The state’s largest newspaper, the Honolulu Star-Advertiser, recently pushed back hard against a new mayoral proposal to place ads on the outside of city buses.

Arguing this is “no way to raise the necessary money” to sustain the bus system, the newspaper’s editorial warned that allowing such advertising could open the door to serious problems. People in Honolulu could face unfiltered ads on particularly divisive issues, like abortion, religion and drugs. Other cities that have attempted to censor such ads, the editorial added, have faced First Amendment lawsuits that can be difficult to win and costly to fight.

The suggestion seems to be that if Honolulu allows such bus ads, residents and visitors could face images of aborted fetuses rolling past them — or they could end up paying to try to restrict such ads.

Free speech — yes, even on the sides of buses — is a sensitive and complicated issue, and not just to an advertising-supported publication like the Star-Advertiser that might consider the bus ad proposal as creating competition for its own advertisers.

Critics also say that external bus ads won’t live up to the promise of their advocates. Honolulu officials have repeatedly said the ads would raise “as much as $8 million.”

But a Civil Beat review of such advertising in comparable West Coast cities indicates that the bus system is likely to receive far less.

The City Council shot down a bus ad proposal early this year but members are now weighing such issues as the city seeks to balance the 2015 fiscal year budget. A vote is expected before the budget is finalized in June.

Portlandia Meets Free Speech

Screenshot, TriMet

One city that has faced relevant free speech challenges is Portland, Oregon, where a few years ago attention-grabbing ads appeared on TriMet’s public buses and trains.

The ads — which equated Israel’s enemies with savages — read: “In a war between the civilized man and the savage, support the civilized man. Support Israel. Defeat Jihad.”

The ads, by the American Freedom Defense Initiative, were a response to another ad that ran on TriMet vehicles that decried the loss of land controlled by Palestinians to Israel.

The Defeat Jihad ads also ran in New York, San Francisco and Washington, D.C.

TriMet officials at the time apologized for the ad campaign, but said they had no choice but to run it because of a legally binding free speech ruling.

Critics of the bus ad proposal in Honolulu worry that Mayor Kirk Caldwell’s proposal could lead to Oahu’s buses becoming a forum for divisive debates.

Screenshot, TriMet

The Outdoor Circle, a local environmental group that has long worked to limit advertising in public spaces, argues that the city would ultimately have little control over the content of ads because of free speech protections established by the First Amendment.

“The problem that comes up is that you have the bus, which is public property and meets the definition of a public forum, so therefore you are triggering that obligation of government to protect free speech rights,” said attorney Marti Townsend, executive director of The Outdoor Circle.

Shock Ads?

Mike Formby, director of the city’s Department of Transportation Services, which would oversee the bus program, is well aware of the potential for lawsuits.

But the city hasn’t had any problems with its interior bus ads, he said, adding that whenever an ad has been deemed potentially distasteful, the relevant parties have worked together to resolve the issue.

PF Bentley/Civil Beat

Honolulu buses lined up at a transit station.

If the proposal, which is known as Bill 69, passes, Formby’s department will seek to extend the same regulations that apply to interior bus ads to exterior ads.

That would aim to make sure there will be no buses rolling down King Street with ads for candidates like Gov. Neil Abercrombie or Sen. Colleen Hanabusa because the city doesn’t allow ads that bear the “name, picture or likeness” of any elected official or candidate running for office.

Ads also can’t promote racial, religious or ethnic prejudice or violence, be obscene or lewd, or promote illegal or immoral activity.

But, as the experiences of Portland and other cities have shown, such regulations offer few guarantees.

Portland’s TriMet sought to allow only commercial ads on its buses and trains, while banning any political content. But a 2008 Multnomah County Circuit Court ruling, which was recently upheld by Oregon’s Supreme Court, concluded that the transit system didn’t have the right.

Because of the rulings, TriMet suspended its advertising policy, said Roberta Altstadt, the transit agency’s spokeswoman. The agency has allowed political advertisements, including the controversial ads about the Israeli-Palestinian conflict, to run on its buses and trains.

“Our focus with the advertising policy was not to put up speech that others would find offensive,” said Alstradt. “But the court ruling said that we can’t restrict that.”

TriMet can only ban an ad if it’s misleading, confuses the viewer about the message’s sponsor, has an adverse effect on the health, safety or welfare of customers or interferes with transit operations, according to the courts.

Other city transit agencies, including those in San Francisco and New York, have also been sued by groups asserting their First Amendment rights to advertise their political views on buses and trains. King County’s transit agency is currently fighting two lawsuits, said Switzer.

The American Civil Liberties Union, an advocacy organization dedicated to the protection of freedom of speech, has often led the legal challenges in mainland cities.

Daniel Gluck, a senior staff attorney at Hawaii’s ACLU branch, says that the thorny legal issues that have plagued other transit agencies could also play out on Oahu if Caldwell’s ad proposal is approved.

“When the government opens up these kinds of spaces to advertisers, the government’s policies and practices must also comply with the First Amendment,” he said by email. “As we have seen in multiple cases around the country, such programs can lead to difficult questions about free speech that must be carefully considered.”

But just because other cities have become embroiled in divisive legal battles over advertising, doesn’t meant that Honolulu necessarily will.

San Diego’s transit service hasn’t faced any legal challenges to its policy of banning tobacco, alcohol, nudity and political campaigning from bus ads, according to Rob Schupp, director of marketing and communications for the city’s Metropolitan Transit System.

And legal opinion over what discretion governments have when it comes to public transit advertising is not uniform.

Dennis Christiansen, a First Amendment attorney in Los Angeles, said that the 9th U.S. Circuit Court of Appeals, which includes the West Coast and Hawaii, has generally ruled that transit is a limited public forum, as opposed to a full-fledged public forum, allowing discretion when it comes to advertising.

Changing History

It was clear from the outset that on an island where people prefer to admire the natural beauty around them rather than read sales pitches while outdoors, the Caldwell administration would need persuasive arguments to change policy.

The administration says that it’s time to ease restrictions on outdoor advertising in order to stave off long-term cuts to bus services that largely serve the island’s kapuna and low-income populations. They say it’s about making sure that those who can’t afford a car have a reliable public transportation option.

“You’re leaving money on the table by not doing exterior ads,” said Formby. “To not even have tried the ads is, to me, what is unacceptable because there are so many needs that are unfulfilled. It really is about transportation equity.”

But they will have to overcome deep anti-outdoor ad sentiment that goes back a century. In 1927, when Hawaii was a U.S. territory, it banned billboards following a decade-long campaign waged by The Outdoor Circle.

“It’s a gift from our past generations,” said Townsend. “In Hawaii, we have been spared all of the grief and expense of off-premise outdoor advertising and this flies in the face of this tradition. It invites a real change in our community.”

She says ads on the outside of buses are nothing more than “rolling billboards.”

Caldwell has promised that he will never support billboards on the road. And the mayor says that the bus ads will be done conservatively. The size of the ads, which would run on the sides and the back of buses, would be limited and there would be a prohibition against wrapping an entire bus with one ad.

City of Honolulu

An example of a bus ad.

The Money Question

How much revenue could bus ads generate for TheBus?

In January, the mayor’s office issued a press release saying that Bill 69 would raise “up to $8 million annually that would go directly toward TheBus operations by allowing limited advertising on the exterior of the city’s bus fleet.” The $8 million number has been touted repeatedly by the administration as a ceiling level for revenue.

But the ads would likely bring in substantially less because that estimate doesn’t address the money that would be paid to an outside company to sell and manage the ads, nor does it address other possible costs, like fighting off court cases.

Honolulu has been using a private company, AdWalls, to manage its interior bus ads since 2010. The company keeps 67 percent of sales, leaving the city with about $175,000 to $185,000 a year, according to the municipality’s numbers.

Formby said that he expects the city to get a bigger cut from the exterior ads because there would be fewer ads per bus, they would be of a higher value and the process would require less administrative work. There would be three ads on the outside of buses, versus 30 or more that can now fit inside.

He said he didn’t have an estimate of what percentage might be paid to an outside vendor because that would be determined through a competitive bidding process.

But officials at transit agencies in other cities suggest that it could be a lot.

Pamela Quadros, a vice president at Titan, which manages advertising for Washington’s King County transit system, which includes Seattle, said that it can average out to something close to a 50-50 split.

Titan’s contract with King County’s transit system, which includes rail and buses, gives a 64 percent cut in ad sales to the county’s transit agency. King County Metro Transit earned $6 million last year from such ads, according to Jeff Switzer, a spokesman for the county’s transportation department.

Portland’s TriMet system receives a set fee annually of $3.2 million a year. In exchange, its advertising contractor can sell ads on its buses, trains and platforms, according to Alstradt at TriMet.

San Diego’s Metropolitan Transit System is the most comparable to Honolulu’s, with an operating budget of about $250 million compared to TheBus’ budget of about $225 million. Both systems operate more than 500 buses.

San Diego’s buses brought in as much as $2 million in ad revenue annually in recent years, said Schupp.

Formby acknowledges that the new bus proposal for Honolulu could bring in a lot less than the $8 million figure that has been bandied about. Despite criticism saying that the money isn’t worth the tradeoff in commercializing public spaces, he says, even a $4 million increase in funds for the transportation system could add a lot of buses.

Depending on the route, an extra bus can cost $250,000 to $400,000 a year. That means TheBus could operate as many as 16 more buses for $4 million.

Despite the questions about revenue and the possible legal risks, Formby said it still makes sense for Honolulu to give the advertising program a try. If there are problems with disrespectful ads or lawsuits after a few years, he said the city could scrap the program.

“When people have to wait an hour at a bus shelter or an hour in the sun to get to their doctor’s appointment, I think wow, you aren’t going to fight for these people?” he said.

DISCUSSION How do you feel about ads on buses? Do you worry about the content of such ads?

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