Free speech, not a free ride
Boston Globe Editorial
November 22, 2006
THE MBTA may have found a solution to its video game ad
quandary that satisfies both the Constitution and the
community activists who are battling the violent side of the
video industry. Elected officials, church leaders, and other
protesters should give the T's legal team the time it needs to
work out a rational plan.
Boston Mayor Thomas Menino, Harvard psychiatrist Alvin
Poussaint, and others have called on the T to pull
advertisements for "Grand Theft Auto: Vice City Stories," a
video game that makes sport of killing or maiming police
officers, prostitutes, and the elderly. They cite studies that
violent video games can increase aggressive behavior. The T
became a target of opportunity. But the anger would be better
directed at Rockstar Games, the New York-based creator of the
game.
At first glance, it would seem that the T is stuck. Courts
have ruled that government-run operations, such as public
transit systems, are public forums. But the T's strategy is to
treat the "Grand Theft" ad like it would an ad for a movie. A
federal court has upheld guidelines regulating MBTA
advertising that allow transit officials to reject ads for
X-rated and NC-17 films. T General Manager Daniel Grabauskas
says his legal team is exploring whether the guidelines would
also apply to comparable "adults only" and "mature" ratings
from the Entertainment Software Rating Board. Grabauskas says
he sees a "symmetry" and intends to pursue the strategy.
The outcome of such an approach is unknown. Timothy Wilton, a
professor of constitutional law at Suffolk University, points
out that the First Amendment is so broad as to protect even
the advocacy of crime unless it is likely to cause "imminent
unlawful activity." And the T's track record in this area
isn't good. In 1994, the T sought to bar ads promoting condom
use. Later it rejected ads from a group advocating changes in
the drug laws and from a religious group claiming to be the
one true faith. But a federal appeals court would have none of
it, ruling in the 2004 Ridley v. MBTA case that the T had no
right to reject the ads simply because transit officials
disapproved of their content. Transit riders, however, are a
captive audience of sorts, which could win a court's sympathy.
The "Grand Theft Auto" ad in question shows little more than a
caricature of a man and the name of the product. Makers of
violent video games are clever like that. The T, therefore,
can't immediately place it in the category of banned ads that
show violent or prurient images. But the T could still outwit
the industry by grouping it with other "adult-oriented goods
or services" that courts agree can be kept out of the transit
system.
It would be nice to see both decency and the Constitution win
one at the expense of "Grand Theft Auto."
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