Pro-pot ads protected by First Amendment?

[235clear]

Greetings and salutations, SDMB-folk.

I’ve been lurking around here for years, and found much enlightenment on these pages. (OK, I confess, I always read The Pit first. Doesn’t everybody?) Normally, there’s already a conversation going about most everything I have questions about, so I’m content to just read along and live vicariously. But I’m currently engaged in this debate on another board, and I need some help from you guys, the Smartest People on Earth (or anyone else who’d like to jump in, for that matter).

According to this story in The Washington Times, advertisements advocating the legalization of cannabis will soon be placed in ten Metro subway stations by a nonprofit group, Change the Climate, Inc. (Metro reserves 10 percent of its advertising space for nonprofit groups.)

DC council member Jim Graham is quoted as saying, “These ads are intolerable, and we need to review our policies so that First Amendment considerations are not allowed to compel us to accept this type of advertising.”

Given that Metro does reserve advertising for other nonprofit groups, does Change the Climate, Inc. indeed have a First Amendment argument?

My esteemed colleague contends that the First Amendment does not confer the right to use public property for ‘free speech’, that it only limits the ability of Congress to make laws abridging free speech, and so does not apply in this case.

It seems to me that the DC city council, by making policy governing public advertisement, has taken upon itself the mantle of ‘the (local) congress’. It should therefore follow the same principles governing the US Congress, and ‘make no law…abridging the freedom of speech’, especially given the specific reservation for nonprofit groups already in place. (Is this a defendable position, or should I abandon it in favor of…what?)

Your opinions in support of either position would be greatly appreciated.

On a more personal note, I think that councilman Graham’s comment just reeks to high heaven of self-serving selectiveness. ‘Intolerable’? Uh huh.

[cheddarsnax]

More upsetting than anything you mention in your post is this:

Mr. Graham, Ward 1 Democrat, said he believes in the First Amendment, "but we are being carried to limits here that no one can tolerate. “When it leads us down this kind of path, we must find another option,” he said of the ads.

We are being carried to limits that no one can tolerate? What limits? Advocating changes in the law? That is not intolerable. That is a democracy. You cannot possibly claim you believe in the first amendment if you’re going to attempt to silence beliefs you disagree with.

[capacitor]

Ahem, Drug War, ahem. Like it or not it is still going on.

[Ramanujan]

the ignorance of this country with regards to the effects of drugs and the way anyone who advocates talking about the subject reasonably is crucified is something that has sickened me for a while now.

lying to the public, advertising falsely, and perjuring are not part of free speech. yet the anti-drug use crowd has relied heavily in misleading the public and keeping them ignorant and willing to remain that way to keep reality from stomping all over their righteousness. to me, what’s intolerable is that people can’t learn about what studies actually show and what statistics actually mean, but they can be told not to question the idea that “drugs are bad, mm kay.”

now that my diatribe has finished, i’ll address the topic. sorry for my digression. if the metro weren’t a public company there would be nothing public about its advertising space. they have a right to sell ads to whomever they want. if the metro wants to sell ads to a pro-legalization group, they have that right. advocating breaking the law is not something that is protected by free speech, but advocating changing the law (no matter which law) is. it can be advertised anywhere someone who owns the ad space wants to put it. the government can’t intervene to stop it (within the law, they can apply pressure to persuade).

if the metro doesn’t want to publish the ads, though, i don’t know how their policy to reserve that 10% for non-profits prevents them from telling the pro-legalization crowd to stick it.

it still amazes me is how many people despise the idea that anyone but them might have a right to speak freely. “limits…that no one can tolerate” is basically code for “i think americans should not have the right to free speech, because it lets them say too many things i disagree with.”

if they can’t get the ads through, they should publish ads that say “we wanted to publish truthful statements, but your government wouldn’t let us, so you get this instead.”

[DMC]

An ad campaign aimed at making marijuana legal is indeed protected by the First Amendment. Obviously, magazines, newspapers, and television networks, all being private entities, can choose not to show them, but the ad campaign itself if protected.

I’m assuming the Metro is run by the local government. If so, then depending on their initial guidelines for allowing non-profits to put up their posters, they probably should allow this. If they have guidelines that prevent groups from advocating currently illegal activities, then they can probably pass until someone challenges that guideline.

While it’s a bit murky, as I wasn’t aware that government owned transportation services were required to accept any sort of advertising from anyone, it certainly shouldn’t be shot down by come council member who happens to not like the message.

In other words, the metro may or may not be required to allow the posters, but I think Mr. Graham has zero say in the matter.

[coffeecat]

The Honorable Mr. Graham is an imbecile. My cat knows more about the First Amendment than he does. The whole point of the First Amendment is to protect unpopular ideas. Popular ideas don’t need its protection, because no one would try to suppress them.

[Bricker]

coffeecat: perhaps you should ask your cat whether the First Amendment does indeed require Metro, which is not run by the DC government, to accept the ads - an analysis that you do not supply above.

By inference, of course, you suggest that Metro must accept the ads, since you attack the person suggesting the contrary position as an imbecile, but perhaps you meant he was an imbecile only insofar as his general philosophy of what the First Amendment would do, and not his specific application of it to this case.

In any event, it’s unlcear to me if you’re taking a specific position on Metro on just a general one on the First Amendment.

• Rick

[Revtim]

These ads propose a political position; a changing of law, not the breaking of law. I have no doubt in my mind that they should be protected.

[235clear]

capacitor:

Ahem, Drug War, ahem. Like it or not it is still going on.

Indeed it is…on both sides.

Ramanujan:

if the metro doesn’t want to publish the ads, though, i don’t know how their policy to reserve that 10% for non-profits prevents them from telling the pro-legalization crowd to stick it.

Ah, here’s a sticky spot. In my first reading of the article, I apparently overlooked a pertinent point: Councilman Graham is also chairman of the Board of Directors of Metro. I was under the impression that he would have the city council make ‘policy changes’, but on rereading, he seems to be calling for Metro’s Board to revise their policy. His motives are still deplorable, in my view, but there is a great difference.

BTW, I’m in total agreement with your diatribe re ‘forced ignorance’.

DMC:

I’m assuming the Metro is run by the local government. If so, then depending on their initial guidelines for allowing non-profits to put up their posters, they probably should allow this. If they have guidelines that prevent groups from advocating currently illegal activities, then they can probably pass until someone challenges that guideline.

The Metro is run by the city of DC. Change The Climate, Inc. does not advocate illegal activities, only the discussion and possible change of current law.

While it’s a bit murky, as I wasn’t aware that government owned transportation services were required to accept any sort of advertising from anyone, it certainly shouldn’t be shot down by come council member who happens to not like the message.

They aren’t required by law to accept advertising from nonprofits, they have voluntarily set aside a portion of their ad-space for such purpose. Perhaps they didn’t have the foresight to anticipate a request by a pro-legalization group, but unfortunately, as Chairman of the Board, Mr. Graham does have a say in the matter.

Bricker: Do you think that Change The Climate truly has a First Amendment leg to stand on? If not, why not?

According to the article:

Two years ago, Metro officials rejected Change of Climate’s ad campaign but reversed their decision after the American Civil Liberties Union took up the group’s cause, citing the First Amendment’s guarantee of free speech.

Could this have any legal bearing on the current situation?

[El_Zagna]

As Briker poits out, it matters whether the Metro is publically run or privately run. Wouldn’t it be a violation of a private company’s First Amendment rights to require them to post an ad for something they fundamentally do not believe in?

[Hamlet]

For those interested in the law, I would suggest a reading of Lebron v. Washington Metropolitan Area Transit Authority, 749 F.2d 893, which was decided in 1984. In an opinion written by Judge Bork (there’s a blast from the past), the Court hit on many of the issues that are relevant to the discussion here. In the Lebron case, the Transit Authority refused to lease space for advertising to a New York artist, Lebron, who wished to put up a poster that was critical of Ronald Reagan’s administration. He filed suit claiming a violation of the First Amendment.

The body responsible for the regulation of advertisments in the Metro is the Washington Metropolitan Area Transit Authority (WMATA) The Court in Lebron stated:

The WMATA was established through a congressionally approved interstate compact to improve public transportation in the Washington, D.C. metropolitan area. One way in which the Authority raises revenue is by leasing the free-standing dioramas inside subway stations for use as advertising space. WMATA accepts both public service and commercial advertisements, although there is a fee difference based upon the type of advertisement.

The Court quickly found that there was absolutely no question that the First Amendment applied to WMATA, because it had “converted its subway stations into public fora by accepting other political advertising.” They listed some of the prior advertising allowed, which included: pro-nuclear power positions of the Edison Electric Institute, for an anti-abortion group called Birthright of Northern Virginia, for the Rape Crisis Center, and for many religious groups, including the Unification Church and the Founding Church of Scientology.

Once they found that the First Amendment clearly applied, they found that WMATA’s refusal to accept this poster for display because of its content was a clearcut prior restraint on protected speech. “Here, WMATA has by official action prevented Mr. Lebron from using a public forum to say what he wants to say.” The refusal of the poster was clearly, in the Court’s mind, content-based, and thus failed the stricter scrutiny required for First Amendment analysis…

(As a side note, one of the Judge’s who agreed in the outcome of the case was none other than now Supreme Court Justice Scalia. Also as an aside, the Court went into a specific determination of whether the poster was “deceptive,” which would have allowed WMATA to refuse it. They found it wasn’t deceptive.)

I think in light of the Lebron case, WMATA would be hard pressed to argue that they were not, once again, attempting to violate the First Amendment in this case.

[235clear]

bnorton, I stand corrected. The Metro is not run by the city of DC, it is a private company.

However, according to Metro’s history page:

1965
September 8: President Johnson signs legislation he had sought authorizing 25-mile, $431 million rapid transit system capable of future expansion.

1966
November 6: President Johnson signs bill creating Washington Metropolitan Area Transit Authority. Governors of Maryland and Virginia sign November 17 and commissioners of District of Columbia sign November 22.

1972
October 21: President Nixon signs bill authorizing WMATA acquisition of metropolitan area’s four privately owned bus companies.

1974
November 26: President Ford signs amendment to 1974 Urban Mass Transportation Act providing first operating subsidies for transit from Highway Trust Fund.

1975
October 10: District of Columbia begins six-year transfer of $2.2 billion of interstate highway funds for Metro construction.

1976
June 4: President Ford signs bill authorizing creation of Metro Transit Police.

1980
January 3: President Carter signs Stark-Harris bill authorizing $1.7 billion in federal funds to finish Metrorail construction.

1990
October 27: Congress gives final approval to legislation providing additional $1.3 billion in federal funding over eight years for construction of rail system.

2000
February 4: Director of the U.S. Office of Management and Budget announces $25 million for the New York Avenue station in the proposed fiscal year 2001 federal budget. The sum matches the $25 million committed separately by the city and the business community.

Same Day: U.S. DOT Secretary Rodney Slater pledges $259 million in federal funds to build the extension of the Blue Line from Addison Road to Largo. Governor Parris Glendening had already pledged $175 million as the state’s share for the project.

October 2: Federal executive order becomes effective requiring that all federal agencies make full Metrochek benefits ($65 per month) available to all federal employees in the region. Metrochek offers a tax-free benefit to employees who use public transit. General Manager Richard A. White joins federal and state officials at Crystal City station to launch the executive order.
But, yeah, it’s still a ‘private’ bus company.
On preview: Thank you, Hamlet.

[coffeecat]

*Originally posted by Bricker *
**coffeecat: perhaps you should ask your cat whether the First Amendment does indeed require Metro, which is not run by the DC government, to accept the ads - an analysis that you do not supply above.

By inference, of course, you suggest that Metro must accept the ads, since you attack the person suggesting the contrary position as an imbecile, but perhaps you meant he was an imbecile only insofar as his general philosophy of what the First Amendment would do, and not his specific application of it to this case.

In any event, it’s unlcear to me if you’re taking a specific position on Metro on just a general one on the First Amendment.

• Rick **

The federal government founded the Metro, and the federal, state, and local governments support it financially, so I would argue that it is, in fact, a government entity and bound by the First Amendment. (I see on preview that this has already been discussed.) However, if Graham had said that the Metro as a “private” company should choose not to accept the ads, that would not have made steam come out of my ears. His position, though, appears to be that freedom of speech is well and good, so long as it isn’t “carried to limits here that no one can tolerate,” and that is why I attacked him so vehemently.

[coffeecat]

My mistake. The feds founded its predecessor, the NCTA, but the Metro was founded by interstate compact. It makes no difference to the discussion.

[Patty_O_Furniture]

What a smart cat you have!

[coffeecat]

They all are. They just keep a low profile so we won’t find out and put them to work.

[Blalron]

My esteemed colleague contends that the First Amendment does not confer the right to use public property for ‘free speech’, that it only limits the ability of Congress to make laws abridging free speech, and so does not apply in this case

I’ve heard this tired argument over and over. On its face, it seems compelling. However, a quick look at firmly established legal precedent says otherwise. The 5th and 14th amendments prevent executive branch agencies from independently carrying out actions which Congress can’t authorize them to do (such as abridge the Freedom of Speech).

Allowing a favored political view to be advertise on public property, while preventing an unpopular political view from doing the same thing abridges the freedom of speech.

[Opus1]

For another relevant case on this issue, this one all the way from the Supreme Court, not just some Circuit Court (I’m presuming D.C.), see Lehman v. City of Shaker Heights 418 US 298, 94 S.Ct. 2714, 41 L.Ed.2d 770 (1974).

Here, the petitioner was a political candidate who wanted to advertise on a city bus. The bus system had a policy of not taking any political ads, while allowing “ads from cigarette companies, banks, savings and loan associations, liquor companies, retail and service establishments, churches, and civic and public-service oriented groups.”

The court ultimately decided that Lehman had no right to advertise on the bus, but the Court’s reasoning is what matters here. Instead of just saying “Hey, it’s your bus, use it as you wish,” it said to the city that:

Because state action exists, however, the policies and practices governing access to the transit system’s advertising space must not be arbitrary, capricious, or invidious.

Here, the city had good reasons not to accept ads from politicians, such as perceptions of favoritism or state-endorsement, or even because they might be shorter-lived than other ads and thus bring in less revenue with more turnover.

If the DC Metro has traditionally allowed political/ advocacy ads, then it’ll probably have to allow the pot-legalization ads.

The position that there is no right to use public property for speech is both ludicrous (imagine if the Metro only allowed ads for Democratic political candidates, not Republicans) and flatly contradicted by decades of case law on the doctrine of public fora.

[SuaSponte]

This one is pretty cut and dry: once Metro (which, BTW, does not qualify as a private company - it’s a public corporation and, as such, legally considered to be a government actor for 1st Amendment and other purposes) established a policy of accepting issue ads, it is not allowed to discriminate on the basis of what those ads advocate.

They do have the right to decide not to accept any issue ads, but can’t discriminate based on the position taken by a particular ad.

Sua

[235clear]

SuaSponte, it seems to me (granted, I have limited knowledge of case law) that most cases of this nature are filed as ‘violation[s] of First and Fourteenth amendments’. Clearly, the Fourteenth applies, given that the Metro (MBTA, etc.) is arguably a government actor for the state and therefore subject to the equal protection clause. But how does the First apply, being only an admonishment that Congress shall make no law…?

Or, as my friend has presented his rebuttal to me in light of Lebron and Lehman:

“I am waiting to be shown how the abridgment of a governmentally granted privilege can be considered to be on a par with the abridgment of an inherent right.”

Stubborn jackass.

(Good point, though, and one that I can’t address.)