September 28, 2012

N.Y. MTA revises advertising standards

At a regularly scheduled meeting, the New York Metropolitan Transportation Authority (MTA) board modified the MTA's Advertising Standards, which were last addressed in 1997.

The modification was prompted by a recent federal court decision that determined that MTA's "no demeaning standard" —  a standard that had prohibited ads containing "images or information that demean an individual or group of individuals on account of race, color, religion, national origin, ancestry, gender, age, disability or sexual orientation" —  was unconstitutional.

In determining how best to respond to the court's decision, the MTA considered limiting the use of ad spaces in and on buses, subways, trains and stations across the board to ads of a commercial nature. However, many board members believed that ad space on the transportation system, in addition to serving as a very important source of supplemental revenues to support transportation, should continue to serve as a vehicle for a wide variety of communications, including ads of a non-commercial nature that express viewpoints on matters of public concern.

Accordingly, the MTA board decided to continue its policy of permitting both commercial and noncommercial advertisements, including ads expressing viewpoints on issues of the day. Of course, paid viewpoint ads contain the views of their sponsors, and the agency wants to make sure that its customers do not confuse them with expression of MTA's views.

To underscore the point, MTA’s revised advertising policy will require sponsors who submit viewpoint ads on political, religious, or moral issues or related matters to include a disclaimer on each such ad that makes this clear. Each such ad will be required to prominently include this disclaimer:

“This is a paid advertisement sponsored by [Sponsor]. The display of this advertisement does not imply MTA's endorsement of any views expressed.”

To be clear, the MTA said it does not believe the First Amendment compels the MTA to open up its ad spaces in this way to a wide range of expressive communications. MTA could, for example, adopt a narrower commercially oriented ad policy, one that limited the range of ads it will display to those selling a product or service, and by doing so, avoid having to run demeaning or divisive ads such as the AFDI ad that resulted in litigation. But, the MTA, for decades, has permitted its ad spaces to serve a broader communicative function than mere commercial advertising, and the board, reaffirms that tradition of tolerating a wide spectrum of types of ads, including ads that express views on a wide range of public matters.

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