Published: Sep 01, 2012 07:00 PM
Modified: Aug 31, 2012 03:25 PM
After several people complained to Town Hall about an advertisement posted inside Chapel Hill Transit buses calling for an end to U.S. military aid to Israel, Chapel Hill pulled the ads.
Not because of the complaints about the ad’s content, the town said, but because the ad failed to list contact information for the Church of Reconciliation, which sponsored it.
Like most of the comments we’ve heard since about this issue, the yanking of the ad on a technicality seems to miss the point. There is a much larger issue at stake than an ad sponsor’s failure to include its web address (and the town’s failure to notice that in the first place).
Nor is the issue at hand whether the ad’s message is valid. We’ve heard both sides on that question: Some residents support the ad’s presence on the buses because they agree with it, and others want it taken down because they disagree with it, or because, as Town Council member Penny Rich said, the town should not accept “political ads that will offend our Jewish citizens.”
Leaving aside the question of whether our Jewish citizens by definition support U.S. military aid to Israel, the real issue at hand is whether Chapel Hill Transit buses are appropriate and constitutionally protected venues for political, religious and “issues” advertising.
Under the law, public property is divided into three basic different types of public forums. Open public forums are areas that are traditionally open to all expression protected under the First Amendment, such as streets, parks and the proverbial town square. A nonpublic forum is an area that is not traditionally used for public expression, and in which the government can impose stricter regulations on speech, such as a jail or a military base. Finally, a designated public forum is a nontraditional public forum that the government has opened for public discourse.
Public buses are generally considered nonpublic forums unless the government that controls them turns them into designated ones.
As we read the regulations regarding ads on Chapel Hill Transit buses, the guidelines are confusing.
On the one hand, the policy explicitly defines the buses as nonpublic forums. It declares that the sole intent of bus advertising is to raise revenue (as opposed, for example, to fostering public discussion), and says plainly that in accepting advertising “Chapel Hill Transit does not intend to create a public forum for public discourse or expressive activity.”
At the same time, the policy clearly allows precisely such discourse and expressive activity. It allows political, religious and issue advertising, including ads for political candidates; if it didn’t there would be no need for the list of disclaimers those ads are required to include.
So Chapel Hill Transit seems, like the Scarecrow in “The Wizard of Oz,” to be pointing in opposite directions at the same time. Its buses are not public forums, except that they are. We’re glad town leaders plan to revisit the policy, if only so they can clarify its intent.
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