New York City mayor Bill De Blaiso recently signed an executive order (“Order”) banning alcohol advertisements on most city-owned property, such as bus shelters, newsstands, and recycling bins. The law exempts from the prohibition city-owned venues that are permitted to sell alcohol, like restaurants and stadiums. Regardless of whether it is good policy, the Mayor’s action has a major flaw—a court would likely find it unconstitutional under any of the rubrics for evaluating government regulation of speech on its own property.
While there are major ambiguities in classifying fora for First Amendment analysis, the Order would fail any test because it engages in two actions that violate bedrock principles of constitutional law: (1) viewpoint discrimination; and (2) justifying that viewpoint discrimination by seeking to protect people from being influenced by non-deceptive speech. One of the few constants across First Amendment caselaw is that viewpoint discrimination is almost never constitutional. And the Supreme Court has consistently rejected content restrictions that purport to protect individuals from being influenced by truthful speech. For these reasons, the Order is likely unconstitutional.
Moving forward, the Supreme Court should iron out the ambiguities in forum classification to deter governments from engaging in speech restrictions such as this one. And policymakers should think twice about restricting truthful speech, in any forum.
Is NYC Ad Space a Public Forum?
Because New York’s policy affects only government property, a First Amendment challenge to the law would require a court to determine what type of public forum New York City advertising space constitutes (as a reminder, there are three types of government property for purposes of First Amendment analysis: (1) traditional public forums; (2) designated public forums; and (3) limited public forums). In Lehman v. City of Shaker Heights, the Supreme Court held that advertising space on a city’s public transportation system is not a traditional public forum. Accordingly, New York City-owned advertising space is either a designated public forum or a limited public forum.
To determine what type of forum a space is, courts use a fact-heavy analysis of the government’s intent. The Ninth Circuit in Seattle Mideast Awareness Campaign v. King County identified three factors: (1) whether the government has a policy that regulates the content of speech in the forum; (2) how the policy has been applied; and (3) whether the public forum is designated for expressive activities or is primarily part of a government-run commercial enterprise.
As to the first two factors, there is little public information about New York City’s advertising policies and how they have been applied—the task has apparently been delegated to a private company. As to the third prong, although advertising space would seem to be commercial in nature, there is at least one instance where the Public Art Fund “transform[ed] 100 city bus shelters into mini-art galleries . . . with work by New York-based photographer Elle Pérez.” And in 1998, the Second Circuit held that advertising space on New York City buses were a designated public forum. So, it is unclear whether a court would find New York City’s publicly-owned advertising space to be a designated or limited public forum.
Regardless of the type of forum, the Order is subject to constitutional objections.
If the Ad Space is a Designated Public Forum, it Fails
New York’s advertising ban faces serious headwinds because content restrictions in public forums are generally subject to strict scrutiny. Accordingly, the restriction must be narrowly drawn to effectuate a compelling government interest. The Order would certainly fail under strict scrutiny. As explained below, the restriction is not narrowly drawn because there are non-speech alternatives—such as limiting alcohol content or raising taxes on alcoholic beverages—that would advance the government’s interest in limiting alcohol consumption or abuse.
If the Order is Treated as a Regulation of Commercial Speech, it is Infirm
While most courts would apply strict scrutiny to commercial speech in a designated public forum, some have suggested that commercial speech within a public forum may trigger only intermediate scrutiny. For example, the Northern District of Illinois preliminarily enjoined a ban on violent video game advertisements on city transit property under strict scrutiny but concluded that, in the alternative, the outcome would have been the same under a commercial speech analysis. Using a similar approach, the New York law would also fail under commercial speech doctrine.
Assuming that the commercial speech doctrine applied, the Order would be analyzed under Central Hudson’s intermediate scrutiny. There, the Supreme Court held that a restriction violates the First Amendment if:
- The expression at issue is protected by the First Amendment (e., not unlawful or misleading); and
- The asserted government interest is not substantial; or
- The regulation does not directly advance the governmental interest asserted; or
- The regulation is “more extensive than is necessary to serve that interest.”
Truthful alcohol advertisements are undoubtedly commercial speech protected by the First Amendment. New York may claim a substantial interest in reducing alcohol consumption—in 44 Liquormart, Inc. v. Rhode Island, the Supreme Court did not question that reducing alcohol consumption was a valid interest, and in Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, reducing the demand for gambling was a substantial state interest. So, the analysis comes down to the third and fourth Central Hudson prongs.
Does the Order adequately advance the state’s interest in reducing alcohol consumption? New York cites some research indicating that alcohol advertisements lead to higher alcohol consumption. That is not enough. In Sorrell v. IMS Health Inc., Justice Kennedy repeated a longstanding bedrock of commercial speech protection: “[F]ear that people would make bad decisions if given truthful information cannot justify content-based burdens on speech.” Here, New York City’s justification for the ban boils down to concern that ads induce people to make bad decisions. And, as in Sorrell, just because New York “finds expression too persuasive does not permit it to quiet the speech or to burden its messengers.”
The Order likely fails the third prong on a more practical level—its approach is not well-designed to meet its stated goal because it excludes from the ban establishments that sell alcohol. If the point of the ban is to reduce alcohol consumption, it seems counterproductive to exempt the places where alcohol is consumed. In a similar case—Rubin v. Coors Brewing Co.—the Supreme Court considered a government ban on disclosing alcohol content on beer labels to prevent brewers from competing on the basis of alcohol strength. The Court found that the law failed the third prong of Central Hudson and was doomed to fail, as it did not ban alcohol content in advertising (a more influential weapon than labeling) or in wine and distilled spirits. As in Rubin, it is unlikely the Mayor’s Order “can directly and materially advance its aim, while other provisions of the same Act directly undermine and counteract its effects.”
Finally, the Order is almost surely more restrictive than necessary to achieve the state’s goal of reducing alcohol consumption or abuse because there are non-speech alternatives that would advance New York City’s asserted interest. In Rubin, the Supreme Court held that a ban on disclosures of alcohol content was not sufficiently tailored to meet its goal because there were alternatives such as directly limiting the alcohol content of beer. Here, if New York City wants to curb overall alcohol consumption or alcohol abuse, it could provide limits on alcohol content, raise taxes on alcoholic beverages, or pursue a variety of more limited speech regulations. Accordingly, the Order would fail the fourth prong of Central Hudson.
If the Ad Space is a Limited Public Forum, the Order Fails
Assuming that the Order was analyzed under a limited public forum analysis, it would still violate the First Amendment. In a limited public forum, government regulation of speech must be (1) reasonable and (2) viewpoint neutral. While the irrationality of New York’s selective application might be grounds for declaring the law unreasonable, the law fails the viewpoint neutrality prong.
A viewpoint-based restriction prohibits certain opinions. For example, a prohibition on discussing topic X would not constitute viewpoint discrimination because it bans discussion of the entire subject matter—not certain opinions. If, however, the prohibition extended only to opinions that supported topic X but not those that opposed topic X, the prohibition would discriminate based on viewpoint.
Here, the Mayor’s alcohol ad ban discriminates on the basis of viewpoint. The law does not prohibit all discussion of alcohol. It prohibits only alcohol advertisements. In other words, there would presumably be no obstacle to posting a public service announcement denouncing the evils of alcohol. So, New York’s law is unconstitutional even under a limited public forum analysis because it discriminates based on viewpoint.
The Order Cannot Be Saved under the Novel “Government Speech” Doctrine
New York may argue that its law is constitutional because it its ad space is really “government speech,” which is unregulated by the Free Speech Clause of the First Amendment. This is a new doctrine, and a controversial one at that. In Pleasant Grove City, Utah v. Summum, the Supreme Court held that permanent monuments displayed in a public park were government speech because (1) governments traditionally used monuments as a method of conveying government messages; (2) the government did so in that case by tightly controlling the monuments placed in the park; and (3) parks can house only a limited number of permanent monuments, in contrast to the innumerable amount of speeches, demonstrations, or other transient expressive activity that the park could accommodate over time. This doctrine may have provided a convenient way out of the license plate and monument cases that had vexed the court, but the doctrine is not satisfying and is not much extended. For example, in Matal v. Tam, the Supreme Court found that trademarks did not constitute government speech because (1) they have not traditionally been used to convey a government message; (2) generally, the government did not consider viewpoint in deciding whether to grant trademarks; and (3) there was no evidence that the public associated the contents of trademarks with the federal government.
Applying these principles here, it seems that the advertising space that New York grants to private companies should not be treated as government speech. First, paid private advertising on a variety of public surfaces has not traditionally been used to convey government messages, and until recently, it included alcohol advertisements. Relatedly, it is unlikely that the public associates private advertisements for commercial products with the government of New York City. And unlike the permanent monuments in Pleasant Grove, advertisements are transient speech that change over time in response to market forces and budgets. The only uncertainty in this analysis stems from uncertainty about how much control New York exerts over advertisements based on their viewpoint. But given that other factors cut against classifying leased advertising spaces as government speech, it seems likely that a court would reject an argument to classify New York City’s public advertising space as government speech.
New York City’s alcohol advertising ban is vulnerable to serious constitutional challenge. Given the factual and doctrinal uncertainties in determining which forum analysis applies, it is less clear which doctrine would seal its fate. As Justices Thomas and Alito recognized in a 2016 dissent from a denial of certiorari, the Court’s guidance in distinguishing between designated and limited public forums “has bedeviled federal courts.” Until the Supreme Court irons out this doctrinal issue, governments are likely to continue pushing the envelope in regulating speech on government property.