Legal Commentary

Anti-Islam Bus Ads in Miami

By Eugene Volokh

An anti-Islam group bought these ads on Miami-Dade Transit buses:

The Miami Herald reported last week that Miami-Dade Transit was removing the ads, because of objections from Muslims, including the South Florida chapter of the Council on American-Islamic Relations. But when I called Miami-Dade Transit to ask for a copy of their advertising policy (they said they?d get back to me about that), the spokeswoman reported that Miami-Dade Transit would be reinstating the ads, based on advice from the County Attorney?s office.

I think the County Attorney?s advice is probably correct. Advertising space on government-run buses is probably a nonpublic forum, and the government may set up reasonable, viewpoint-neutral restrictions on what advertising it will allow there (even if the restrictions are content-based, for instance if all political ads are excluded, or if the ads may not contain vulgarities or nudity). But the restrictions do have to be viewpoint-neutral, and it sounds like the exclusion here was based on the viewpoint that the ads expressed ? and the offense caused by that viewpoint ? and not on some viewpoint-neutral policy. Of course the same would apply to exclusions of, for instance, pro-atheism bus advertising or pro-Islam bus advertising, if the exclusion is based on the supposed offensiveness of the viewpoint expressed by the ad. (If the forum is seen as a designated public forum, rather than a nonpublic forum, viewpoint-based exclusions would likewise be unconstitutional; the difference between designated public fora and nonpublic fora relates to the treatment of viewpoint-neutral restrictions.)

I sympathize with government managers who are worried that certain ads would alienate patrons, and would thus lose the city money. There?s something to be said for a legal rule that would give the government nearly unlimited authority to decide what to allow on its buses and on similar property run by government businesses (just as private bus companies would have such authority). And if the government was putting out its own messages on the buses, or putting out only those few messages that it expressly chose to endorse, it could certainly pick and choose what it says: In that situation, the bus space would be not a forum at all, and the government would be largely unconstrained in what it allows there and what it forbids.

But the current, and pretty firmly rooted, legal rule is that when the government generally opens up space for speech by a wide range of speakers ? including advertisers ? it can?t impose viewpoint-based restrictions on that space. That seems to pretty firmly apply here.

UPDATE: An extra twist: The ad was apparently put up in response to the following ad, which had also been carried on Miami-Dade buses (see David A. Schwartz, Islamic Message on County Buses Brings Protest, Ft. Lauderdale Sun-Sentinel, Jan. 29, 2009, Jewish Journal sec. at 4):

This doesn?t change the constitutional analysis, except insofar as it suggests that Miami-Dade doesn?t have any general ?no mention of religion? policy (which might be seen as viewpoint-neutral and therefore constitutional, though even that?s not clear).

Full post as published by The Volokh Conspiracy on April 19, 2010 (boomark / email).