Transit board to restore ads in San Diego bus shelters

Friday, December 11, 1998

San Diego's transit board has decided to reverse a ban against religious advertisements at city bus shelters.

The 15-member Metropolitan Transit Development Board voted unanimously yesterday to restore advertisements containing religious messages at 158 bus shelters throughout the city. Last weekend, the transit board had ordered the signs removed, citing a board policy barring advertisements with political or religious messages.

The signs, created by the San Diego Mission Valley Christian Fellowship Church, had been posted since mid-November. The church and city attorney were not notified of the transit board's decision to remove the signs. The signs proclaim the fellowship's belief that Jesus is the focus of Christmas. The signs were posted by the transit board's advertising contractor, without the board's knowledge.

After the church complained, San Diego City Attorney Casey Gwinn looked into the case and yesterday issued a legal memorandum stating that the transit board's policy was constitutionally suspect.

“Our preliminary review has caused us to come to the conclusion, that Policy No. 22 would likely be found unconstitutional by a state or federal court,” Gwinn wrote in a Dec. 10 letter to the transit board. “While we have begun a comprehensive analysis of all First Amendment case law related to this dispute, there is little doubt that the policy, as worded and enforced, is vague, overbroad and directly contravenes both the federal and California Constitutions.”

The transit board announced its reversal before a public meeting that members of the church attended. Jack Limber, general counsel and deputy general manager of the transit board, said that the board would pay for replacing the church's signs.

“The original board policy was created 15 years ago and dealt with bus advertising,” Limber said. “Religious and political messages were expressly prohibited, and apart from alcohol, tobacco and sexually explicit ads, almost any other commercial advertising was OK.”

Limber said the transit board would now work closely with the city attorney to create a new policy that appropriately addressed the constitutional issues.

In his three-page letter, Gwinn argued that the city's bus shelters would be found to be a public forum in which religious and political messages could not be treated differently than secular ones.

“It is undisputed that various forms of advertising appear on MTDB transit shelters and bus benches, including non-commercial advertisements advocating AIDS prevention, Planned Parenthood, and many other groups and causes,” Gwinn noted. “Under existing law, such locations must be open to expressive activity unless the activity is basically incompatible with the primary use of the facility.

“Because advertisements are not per se incompatible with the intended use of the shelters and benches, it is unlikely MTDB could demonstrate that religious or political advertising would be any more incompatible than the advertisements of the many other organizations that are presently permitted.”

Gwinn, moreover, argued that the state judiciary had interpreted the state constitution to provide greater protection for speech than the U.S. Constitution. He argued that “without question, political and religious speech, in California, is entitled to even greater protection than under the federal Constitution.”

Nancy Hallahan, a spokeswoman for the Mission Valley Christian Fellowship Church, lauded the transit board's decision to restore the signs.

“It was awesome to see God's work; it has made them reconsider their policies,” Hallahan said.