MTA permitted to ban transit union ads demanding pay raise

The Transport Workers Union has no constitutional right use bus and subway ads in order to demand a wage increase, a federal judge ruled Thursday.

U.S. District Court Judge Paul Gardephe said the MTA had the right to bar political speech from its mass transit system in April 2015 and the MTA’s refusal last month to let the TWU take out ads demanding wage hikes was “reasonable.”

Gardephe said the political nature of the union ads was “obvious” because the ads discuss wages and would be posted just as collective bargaining talks between the MTA and the 38,000 member union are heating up. The TWU contract expires Jan. 15.

The ads — depicting bruised, bloodied and bandaged transit workers — say, “Every 36 hours, a transit worker is assaulted on the job. We deserve a wage increase for our sacrifices.”

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TWU President John Samuelsen had argued the union's proposed $190,000 advertising campaign was an effort to give the public “a better understanding of what it's like to be a transit worker.”

Union lawyer Arthur Schwartz contended that MTA rules barring political speech violate the workers’ First Amendment rights by the rules’ very nature and that the MTA’s enforcement of its political ban was inconsistent.

Gardephe said since the MTA’s main goal is to make money from its advertising space, that space is a “limited public forum,” so the authority can bar political speech — as long as it doesn’t enforce that policy selectively.

He rejected the union’s contention that the MTA had been selective by allowing the city Commission on Human Rights to post ads urging people to look beyond “pink and blue” and use bathrooms that fit their gender identities. Gardephe said that was a public service message permitted by the agency’s rules.

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The judge also said the Post-it notices that the MTA allowed New Yorkers to put up on subway walls after the election were not in space reserved for paid advertisements.

Gardephe said an ad last fall by the Freelancers Union that attacked companies that don’t pay freelance fees promptly was political, but he accepted the MTA’s explanation that it was a mistake to let those ads go up. The authority said they were quickly pulled down.

“The MTA reasonably determined that the union's advertising was prohibited under its advertising policy,” Gardephe said.

He added he had to reject the TWU’s request for a temporary injunction because it was unlikely that the union would succeed with its request for a permanent injunction to bar the political ban in bus and subway ads.

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“The subway ads were intended to shine a light on the extreme dangers transit workers face every day on the job,” said TWU spokesman Pete Donahue. “The MTA viewed that as too political, and they fought us hard to keep the public from seeing the reality of a transit worker’s job.

“We used other forms of paid media while we fought this out, including radio, TV, print and digital. We're disappointed we lost in court, but I think in the end we're winning in the court of public opinion.”

The MTA had no comment on the decision.

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