Evolution of a Transit Advertising Policy

Transcription

1 Evolution of a Transit Advertising Policy 2016 APTA Legal Affairs Seminar Peter G. Ramels Civil Division of the King County Prosecutor s Office February 22, 2016

2 235 bus routes approximately 400,000 daily boardings. Seattle metropolitan service area 2,134 square miles and almost two million residents. Annual operating budget approximately $600 million. Advertising revenue of $5.55 million in 2012 was 3.8% of the $144.9 million total operating revenue.

3 Transit Advertising Policy in 2010 Broad array of commercial and non commercial advertising. King County Code says transit properties are not open public forums. Included subject matter prohibitions against advertising for alcohol, tobacco, adult entertainment, and illegal activities. Included civility prohibitions against: Any material that is so objectionable under contemporary community standards as to be reasonably foreseeable that it will result in harm to, disruption of, or interference with the transportation system. Any material directed at a person or group that is so insulting, degrading, or offensive as to be reasonably foreseeable that it will incite or produce imminent lawless action in the form of retaliation, vandalism or other breach of public safety, peace and order.

4 Ad Approved in mid October, 2010 Ad Approved in mid October, 2010 for 4 week display starting December 27, 2010.

5 Public Reaction A Local television story about the ad aired on Friday, December 17 th. Strong reaction over the weekend so by Monday, December 21 st : The County had received the first 500 of what turned out to be over 6,000 complaints. Photographs of bombed buses were slipped under the door of Metro offices.

6 Photograph slipped under door at Metro offices

7 Public Reaction Over the next 3 days threatening and worried s and calls received: Those signs will not go up. If you run these ads we will shut metro down. KC atty is forcing me to violence. Is it safe for my son to ride the bus. I do not intend to endanger myself.

8 First Two Response Ads Proposed on December 22 nd.

9 Third Response Ad Proposed on December 22nd

10 Law Enforcement Concerns Sheriff said proposed ad creates security risk. U.S. Attorney said buses are targets of choice and recommended avoiding anything that inches up the dial and draws international attention. Stories about the ad appeared in the Jerusalem Post and on the website of a group calling itself the armed branch of Hamas.

11 Ads Denied The Initial ad and the response ads rejected on Wednesday, December 23 rd. County concluded that ads violated the Transit Advertising Policy because it was: Foreseeable that the ads will result in harm to, disruption of, or interference with the transportation system. Foreseeable that the ads will incite or produce imminent lawless action in the form of retaliation, vandalism or other breach of public safety, peace and order.

12 Interim Commercial Only Policy Also on Wednesday, December 23 rd County adopted an interim commercial only policy. It prohibited: Any advertising from non governmental entities if the subject matter and intent of said advertising is non commercial. Specifically, acceptable advertising must promote for sale, lease or other form of financial benefit a product, service, event or other property interest in primarily a commercial manner for primarily a commercial purpose.

13 Potential Lost Revenue For the five years preceding the commercial only ad policy, Metro ads were: Commercial 84.41% Political and Public Issue 2.56% Public Service and Nonprofit 13.03% Total ad revenue for this period was approximately $35 million. Potential for lost revenue in the amount of approximately $5.46 million for a five year period.

14 Four Months Later In April, 2011 A New Policy Allowed Commercial, Public Service and Nonprofit advertising. Prohibited Political and Public Issue advertising. Also retained (revised) subject matter and civility prohibitions.

15 Advertising expressing or advocating an opinion, position, or viewpoint on matters of public debate about economic, political, religious or social issues?

16 Advertising expressing or advocating an opinion, position, or viewpoint on matters of public debate about economic, political, religious or social issues?

17 Advertising expressing or advocating an opinion, position, or viewpoint on matters of public debate about economic, political, religious or social issues?

18 Nine Months Later In January, 2012 A New (and still current) Policy The current policy is very similar to the prior iteration, except that it allows Public Issue Ads. The civility prohibitions include: False or Misleading. Any material that is or that the sponsor reasonably should have known is false, fraudulent, misleading, deceptive or would constitute a tort of defamation or invasion of privacy.

19 Additional Prohibitions in January 2012 Policy Demeaning or Disparaging. Advertising that contains material that demeans or disparages an individual, group of individuals or entity. For purposes of determining whether an advertisement contains such material, the County will determine whether a reasonably prudent person, knowledgeable of the County s ridership and using prevailing community standards, would believe that the advertisement contains material that ridicules or mocks, is abusive or hostile to, or debases the dignity or stature of any individual, group of individuals or entity.

20 Additional Prohibitions in January 2012 Policy Harmful or Disruptive to Transit System. Advertising that contains material that is so objectionable as to be reasonably foreseeable that it will result in harm to, disruption of or interference with the transportation system. For purposes of determining whether an advertisement contains such material, the County will determine whether a reasonably prudent person, knowledgeable of the County s ridership and using prevailing community standards, would believe that the material is so objectionable that it is reasonably foreseeable that it will result in harm to, disruption of or interference with the transportation system.

21 State Department ad posted on June 6, 2013

22 Public Reaction

23 Public Reaction

24 State Department Canceled Ad The State Department cancelled the ad on June 25, 2013, just a few weeks after it had been posted on the buses. Metro had started to re evaluate the ad when it was withdrawn.

25 AFDI ad submitted on July 16, 2013, and then modified by AFDI on August 1, 2013.

26 False and misleading elements

27 Ad Denied Metro denied the AFDI ad on August 14, 2013 because it violated the following provisions of the Advertising Policy: False or Misleading Demeaning or Disparaging Harmful or Disruptive to Transit System

28 Ad Denials Affirmed Seattle Mideast Awareness Campaign v. King County, 2011 WL (W.D. Wash. 2011). Seattle Mideast Awareness Campaign v. King County, 781 F.3 rd 489 (9 th Cir. 2015). American Freedom Defense Initiative v. King County, 2014 WL (W.D. Wash. 2014). American Freedom Defense Initiative v. King County, 796 F.3d 1165 (9 th Cir. 2015).

29 Ninth Circuit Tests Government intent establishes nonpublic forum Policy defines forum as nonpublic and includes detailed standards Agency rigorously enforces policy Nature of property: part of a commercial enterprise Application of specific prohibition must be reasonable and viewpoint neutral Reasonable in light of the purpose served by the forum Sufficiently definite and objective to prevent arbitrary or discriminatory enforcement Viewpoint neutral on its face and as applied Standard of Review: Court independently reviews the record without deference to assessment of transit agency

30 Practical Lessons Drafting a Policy Clear statement of intent and purpose Detailed standards Test drive policy against past ads Fewer decisions makes a better policy

31 Practical Lessons Application of Policy Be deliberative Be consistent Compare past ads Keep record of decisions

32 BUT Petition for Writ of Certiorari filed by AFDI on November 2, Fully briefed and distributed for Conference on January 22, No decision on petition, which is relisted for consideration at the next Conference.