Next Stop: Transit Advertising and the First Amendment

About a month ago I went out of my way to take a photo of an advertisement in one of the Chapel Hill town buses. Normally I glance at these interior ad placards and give them little thought. This time was different. I had been searching for this advertisement for weeks and finally found it. I already knew what the ad looked like. It had appeared in the local news as one of the images symbolizing a free speech debate being waged in Chapel Hill. The ad had prominent pictures of a Palestinian man and child and an Israeli man and child and the words, “Join with us. Build peace with justice and equality. End U.S. military aid to Israel.”

When the Presbyterian Church of Reconciliation placed the advertisements in 98 buses this past summer, opponents of the church’s message quickly organized and voiced their disagreement at several recent town council meetings. There were plenty of supporters of the message who attended these meetings as well. And then there were others, like myself, who observed quietly by the side, curious as to how this charming, quintessentially southern town would resolve this tense and upsetting free speech debate.

Chapel Hill isn’t alone in this experience. There are similar debates happening across the country. Subway ads likening Muslim radicals to savages caused an uproar in New York City, and Washington, D.C.’s Metro system was recently told by the U.S. District Court for the District of Columbia to accept that very same ad. The Sixth Circuit U.S. Court of Appeals found that Detroit’s regional transit agency did not violate the First Amendment when it refused an advertisement reading, “Fatwa on your head? Leaving Islam? Got questions? Get answers!”

The U.S. Supreme Court addressed the transit ad issue once, in Lehman v. Shaker Heights (1974). The Court found a ban on political candidate ads constitutional because the city had not created a public forum and had “limited access to its transit system advertising space in order to minimize chances of abuse, the appearance of favoritism, and the risk of imposing upon a captive audience.”

In Chapel Hill, debate over the Church of Reconciliation ads reached a fever pitch by mid-October. The town hosted a public forum on the matter and released a statement clarifying its policy on issue, religious, and political advertisements, noting that all such ads were accepted so long as the advertisers included contact information in the ads. Discussion then turned to whether the town should change its policy to prohibit ads like those posted by the Church of Reconciliation. The nearby city of Raleigh has a policy in place that bans political candidate and political issue advertisements on its buses. Should this be the model for Chapel Hill as well?

Then the town held a business meeting to discuss the transit policy. But here’s where things start to fall apart. As it turns out, the town’s policy permitting issue, religious, and political ads isn’t actually the town’s policy. Somewhere along the line there was a mix-up, and the policy the town had been enforcing was not the policy that was approved; it was a draft of the approved policy. In fact, the approved policy did ban “religious” and “political and social issue” ads. In late October the ACLU of North Carolina entered the debate with a letter to town attorney Ralph Karpinos. In its letter the ACLU contended that Chapel Hill’s acceptance of political ads classifies the bus ad placards as a public forum. The ACLU added that the town has operated under a “laissez-faire” advertising policy and therefore barring the Church of Reconciliation’s ads would be “fundamentally unfair.” The letter went on to praise the town’s “long-standing tradition of welcoming dialogue, including on its transit system.”

For the moment, the town’s policy has been suspended and no new advertisements are being accepted. The town council will meet again Dec. 3 to discuss whether to re-affirm the policy it actually had adopted, to amend the policy to be what the town thought its policy was, or to adopt a different policy. In the meantime, the question of whether the town should and will accept issue, religious, and political ads remains.

By no means am I a First Amendment absolutist. But it’s hard to ignore the power of ideas and the impact a single advertisement has had on this college town. Those who are opposed to the advertisement have made a compelling case at these public forums, opening up about their relatives who perished during the Holocaust and the pain caused by the Church of Reconciliation’s ad. No free speech supporter can turn his or her back on such emotional and personal appeals. But a transit advertisement policy that accepts controversial ads also has the potential to do so much good – to inspire robust public discussion about U.S. foreign policy, to remind us that there are large communities of people who continue to struggle with the Holocaust every day, and to encourage tolerance.

When I started in the mass communication Ph.D. program at UNC-Chapel Hill just over a year ago, I knew I was at the best place to study media law. I spend my days knee-deep in the First Amendment, lucky enough to take courses with some of the best media law scholars and join them for workshops and lunches. But events and classes can’t begin to rival the First Amendment in action. This transit advertising debate has captivated me, and it’s captivated this town. This is what the First Amendment is all about. The policy itself is interesting enough, but to go to the town council meetings and see the town turn out to talk about free speech – wow! Many who are engaged in this debate aren’t familiar with strict or intermediate scrutiny, they don’t know Shaker Heights, and forum analysis is of little interest. They just care about exercising their First Amendment rights, and right now they are exercising them like never before.

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