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Constitutional issues implicated

By Mark Dorosin
The Chapel Hill Town Council recently heard extensive public comment regarding the bus advertisements sponsored by the Church of Reconciliation. The majority of those comments, like the complaints (from residents and at least one council member) that began the public dialogue, focused almost exclusively on the content of those ads. This community conversation, both by its nature and its substance, illustrated the First Amendment issues that should define the town’s further consideration of revising its bus advertising policy.

Chapel Hill’s bus advertising policy has created what courts have recognized as a “limited public forum” inside the buses. While some limitations on speech are permitted in such a forum, content-based restrictions – those based on the message of any advertisement – are subject to the strictest judicial scrutiny and must be narrowly tailored to serve a compelling government interest.

There has been some suggestion that the town replace the policy with one that only permits “commercial” advertising. While such a limitation may appear to create a viewpoint-neutral restriction on ads, there are in fact several constitutional and practical problems with such a simplistic approach. First, to the extent there is a legal hierarchy among categories of speech, political speech or that concerning matters of public concern – like the advertisement in question – is accorded the highest level of protection. A policy that prioritizes commercial speech over political speech subverts this well-established constitutional paradigm by discounting the core value of public discourse on issues of critical community interest. Moreover, such a blunt tool ignores the reality that commercial speech often inherently includes political messages. A commercial speech-only policy would, for example, permit ads encouraging bus riders to buy Chic-fil-A, but prohibit ones calling for them not to.

There are even more basic constitutional issues implicated in such a change. No one can seriously question that the objections to the ad and the town’s pending review of its advertising regulations are based on objections to the content of the ads. As such, any substantive restrictions on free speech, even ostensibly viewpoint-neutral changes, would be constitutionally suspect as motivated by the publicly expressed disdain of some community members and policymakers for the ads.

Chapel Hill isn’t the only community confronting the issue of controversial transit advertising. A few weeks ago, a federal court struck down the New York Metropolitan Transit Authority’s attempt to ban a controversial conservative ad (which included the phrase “Support Israel. Defeat Jihad.”). In the wake of the ruling, the MTA has hastily tried to revise its policy to include some facially neutral language that will allow them to ban the ad again. This post-hoc attempt to bypass the court’s ruling – and constrain speech that the MTA finds offensive – will undoubtedly invite further litigation.

The First Amendment doesn’t guarantee one’s right not to be offended. In fact, it guarantees just the opposite. Free speech means that at some point each of us will be confronted by ideas, images and words that challenge, upset, annoy and hopefully engage us in the social and political life of our community. As Supreme Court Justice Louis Brandeis reminds us, “No danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”

Mark Dorosin is senior managing attorney with the UNC Center for Civil Rights.

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