The freedom to say 'no'

RTD may choose its advertisers

Sunday, April 1, 2007

An advertiser cannot force anyone to publish its marketing pitches. And yet that's what video-game makers demand of the Regional Transportation District: They claim that refusing to promote their products violates their free-speech rights.

This is nonsense, of course. Even though RTD is a public agency, the First Amendment has - or should have - nothing to do with this beef.

Advertising is a contractual arrangement between a willing seller (in this case, RTD) and a willing buyer (the game makers). Should either party balk at a proposed ad campaign, the alternatives are to negotiate or walk away, not march to the courthouse.

Unfortunately, the gamers won this battle, for now. RTD's board avoided a threatened lawsuit and let them continue to purchase ads on transit vehicles.

But on principle, RTD should have the right to decide what advertising materials it accepts and rejects - just like sign companies, broadcasters, magazine publishers and yes, newspaper owners.

The dispute erupted when local representatives of conservative parents' groups complained about ads that were posted on light-rail trains last fall for the ultra-violent Grand Theft Auto: Vice City Stories. They urged the RTD board to formally reject any ad for a video game with the rating "mature" or "adults only."

Under current policy, tobacco is the only product that can't be advertised on transit vehicles. The agency's standards also give it the leeway to reject ads that are deceptive and obscene. And ad materials must be "of a reputable character."

That last phrase would seem to give RTD enough flexibility to either reject the ads, or implement the more objective, ratings-based guideline. And indeed, a committee of the board had recommended that latter policy.

But at Tuesday's board meeting Entertainment Software Association representative Peggi O'Keefe called that proposal "both unnecessary and unconstitutional."

She cited nine instances where federal courts had overturned state or municipal laws designed to "regulate access to games," particularly to minors. The implication was that if RTD tightened its advertising guidelines, it would wind up in court and lose.

Not so fast. In those federal cases, a state or city tried to ban the purchase or rental of mature-themed video games, or prevent arcades from offering them to young patrons.

RTD is not trying to outlaw commerce. The goal is to enforce standards on the materials that appear on its vehicles.

A federal case that's more on point is Change the Climate v. MBTA, a 2004 opinion by the 1st U.S. Circuit Court of Appeals in Boston. In it, a group promoting marijuana legalization saw its ads pulled from Boston mass-transit vehicles because city officials admitted they disagreed with the message.

The court said the ads had to run because the pro-pot group was a nonprofit organization promoting a political message. In such circumstances, "viewpoint discrimination" is not a legitimate excuse to prohibit an ad. By losing on appeal, the transit agency had to repay $400,000 in legal fees. No doubt RTD doesn't relish a similar payout.

But Rockstar Games is not making a political statement when it promotes its Grand Theft Auto series. It's trying to make a buck. We have no problem with that, but no business should be allowed to exploit a fraudulent view of the First Amendment to hold hostage companies that do not want to promote certain products.