Magazine wins right to mention mayor in bus ads

NEW YORK–Ads touting New York magazine as “possibly the only good thing in New York Rudy hasn’t taken credit for” should not have been removed from the outside of 75 city buses just because Mayor Rudolph Giuliani disliked them, the U.S. Circuit Court of Appeals in New York (2nd Cir.) held in late January.

In a 2-1 vote, the appeals panel upheld a lower court decision that the Metropolitan Transportation Authority violated the magazine’s free-speech rights when it removed the ads, at the mayor’s request, from its buses in late November.

The appeals court affirmed the federal District Court’s injunction against the MTA and its ruling that the “advertising space on the outside of MTA buses is a designated public forum, because the MTA accepts both political and commercial advertising.”

The court criticized the removal of the advertisement as a form of prior restraint.

In dissent, Judge Richard Cardamone argued that the case involved reasonable regulation of commercial speech.

In late November 1997, Giuliani pressured the MTA to remove the advertisements, claiming they violated a New York privacy law that prohibits the use for commercial purposes of a “name, portrait or picture of any living person” without that individual’s written consent.

New York magazine sued the MTA in federal District Court in New York, claiming that removal of the ads violated the magazine’s right to free speech.

The district court enjoined the MTA from rejecting the ads in early December, and the MTA asked the appellate court to hear the case.

In late January, MTA petitioned for rehearing of the case by the full court, the magazine’s attorney said. (New York Magazine v. Metropolitan Transportation Authority; Media Counsel: Marcia Paul, New York)