Docket Nos. 97-9511, 97-9519

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

New York Magazine, a division of PRIMEDIA Magazines, Inc.,

Plaintiff-Appellee,

- against -

The Metropolitan Transportation Authority and The City of New York,

Defendants-Appellants.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR SOUTHERN DISTRICT OF NEW YORK

BRIEF OF AGUDATH ISRAEL OF AMERICA AMICUS CURIAE

Attorneys for Amicus Curiae
Agudath Israel of America

December 11, 1997

TABLE OF CONTENTS

TABLE OF CONTENTS..............................i

TABLE OF AUTHORITIES..........................ii

PRELIMINARY STATEMENT,
  INCLUDING INTEREST OF THE AMICUS CURIAE......1

ARGUMENT.......................................3

CONCLUSION.....................................7

TABLE OF AUTHORITIES

Christ's Bride Ministries v. Southeastern
Pennsylvania Transportation Authority (SEPTA),
937 F.Supp. 425 (E.D.Pa. 1996).................6

Hevesi v. Metropolitan Transportation
Authority, 827 F. Supp. 1069, (S.D.N.Y.
1993)..........................................3

International Society for Krishna
Consciousness v. Lee, 505 U.S. 672
(1992).........................................3

Lebron v. National Railroad Passenger
Corp. (Amtrak), 69 F.3d 650
(2d Cir. 1995)..............................3, 4

Lehman v. City of Shaker Heights,
418 U.S. 298 (1994)............................4

Penthouse International v. Koch,
599 F. Supp 1338, (S.D.N.Y. 1984)..............3

Travis v. Owego-Appalachin School
District, 927 F.2d 688, (2d Cir.
1991).......................................4, 5

PRELIMINARY STATEMENT, INCLUDING INTEREST OF AMICUS CURIAE

Agudath Israel of America is a national Orthodox Jewish organization. It has no interest in, and takes no position on, the ultimate outcome of this particular case. However, it does have a substantial interest in the question of whether MTA property such as the exteriors of city buses must be deemed a "public forum" for First Amendment purposes. The court's determination below that such property is indeed a public forum significantly curtails the MTA's ability to reject advertisements, and thus has potential ramifications that extend considerably beyond the specific controversy over the New York Magazine ad.

Agudath Israel has long been concerned about the appearance of certain indecent ads on MTA property, which assault impressionable young persons with images and messages that are harmful to their healthy moral development. For one who walks the city streets or uses the city's mass transit -- in other words, for virtually all New Yorkers -- it has been difficult if not impossible in recent years to avoid being bombarded with ads for such products as jeans, perfumes and even radio stations that utilize lewd and risque images to hawk their wares. Many parents do their best to shield their children from such images in their own homes, yet are powerless to protect their children when they step out in the street. Agudath Israel has identified this problem as an important quality of life issue, and has accordingly communicated its concerns on the subject through testimony before the New York City Council and directly to the MTA.

The MTA has responded to these concerns, in part, by adopting advertising standards in March 1994, and then again more recently in September 1997. Pursuant to the 1994 standards, the MTA will not accept ads that contain "obscene" material, material that is "indecent to minors," or "offensive sexual material" as those terms are defined in the New York State Penal Law. The 1997 standards expand upon the list of prohibited ads, so that the MTA will now reject any ad that "contains an image of a person, who appears to be a minor, in sexually suggestive dress, pose or context," "promotes an escort service, dating service, or sexually oriented business," or "contains images or information that would be deemed by a significant segment of the public to be patently offensive, improper, or in bad taste."

There is a strong argument, in Agudath Israel's view, that even if MTA property were deemed a "public forum," the agency would still be within its authority to implement these standards to further its compelling interest in protecting children from the harmful images and messages described in these guidelines -- especially if the ads under consideration were commercial in nature, as they typically are. Arguments have been advanced to the contrary, however; and unless this Court rejects the court's determination below that public forum analysis must apply to MTA property, we may well find that the MTA's policy governing indecent ads will be the next target of constitutional attack.

That scenario can be avoided, or at least made considerably less likely, if the Court finds that the MTA's property is not a public forum, and that accordingly the MTA's advertising standards are constitutionality sound if neutrally applied even if they are only "reasonable". Agudath Israel therefore respectfully submits this brief, with the consent of all parties, for the narrow purpose of showing why this Court should reach that conclusion.

ARGUMENT

The Supreme Court's most recent pronouncement on the public forum doctrine, International Society for Krishna Consciousness v. Lee, 505 U.S. 672 (1992), establishes a clear distinction for First Amendment free speech purposes between government's proprietary and lawmaking roles:

"[I]t is ... well settled that the government need not permit all forms of speech on property that it owns and controls. [Citation omitted.] Where the government is acting as a proprietor, managing its internal operations, rather than acting as lawmaker with the power to regulate or license, its action will not be subjected to the heightened review to which its actions as a lawmaker may be subject." 505 U.S. at 678.

When a governmental agency like the MTA allows its property to be used for advertising purposes, its objective is simply to raise revenue; it acts as a proprietor, not as a lawmaker. See Lebron v. National Railroad Passenger Corp. (Amtrak), 69 F.3d 650, 657-58 (2d Cir. 1995). Accordingly, it enjoys considerable constitutional leeway to establish guidelines distinguishing between the types of ads it will accept and the types it will reject.

In reaching its conclusion that the exteriors of city buses must be deemed a public forum, the court below (at 17) cited Hevesi v. Metropolitan Transportation Authority, 827 F. Supp. 1069, 1071 (S.D.N.Y. 1993), and Penthouse International v. Koch, 599 F. Supp 1338, 1346-47 (S.D.N.Y. 1984), two cases finding that the MTA had created a designated public forum by making its property available for all types of advertisements. But those cases were decided when the MTA had no formal advertising guidelines in place, and made its space generally available to all comers.

All that changed in 1994, however, when the MTA promulgated its first set of advertising standards, which have now been augmented by a second set promulgated earlier this year. Pursuant to these standards, the MTA will reject, in addition to the types of lewd and offensive ads described above, ads that contain misleading commercial information, promote unlawful activities, imply MTA endorsement of an advertised product, contain libelous material or material in violation of New York Civil Rights Law 50, promote tobacco products, are adverse to the interest of the MTA, demean people on the basis of group characteristics, or contain violent images.

These guidelines, which establish the MTA's policy not to accept certain types of ads, make it clear that the MTA no longer sees its property as a public forum. "[E]ven when the government opens a forum for some speech, the forum does not become a public forum if the government did not intend to open the forum without limitation." Lebron, supra, 69 F. 3d at 656.

It is true, as the court below observed (at 17), that the MTA still accepts both commercial and political advertisements, while in Lebron, and in the seminal case of Lehman v. City of Shaker Heights, 418 U.S. 298 (1994), the governmental agencies allowed their properties to be used exclusively for commercial advertisement purposes. But this is a distinction that makes no constitutional difference. Nothing in prior case law suggests that government property must be deemed a public forum simply because it draws no bright line distinction between political and commercial advertisements.

The one case the court below (at 16) cites in support of its remarkable thesis is Travis v. Owego-Appalachin [mistakenly spelled "Oswego-Appalachian" in the decision below] School District, 927 F.2d 688,692 (2d Cir. 1991). This case shows, purportedly, that once a forum is made available for speech of a particular type of "genre", it is deemed a public forum for all forms of speech within that "genre". The court below is wrong, though -- not only in its spelling of the case, but also in its understanding of the case.

Travis involved a First Amendment challenge by a religious group known as Birthright that had been denied access to a public school auditorium to present a religious program. In the course of its analysis, this Court described the "sub-category" known as a "limited public forum":

"It is created when government opens a nonpublic forum but limits the expressive activity to certain kinds of speakers or to the discussion of certain subjects. [Citation omitted.] In the case of a limited public forum, constitutional protection is afforded only to expressive activity of a genre similar to those that government has admitted to the limited forum. [Citation omitted.] Thus, in a limited public forum, government is free to impose a blanket exclusion on certain types of speech, but once it allows expressive activities of a certain type of genre, it may not selectively deny access for other activities of the genre." 927 F.2d at 692.

The relevant "genre" in Travis was the category of religious speech. The school district sought to justify its refusal to allow Birthright access to public school property on the ground that it had a blanket policy against all religious speech. The record demonstrated, however, that the district had made its facilities available to another religious group for religious programming. This Court accordingly held that the district had no right arbitrarily to refuse Birthright when it had already permitted similar activities of the same "genre."

That is a far cry, however, from what the MTA has done here in promulgating guidelines that draw clear distinctions between dissimilar types of ads. Two ads may both be commercial in nature, or for that matter political in nature, but if (for example) one depicts a minor in a sexually suggestive pose and the other does not, nothing in Travis suggests that they must be treated alike because they are of the same "genre". Indeed, nothing in Travis suggests that they in fact are of the same "genre." The lines of demarcation embodied in the MTA's 1994 and 1997 advertising standards do not distinguish between commercials and political ads, it is true, but they certainly draw other distinctions that make clear the inapplicability of the public forum doctrine.

The case most directly on point is Christ's Bride Ministries v. Southeastern Pennsylvania Transportation Authority (SEPTA), 937 F.Supp. 425 (E.D.Pa. 1996). SEPTA, an agency similar to the MTA, refused an antiabortion group's ad for display in Philadelphia subway and commuter rail stations. In upholding the agency's action, the court rejected the antiabortion group's contention that SEPTA was a nonpublic forum "by virtue of the extensive advertising it accepts." Said the court:

"SEPTA presented ample evidence that it retains firm control over the types of advertising which may be displayed in its stations. It has rules and standards. Since garden variety commercial advertisements constitute 99 percent of its book of business, SEPTA rarely interferes with an advertiser's chosen message. Yet, its role in approving messages is not merely perfunctory. Thus, while an attorney generally may advertise her legal services, SEPTA, not surprisingly, has consistently prohibited any mention of representation for railroad, subway or bus injuries. SEPTA has also exercised its privilege to reject advertisements it considers offensive or in bad taste. For example, SEPTA recently disapproved a hosiery commercial with a scantily clad model proposed for a "wraparound" display on a city bus. SEPTA officials prohibited it as too risque for such a conspicuous space. SEPTA has clearly exercised its right to regulate advertising and to exclude messages which are contrary to its standards. It has not created a public forum in its subway and train stations." 937 F.Supp. at 431 (footnote omitted).

So too here: The MTA retains firm control, by virtue of its 1994 and 1997 advertising standards, over the types of ads it will accept. It has clearly exercised its right to regulate advertising and to exclude messages which are contrary to its standards. It has not created a public forum on the exterior of its buses or anywhere else on its property.

CONCLUSION

For the foregoing reasons, amicus curiae Agudath Israel of America respectfully urges this Court to find that, contrary to the ruling of the court below, MTA property does not constitute a public forum.

DATED: New York, N.Y
      December 11, 1997