I’m not sure how the San Francisco Municipal Transportation Agency can ban depictions of guns in movie posters isn’t a violation of the First Amendment. Generally speaking, the restrictions allowed on commercial speech are greater than that on non-commercial speech, but I don’t believe this kind of restriction is permissible, in addition to being thoroughly ridiculous in terms of public policy. The Supreme Court created a test for commercial speech restrictions in the case of Central Hudson Gas & Electric v. Public Service Commission. Subsequent cases have not been so friendly toward restrictions on commercial speech, and given the expressive content in movie posters, it’s difficult to see how the SFMTA, which is a governmental agency, can justify their restriction. There have been other cases of this happening that have resulted in federal injunctions. The promotion company should really file suit and get an injunction against the SFMTA, rather than taking a poster like this, and turning into a mockery like this.
UPDATE: Bitter e-mailed Eugene Volokh, the real expert on these matters, because I wasn’t very sure about my position because of the fact that this is a transportation authority. His opinion is that is it unconstitutional, but for different reasons than I laid out.
UPDATE: After reading more closely, not really that different from what I thought. But I’m not that informed on the matter of public/non-public venues as Professor Volokh is.
I wonder if they did this in anticipation of the Second Amendment Foundation’s Gun Rights Policy Conference in Sept in San Francisco.
Perhaps I missed it in Prof Volokh’s analysis, but what about the market participant doctrine? That basically says that when the government is just another market participant, as they are in this case (think advertising), they can act like other market participants.
Is this the same transit authority that couldn’t even train their officers to tell the difference between a handgun and a taser (having hefted both there is no comparison in weight and feel)? That may have been some other transit authority, but the mindset sure does seem the same.
“Well, the San Francisco Municipal Transportation Agency does have an advertising policy that states ads should not appear to promote the use of firearms or advocate any violent action”
Replacing guns with mace and fists…and leaving the kicks in…how the heck are things like mace, fists, and kicks *not* violent?
And even if they show the two cops smiling with thumbs up (or some other sort of “we’re chums” gesture), how could they justify promoting a violent movie, if they are against posters promoting violence?
I saw the mace and fists version on the way home today leaving Port Authority going into the Lincoln Tunnel. I must say I wasn’t really surprised.