Chapel Hill Transit Partners Committee weighs in on bus advertising

Chris Brook, Legal Director of the NC ACLU, will make the following statement tonight regarding the potential approval of 'Option Five':

Good evening.  My name is Christopher Brook and I am the Legal Director of the ACLU of North Carolina.  Thank you, Mayor Kleinschmidt and Councilmembers, for the opportunity to speak again on this important First Amendment issue. 

            The Chapel Hill Transit Partners Committee recently endorsed Option Five before the Town Council this evening.  Option Five deems Chapel Hill bus advertising space a limited public forum permitting some political and religious advertisements.  This acknowledges the Town’s long tradition of allowing political and religious advertisements on its buses and improves on Option One’s near blanket political and religious speech ban.  However, Option Five allows Chapel Hill to bar “offensive” advertisements, a hopelessly subjective standard that could easily lead to unconstitutional viewpoint discrimination. 

The Church of Reconciliation advertisement at the heart of the current controversy highlights the shortcomings of Option Five.  This advertisement genuinely offended some members of the Chapel Hill community.  In fact, tonight some of these community members have proposed a petition calling on the Town Council to support continued military aid to Israel by the United States.  While such foreign policy questions are far beyond my expertise, this petition testifies to the fact that community concerns were based, first and foremost, on the Church of Reconciliation opposing military aid to Israel. 

Option Five unnecessarily, and potentially unconstitutionally, entangles the Town in this viewpoint-based discussion.  If Chapel Hill determined the Church of Reconciliation advertisement was “inoffensive” and should be allowed to run, then the Town implicitly communicates to community members opposed to it that their personal offense was somehow wrong.  On the other hand, if Chapel Hill deemed the advertisement “offensive,” then the Town would limit community political discourse to a still unclear moving target.  Courts have time and again held such “subjective standards put too much discretion into the hands of [transit] officials.”[1] 

In so doing, Option Five sets a bad precedent.  The question facing the Town Council tonight is not only whether you trust Chapel Hill staff to dispassionately determine what is and is not “offensive,” but also whether you would trust every other community in our state to exercise such authority evenhandedly.

            Chapel Hill can avoid unnecessary headaches and litigation by declaring its bus advertising space a public forum.  Madison, Wisconsin has shown a public forum is fully compatible with a top-notch transit system.  Their transit system provided 14.9 million rides in 2011 and won the American Public Transportation Association’s 2012 Outstanding Public Transportation System Achievement Award, all while operating its bus advertising space as a public forum. 

            The responsible decision is to embrace the Madison model by declaring Chapel Hill transit a public forum, providing North Carolina communities a template for trusting their residents to maturely handle even challenging speech.

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[1] National Abortion Federal v. Metropolitan Atlanta Rapid Transit Authority, 112 F.Supp.2d 1320, 1328 (N.D. Ga. 2000).