entirely unworkable -- there is little doubt that it can operate successfully at the extremes to screen out patently political from wholly commercial advertisements. Rather, the point is that there is a gray area near the middle in which this particular subject matter restriction tends to operate as a sub rosa penalty on presenting political viewpoints in "controversial," as opposed to more benign "commercial," forms.
This again reflects the manner in which Amtrak's policy is susceptible to abuse, for "applying this guideline involves an exercise of discretion and subjective judgment on the part of [Amtrak] officials." Lebron v. Washington Metropolitan Area Transit Authority, 242 U.S. App. D.C. 215, 749 F.2d 893, 899 (D.C. Cir. 1984). In such circumstances, the threat is great that "the policy operates in part to screen out only controversial, but not noncontroversial, political messages." U.S. Southwest Africa/Namibia Trade & Cultural Council, 708 F.2d at 769.
Amtrak contends that the term "political" as employed in its policy means to include (and therefore prohibit) all advertisements that do not seek to sell a product or service. However, that is certainly not what the term "political" is generally understood to mean, and, as noted, this is not how the relevant personnel understand the policy. When a standard for governmental control of speech is so unclear, there is a high likelihood of inconsistent and discriminatory application. Such a vague policy provides Amtrak officials with precisely the kind of unfettered discretion to control speech that the Supreme Court has held to contravene the First Amendment. See, e.g., FW/PBS, Inc., 110 S. Ct. at 605; Lakewood, 486 U.S. at 757; Shuttlesworth v. Birmingham, 394 U.S. 147, 151, 22 L. Ed. 2d 162, 89 S. Ct. 935 (1969); Saia v. New York, 334 U.S. 558, 560, 92 L. Ed. 1574, 68 S. Ct. 1148 (1948) ("There are no standards prescribed for the exercise of [the official's] discretion."); see generally Staub v. City of Baxley, 355 U.S. 313, 322, 2 L. Ed. 2d 302, 78 S. Ct. 277 (1958) ("It is settled by a long line of recent decisions of this Court that an ordinance which . . . makes the peaceful enjoyment of freedoms with the Constitution guarantees contingent upon the uncontrolled will of an official -- as by requiring a permit or license which may be granted or withheld in the discretion of such official -- is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms.").
(iii) Not consistently applied. A further infirmity in Amtrak's "no political advertisements" policy is that it is not consistently applied. As noted above, the policy is unknown to Amtrak's leasing agent, with the result that billboard space in Penn Station has repeatedly been leased for advertisements that are "political" in the sense of Amtrak's definition. Indeed, the licensing agreement between Amtrak and TDI expressly allows for public service advertisements (at reduced rates or no charge). And TDI maintains written Guidelines For Public Service Advertising. They provide that such advertising will be displayed (at less than full rate) for no more than a thirty day period, only when space is available and may be pre-empted by any commercial (i.e. full rate) advertising. The guidelines are designed to insure that such non-commercial advertisements shall be accepted only from "recognized, legitimate [tax exempt] not-for-profit organizations, corporations, National, State or Local government agencies and subdivisions, philanthropic or cultural organizations whose activities would be of interest or benefit to a majority of the area population," and that the advertisements adhere to "good taste, decency and community standards." It is clear that all of the advertisements covered by the Guidelines for Public Service Advertising are of the type that Amtrak contends are prohibited by its rule.
Furthermore, TDI's leasing guidelines do recognize a distinction affecting advertisements that are "political." The TDI guideline, however, does not reject them, but rather considers them commercial and therefore subject to full rate charge."
It is clear beyond dispute that Amtrak's policy is not being consistently followed. TDI's records show that it leases space to advertisers that are not "commercial," and some of which are arguably "political." These include the New York Department of the Environment, the New York Department of Commerce, a foundation for muscular dystrophy, and Plain Truth magazine, a free magazine on political and social issues published by The Worldwide Church of God. In addition, testimony of the general counsel of TDI indicates that TDI regularly displays public service advertisements, including subjects such as the homeless, the environment, drunk driving, AIDS awareness, health issues, and race relations.
(iv) Void for viewpoint bias. Furthermore, depending on which of the many proferred versions really is Amtrak's policy, the policy may also be void because of discrimination based on viewpoint. See Perry Educ. Ass'n, 460 U.S. at 45-46.
If, for example, Amtrak's policy, as Mr. DeAngelo sometimes testified, is directed against divisive, controversial, or objectionable matter, or if, as set forth in the 1967 and 1980 agreements with TDI, it gives Amtrak discretion to refuse any advertising involving "views which could result in dissension or involve [Amtrak] in dissension, complaints or controversy with its patrons or the public . . .," it would be void; government may not regulate speech by such criteria. Texas v. Johnson, 491 U.S. 397, 414, 105 L. Ed. 2d 342, 109 S. Ct. 2533 (1989). "The use of the controversial nature of speech as the effective touchstone for regulation 'threatens a value at the very core of the First Amendment, the "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open."'" U.S. Southwest Africa/Namibia Trade & Cultural Council, 708 F.2d at 769 (quoting Consolidated Edison Co. v. Public Service Commission, 447 U.S. 530, 548, 65 L. Ed. 2d 319, 100 S. Ct. 2326 n.9 (1980) (Stevens, J., concurring) (quoting New York Times v. Sullivan, 376 U.S. 254, 270, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964))). An advertisement such as Lebron's
cannot be prohibited . . . merely because it provokes disagreements and offends the sensibilities of the majority. "Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea." It is precisely this speech for which the protection of the First Amendment was intended.
Penthouse International, Ltd. v. Koch, 599 F. Supp. 1338, 1350 (S.D.N.Y. 1984) (citation omitted); see also Terminiello v. City, of Chicago, 337 U.S. 1, 4, 93 L. Ed. 1131, 69 S. Ct. 894 (1949) ("A function of free speech under our system of government is to invite dispute."); United States v. Schwimmer, 279 U.S. 644, 654-55, 73 L. Ed. 889, 49 S. Ct. 448 (1929) (Holmes, J., dissenting) ("not free thought for those who agree with us but freedom for the thought that we hate").
If the policy is as set forth in TDI's guidelines, whether for Public Service Advertising or for Commercial Advertising, it is void for the same reason, for these guidelines are designed to ensure against advertising that is controversial, in bad taste, or inconsistent with the taste and preferences of the majority of the community. Such standards are of course permissible for a private actor, but not for a governmental actor or an actor whose symbiotic relationship with government renders the act of regulation governmental. Because Amtrak is saturated with the presence of the federal government, it may not regulate speech in an effort to shield its customers from the abrasive, the obnoxious, the controversial.
Plaintiff Lebron has convincingly demonstrated that in rejecting his contract to display his art on its billboard Amtrak was engaged in governmental action and that the standards employed by Amtrak in rejecting his work violated its obligations under the First Amendment.
Defendants are accordingly directed to give plaintiff immediate access to the Spectacular in accordance with his contract.
Dated: New York, N.Y.
February 5, 1993
Pierre N. Leval, U.S.D.J.