A Times Editorial
When buses become billboards
© St. Petersburg Times, published December 22, 1998
enting the side of a county bus to advertisers seems a matter of simple commerce, but whenever the government offers a place on its property (even the rolling variety) for public expression, it invokes the First Amendment. A series of anti-Scientology ads that recently appeared on Pinellas County transit buses raised the question of what kind of bus advertising the county is obliged to accept.
The answer is: pretty much all of it.
A group called Former Scientologists Speaking Out paid to place their ads on 11 county buses with routes that took them past the Scientologists' Fort Harrison Hotel in downtown Clearwater. The messages, including "Why does Scientology lie to its members?" and "Think for Yourself. Quit Scientology," along with the group's Web address www.xenu.net, so offended church leaders that a couple tracked down Roger Sweeney, executive director of the Pinellas Suncoast Transit Authority, at his home earlier this month and pressured him to remove the buses from service. He did so the next day.
By ceding to the Scientologists' demands, Sweeney probably thought he was making a problem go away, but he was buying himself a bigger one. Despite being offensive, those anti-Scientologist ads were constitutionally protected, and removing them probably violated the First Amendment.
Once the county invites the public to express itself on government property, even when a fee is charged, it creates a designated public forum and can no longer freely police the content of what is said there. Although the U.S. Supreme Court has never ruled on whether signs on the outside of public buses constitute a public forum, a recent federal appellate case says they should be entitled to the highest form of First Amendment protection.
A case decided earlier this year involved a New York Magazine ad pulled off bus panels by New York's bus authority because it poked fun at Mayor Rudolph Giuliani. The U.S. Court of Appeals for the 2nd Circuit ruled that once the city agreed to accept political or other issue ads on its buses, it opened up the ad space as a place for the public to exchange ideas. That meant the city could no longer refuse ads because it didn't like the content.
PSTA's ad policy similarly creates a public forum. Sweeney says PSTA advertising policy prohibits the posting of campaign signs for or against candidates, political parties or referenda, but accepts other issue-oriented signs. That means the ad space has to be made available to all messages, even those that question the legitimacy of a religious order.
Sweeney pulled the ads after he conferred with PSTA lawyer Alan Zimmet about a Scientology contention that the signs violated a state law. The law, which has been on the books since 1945, prohibits anonymous dissemination of any material that "tends to expose any individual or any religious group to hatred, contempt, ridicule or obloquy." But that law has never been successfully used to prosecute anyone. It is patently unconstitutional -- we have a fundamental First Amendment right to speak anonymously -- and shouldn't have been the basis of a decision to remove the ads from public view.
Sweeney says he supports free speech on bus signs and ordered the buses back in service a day later, but by then the anti-Scientology ads had been removed. Before the next bad judgment call arises, the PSTA should get a legal opinion from a constitutional law expert. It's likely the PSTA will be told that if the county wants to use its buses as moving billboards, it will have to make them available to all who ante up, regardless of what the Scientologists think.