Attempts to sanction bus operator for offensive ad could run afoul of First Amendment

Chicago Alderman Pawar

Chicago Alderman Pawar

Suburban Express, a Champaign-based bus line that serves Illinois college students, provoked outrage recently when it sent a promotional email to University of Illinois students that read: “You won’t feel like you’re in China when you’re on our buses.”

The line, from what I’ve read, was an apparent reference to the allegedly high number of Chinese international students who attend U of I. In a ham-handed attempt at a “clarification,” Suburban Express later claimed it was a reference to the ridership demographic of its competitors’ services. It then went on to expound on what it considers to be objectionable admissions policies at U. of I.

File this under: What were they thinking? By any measure the email was inappropriate, in poor taste, and racially offensive. Why the company would then follow it up with a so-called apology that made a political statement about college enrollment is a head-scratcher. Nobody cares what a shuttle operator thinks about these policies.

In response, Chicago Alderman Ameya Pawar on Monday called on the city council's aviation committee to hold hearings to consider revoking Suburban’s access to O’Hare International Airport, a move which the Chicago Sun-Times reported might drive it out of business.

“O’Hare is one of the busiest airports on the planet. It is the gateway to Chicago. Do we want companies like Suburban Express serving that gateway—a company that blatantly makes racist and xenophobic statements?” Pawar said.

Assuming this wasn't mere political grandstanding on Pawar's part, the problem with this idea is that it could run into that tricky thing called the Constitution, specifically the First Amendment. Any government action that restricts or punishes the speech of private actors runs up against that document. The U.S. Supreme Court particularly looks askance at state action targeted at the perceived “offensiveness” of speech content.

Commercial speech, while not afforded the same degree of protection as noncommercial speech, still comes under the ambit of the First Amendment. Suburban’s email, as a solicitation of customers to patronize its services, most likely qualifies as commercial speech.

The Supreme Court has generally frowned upon actions taken against commercial speech based on its content as long as that content does not attempt to deceive, defraud, or mislead the public.

Said SCOTUS in a 1983 case called Bolger v. Youngs Drug Prod. Corp.:

“As a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. By contrast, regulation of commercial speech based on content is less problematic. In light of the greater potential for deception or confusion in the context of certain advertising messages, content-based restrictions on commercial speech may be permissible.”

However, commercial speech found to be lawful, non-fraudulent, and non-deceptive may only be regulated if the government has a substantial interest to protect. Most government action upheld under this rule has involved laws regulating the tools used to communicate the speech: size restrictions on billboards, signage and the like--not the nature of the speech.

In striking down a state law against advertising contraceptives, the Court held that offensiveness was traditionally not a valid justification to suppress expression:

“At least where obscenity is not involved, we have consistently held that the fact that protected speech may be offensive to some does not justify its suppression. We specifically declined to recognize a distinction between commercial and noncommercial speech that would render this interest a sufficient justification for a prohibition of commercial speech.”

So the question becomes: Was Suburban’s racially offensive email ad somehow deceptive or misleading? In order to take action against the company, the city would probably have to show it was. It will likely have to show the ad did more than offend the sensibilities of many who read it.

What makes this interesting is that Awar's proposal would amount to an after-the-fact government sanction on commercial speech, not a regulation preventing speech before it occurs, which has been the subject of most of the case law. I’m not aware of a relevant court case involving such sanction on commercial speech.

On the other hand, Illinois Attorney General Lisa Madigan’s announcement that her office would look into possible discriminatory business practices by Suburban in light of its attitudes is not at all inappropriate. Sanctioning a business’s violation of anti-discrimination laws in hiring or serving the public is unrelated to speech rights because it punishes what an entity does, not what it says.

In the final equation, the bus line’s target audience can make up its own mind whether or not to patronize its services. They have the power to unsubscribe from its email solicitations and boycott is business. The Constitution does not protect ignorant or vile speech against the wrath of consumers.

But when the government wants to punish anyone because it doesn’t like what they say, we should all be wary.

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