Chapel Hill Manager: Town Has Been Enforcing Incorrect Transit Advertising Policy

If you weren't paying attention at the end of the Chapel Hill Town Council meeting tonight, you might have missed some pretty shocking information. The controversial bus ad policy, the one that allowed the now-famous "end military aid to Israel" ads, was in fact not the policy adopted by Council just last year!

Here is a memo from Transit Director Steve Spade to Roger Stancil detailing the error: 

When Transit needed a copy of the policy, I went to the June 13th meeting and used the policy that was included in the packet of materials rather than the policy provided in the supplemental materials that was approved by Council. As a result we have been using the draft policy rather than the one approved by the Council. In reviewing our communication since June 2011, we have consistently applied the draft policy rather than the one approved by the Council. 

There were several edits in the policy approved by the Council, most significantly were the addition of two items in section 2.01 that excluded religious and political and social issue advertising.

When the Church of Reconciliation made a request to purchase advertising in February 2012 we applied the draft advertising policy rather than the Council approved policy. If we were to apply the Council approved policy to the Church of Reconciliation ad it would not meet our standards for advertising based on section 2.01‐e that excludes “advertising in which the primary message is one promoting or opposing a particular view on political or social issues, other than advertising authorized under 3.02 or 3.03”. These sections refer to advertising promoting or opposing named candidates and advertising by non‐profits which must conform to the  language of 2.01. 

Here's a link to the entire memo: http://www.townofchapelhill.org/Modules/ShowDocument.aspx?documentid=16105

Steve and Roger both recommended pulling the Church of Reconcilation ads and refunding the money; however in a memo from Mayor Kleinschimdt, he suggests suspending the current policy and honoring all contracts. He also suggests not accepting any new ads until the policy can be reviewed at the Nov. 5th meeting. You can see that memo here: http://www.townofchapelhill.org/Modules/ShowDocument.aspx?documentid=16108

A motion doing what the Mayor outlined in his memo to Council is what was passed at the end of the meeting. Given the controversy already surrounding the ads, this is indeed an unexpected twist and it should be interesting to see what happens at the November 5th meeting. Hopefully the Council will take this opportunity to correct a bad policy choice from last year, one perhaps made without the proper level of scrutiny.

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13 Comments

Commercial political speech over all else, and we don't see it.

I will be asking to revisit this policy to make sure that we are not favoring commercial propaganda over 'political or social issues' free speach. More significant then a 'primary message' is the primary effect.The first bus advertisements were by Wells Fargo, they did not have the primary message of 'please bank at an insitution that is corrupt,has commited fraud and should be subject to anti-trust law.' rather it had something bland like "with you when you have places to go, Wachovia is Wells Fargo in the Carolina's."It is deceptive, un-balanced, inaccurate, but ultimately political and for making a profit before being  for the public good. Lets face it, money is becoming more and more concentrated in the hands of some very very rich institutions and people, the cost being that we are left without resources to fund the public wellbeing (i.e. bus transit, affordable housing, schools, etc..) so we end up creating policies that are in the trajectory of selling what remains of what we still have (ultimately a pvt business will do us the 'favor' of running the buses in exchange of profit for them .. thanks because we couldn't afford it anyway).  Why do we not have money?  Why is austerity going to seriously kick in after the elections, no matter which candidate wins under 'sequestration'?One day we will wake up and realize we can't say anything that is explicit enough that it offends the providers.  I find it insane that we are volunteering to undermine ourselves by censoring the spaces through which we can communicate especially since we are already at a terrible disadvantage. 

Mark Chilton's picture

What is commercial speech?

There are plenty of other examples, but Sammy's point is one that a number of law professors around the country have raised: What's the difference between political speech and commercial speech?  Suppose a candidate for office runs on a platform calling for banning artificial fertilizers on suburban yards; if ChemLawn responds by defending its record of (supposed) environmental sensitivity, is ChemLawn's advertising commercial speech or political speech?Suppose the Town of Carrboro places advertisements encouraging people to do their holiday shopping at locally owned stores in downtown Carrboro - is the commercial speech or political speech?Suppose a local church wants to increase the size of its congregation and they consequently advertise some of the essential beliefs that distinguish them from other churches?  Is that commercial speech?

gercohen's picture

candidate ads

From the summary posted on the town website, it looks like the only political ads allowed are ads for or against a named candidate. Does this mean an ad for or against a referendum would be banned? An ad that said "vote Democratic" or "vote Republican" would be banned (or tip to Marc M "vote Green")

Ed Harrison's picture

Referendum ads allowed under adopted ad policy

Gerry,I asked Town Attorney Ralph Karpinos this question and he pointed out this section in the certified-as-adopted "Transit Advertising Fee Schedule and Policy." " 3.02 Political Campaign Advertising. Advertising promoting or opposing named candidates for elective office or issues upon which a referendum is being held shall be permissible. All such advertising shall bear conspicuously a paid advertising disclaimer that shall be consistent with the requirements as outlined in Attachment A..."Ed Harrison

Finding the correct policy

If I google the term "Transit Advertising Fee Schedule and Policy" and Chapel Hill, the first hit is to the following document: http://www.townofchapelhill.org/Modules/ShowDocument.aspx?documentid=15328I don't think this is the right document since section 3.02 doesn't read like what Ed posted. So in addition to the policy itself, it would appear that there is also a document management problem. 

Molly De Marco's picture

NC ACLU responds to latest bus ad development

Following the latest development in the Chapel Hill bus ad controversy that Chapel Hill Transit has been enforcing a draft and not a final version of the bus advertising policy, the North Carolina ACLU has sent another letter to Town Attorney, Mayor, and Council Members providing their legal opinion that going forward with this change to enforcing the final policy could be construed as 'viewpoint discrimination'.Here is link to their press release (with link to the full letter at the end)

Molly De Marco's picture

NC ACLU remarks at tonight's (11/5/12) Chapel Hill Council Mtg

NC ACLU Legal Director, Chris Brook, made the following remarks tonight during the hearing on the Chapel Hill's bus advertisement policy:

FOR IMMEDIATE RELEASE
November 5, 2012

           

The following are comments that Chris Brook, Legal Director of the American Civil Liberties Union of North Carolina Legal Foundation, has prepared to deliver at a Nov. 5 meeting of the Chapel Hill Town Council regarding an ongoing controversy over the town’s bus ad policy:

 

“Good evening.  Thank you, Mayor Kleinschmidt and Members of the Town Council, for the opportunity to speak again on this important First Amendment issue.  Recent developments in this situation have surprised many of us, but the key facts, as well as the legal conclusions they lead to, remain the same.

            Until October 24, 2012, Chapel Hill’s staff, attorney, and Town Council believed their policies allowed for political advertising on the buses with very limited restrictions.  This policy reflected the reality that political advertisements had appeared on buses for decades without objection.  For example, the United Church of Christ ran five political advertisements on Chapel Hill buses from August 1, 2010, through July 31, 2012.  On August 1, 2012, they placed another political advertisement on Chapel Hill buses, which continues to run today.  No one has sought to remove these progressive political advertisements in the past two years and no one speaks out against them today. 

The consistent and uninterrupted acceptance of political advertisements highlights that the Town has created a public forum on its buses.  More importantly, the acceptance of political advertisements speaks to the Town’s proud tradition of welcoming dialogue.

            This tradition is now called into question by those wishing to bar The Church of Reconciliation’s political advertisements.

Opponents of these advertisements highlight that they have deeply upset many in the community.  But the Supreme Court has spoken clearly here saying, “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Opponents of these advertisements highlight paper policies declaring Chapel Hill buses a nonpublic forum.  But they cannot identify an instance where the paper policy resulted in the rejection of a political advertisement.  Nor can they highlight a case where a court found a nonpublic forum based on a paper policy alone. Opponents have also highlighted the recently discovered June 2011 “final” policy that forbids all religious and many political advertisements from the buses. 

            This “final” policy cannot be used to bar Church of the Reconciliation advertisements.  To solicit applications for advertisements under one policy and then judge them based on an inaccessible policy would be unfair.  Businesses, non-profits, and churches who wish to advertise their goods and services should not be held to account for the Town’s error. 

Furthermore, Chapel Hill’s discovery of the operative policy more than 16 months after

its adoption is compelling evidence the Town had no policy in practice.  Applying an inoperative policy for the first time to bar a controversial political advertisement, after decades of allowing other political advertisements, would without question be unconstitutional viewpoint discrimination.

            Recent developments have only underlined Chapel Hill’s long, consistent, and durable history of welcoming political dialogue to its buses.  We encourage the Town to embrace this proud tradition and bring its policy in line with its practice by clarifying that Chapel Hill’s bus advertising space constitutes a public forum.”