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An ad that appeared recently at a Clarendon rail station is sparking debate over the limits of free speech. The ad criticizes President Obama’s health-care policy and says, “Go to hell Barack.” Some people, including several members of Congress, call the ad offensive and say Metro should take it down. But Metro says the ad is protected by the First Amendment. We explore free speech in advertising.
- Daniel Marcus Law and Government Fellow at American University's Washington College of Law
MR. KOJO NNAMDIAn L.A. film producer has raised local hackles over free speech with an ad in the Clarendon Metro station that curses President Obama. The ad is intended to promote a film that's critical of the nation's new health care law. It says, "Barack Obama wants politicians and bureaucrats to control America's entire medical system. Go to hell, Barack." Virginia Congressman Jim Moran calls the ad offensive and inappropriate for a public space and asked Metro to take it down. Metro Chief Richard Sarles says he is deeply offended by the ad, but he cannot remove it.
MR. KOJO NNAMDIThat's because the courts have ruled that the free protections -- free speech protections in the Constitution apply to Metro's advertising program. The flap is raising new questions about how Metro vets its ads and whether taxpayer-funded space should be used to denounce the president. Joining me to look at the free speech protections for advertising is Daniel Marcus. He's a fellow in law and government at the American University's Washington College of Law. He joins us by telephone. Daniel Marcus, thank you for joining us.
MR. DANIEL MARCUSGlad to be here, Kojo.
NNAMDIYou, too, can join this conversation by telephone. Call us at 800-433-8850, or you can send us a tweet, @kojoshow. Do you think free speech should be protected in ads on public property? 800-433-8850. Daniel Marcus, what do the First Amendment and the courts say about free speech in advertising?
MARCUSWell, it's interesting. There's no question that the First Amendment applies here because we're dealing with a government entity. Metro is a funny kind of government, but it is a public body. It is controlled by local governments, and so it's subject to the First Amendment. But that's just the first question. The next question is, well, does the First Amendment require Metro to carry an ad like this? And that -- the answer to that question is not so simple.
NNAMDIYes. Because it's my understanding that there's an old Supreme Court decision that says public bus systems could allow commercial ads but keep out political ads on the grounds that they didn't want to upset passengers and be seen to taking sides. Of course, that law was about 50 years ago. Does it still stand in any way, shape or form?
MARCUSThat's right. It's a 1974 decision, a controversial decision. It was a 5-4 decision. And it held that a city bus system that allowed commercial ads could keep out candidate ads, ads for candidates for political office. The four dissenters, who a lot of us think were right, said maybe a bus system or Metro could keep out ads entirely, as, I think, Metro did for the first several decades of its existence...
MARCUS...as part of its pristine approach to public transportation. But the -- I think a lot of First Amendment scholars believe that a city that allows commercial ads on its public transportation system should be required to allow political ads, too. But the Supreme Court Said no. Now, it's not clear what Metro's policy is to me. I don't know whether they allow political ads, candidate ads. I don't recall ever seeing one.
MARCUSBut the problem with this ad, of course, is it is an ad for a commercial product, the movie that is being promoted by the advertisement. But in the course of the ad, the ad takes a position on a public issue. It criticizes the president's health care plan. And then, of course, it includes the insulting remark to the president that has caused all the controversy.
NNAMDIWell, you know, I'm looking at the guidelines governing commercial advertising adopted by the Metro board of directors and amended in 2003, and it says nothing at all about political ads, giving me the impression that political ads are allowed. The only thing that's really prohibited, under guideline number nine, is advertisements of alcohol and tobacco products are prohibited in accordance with a board resolution. But it has nothing to say on the matter of political ads, period.
MARCUSThat's right. It doesn't. I think, under this old Supreme Court decision that has never been overruled, Metro could have a policy of saying no political ads. And if it can have that kind of policy, it probably could also have a policy saying no political statements in commercial ads. But it doesn't appear to have that policy. And so I think it would be very difficult for Metro to cancel this ad. The other question, of course, that -- is whether Metro could have a policy of saying no personal attacks or no profane references in any ads.
NNAMDIWhich would bring us to the...
MARCUSThey don't have that in their policy either, do they?
NNAMDIThat's not there either. But that would also bring us to the always controversial issue of defining what is profanity and what isn't.
MARCUSOh, I know. The -- one thing is clear. A lot of people are offended by this ad because it attacks the president -- doesn't make any difference whether the ad attacks the president or Kojo Nnamdi or Dan Marcus. The president is no different from anyone else when it comes to criticism under the First Amendment. I think the -- under -- one thing is clear. Metro clearly, under the First Amendment, could exclude it -- obscenity.
MARCUSIt could ban an ad that had obscenity in it. This doesn't have obscenity in it. But go to hell, Barack is certainly offensive language. It's certainly personally insulting to the president or to anybody else who's told to go to that place. And I think -- the Supreme Court decision, I think, implies that Metro could have reasonable limits on all ads that it carries with respect to things like personal attacks or profanity.
NNAMDIWell, one individual who thought that Metro should take down the ad is Congressman Jim -- Jim Moran, Democrat of Virginia. And he joins us now by telephone. Congressman Moran, thank you for joining us.
REP. JIM MORANIt's my pleasure anytime to be on with you, Kojo.
NNAMDIJim Moran, you have asked Metro to take down this ad. Why?
MORANBecause I believe it to be profane and inappropriate. We have thousands of tourists, families with children who will see this ad, and it seems to me that it's inappropriate for the public space that it occupies. I have checked with the legal counsel, with the House of Representatives, and they say that the Metro system is well within its rights to regulate what they consider to be profane. So I think the Metro system should strengthen its existing guidelines to preclude this kind of advertising. And there are other considerations. There's a larger context here.
MORANI think that there's a coarseness in our society, and particularly in our public discourse, that I don't think we should be contributing to. And when we don't speak up about things like this, I think they will get worse. And, specifically, I think if we don't speak up about this ad, then other advertisers will try to push the envelope even further. I talked to Mayor Bill Euille of Alexandria over the weekend. And he is going to bring this issue up before the Metro board. And I, you know, hope it will lead to a strengthening of their guidelines, and that's the right disposition for the matter.
NNAMDIWe invited Metro to join this discussion today, but the Metro spokesperson said that it couldn't participate. He sent the statement on the ad, which said that Metro cannot decline an ad based on its political content and does not endorse the advertising in its system. But we got an interesting call here from Bill in Arlington, Va. Bill, you're on the air. Go ahead, please.
BILLYes. How are you doing, Kojo? Thank you.
NNAMDII'm doing well.
BILLCan you hear me?
NNAMDIYes, we hear you.
BILLOK. Thank you for having me on. And I agree with the congressman and many of the others who say that this is very offensive, and it shouldn't be up. It's not really an issue of profanity. It's an issue of offensiveness. And so my question is, would Metro, (word?) their policy, put up an ad that was against Metro and said the same thing about Metro?
NNAMDII find that fascinating from a legal standpoint, Daniel Marcus. You know, there's a blog called "Unsuck DC Metro." Suppose they bought an ad that said, Go to hell, Metro, and put that ad up in Metro?
MARCUSI think Metro would have a hard time turning that down if they didn't turn down this ad. But I do agree with Congressman Moran that Metro does have more freedom, perhaps, than it thinks -- seems to think it does to adopt an across-the-board policy of -- with respect to taste and profanity and insults, personal attacks in all ads, commercial or political, that Metro decides to carry. I think that -- so I'm a little surprised that Metro's council is taking as broad a First Amendment position as they are. It may...
MARCUSLet me just say one other thing...
MARCUS...which is it may be that they're legitimately worried about how they will apply fuzzy standards, like offensiveness or even profanity, in the current world. But I think they could dive in if they want to.
NNAMDIIndeed, Congressman Moran, you have said the Washington Metropolitan Area Transit Authority should change its policy to prohibit profanity in advertising. What do you propose?
MORANWell, absolutely. And, incidentally I have completely agreed with everything that your professor has said, as well as the individual who called in. And let me say, I'm not objecting even to having political ads. For example, while I would not agree with the statement, I think there's every -- this gentleman would have had every right to say Obamacare is socialism, something like that. I think he goes -- he overreaches propriety when he says, go to hell, Barack. That's what's offensive. And it seems to me that Metro can preclude that kind of profanity, personal attack on anybody in a profane way.
MORANNow, it's up to them to work it out. But, you know, I don't want to preclude, you know, whether it be political messages or -- no matter how harsh they might be. But I do think there should be a line drawn between political messages and profane statements. And this is -- in my view, this is clearly profane. And, as I say, I think things are even going to get worse as we get into the election season if Metro doesn't act now and stop it. I -- you know, I don't blame Metro for not wanting to get into this, but they can't avoid it.
MORANAnd it seems to me they should take appropriate action, and I trust that the Metro boards, who are all elected representatives, are going to do that because it is federal, state and local money that funds Metro largely, as well as its commuters, of course.
NNAMDIThere's one area of advertising where Congress has stepped in to set some rules. I mentioned earlier cigarette ads. The goal is to distance children from seeing tobacco ads. Daniel...
MORANAnd the alcohol ads and things like that.
NNAMDIAnd so you feel that these -- that profanity should fall under the same kind of guideline.
MORANI do. I think it's a matter of judgment. Just -- it does seem to me that the adult world has some responsibility to exercise judgment because if we don't say something's wrong, then young people think it's all right. And I don't think this kind of ad is all right. I think we've -- if we find it objectionable, then we should have guidelines that, you know, keep it off the public space.
NNAMDICongressman Jim Moran is a Democrat from Virginia. Congressman Moran, thank you very much for joining us.
MORANThank you, Kojo.
NNAMDIDaniel Marcus is a fellow in law and government at American University's Washington College of Law. He teaches a class on constitutional law and on First Amendment law at American University. Daniel Marcus, thank you for joining us.
NNAMDIAnd thank you all for listening. I'm Kojo Nnamdi.
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