MTA Votes to Ban All Political Advertising After Judge OKs "Hamas Killing Jews" on City Buses

[Jim Lane]

19. The First Amendment applies to ALL governmental entities

The Constitution contemplates the federal government and the state governments. That's all. Any state that wanted to could abolish all local governments and run everything out of the state capital. It would be lunacy but it would comply with the Constitution.

Instead, of course, the states choose to create local governments. What the state may not do directly it may not do indirectly. That's why municipal and county governments, as creatures of the state, are also bound by the First Amendment.

In New York, as in other states, the creation of other governmental entities isn't limited to county and municipal governments. There are assorted unified school districts, bistate agencies, and, as here, public benefit corporations. The form of the entity doesn't matter. If it's created and ultimately controlled by the state government -- as the MTA most assuredly is -- then it's a governmental entity and it's subject to the First Amendment.

There can be gray areas about how the First Amendment applies to particular policies that restrict speech. As to whether the MTA is bound by the First Amendment, however, I assure you that there is absolutely no gray area.

On your view, the MTA would be within its rights to say "We'll accept campaign ads from Republicans but not from Democrats or anyone else." That is not the law. You're right that a private company like Breitbart could adopt that policy but the MTA could not.