First Amendment Violated by Refusal to Display Advertisement with Nickname of NYC Mayor Rudy Giuliani on Buses

BUS ADVERTISEMENT CONTAINED MAYOR GIULIANI’s NICKNAME

The Second Circuit has affirmed the district court’s grant of preliminary injunctive relief against the Metropolitan Transportation Authority (MTA) of New York City in a case involving Section 50 of the N.Y. Civil Rights Law. The district court had found that New York Magazine showed a substantial likelihood of success on its claim that MTA violated the First and Fourteenth Amendments to the U.S. Constitution by refusing to display on its buses an advertisement for New York Magazine that contained the nickname “Rudy” of New York City Mayor Rudolph Giuliani. (New York Magazine, a division of Primedia Magazines, Inc. v. MTA and The City of New York, Docket Nos. 979511, 979519, United States Court of Appeals for the Second Circuit, 1998 U.S. App. LEXIS 1452, January 22, 1998.)

MTA STOPPED SHOWING BUS ADVERTISEMENT

MTA stopped showing New York Magazine’s advertisement after being notified that the Mayor objected to the advertisement as a violation of his rights under Section 50 of the New York Civil Rights Law. The district court enjoined both defendants (i.e., MTA and the City of New York) from refusing to display the ad. (The order of the district court’s order against NYC was vacated.)

CHALLENGED ADVERTISEMENT

At issue in this case was whether MTA, a public benefit corporation created by the State of New York, may refuse to display on its buses an ad that refers by first name to NYC Mayor Giuliani, based on MTA’s belief that the ad violates Section 50 of the New York Civil Rights Law. The challenged ad featured the New York Magazine logo and read, “Possibly the only good thing in New York Rudy hasn’t taken credit for.”

FACTS WERE UNDISPUTED

The parties do not dispute the material facts. New York Magazine is a weekly publication distributed throughout New York City and elsewhere. It regularly and often carries news reports and political commentary regarding NYC, its politicians, and other public figures, as well as other features and stories of general interest. MTA is a public benefit corporation created in 1965 by New York State law that owns and operates the majority of the public buses in New York providing daily local transportation. MTA raises revenue for its operation, in part, by leasing advertising space on the buses; it solicits advertisers and enters into contractual agreements for lease of its advertising space through an agent, Transportation Displays Incorporated (TDI). In September of 1997, TDI, on MTA’s behalf, and New York Magazine entered into a contract [the “Agreement”]. MTA agreed to display the ad, as part of a series of three, on the sides of 75 of its buses, and New York Magazine agreed to pay $85,000 for the series. The ad was to run from just before Thanksgiving to December 31, 1997, and possibly for some time during January, 1998. The Agreement provided that–-

“all advertising copy is subject to approval of TDI and the Transportation Facility concerned as to character [and] text . . . .”

New York Magazine agreed to “indemnify and save harmless TDI and [MTA] against any liability to which [they] may be subjected by reason of the advertising required under this contract.”

New York Magazine provided TDI 75 copies of the ad before November 15, 1997, in accordance with the Agreement. Neither TDI nor MTA objected to the ad at that time, and MTA began posting the ad around November 24, 1997, according to schedule. At some point in the following week, Mayor Giuliani’s office called MTA and asked that the ad be removed, objecting to the use of the Mayor’s name to promote a commercial product, claiming this violated Section 50 of the New York Civil Rights Law.

Section 50 provides that –-

“A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, . . . is guilty of a misdemeanor.” N.Y. Civ. Rights Law Section 50 (McKinney 1997)

Section 51 provides that –-

“any person whose name, portrait or picture is used within this state for advertising purposes or for the purposes of trade without . . . written consent . . . may maintain an equitable action in the supreme court of this state against the [party] so using his name, portrait or picture . . . and may also sue and recover damages for any injuries sustained by reason of such use . . . .” Id. Section 51 (footnote omitted).

The statute provides that the jury may award exemplary damages in its discretion if the defendant violated Section 50 knowingly.

MTA’s ADVERTISING ACCEPTANCE STANDARDS

MTA adopted standards governing its acceptance of advertising by a board resolution dated March 24, 1994, and amended those standards effective September 30, 1997 [the “Standards”]. The Standards impose no restriction on political speech. The Standards bar the display of any ad that “violates New York Civil Rights Law Section 50.” (Standards Section (a) (vii) (1994).) The Standards also set forth procedures by which ads may be reviewed for compliance, requiring the MTA contractor (here, TDI) to review every ad to see if it falls within a prohibited category. If the contractor believes a submitted ad violates the Standards, the contractor must give the advertiser a copy of the Standards and notify the advertiser that the ad has been determined to violate the Standards, the reasons for that determination, and that the advertiser has a right to request a prompt review. MTA concedes that TDI failed to follow these procedures as to the challenged ad.

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The following section includes the full-text, or excerpted portions, of articles on Advertising and the First Amendment which originally appeared in Advertising Compliance Service™:

• Article #1: Advertising and First Amendment: Rudy Giuliani and Bus Ads.
• Article #2: Advertising and First Amendment: Court Rules on Commercial Advertising or Promotion Definition under Lanham Act.
• Article #3: Advertising and the First Amendment: Mastercard Sues Ralph Nader Over Priceless Truth Ad for Alleged Infringement.
• Article #4: Advertising and the First Amendment: Hyperlinks, Mouseover Text and Metatags.
• Article #5: Auto Insurers Attack NY Insurance Law Using First Amendment.

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