Turning city buses into rolling billboards would be a giant step down a slippery slope that would see Oahu blighted with the same type of pervasive outdoor advertising that mars so many other U.S. cities. The Honolulu City Council must shelve Mayor Kirk Caldwell’s bad idea once and for all. There simply is too much at stake on an island where scenic beauty is the lifeblood of the community.
The city does need cash for its heavily used and heavily subsidized bus system, especially to expand and restore routes in Leeward Oahu, but this is no way to raise the necessary money. The Transient Accommodations Tax would be a far better source of reliable revenue for this purpose, and state lawmakers have the power to provide it, by lifting the cap on the share divided among the counties. The Legislature should do so.
Meanwhile, it is disingenuous for city administrators to point to private vehicles that bear the large logos of their own companies, or even the tourist trollies that carry promos for other businesses, illegally in our view, as the basis and comparison for the city’s proposed advertising scheme. Private companies have far more latitude to reject offensive advertising than government agencies do, and Honolulu’s bus system is a government agency.
Once the government starts selling ad space, and decides what content is allowed, that opens the door to content or viewpoint discrimination, which is unconstitutional. That’s why such provocative ads appear on city buses, subways and trains throughout the United States, on issues such as abortion, religion, atheism, sex, drugs and spying. Transit systems either accepted the ads as protected by the First Amendment, or rejected them, were sued and lost. The government, unlike private companies, always has a very high bar to reach when it comes to limiting expression. That’s how it should be in a nation that prizes free speech, but it means that Oahu commuters will see hot-button social issues play out on the sides of city buses if Bill 69 passes.
Advocates who note that the city already sells ad placards on the inside of buses to no ill effect are mixing apples and oranges. The demand is for large ads on the exterior of buses, where far more potential customers will see the come-ons. Although we expect that ads will proliferate, the net profits from this program will be far lower than the $8 million the mayor estimates. What about the costs of administering the marketing effort, including the defense of inevitable legal claims if the city rejects certain ads? Even the mayor’s overly optimistic estimate does not make it worth undermining Hawaii’s billboard ban, which is the oldest in the nation and a model in the global movement against visual blight and the commercialization of public space.
Selling ads on the exteriors of Oahu’s 520 city buses would immediately degrade the island’s visual landscape, inspire an increase in advertising on other vehicles — infractions the city has been too lax in enforcing and from which the transit system does not profit — and open the door to the types of outdoor advertising that the billboard ban has prevented in the past. In 2006, the 9th U.S. Circuit Court of Appeals ruled that because that ban applied equally to everyone, an anti-abortion group that wanted to tow aerial banners off Waikiki depicting images of aborted fetuses had no First Amendment right to do so.
That ruling described the natural beauty upon which Hawaii’s tourism economy resides "as perhaps the state’s most valuable and fragile economic asset."
It is more fragile today than ever. The City Council must kill this bus-advertising scheme, and preserve the limits on outdoor advertising that help make Oahu a beautiful place to live and a desirable place to visit.
