AIDS Walk, Big Blue Bus Ads Decision Made

Santa Monica won't make exceptions to its rules that block AIDS Walk LA and other nonprofits from advertising on the Big Blue Bus.

Fearing it would open the doors to controversial ads or accusations it violated the First Amendment by picking and choosing the messages it likes, the City Council has rejected a request from the mayor that it adopt an interim exemption allowing noncommercial ads on the buses.

"Once you allow the side of a city bus to be used for an issue or political messaging, you have to accept issues or political message from all people who pay for it," said City Councilman Kevin Mckeown.

Mayor Richard Bloom said he was disappointed in the vote, which was 4-3 against his proposal, but had accomplished his goal of talking about the policy, and the "complex" issues surrounding it, in public. The discussion was prompted by AIDS Project LA, which protested the city's recent decision to start enforcing a longstanding rule to only allow commercial ads on the Big Blue Bus.

The organization has paid to promote its biggest event on the sides and backs of the Big Blue Bus for six years, but was informed by the city at the end of 2011 that it would no longer accept the ads.

The rules put the APLA and every other nonprofit at a disadvantage, the organization's Director of Government Affairs, Phil Curtis, told the council.

"The restrictive policy, as I understand is trying to avoid controversy, but it’s throwing the baby out with the bath water," he said.

The city chose to bar all noncommercial advertising more than 10 years ago so it wouldn't be positioned to evaluate the appropriateness of campaigns, officials have said.  

"Of course it seems very draconian, and many of us view it as unfortunate," City Attorney Marsha Moutrie told the council. "The current policy is based on our understanding of the current case law."

She has agreed to reevaluate the policy at the council's request, but the options appear to be limited.

"The clear choice court decisions allow… is to make a distinction between commercial and non-commercial," Moutrie said.

AIDS Walk LA Executive Director Craig Miller has argued his organization's ads promoting the fundraiser are no different from those that aren't directly selling a product, such as an ad for a TV show.

But Moutrie said the predominate purpose was to raise money for a nonprofit that advocates for a particular cause.

Allowing the ads would open the buses to becoming "public forums," permitting expression of all kinds under the First Amendment.

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The Metropolitan Transportation Authority in Manhattan—which permits noncommercial ads so long as they don't demean individuals or groups on the basis of race, color, religion, national origin—was found to have violated the First Amendment this summer when it rejected ads from a pro-Isreal group that said, "In any war between the civilized man and the savage, support the civilized man."

Though in his ruling a federal judge wrote the MTA's "goal of preventing ads on city bus exteriors from being used as a medium for abuse and division in this diverse metropolis is entirely laudable," he also said the ad "is afforded the highest level of protection under the First Amendment," the New York Times reported.

In the past 10-15 years, the Big Blue Bus has denied only one ad—a racy promotion for America's Next Top Model—which it perceived to be offensive, according to CAO Joe Stitcher.

Santa Monica's policy also prohibits commercial ads that "ridicule, deride, embarrass, or defame any individual, group of individuals, or entity" or that promote alcohol, tobacco or gun sales.

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