First Amendment Violated by Refusal
to Display Ad with Nickname of N.Y.C. Mayor
Rudolph Giuliani on Buses

THE FIRST AMENDMENT

The Second Circuit noted that to state a claim under 42 U.S.C. Section 1983, “a plaintiff must allege (1) that the challenged conduct was attributable at least in part to a person acting under color of state law, and (2) that such conduct deprived the plaintiff of a right, privilege or immunity secured by the Constitution or laws of the United States.” (See Eagleston v. Guido, 41 F.3d 865, 876 (2d Cir. 1994) (quoting Dwares v. City of New York, 985 F.2d 94, 98 (2d Cir. 1993)). The only question presented, said the Court, is whether MTA’s conduct in removing the ad from the exterior advertising space of its buses deprived New York Magazine of a First Amendment right.

The district court found that the ad–while it contained political commentary–constitutes commercial speech. It then determined that the advertising space at issue is a designated public forum, so restrictions on speech made there must be subject to the strictest available scrutiny for the kind of speech at issue. The district court then applied the test in Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 566, 100 S. Ct. 2343, 2351, 65 L. Ed. 2d 341 (1980), and found that the government interest in upholding Section 50 was not directly advanced by discontinuing the ad, since Section 50 would not actually bar the ad.

The Second Circuit concluded that the advertising space on the outside of MTA buses is a designated public forum. Its reasoning:

“Given that MTA’s Standards allow both commercial and political speech, and given that the Standard that MTA used to justify discontinuing the Advertisement supports a legal characterization of MTA’s action as regulatory, we conclude that the advertising space on the outside of MTA buses is a designated public forum.”

PRIOR RESTRAINT

Having found that MTA intended to designate its advertising space as a public forum, the Second Circuit reviewed MTA’s actions, which it took pursuant to regulations, as an exercise of a prior restraint. The Court noted-–

“Although the Supreme Court has indicated that commercial speech may qualify as one of the exceptions to the bar on prior restraints . . ., we see no reason why the requirement of procedural safeguards should be relaxed whether speech is commercial or not. We consider prior restraints to be particularly abhorrent to the First Amendment in part because they vest in government agencies the power to determine important constitutional questions properly vested in the judiciary. . . . This case aptly demonstrates that where there are both commercial and political elements present in speech, even the determination whether speech is commercial or not may be fraught with ambiguity and should not be vested in an agency such as MTA. While the Advertisement served to promote the sales of a magazine, it just as clearly criticized the most prominent member of the City’s government on an issue relevant to his performance of office, subtly calling into question whether the Mayor is actually responsible for the successes of the City for which he claims credit. While we accord somewhat lowered scrutiny to government restrictions on the right to propose commercial transactions, . . . protecting the right to express skeptical attitudes toward the government ranks among the First Amendment’s most important functions.”

Nevertheless, the Second Circuit pointed out that Central Hudson test “supports continuing to require procedural safeguards for prior restraints even where commercial speech is involved.” That test, said the Court, requires it to consider “whether the regulation . . . is not more extensive than is necessary to serve [the asserted governmental] interest.” Concluded the Court:

“If [the regulation] is more extensive than necessary, the government’s action fails. A prior prohibition of the Advertisement is certainly more extensive than is necessary to serve the governmental interest asserted here, particularly where this court found, when denying MTA’s motion for a stay, that requiring MTA to display the Advertisement would not result in irreparable harm to MTA. In other words, we have already decided that applying Section 50 before the Advertisement is displayed is more extensive than necessary. Because the advertising space is a designated public forum, MTA may not enforce Section 50 through its advertising policy any more than a government agency, acting without procedural safeguards, could screen advertisements for violations of Section 50 that private bus companies wished to display. Section 51 already provides remedies for violation of Section 50, which may be asserted by the person who feels his rights are affected. If Section 50 does protect Mayor Giuliani from the use of his name in this Advertisement, he may seek redress under Section 51; he will not be awarded injunctive relief absent a showing that he will be irreparably harmed without it. Refusing to display the Advertisement is also more extensive than necessary to further MTA’s corollary interest in avoiding litigation; that interest is adequately furthered by the indemnity clause of the Agreement. In fact, in pursuit of the interest in avoiding litigation, it is clear that MTA would have been wise to rely on its indemnity clause, seeing that we write precisely because imposing a prior restraint has failed to further that interest.”

LAWYER’S REFERENCE SERVICE

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.)

See also:

Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 566, 100 S. Ct. 2343, 2351, 65 L. Ed. 2d 341 (1980).

Eagleston v. Guido, 41 F.3d 865, 876 (2d Cir. 1994) (quoting Dwares v. City of New York, 985 F.2d 94, 98 (2d Cir. 1993).

N.Y. Civ. Rights Law Section 50 (McKinney 1997).

42 U.S.C. Section 1983.

Page 1 | Page 2

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: 1st Amendment Violated by Refusal to Display on Buses Ad with Nickname of NYC Mayor Rudy Giuliani: Second Circuit.
• Article #2: Commercial Ad Defined.
• Article #3: Ralph Nader Parody Case.
• Article #4: 1st Amendment and Hyperlinks, Mouseover Text and Metatags.
• Article #5: Commercial Speech Case.

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