By Richard T. Kaplar

New York City's Metropolitan Transit Authority was slapped with a lawsuit in March after it refused to display ads in subway cars that portrayed subway commuting as overcrowded and inhumane.

The suit was filed in U.S. District Court in Manhattan by the Regional Plan Association and the New York Public Interest Group Straphangers Campaign, which are fighting for increased transit financing and subway improvements.

The ad features a picture of a subway car jammed with standing commuters. The headline reads: "With livestock it's called animal cruelty. With people it's called a morning commute."

A second ad by the groups shows a modern subway train and station but notes: "Unfortunately, it's not in New York." The MTA allowed the second ad to run after initially rejecting it. The interest groups want the transit agency to run both ads.

"We are just seeking public support to improve mass transit," said H. Claude Shostal, president of the Regional Plan Association. The groups claim the MTA violated their First Amendment rights by refusing the "livestock" ad. An MTA spokesperson declined to comment.

In a letter rejecting the ad, the MTA told the groups that the ad "is directly adverse to the commercial interests of the MTA, in that it is highly critical of the MTA's performance and its current mass transit services."

This is the second time the authority has found itself in court over transit ads in recent years. In late 1997 New York magazine sued the MTA after the transit agency pulled bus ads at the request of New York Mayor Rudolph Giuliani. The ads touted New York magazine as "Possibly the only good thing in New York Rudy hasn't taken credit for."

In that case, the U.S. Court of Appeals for the Second Circuit agreed with District Judge Shira Scheindlin that the ads merited First Amendment protection because their content was "a hybrid of commercial speech and political satire." The U.S. Supreme Court declined to hear the case, thereby letting the decision stand.

The New York magazine ruling could have implications for the commuter ad case. In 1997 the MTA tightened its advertising rules, allowing it to reject ads it deems offensive to a significant portion of its ridership or damaging to the agency itself. Presumably the subway commuter ad falls under the latter category.

But as constitutional scholar Robert M. O'Neil pointed out in the wake of the New York magazine flap:

"Should a test case now come before Judge Scheindlin, the transit authority should not fare well. Especially suspect, under her ruling in the Giuliani case, would be the agency's claimed power to reject ads that might be 'damaging' to its own image."

In 1974 the U.S. Supreme Court ruled that transit agencies could refuse ads for political candidates even if they carried product ads. An Ohio district court reached such a decision in 1998, ruling that Cincinnati buses are not a public forum for political issue advertising. At about the same time, however, the First Circuit struck down a Boston transit policy barring "offensive" ads.

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