Honolulu commuters may be in for a bumpy ride if the City Council goes ahead with Mayor Kirk Caldwell’s plan to sell advertising on the exterior of municipal buses. Although the bill approved on first reading by the Council last week seeks to limit controversial messages, other transit systems have found that easier said than done.

"Government entities in particular can’t censor opinions just because somebody considers them offensive, and municipal bus systems are clearly government entities," explained Gene Policinski, chief operating officer of the Washington, D.C.-based Newseum Institute and senior vice president of its First Amendment Center. "Once the government starts selling ad space, and decides what messages are allowed, that opens the door to content or viewpoint discrimination, which is unconstitutional." Provocative ads on numerous issues — abortion, religion, atheism, sex, drugs and spying — ignited outcry when they appeared on U.S. buses, subways or trains over the past year or so. In some cases, transit systems accepted the ads, recognizing them as protected by the First Amendment. In others, they rejected the ads, were sued, lost and ended up having to run them anyway.

The latter occurred in New York City last year, after the Metro Transit Authority rejected a pro-Israel ad that equated Muslim radicals with savages, language the MTA said violated its policy against posting "images or information that demean … on account of race, color, religion, national origin, ancestry." The American Freedom Defense Initiative, which had tried to buy the ad, sued in District Court, accusing the MTA of taking sides on a political issue and violating the group’s right to free speech. It won, and the ad ran last year on buses, subways or trains in New York, Boston and San Francisco.

Honolulu’s Bill 69 contains language similar to New York’s and could prove equally difficult to enforce. The bill also prohibits advertising for any political candidates or elected officials, which is more likely to withstand legal challenge, Policinski said, because "it’s a blanket ban; the courts are always looking for fairness."

When it comes to transit ads, he noted, "hot-button issue ads" are as likely to cause offense as those mentioning a specific candidate.

Take the political battle that played out on city buses, bus stops and benches this election season in Portland, Maine: A series of ads featured people expressing why they prefer marijuana to alcohol, and urged residents to vote to legalize the drug. Anti-drug advocates decried the ads, and especially their influence on impressionable children, but the Greater Portland METRO kept them up on free-speech grounds.

The topic of controversial content has particular resonance in Honolulu, which a decade ago kept a pro-life group from displaying images of aborted fetuses, thanks to a city ordinance against aerial advertising and Hawaii’s statewide billboard ban. Critics says Caldwell’s advertising proposal violates the spirit of that ban, by turning the city’s 520-bus fleet into rolling billboards and creating an outdoor forum for commercial and political speech that previously did not exist. That slippery slope, they contend, could lead to the ultimate undoing of the state’s 86-year-old billboard ban — the oldest in the nation and a global model for cities concerned with visual blight — and open the door to exactly the type of ads the city fought a long legal battle to thwart.

"Read the 9th Circuit ruling and it’s clear that bus ads would open the floodgates," said Marti Townsend, executive director of The Outdoor Circle, the conservation group responsible for ridding Oahu of billboards in 1927, referring to the appellate court’s 2006 opinion in case No. 04-17496, Center for Bio-Ethical Reform Inc. v. City and County of Honolulu. "The court ruled in the city’s favor because Hawaii’s billboard ban applies equally to everyone, there was no First Amendment right to express speech in this manner, no matter the content. Ads on the outsides of city buses would directly undermine this legal precedent and there is no guarantee that the city can effectively limit the content."

Caldwell once shared that viewpoint when he was in the state House but has reversed course as mayor, facing a budget shortfall and rising demand for bus service. Townsend is overstating the risk, he asserts, noting that a mandate to preserve Hawaii’s unique natural beauty is enshrined in the state Constitution, and bolstered by specific state laws and city ordinances. Still, he said he was open to amending the bill if that would strengthen it against potential challenges.

"I’m for the billboard ban and I’m also for the bus system. I want to have a full discussion on all the issues," said Caldwell, projecting that the city could raise $2.5 million to $8 million by selling exterior ads on its 520-bus fleet, money needed to restore service and expand routes in a transit system that serves 220,000 people a day.

"This is a matter of transportation justice and equity. People need bus access and we just don’t have the money to provide the service they deserve," Caldwell said, citing rising labor and fuel costs as the biggest budget busters.

Policinski agreed with Townsend that lifting the ban on exterior bus ads "would certainly move the legal bar. It’s sort of an irony that allowing no communication at all, as Honolulu does now, is OK with the (U.S.) Supreme Court. But once expression is allowed on some medium, the whole landscape can change."

While private enterprises that sell advertising can generally reject content as they see fit, the government faces a much higher burden, Policinski said. Restrictions do exist, against obscenity, for example, and depending on whether the speech is deemed personal, political or commercial. "A lot of this stuff is decided through litigation. You see these disputes all over the country and the government always has a very high bar to reach when it comes to limiting expression."

The anti-abortion crusader at the center of the 2003-2006 legal battle with Honolulu concurs, and is seeking a new avenue to revive the dispute.

"We’re a long way with being done with that issue in Honolulu," said Gregg Cunningham, founder and director of the California-based nonprofit CBR, which holds that "only by seeing the awful violence of abortion will people truly understand and become pro-life." The group has displayed billboards of aborted fetuses on college campuses and flown abortion banners over heavily populated areas of California, Florida, Massachusetts, New Jersey and Texas.

Cunningham would not go so far as to claim that selling exterior bus ads would open the floodgates in Honolulu, "but it certainly compromises the strength of the city’s defense."

"Every municipality is looking at ways of generating revenue, and people begin reconsidering their political convictions when times are tight," Cunningham said. "Selling ads on buses, commuter rails, transit stations, all that is very common. Some people would rather starve to death than see ads for weight-loss pills on the back of a bus, but I am confident that The Outdoor Circle is well to the left of most Hawaiians in its concern for the view plane. Frankly, we’d be glad to test the theory. One mistake in the language (of the city’s bus-ad bill), and we’ll pounce. Our lawyers are pressuring us all the time to try to buy bus ads in cities they want to sue."