In an effort to avoid recent controversies that have beset Muni and BART, Golden Gate Transit is poised to adopt an advertising policy barring political and religious campaigns, but some observers say the rule would trample First Amendment rights.
For years, the transit agency, which is managed by the Golden Gate Bridge, Highway and Transportation District, has used an informal set of guidelines for determining whether to accept advertisements, spokeswoman Mary Currie said. On Friday, the district’s board of directors will vote to formally adopt a policy, which would include a new ban against religious and political ads.
Friday’s vote follows contentious debate at Muni and BART regarding political advertisements involving opposing views of the Israeli-Palestinian conflict. A recent campaign on Muni regarding the subject was controversial enough for the agency to donate all proceeds from the ads to the San Francisco Human Rights Commission.
“In light of that, we were certainly prompted to look at how we handle our advertising,” Currie said. “We wanted our buses to remain as neutral as possible for our passengers. We believe our ads should only be commercial in nature.”
Currie said various courts have ruled that transit agencies may keep their vehicles closed to expressive activities and thereby limit advertising to just commercial campaigns.
“We’re confident this does not violate any First Amendment laws,” she said.
But University of San Francisco law professor Josh Davis said a recent decision by the New York Metropolitan Transportation Authority to reject political advertising was ruled unconstitutional by a federal judge.
“This looks like an awkward strategy, at best, by the transit district,” Davis said.
Joseph Tuman, a communications professor at San Francisco State University, said the new policy may skirt the First Amendment. If a legal challenge were brought against the policy and a judge were to rule that agency buses and ferries are public places, then the district would have to go to great lengths to prove the ban against religious and political advertisements was of great public importance, Tuman said.
However, if a judge deemed the buses and ferries to be nonpublic places, then the district would simply have to provide a reasonable explanation — the desire to avoid controversy — for its policy decision.
In similar cases elsewhere, Tuman said, courts have ruled that buses are nonpublic places — although legal interpretations vary.
In additional to barring political and religious ads, the transportation district’s new policy would also outlaw campaigns that are false or misleading, obscene or defamatory, advocate crime, infringe on copyrights, or promote cigarettes or alcohol.
The new policy would only apply to the district bus and ferry fleet. Expressive activities, including political demonstrations, would still be allowed on district property, Currie said.