General Discussion
In reply to the discussion: Philly buses ordered to accept ads featuring Hitler & 1941 Palestinian leader [View all]Jim Lane
(11,175 posts)The First Amendment doesn't apply to private entities. You can wear whatever t-shirt you want or adorn your car with whatever bumper sticker you want. If a private company is operating a bus system, it can choose to sell ads or to not sell ads to anyone at all.
The government, however, is in a different situation. If the government runs the bus system, it might choose to have no ads at all. No one has a constitutional entitlement to being able to place an ad in a bus. BUT if the government does decide to sell ads, then it can't discriminate by saying that some points of view are acceptable and some aren't.
Consider the atheist ad that Nye Bevan posted in #9. Some Bible Belt cities would probably like to reject those ads while being eager to carry ads from churches. That's what's not permitted.
I've summarized the general principle but it's actually more complicated. For example, the system can probably enforce restrictions against ads with full frontal nudity. Why do we protect the sensibilities of bus riders who don't want to see a yawning vulva or an erect penis, but we override the sensibilities of Muslims who don't want to see an ad linking them with Hitler? (And, yes, I know there are plenty of non-Muslims who'd be offended, too.) Part of the answer is that some forms of speech (obscenity, defamation, etc.) have traditionally been accorded less protection. Another part is that neutrality would still be required to the extent practicable. The system couldn't say that an ad like "Fuck you, Scott Walker, you union buster" gets rejected for language, but "Fuck you, Barack Obama, you Putin appeaser" gets accepted. Accept both, or neither.
The linked article gives me the impression that the judge did think it through: