At its Nov. 17, 2011 meeting, the Ann Arbor Transportation Authority board voted to affirm its position on the kind of advertising that it accepts for the sides of its buses by rejecting a proposed advertisement – in its current form – from local pro-Palestinian activist Blaine Coleman. The text of the proposed ad reads “Boycott ‘Israel’” and “Boycott Apartheid” and features an image of a spider-like creature with a skull for a head. [.pdf of image and text of proposed ad]
The board’s decision came in response to an Aug. 12, 2011 letter to the AATA from the American Civil Liberties Union that argues the AATA’s policy on accepting advertising is unconstitutional. The ACLU does concede that the proposed advertisement “arguably subjects Israel to scorn or ridicule,” which is prohibited under the AATA’s ad policy. [From the AATA policy: "Advertising ... which does any of the following shall be prohibited ... 5. Defames or is likely to hold up to scorn or ridicule a person or group of persons."]
However, the ACLU contends that the policy itself is unconstitutional: “An ad paid for by Israel’s tourist bureau encouraging people to visit the county or purchase its products expresses the opposite view and would be accepted under AATA’s policy. A distinction of this kind, based on the message expressed by the speaker, violates the First Amendment.” [.pdf of ACLU Aug. 12 letter] [.pdf of AATA advertising policy]
A key to the ACLU’s position is a 1998 case involving a labor union that had proposed an advertisement on a regional transit authority’s vehicles, but had the ad rejected on the grounds that it was “too controversial and not aesthetically pleasing.” The case was argued and won by the union in the U.S. Court of Appeals Sixth Circuit. [.pdf of United Food & Commercial Workers Union, Local 1099, v. Southwest Ohio Regional Transit Authority]
Part of the ACLU’s argument relies on the idea that the AATA has, in fact, through its past pattern of accepted ads, established a “public forum,” although the AATA’s ad policy explicitly states that the AATA “does not [with its ad program] intend to create a public forum.”
At its Nov. 17 meeting, the AATA board affirmed its position after voting to go into a closed session – under the provision of the Michigan Open Meetings Act that allows such a session to discuss a written opinion from its legal counsel. The AATA’s legal counsel, Jerry Lax, now with Pear Sperling Eggan and Daniels PC, was also on hand for the closed session. On emerging from the closed session after a bit more than an hour, board members voted on a resolution that affirms the AATA policy on accepting ads and the decision to reject the proposed ad in its current form. [.pdf of AATA board resolution rejecting advertisement]
The resolution invites the ACLU and Coleman to discuss the AATA advertising policy.
The AATA’s advertising policy is administered by the company that sells the ads – Transit Advertising Group.
The AATA receives roughly $80,000 a year in revenues from its bus advertising. The recently approved 2012 fiscal year AATA budget included $29.4 million in revenues.
This brief was filed from the Ann Arbor District Library boardroom, where the AATA board holds its meetings. A more detailed report will follow: [link]