Must Public Subway Trains that Feature Advertising Carry Anti-Abortion Ads? What the First Amendment Has to Say

By VIKRAM DAVID AMAR
Friday, Jan. 20, 2006

A Roman Catholic group in Northern California has recently begun running a series of ads in dozens of San Francisco Bay Area Rapid Transit (BART) subway trains and stations. The ads criticize Roe v. Wade and ask: "Abortion: Have we gone too far?" They also contain specific anti-abortion arguments, such as this one: "The Supreme Court says you can choose: after the heart starts beating, after its arms and legs appear, after all organs are present, after the sex is apparent, after it sucks its thumb, after it responds to sounds, after it could survive outside the womb."

Unsurprisingly, pro-abortion-rights groups are concerned about the ad campaign. Many activists have taken to defacing or destroying the posters. Indeed, the ads' backers have already exhausted their supply of replacements, and have had to order many additional prints. Some pro-Roe advocates blame BART officials for permitting the ads. As one organizer put it: "[E]very woman has noticed them. I couldn't believe BART would allow something like this. Why are they doing this?"

The answer for why BART posted the ads -- and it is an answer that Americans all across the political spectrum should learn more about and cherish - is, in short, the First Amendment.

First Amendment 101 -- Viewpoint Neutrality

First Amendment law here is very clear: Government (including government-operated transit authorities such as BART) cannot constitutionally reject or suppress messages because public officials (or the constituents those officials represent) dispute or are offended by the ideas being expressed.

Numerous cases and constitutional history teach that the most basic command of the First Amendment is viewpoint neutrality in the regulation or promotion of political speech; government may not discriminate against or in favor of any particular political message or point of view. As Justice William Brennan wrote for the Supreme Court over fifteen years ago in one of the famous cases involving prohibitions on flag burning, "[i]f there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because it finds the idea offensive or disagreeable."

For this reason, once BART had opened up its stations and its trains for other kinds of political ads, concerning a whole range of contested public policy questions, BART surely could not have rejected the Catholic organization's ads on the basis of their message.

Some pro-abortion-rights groups have suggested that BART should have at least given them "notice" that the Catholic ad campaign was imminent, and an opportunity to run opposing ads at the same time. But that, too, would probably have raised a big First Amendment problem - for it, too, would have violated the principle of viewpoint neutrality.

Unless BART already had in place a policy by which it regularly notified all persons who might want to respond to all political advertisements, then affording special notice to pro-abortion-rights groups alone would have been singling them (and their viewpoint) out for special, favorable, treatment in the administration of the ad program.

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What About the Rights of a Captive Audience?

Some readers may wonder whether in a civilized society, commuters who -- because of economic or other practical necessity -- must ride BART trains every day should be forced to submit to an unwanted barrage of potentially upsetting images and propaganda, in the name of abstract notions of viewpoint neutrality. What, in other words, can be said on behalf of the so-called "captive audience?"

Constitutionally speaking, not that much, I'm afraid. In general, the Supreme Court has been reluctant to hold that people, at least when they are outside their homes, enjoy a constitutional right to be free from unwanted, and even upsetting, expressive input.

Consider Cohen v. California, where the Court in 1971 reversed the conviction of a man who had been prosecuted for wearing a jacket bearing the words "Fuck the Draft" in a courthouse corridor used by the public. Many people - from attorneys, to plaintiffs and defendants, to subpoenaed witnesses - doubtless had no real choice about being in that courthouse on that day, and, therefore, about seeing the jacket. But Justice Harlan wrote, defending the Court's result, that "we are often captives outside the sanctuary of the home and subject to objectionable speech."

Indeed, in a context somewhat similar to BART trains, the Supreme Court, in the 1952 case of Public Utilities Comm'n v. Pollak, held that riders on Washington DC buses had no right to be free from loud radio transmissions - replete with aggressive advertisements -- blaring from bus speakers installed by the private company that paid money to the government for the right to air programming. The plaintiff bus patrons had argued that the government, by subjecting them to loud programming whether they wanted to hear it or not, had deprived them of liberty without due process of law, but the Court rejected that notion.

The unwilling BART viewers are in many respects in a weaker position to complain than were the unwilling auditors on the DC buses. Averting one's eyes from a disturbing ad is, after all, much easier than completely covering one's ears for the entirety of what might be a long bus ride.

So it seems quite clear that BART patrons have no right to be free from the anti-Roe ads, notwithstanding the confining character of subway trains.

Could BART Change its Policies to Exclude the Contentious Ads?

Putting to one side the patrons' rights (or lack thereof), is there anything BART could do on behalf of the upset customers? In particular, could BART constitutionally change its policies in the future and decline to accept all political ads, including that anti-Roe campaign? If all political ads were banned, BART might argue, then its exclusion of the anti-Roe ads would not be viewpoint-based. Would that be enough?

This is a difficult question for which there is no sure answer. A few things, however, are worth observing:

First, BART could not constitutionally alter its current policies in order to deny access to the Catholic group in particular. That is, if BART is to revisit and revise its policies, such a decision should be based on a more neutral belief that all political ads create special problems, not on a disagreement with the messages of some particular political ads.

That is not to say that the uproar over the anti-Roe ad campaign cannot educate BART about the logistical and captive audience problems posed by controversial political ads more generally; it is only to say that BART cannot sacrifice all political speech because BART management (or BART ridership) dislikes the content of one specific controversial political ad.

Second, any ban on political ads really would have to apply even-handedly to proponents of all political points of view. Thus, as BART officials have acknowledged, changing BART policy to ban all political advertising (or "point of view" advertising, as BART spokespersons call it) would mean that, come election time, ads in favor of or against particular political candidates would also be eliminated. Depriving riders and viewers of all this speech might be too high a price to pay to avoid controversy over some particular issues.

Third, even if BART was able to craft a truly even-handed, viewpoint-neutral ban on all political or "point of view" ads - and even if that ban was not geared to deny access to the anti-Roe ads in particular - it is still not at all clear that such a ban would be upheld under the First Amendment.

This is because First Amendment caselaw frowns not only on laws or policies that discriminate against particular points of view, but also on laws or policies that simply discriminate on the basis of "content" or "subject matter." A law banning political ads may be viewpoint-neutral in some sense, but it is certainly subject-matter-discriminatory, treating political speech less favorably than, say, commercial speech. And subject-matter-discriminatory laws are usually subjected to the same judicial skepticism as are viewpoint-based laws.

In addition, political - or "point of view" - ads involve speech that lies at the core of the First Amendment tradition. Facilitating discussion about public policy and public officials is precisely what the First Amendment is most about. Thus, a policy that disfavored political ads, relative to other kinds of speech, might be thought to be a tough sell under First Amendment principles. Any government decision to clear space for toothpaste and shampoo pitches by removing political debate hardly seems pro-free speech.

The Uncertain Precedent of Lehman v. City of Shaker Heights

Still, if it did take the route of banning all political ads, BART might have one important precedent on its side. In the 1974 case of Lehman v. City of Shaker Heights, the Supreme Court evaluated a city ordinance that prohibited public transportation officials from selling advertising space in city buses to candidates for public office. The prohibition applied to candidates of all parties and ideologies, and thus was at least arguably "viewpoint neutral." But it did treat campaign speech differently, and less favorably, than other speech, such as commercial ads. And political speech was treated worse precisely because of its content or subject matter.

Nonetheless, the Court, by a 5-4 vote, upheld the City's ordinance, with Justice Douglas providing a key concurrence stressing the sensibilities of the captive audience and the City's interests in protecting those sensibilities. (It should be noted that Justice Douglas was the lone dissenter in the D.C. bus case, Pollak, a generation earlier.)

Would the Lehman decision allow BART to exclude political ads? That is far from certain.

To begin with, there might be a difference between excluding ads by candidates for office, on the one hand, and ads that deal with political issues like abortion, on the other. In Lehman, the Court noted that the City was trying to avoid administrative problems concerning potential favoritism among candidates. And these administrative justifications may be more plausible in the candidate setting than in the issue setting.

More importantly, many analysts doubt that the Lehman case would command five votes on the high Court today. Since Lehman was decided, the Court has reaffirmed that political speech is highly valued under our Constitution and should be favored -- rather than discriminated against -- because of its content. In Metromedia, Inc. v. City of San Diego, for example, the Court ruled that San Diego's prohibition of all outdoor advertising display signs was constitutional as applied to commercial billboards, but could not constitutionally apply to non-commercial political messages.

At the end of the day, my advice to those who object to the anti-Roe ads would be to mount an ad campaign of their own, using BART trains and other fora, to explain why they think Roe is worth keeping. Under the First Amendment and our democratic traditions, the answer to what a person or community views as "bad speech" is not "no speech," but rather "more (and better) speech."


Vikram David Amar is a professor of law at the University of California, Hastings College of Law in San Francisco. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with Cohen and Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.