Here’s a follow up to last week’s post about disclaimers on “viewpoint” ads in the New York City subway. In the post, I complained about the unfair treatment the policy affords to ads with religious messages, like the one I described from Marble Collegiate Church.
As Perry Dane explains, though, the disclaimer policy is not directed at religion per se. It applies generally to noncommercial ads that express viewpoints on “political, religious, or moral issues or related matters.” The Metropolitan Transit Authority adopted the policy after losing a 2012 lawsuit over display of anti-Islam ads. A federal district court ruled that, because the subway is a public forum, the MTA could not constitutionally refuse to display the ads. So the MTA decided to add the disclaimer to them and all other “viewpoint” ads, in order to avoid any implication of government endorsement. (The sponsor of the 2012 ads, the American Freedom Defense Initiative, is currently suing the MTA over display of a new anti-Islam ad, which the MTA refuses to display even with the disclaimer, on the ground that the ad may incite violence).
Still, whatever the formal policy, the MTA appears to apply it in a rather arbitrary way. I did a little research over the weekend. From what I could find, the policy has been applied to the AFDI ads; an ad for a Spanish-language Catholic television station; an ad from the Brooklyn Diocese featuring Pope Francis; and the Marble Collegiate ad I wrote about last week. All religious. What about disclaimers on ads that express viewpoints on political, moral, and related matters? Perhaps there are examples, but I couldn’t find any. More importantly, in no time at all I found three such ads without disclaimers.
Now, the MTA would presumably defend its choice not to put disclaimers on the Airbnb and Manhattan Mini Storage ads because the policy formally applies only to noncommercial ads. But that seems arbitrary. As Marc DeGirolami pointed out last week, it’s very difficult to disentangle “commercial” from “noncommercial” expression. To my mind, the Hillary ad is the most obviously political, even though its sponsors are only trying to make money. Besides, the New York Cares ad is surely noncommercial–it’s for a volunteer organization.
As I say, perhaps the MTA has put disclaimers on non-religious viewpoint ads and I simply haven’t found them. It’s significant, though, that it’s so easy to find the disclaimer on religious viewpoint ads, and so easy to find political and moral viewpoint ads without the disclaimer. Here’s a thought: perhaps the MTA should stop trying to distinguish among ads and put disclaimers on all of them–commercial, noncommercial, political, moral, and religious. That would solve the appearance-of-endorsement problem, if the problem genuinely exists, and free up MTA resources for doing something important: running the subway.