By Eugene Volokh
SF Weekly blogs reports that the San Francisco Municipal Transportation Agency doesn’t allow movie ads with guns in them:
While the official poster for [The Other Guys] features a maniacal Ferrell and the menacing Wahlberg sailing through the air, guns drawn, the version on Muni vehicles and in stations features Ferrell brandishing a vial of pepper spray and Wahlberg relying upon his bare fists. This is not a coincidence.
“Well, the San Francisco Municipal Transportation Agency does have an advertising policy that states ads should not appear to promote the use of firearms or advocate any violent action,” explains spokesman Paul Rose.
Sure enough, the policy says,
Advertising on Municipal Transportation Agency (“MTA”) property, or as authorized under any contract with the MTA, constitutes a nonpublic forum. No such advertisement shall:
-- be false, misleading or deceptive;
-- concern a declared political candidate or ballot measure scheduled for consideration by the voters in an upcoming election, or an initiative petition submitted to the San Francisco Department of Elections;
-- appear to promote the use of firearms;
-- be clearly defamatory;
-- be obscene or pornographic;
-- advocate imminent lawlessness or violent action;
-- promote alcoholic beverages or tobacco products;
-- infringe on any copyright, trade or service mark, title or slogan
The policy is unconstitutional, at least as applied to movie ads, because it’s viewpoint-based. The government has broad authority to restrict speech on its own property (at least setting aside traditional public forums, which transportation ad space is not, see the linked-to opinion’s favorable citation to the Lehman v. City of Shaker Heights plurality opinion). But even in such a nonpublic forum that’s open for advertising purposes, it may not restrict speech based on viewpoint. And a ban on speech that “appear[s] to promote the use of firearms” — but not speech that appears to oppose the use of firearms — is viewpoint-based.
It’s possible that a ban on the advertising of nonspeech products, such as guns, might be treated more deferentially (a difficult question that I set aside here). But a general ban on speech that seems to promote the use of firearms would be unconstitutional (see the highlighted passage in R.A.V. v. City of St. Paul), both as to noncommercial advertisements — e.g., political ads supporting private gun ownership and use — and as to the movie ads discussed here. And of course on top of this I can’t see how the ad here in fact promotes (or even appears to promote) the use of firearms or advocates any violent action.
But even if the policy were viewpoint-neutral — for instance, barred all depiction of guns, which might well qualify as viewpoint-neutral (depending on whether courts would focus on the agency’s possibly viewpoint-suppressive motivations) — and were thus constitutional, I think it would be pretty pathetic. Do the citizens of San Francisco really need to be protected from posters of actors pretending to shoot guns (with both hands yet, while jumping through the air)? Is the municipal government really worried that such ads, or any like them, will promote crime? Or is the government so absurdly pacifist that it just insists on not having anything on its property that seems to portray guns in a positive light? Let’s hope that San Franciscans drum some sense of perspective into their bureaucrats.