Mayor loses fight over use of name on magazine’s bus ad

NEW YORK–A unanimous panel of the federal appeals court in New York (2nd Cir.) lifted an emergency stay in early December that had prevented New York magazine from running a controversial advertisement ridiculing New York Mayor Rudolph Giuliani.

The unanimous three-judge panel ruled in an expedited appeal that the advertisement did not irreparably harm the city, permitting the magazine to resume the campaign.

The court also denied the city’s request to halt the campaign until a full appeal is heard.

The controversy began in late November, when Giuliani pressured the Metropolitan Transportation Authority to pull the advertisement from city buses. The ad claimed New York magazine was “possibly the only good thing in New York Rudy hasn’t taken credit for.”

Giuliani said he objected to the advertisement because it violates his rights to privacy and is not protected speech under the First Amendment. City officials also cited a state law that forbids city officials to allow their names to be used for commercial purposes.

New York magazine then sued the MTA in federal District Court in New York, charging that the magazine’s right to free speech had been violated. The suit also said the MTA broke an $85,000 contract to display the ads on 75 buses.

According to The Associated Press, the magazine told District Court Judge Shira Scheindlin: “First Amendment interests are paramount here. The bruised ego, someone who seems to lack a sense of humor, is not sufficient to overcome those First Amendment interests.”

The MTA argued that the ads will be seen by “millions of people,” and that “some will believe that [Giuliani] consented to the ad, and thereby endorsed New York magazine,” the AP reported.

The transit authority also speculated that allowing the ads to run could open the door to future abuses of ads involving the names of politicians, arguing that “The advertisers of America will go on and on, and there will be ads like that appearing every day of the week,” the AP reported.

Scheindlin ruled in favor of the magazine, writing that “It is abundantly clear from the text of the ad that the mayor is not endorsing the product.”

She added that the outside of a bus qualifies as a public forum, because the MTA continues to accept other commercial and political advertising. Scheindlin called the ad “a hybrid of commercial speech and political satire” that is protected by the Constitution.

Scheindlin also reminded Giuliani that “One who chooses to be the mayor of the ‘Big Apple’ must expect that he will be the subject of all kinds of public comments, even in advertisements.”

Giuliani told the AP that he was considering filing a law suit against the magazine, saying that was “the only avenue left to me.”

According to The Washington Post, an MTA spokesman said that in light of the appeals court’s order, it will immediately replace the ads on 33 buses. (New York magazine v. Metropolitan Transportation Authority; Media Counsel: Marcia Paul, New York)