TARTA OKs ban on issue-based advertising

Transit panel doesn't want to offend bus riders

3/8/2013

Seeking to avoid lawsuits such as the one that has embroiled the transit agency in Ann Arbor, the Toledo Area Regional Transit Authority has adopted a policy to refuse “issue oriented,” rather than commercial, advertising.

The policy, effective April 1, means transit authority buses won’t carry ads promoting political candidates, levies — including TARTA’s own — or viewpoints in other public matters.

“TARTA does not desire to have its passengers subject to advertisements containing controversial material relating to political, religious, or other issues about which public opinion can be widely divergent and which some passengers may find offensive,” a statement of purpose in the policy reads in part. “If passengers are offended, it could affect ridership and revenue adversely.”

The policy allows only commercial advertising promoting a business, product, or service; governmental advertising promoting public programs or events, or TARTA operations.

The policy “is necessary to protect the authority from controversy that could arise because of issue-oriented advertising,“ Dee Talmage, chairman of the TARTA trustees’ policy committee, told the transit authority’s board of trustees during a meeting Thursday.

James Gee, the transit authority’s general manager, said afterward the policy replaces a vague statement giving the agency the authority to reject inappropriate advertising, and is inspired by lawsuits brought against transit authorities elsewhere when they refused to allow ads about controversial subjects.

He cited an ongoing lawsuit involving the Ann Arbor Transportation Authority, which in 2011 rejected an advertisement critical of Israel.

After a federal district court judge found the Ann Arbor agency’s good-taste policy to be plainly unconstitutional, the Ann Arbor Transportation Authority adopted a policy similar to the one now approved by TARTA and has continued to reject the ad that Blaine Coleman, represented in the case by the Michigan chapter of the American Civil Liberties Union, attempted to place. The case remains pending in U.S. District Court in Flint.

Mr. Gee said he could not recall any recent examples of politically oriented advertising on TARTA buses, which under the policy would include ads promoting election candidates or referendum issues, such as levies.

The transit authority ran no bus advertising promoting its two most recent levy campaigns, but may have done so in the past, Mr. Gee said.

The most recent example he said he could recall of a TARTA ad rejection was in early 1995, when it turned down an ad offered by the Lucas County Health Department as part of an AIDS awareness campaign that promoted condom use to prevent sexual transmission of that deadly disease. The ad depicted a condom.

Dick Ruddell, then-TARTA’s general manager, also cited a policy against controversial material.

“It’s because of the diversity of groups we serve: both the inner city and the suburbs, both inner-city students and Catholic-school students. You have a wide range of interests, and you’ve got to stay away from some of that stuff,” Mr. Ruddell told The Blade at the time.

The health department did not protest the decision.

The policy then in effect gave the general manager discretion to determine what was controversial, while the new one lists excluded advertising as including “explicit sexual references, pictures, or text or includes materials harmful to minors” under Ohio law.

Also excluded under the policy are ads that:

● Contain any defamatory, libelous, obscene, false, misleading, or deceptive material;

● Depict or advocate violence;

● Support or oppose labor organizations or any action involving them;

● Demean, degrade, or otherwise promote racial, sexual, or other discrimination;

● Support or oppose the nomination, election, investigation, or recall of a public official or the passage of a levy or bond issue;

● Contain direct or indirect reference to religion or deity, including text, symbols, and images commonly associated with any religion or creed, along with material opposing or questioning religious beliefs;

● Relate to or promote alcohol, firearms, or any illegal activity or illegal product.

Joan Rife, the transit authority’s attorney, said alcohol ads are excluded because Ohio law prohibits the use of public funds to promote or depict alcohol, and TARTA receives a small amount of state funding.

Excluding firearms advertising was a policy committee decision “not to have depictions of guns on the vehicles or in the stations,” Ms. Rife said. Such ads “would be stepping into that realm of a controversial subject,” she said.

Gary Daniels, a spokesman for the ACLU of Ohio, said case law in the 6th U.S. Circuit Court of Appeals, which includes Ohio and Michigan, has tended to favor policies such as TARTA’s, although the ACLU finds that trend troublesome. He acknowledged some types of advertising “can be very political in nature,” but that restrictive policies reduce public discourse “to the level of the most easily offended amongst us.” Public agencies such as TARTA should instead stand up and explain that their advertising opportunities “are open to all comers,” Mr. Daniels said. “Who’s afraid of a little free speech? ... The answer to speech you don’t like is more speech.”

But a study conducted in 2004 by the federal Transportation Research Board on behalf of the Federal Transit Administration found such policies to be common among transit agencies across the United States. Effective policies, the report said, explicitly stated their purpose was for bus advertising to be strictly commercial, so “transit governing boards can avoid establishing a public forum for ideas.”

Other agencies’ policies often prohibit advertising for tobacco or alcohol products or for “products designed for use in connection with sexual activities,” the report said.

Contact David Patch at: dpatch@theblade.com or 419-724-6094.