dairy industry's “Got Milk” promotion, thousands of posters featured the mayor's face, enhanced by a milk-mustache, strongly suggesting a link between milk consumption and prostate cancer.

Citing the absence of any reliable medical evidence to support such a nexus, and lamenting what seemed uncommonly poor taste, the mayor's office took PETA to task and suggested the ads be dropped.

Meanwhile, many parts of the advertising community expressed views similar to the mayor's. The associate creative director of DDB, for example, found the posters “kind of exploitive and mean-spirited,” while others in the agency world expressed doubts whether, apart from poor taste, the ads were even an effective medium through which to convey PETA's dubious message.

A former executive director of George magazine added that “they've even managed to make Rudy Giuliani sympathetic.”

Thus the saga ended, without resort to court or official action in what seems a clear victory for Mayor Giuliani. The recent episode has a fascinating precursor.

In 1996, an anti-abortion group bought space in Philadelphia subway stations for billboards that proclaimed: “Women who choose abortion suffer more and deadlier breast cancer.”

Federal health officials at once attacked the ad as misleading and inaccurate. Southeast Pennsylvania Transportation Authority (SEPTA) officials then removed the billboards. The sponsoring group, Christ's Bride Ministries, sued in federal court claiming a breach of its freedom of expression.

A district judge sided with SEPTA, finding no evidence of a public forum, and accepting the transit authority's claimed right to regulate content in its stations.

The U.S. Court of Appeals for the Third Circuit reversed, however, ruling that the billboard space was the relevant medium and did constitute a public forum for speech purposes.

The Supreme Court declined to review the case early last year, and a few months later SEPTA agreed to pay $165,000 to Christ's Bride Ministries, thus ending the litigation if not the controversy.

That case should give pause to other transit authorities faced with similar quandaries; indeed, the outcome in the appeals court is entirely consistent with the resolution of the suit that New York magazine filed and won a couple of years ago, when Mayor Giuliani decreed the removal from all city buses of a satirical message at his expense.

Actually there has been a sequel in the on-going struggle between PETA's bovine-protection program and New York City. Last summer, PETA sought to enter a graphic animal-rights display in New York's city-wide “CowParade” exhibit.

PETA's entry would have shown a dismembered cow, each piece containing a statement, such as “cattle are castrated and dehorned without anesthesia” and “a lot of times the man skinning the cow finds that it is still con-scious.”

The city refused PETA's application, along with others it deemed unsuitable (for example, a cow dressed to resemble a Hasidic Jew, and a cow with a rubber “stamp of approval,” which seemed a thinly veiled attack on the mayor.)

PETA then filed suit in federal court, seeking vindication of its expressive interests. The district judge described the case as a novel one, presenting a “unique question: whether a cow is a forum or a forum a cow, and then where and when such a cow forum may be found.”

New York Magazine v. Metropolitan Transit Authority, 136 F.3d 123 (2d Cir. 1998).