Category Archives: Commentary

What’s Happening in Argentina?

I confess I don’t follow Argentine politics. So when an Argentine friend posted the message “Yo Soy Nisman” on her Facebook page this week, I didn’t get the reference. I asked her about it, and she directed me to several news items on the death Sunday of an Argentine prosecutor, Alberto Nisman, who was about to testify about an alleged deal to immunize the perpetrators of one of the worst anti-Semitic attacks in recent history. It is an astonishing story.

In 1994, a bomb exploded at a Jewish cultural center in Buenos Aires, killing 85 people. Iranian agents are suspected, and Interpol has issued arrest warrants against some Iranian officials. This month, Nisman accused the Argentine president, Cristina Fernandez de Kirschner, of blocking the investigation. Kirschner, he claimed, had made a secret agreement with Iran to shield the officials from prosecution in exchange for Iranian oil. He filed a criminal complaint against her and her foreign minister, Hector Timerman. Both Kirschner and Timerman deny the charge. They say that Nisman was being manipulated by their political opponents.

Nisman had an appointment to testify before Argentine legislators on Monday. On Sunday, police found him dead in his apartment, with a gunshot wound to the head. Kirschner first called the death a suicide, which is how the police described it. Many Argentines were skeptical, as Nisman had left no note and forensic evidence didn’t point to a suicide.

Now, apparently, Ms. Kirschner is skeptical as well. On her website yesterday, she wrote that she believes Nisman was murdered–implicitly, by the same people who had manipulated him to bring the charges against her in the first place. “They used him while he was alive and then they needed him dead,” she wrote. Presumably, the plot was to get Nisman to indict Kirschner on phony charges, and then kill him before the plot against Kirschner could be revealed.

So: A prosecutor claims he has evidence that the president has made a secret deal with a foreign country to cover up a attack on a religious minority that killed 85 people, then dies under mysterious circumstances the day before he is to testify. The president first claims it’s a suicide, then changes her mind and says, without providing evidence, that it’s a murder directed, ultimately, at her. Does any of this make sense? What’s happening in Argentina?

Holt v. Hobbs Podcast

Mark and I have recorded a podcast on this week’s Supreme Court decision in Holt v. Hobbs, the prison beard case. We discuss the facts, the holding, and broader implications for RFRA and religious liberty.

 

When Doesn’t a Religious Accommodation “Detrimentally Affect Others”? And a Few Other Holt v. Hobbs Thoughts

Not too much to add to Rick Garnett’s analysis of Holt v. Hobbs. A short and precise opinion from Justice Alito. Here are just a few other questions and comments about the opinion and concurrences:

1. Rick quotes Justice Ginsburg’s one-paragraph concurrence, which states that she only joins the Court’s opinion “on th[e] understanding” that the accommodation here “would not detrimentally affect others who do not share petitioner’s belief.” I guess she felt she had to use the occasion to say something pejorative about Hobby Lobby, which she also quotes. It seems she has bought the line pressed by those who claim that the Establishment Clause prohibits third-party burdens, yet she articulates the standard that they champion rather expansively. There may be a big difference between arguing that the Establishment Clause prohibits religious accommodations that impose “significant burdens on identifiable third parties” (if memory serves, this was the standard favored by academic defenders of this argument) and arguing that the Establishment Clause prohibits religious accommodations that “detrimentally affect” anybody who doesn’t share the claimant’s religious beliefs. I don’t believe the former is a correct reading of the Establishment Clause. But the latter formulation seems a good deal broader. What constitutes a “detrimental effect” under that approach? Might symbolic harms count? I don’t see why they wouldn’t. And as Justice Alito points out, Arkansas made no argument that an exemption was not feasible as a matter of cost or other resources (“the Department has not argued that denying a petitioner an exemption is necessary to further a compelling interest in cost control or program administration”). Had the Department made an argument about cost control (with evidence, which was seemingly in short supply on its side), would any evidence of increased cost (no matter how small) not only been enough to find against the claimant as a RLUIPA matter, but actually have triggered an Establishment Clause violation had the prison accommodated the inmate? Suppose I am a prison inmate who thinks 1/2 inch beards are beautiful as a fashion statement, or because I come from a long line of bearded ancestors and it is important to me to observe the tradition (not so far from the truth in my case, other than the bit about being a prison inmate). Am I not “detrimentally affected” by the inequality of treatment that results from Holt’s accommodation, but not mine? Surely I am. It seems to me that this sort of standard, as well as its more careful academic progenitor, strikes at the heart of these religious accommodation statutes.

2. Following from that point, the heart of these statutes (as Rick also notes) is to provide “very broad protection for religious liberty” or “expansive protection for religious liberty,” as the Court says right at the start of the opinion. This case was an easy one according to that standard, even with a thumb on the scale of deference toward prison administrators, which the Court reaffirms (it rejects “unquestioning deference” but it acknowledges the “respect” that is due the prison administrators’ “expertise”). Should not Hobby Lobby, in which there was no such presumptive deference or “respect” accorded to the government, also have been an easy case according to that standard? Should it at least have been as easy, in light of the absence of deference toward the government in the latter? And yet Holt was unanimous while Hobby Lobby split 5-4.

3. The breadth of protection for religious freedom contemplated by the statutes (RFRA and RLUIPA) and affirmed by the Court was notable, but so was the rigor with which the least restrictive means portion of the analysis was applied. In Holt, the prison argued that its concerns about the shaving of facial hair and escape were unique because of the particular sort of prison it operated, and that its rule was therefore the least restrictive means of securing against the possibility of escape. But the Court rejected that argument for the simple reason that the prison had not done enough to distinguish itself from other prisons that allow facial hair and that had managed these concerns. Other prisons, that is, whose situation was analogous to the Arkansas prison (even if not identical) used less restrictive means to achieve their security interests. The Court looked to the variety of less restrictive means on offer out there in the national universe, and found that the Department should have used one or more of those. This is perhaps a useful elaboration of the least restrictive means test. Unless the government can prove that its burden is truly unique, the Court will look to analogous (even if not identical) solutions to similar problems reached by other governmental entities. If those other solutions seem to have worked without an imposition on religious freedom, then the government has not used the least restrictive means.

Another Unanimous Roberts Court Law and Religion Opinion

The Supreme Court today handed down Holt v. Hobbs, the RLUIPA case involving an Arkansas prisoner who complained of a state prison policy disallowing him to grow a beard in accordance with his understanding of his religious obligations.

The opinion was unanimous, with two separate, short concurrences by Justices Ginsburg and Sotomayor. I’ll save analysis for a later moment (it was a rather straightforward application of RLUIPA in Justice Alito’s majority opinion, though with some interesting language about the individual components of the test).

For now, though, I’ll just note the fact of another unanimous opinion in this area from the Roberts Court. Holt v. Hobbs continues to follow the Roberts Court pattern of either unanimity or 5-4 outcomes in law and religion jurisprudence, as I discuss in greater detail at Part II of this article. The figures are now four unanimous law and religion decisions as against six 5-4 law and religion decisions. The article speculates about a few reasons that we might be seeing this particular voting pattern, contrasting it with the patterns of Supreme Courts past.

Mark and I will have a podcast on the decision in a few days.

The Ideological Fragmentation of Public Law

I am recently back from the annual AALS meeting, during which I attended some of the offerings of the annual “shadow” Federalist Society Conference as well. Both meetings had several worthwhile programs. One of the most interesting features of both conferences was the extent to which political and ideological fragmentation has become more ordinary and prevalent in public law disciplines. I found this to be quite comforting. In this post, I want to explain why, and to describe some of what I saw at the two conferences in this respect. But first, some thoughts on law and religion as a discipline today.

For some time now, I have believed that the political and ideological divides among legal academics in the law and religion field have been growing. They have now reached cavernous dimensions. Paul Horwitz argues in this (superb) piece that law and religion scholars have been in a state of general consensus about free exercise/accommodation issues until extremely recently, but I see things a little differently. The disagreements about free exercise have been manifest at least since I have been studying and writing in the area–about a decade now and probably longer than that. But Paul is right that they have increased dramatically even within that period.

Paul is also right that there was a period of such consensus. But it was a much earlier time. It was the period when, for example, giants including Kent Greenawalt and Doug Laycock and Vince Blasi and Jesse Choper came of scholarly age, the period when Leo Pfeffer’s views were dominant in this area, and only a few outliers arguing for non-preferentialism like James O’Neill existed. One could be a liberal nel vecchio stile and with great complaisance in those days, but still support exotic religions (traditional Christian religions were never really on the agenda), confident in the view that the “great minds” of the past—Jefferson and Madison (Marshall, Adams, and so many others were rarely mentioned)—were on board in spirit. One bought one’s bona fides to argue for relatively expansive free exercise protections (it was the ‘60s and ‘70s, and people should be free to follow their stars and make themselves into whatever they wanted) with iron separationism when it came to establishment. But the bottom line was that one’s Establishment Clause views always drove the boat then, as, it seems to me, they do now. Free exercise in that period was an afterthought—a concession to the unusual and the strange. Sort of like the way many discuss the nature of excuses in criminal law. One is excused for one’s conduct because, notwithstanding its wrongfulness, one makes a concession to human weakness by allowing that one is not blameworthy for that conduct. That’s how religion was perceived—as basically somewhere between odd and wrongful, but not culpable, and therefore excusable conduct which should be accommodated where possible for those in need of such ministrations.

That period is dead. It has been dead since long before Paul or I started writing about these matters. For those who followed in the wake of the liberal consensus, what happened was—again, beginning from an ever-hardening view of what the Establishment Clause demanded—the end of the ‘60s and ‘70s with its taste for exoticism and weird pluralism. In its place arrived a new zest for notions of equality, nondiscrimination, leveling, and so on. To argue for “pluralism” full stop and for its own sake today is something of an anachronism (this comes through nicely in the column Paul reacts to today by Frank Bruni). Exactly what is there of worth about pluralism as an intrinsic good? In the interim from then to now, sexual equalities of various sorts have gone mainstream (they were not so when the earlier consensus reigned; at least one liberal law and religion scholar of the ancien regime only began to support gay marriage in the last decade or so). Equalities of other kinds have taken center stage.

The illusion of consensus could be maintained, for a time at least, but only until the new egalitarian mandarins were challenged. Those challenges have come in the abortion context and other substantive due process areas. With some exceptions, the challenges have largely failed. But they had never come from the religion clauses proper (or their statutory analogues). Now they have. And they have made manifest the instability of the former consensus and the fact of its breakdown over many years. To invoke religious freedom is no longer to appeal to a commonly recognized constitutional freedom; it is to whistle to your favorite mangy dog.

The consequence today is that increasingly, law and religion scholars share far less common ground than they did 40 years ago. Outside their own political/ideological constituency, they have much more work to do to convince one another of their arguments. Indeed, the fact that some scholars squarely within the liberal consensus are now felt to be raving right-wingers is itself a marker of the fragmentation and polarization of the legal academy. Doug Laycock may be many wonderful and admirable things; but conservative is not one of them. These movements within (and also outside) the legal academy sometimes–perhaps oftentimes—make it feel like legal scholars have less and less to say to one another. On occasion, I have felt this to be an unfortunate feature of law and religion scholarship–exhausting and depressing. More work feels political; less work feels scholarly; and so it goes. One begins to long for other sorts of work.

But the panels that I attended last week at the AALS and Federalist Society Conferences began to persuade me of two things. First, ideological fracture is a more general development in public law in the legal academy. Second, that fracture–and all that it brings–has positive as well as negative features.

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Interesting Law and Religion Case Before the Supreme Court Next Week

The Supreme Court’s January calendar begins next week with argument in Reed v. Town of Gilbert, Arizona, a law and religion case that has gotten very little attention. The case relates to some of the issues that Mark Movsesian and Perry Dane have been talking about involving the New York City subway regulations concerning advertising. I found Perry’s phrase, “mental maps,” to be useful in thinking through the categories that we use to divide up both meanings and the motivations for expressing certain meanings. This case tests our mental maps.

It seems that the Town of Gilbert has a complex set of regulations governing the display of signs. It categorizes signs into five groups: political signs, ideological signs, “qualifying event” signs, homeowners’ association temporary signs, and real estate signs. Different rules regarding the size, duration, and location of the sign (among other variables) apply depending on the category of sign that one wishes to display.

The petitioners in the case are representatives of the Good News Community Church, a small Christian church that “holds services on Sundays, where attendees worship and fellowship together, learn biblical lessons, sing religious songs, pray for their community, and encourage others whenever possible.” Good News depends on signs to advertise its presence and invite people to join.

The Town has classified Good News as the sort of organization entitled to “qualifying event signs.” A “qualifying event sign” is a “temporary sign intended to direct pedestrians, motorists, and other passersby to a ‘qualifying event.’ A ‘qualifying event’ is any assembly, gathering, activity, or meeting sponsored, arranged, or promoted by a religious, charitable, community service, educational, or other similar non-profit organization.”

By contrast, a “political sign” is a “temporary sign which supports candidates for office or urges action on any other matter on the ballot of primary, general and special elections relating to any national, state or local election.”

And an “ideological sign” is a “sign communicating a message or ideas for non- commercial purposes that is not a Construction Sign, Directional Sign, Temporary Directional Sign Relating to a Qualifying Event, Political Sign, Garage Sale Sign, or a sign owned or required by a governmental agency.”

The petitioners’ basic complaint is that by lumping the Church in with organizations entitled only to a “qualifying event” sign, the Town is engaging in viewpoint discrimination against it, because it is only entitled to a tiny sign of very limited duration that can only be displayed in limited locations. The Town’s justification for this highly reticulated set of requirements and classifications? “Safety and aesthetics.” Also of interest is that at some point in the procedural history (which looks rather involved), the Town amended certain locational requirements for “qualifying events signs,” replacing them with a requirement that “qualifying events signs” must “relate to events in the Town of Gilbert.” That requirement does not apply to political or ideological signs. The Church claims that this amendment was made specifically to target it for unfavorable treatment.

At any rate, it will be interesting to see how the argument goes. Here is an interesting contrast contained in the Petitioners’ Brief:

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Egypt’s President Visits Coptic Cathedral on Christmas Eve

On Monday, I posted about a speech Egypt’s president, Abdel Fattah el-Sisi, recently gave at Al Azhar University, the leading center of Islamic learning in the Sunni world. In his speech, Sisi called for a “religious revolution,” a rethinking of classical Islamic law in order to address the concerns of non-Muslims. I wrote that Sisi’s speech was a hopeful gesture, even a brave one – but that only time will tell how serious Sisi is about honoring religious pluralism.

That’s still what I think – only time will tell. But Sisi deserves credit for another remarkable gesture this week. Yesterday, he paid a surprise Christmas Eve visit to the main Coptic Cathedral in Cairo. (The Coptic Church celebrates Christmas on January 7). According to the government-owned Ahram Online, it was the first such visit by an Egyptian president in history. Past presidents have visited the cathedral, but none has actually attended a Christmas liturgy.

You can see a video of the president’s speech — the liturgy was being covered in full by state TV – here. I can’t speak Arabic, so I don’t know what’s being said, but the scene looks electric. The congregation cheers wildly for Sisi, who himself seems moved. Here’s a report of the visit by an independent website, Mada Masr:

The president made a brief speech while standing next to Pope Tawadros II, head of the Coptic Orthodox Church of Alexandria and the highest Coptic authority in Egypt.

“It was necessary for me to come here to wish you a merry Christmas, and I hope I haven’t disturbed your prayers. Throughout the years, Egypt taught the world civilization and humanity, and the world expects a lot from Egypt during the current circumstances,” Sisi said.

“It’s important for the world to see this scene, which reflects true Egyptian unity, and to confirm that we’re all Egyptians, first and foremost. We truly love each other without discrimination, because this is the Egyptian truth,” the president declared.

The Coptic Pope thanked Sisi, and called his visit “a pleasant surprise and a humanitarian gesture.”

The Coptic Church very publicly backed Sisi during the overthrow of the Morsi government in 2013, and Copts have been suffering serious reprisals from the Muslim Brotherhood ever since. In fact, some commentators think Copts are going through the worst persecution in hundreds of years. Christmas liturgies, in Egypt and elsewhere in the Mideast, have become very dangerous for Christians, and some Muslim leaders in Egypt tell followers not even to wish Christians a Merry Christmas. The sense of being under siege no doubt explains the emotion evident in the video. (Some commentators have complained that Sisi interrupted a liturgy, and that the congregation really shouldn’t have gotten so carried away in church, but in the circumstances these things can be excused). What would elsewhere be a routine event – a politician wishing a community well on its holiday – is, in this context, a crucial show of support.

Again, it’s easy for an outsider to miss things, and I wouldn’t be suggesting Sisi for the Nobel Prize just yet. Maybe this is all a show. But, together with his speech at Al Azhar last week, his visit to the cathedral suggests something serious is happening in Egypt. Which leads to a question: why has the US been so cool to Sisi?

President Sisi’s Speech

Abdel_Fattah_el-SisiThe Internet is buzzing with news of a speech last week by President Abdel Fattah el-Sisi of Egypt (left) on the need for a “religious revolution” in Islam. Speaking at Cairo’s Al Azhar University, the most important center of Islamic learning in the Sunni world, Sisi admonished the assembled scholars to revisit Islamic law, or fiqh, in order to calm the fears of the non-Muslim world. According to a translation at Raymond Ibrahim’s site, Sisi said:

I am referring here to the religious clerics.  We have to think hard about what we are facing—and I have, in fact, addressed this topic a couple of times before.  It’s inconceivable that the thinking that we hold most sacred should cause the entire umma [Islamic world] to be a source of anxiety, danger, killing and destruction for the rest of the world.  Impossible!

That thinking—I am not saying “religion” but “thinking”—that corpus of texts and ideas that we have sacralized over the years, to the point that departing from them has become almost impossible, is antagonizing the entire world.  It’s antagonizing the entire world!

Is it possible that 1.6 billion people [Muslims] should want to kill the rest of the world’s inhabitants—that is 7 billion—so that they themselves may live? Impossible!

I am saying these words here at Al Azhar, before this assembly of scholars and ulema—Allah Almighty be witness to your truth on Judgment Day concerning that which I’m talking about now.

All this that I am telling you, you cannot feel it if you remain trapped within this mindset. You need to step outside of yourselves to be able to observe it and reflect on it from a more enlightened perspective.

I say and repeat again that we are in need of a religious revolution. You, imams, are responsible before Allah. The entire world, I say it again, the entire world is waiting for your next move… because this umma is being torn, it is being destroyed, it is being lost—and it is being lost by our own hands.

Some are praising Sisi for his bravery. That’s certainly one way to look at it. When Sisi calls for rethinking “the corpus of texts and ideas that we have sacralized over the years,” he may be advocating something quite dramatic, indeed. For centuries, most Islamic law scholars – though not all – have held that “the gate of ijtihad,” or independent legal reasoning, has closed, that fiqh has reached perfection and cannot be developed further. If Sisi is calling for the gate to open, and if fiqh scholars at a place like Al Azhar heed the call, that would be a truly radical step, one that would send shock waves throughout the Islamic world.

We’ll have to wait and see. Early reports are sometimes misleading; there are subtexts, religious and political, that outsiders can miss. Which texts and ideas does Sisi mean, exactly? Fiqh rules about Christians and other non-Muslims, which often insist on subordination? Some argue that, notwithstanding the speech at Al Azhar, Sisi has done relatively little to improve the situation of Coptic Christians. And calling for the opening of the gate is not necessarily progressive. Although progressive Muslim scholars endorse the opening of the gate in order to adapt fiqh to modernity, Salafist groups wish to open the gate in order to discard centuries of what they see as un-Islamic traditions. Opening the gate may be a signal for fundamentalism, for a return to the pure Islam of the Prophet and his companions. I don’t imply Sisi is a fundamentalist, of course. I’m just saying one needs to be alert to the nuances.

Still, Sisi’s remarks do suggest he means a rethinking of Islamic law to adapt to contemporary pluralism. This is definitely worth watching.

Foreign Policy Magazine on Iraqi Christians

From Foreign Policy,  a moving essay on how Iraqi Christians are observing this Christmas season. Last month, the author, Christian Caryl, visited Erbil, in Iraqi Kurdistan, where Chaldean-rite Catholics, refugees from ISIS’s summer campaign, live in tents in a church courtyard:

I guess you could argue that this is all old news. A lot has happened since late November, and there are plenty of other stories to cover. By and large, the international media have moved on. But the refugees are still there, huddled together on the grounds of the church, or in other sites scattered around Kurdish-controlled territory (which has offered them a warm welcome despite its own lack of resources). The world may have forgotten these people, but they’re still struggling to come to terms with the catastrophe. The accounts repeat and overlap: “I hid our money in the house, thinking we’d be back in a few days. But now we realize that we’ll probably never be able to go back.” “They knew our cellphone number, so a few days later, they called us up and said they’d hunt us down and kill us.” “They took him away, and we’ve never heard from him again.”

Sadly, the tragedy of the Christians of Iraq — who span a whole range of doctrines and ethnic groups — is being replicated in many other places. Sectarian tensions are deepening around the world, and Christians are often the victims. Syria’s mostly Orthodox Christians are caught in the middle of the civil war between the government of Bashar al-Assad and its Islamist opponents. Egypt’s Copts are still attending charred churches, burned inanti-Christian pogroms and battling persistent anti-Christian sentiment. And now churches are even being targeted for attack by Hindu nationalists in India.

Caryl also answers the inevitable criticism that it is wrong to focus on the plight of Christians. (Do human rights advocates ever require explanations for defending other persecuted minorities? Just asking).

And yes, before you put coal in my stocking, I do understand that Christians aren’t the only ones in the world suffering from bigotry and violence. Just this past week, many Yezidis, another important religious minority in northern Iraq, finally got thrown a lifeline when Kurdish forces broke through an IS siege to open up a corridor to Mount Sinjar, where many Yezidis had been trapped. And yes, it’s absolutely true that many Muslims, Buddhists, and Hindus are victims of persecution and terror. I think everyone in the world should be happy to see that stop. Faith should never be an excuse for violence.

What’s important to keep in mind in the case of Middle Eastern Christians is that the communities under attack embody unique cultural traditions that now stand on the verge of irreparable damage or even extinction. (Some of Iraq’s Christians still speak Aramaic, the language of Christ.) Small wonder that a group of Christian and Muslim leaders recently meeting in Cairo issued a statement calling for tolerance pleading with Christians to remain in the Middle East. They understand that the loss of each one of these ancient communities of faith is a loss for all of us — and a victory for the forces of intolerance at a time when the world can least afford it.

Read the whole thing.

More on Subway “Viewpoint” Ads

Here’s a follow up to last week’s post about disclaimers on “viewpoint” ads in the New York City subway. In the post, I complained about the unfair treatment the policy affords to ads with religious messages, like the one I described from Marble Collegiate Church.

As Perry Dane explains, though, the disclaimer policy is not directed at religion per se. It applies generally to noncommercial ads that express viewpoints on “political, religious, or moral issues or related matters.” The Metropolitan Transit Authority adopted the policy after losing a 2012 lawsuit over display of anti-Islam ads. A federal district court ruled that, because the subway is a public forum, the MTA could not constitutionally refuse to display the ads. So the MTA decided to add the disclaimer to them and all other “viewpoint” ads, in order to avoid any implication of government endorsement. (The sponsor of the 2012 ads, the American Freedom Defense Initiative, is currently suing the MTA over display of a new anti-Islam ad, which the MTA refuses to display even with the disclaimer, on the ground that the ad may incite violence).

Still, whatever the formal policy, the MTA appears to apply it in a rather arbitrary way. I did a little research over the weekend. From what I could find, the policy has been applied to the AFDI ads; an ad for a Spanish-language Catholic television station; an ad from the Brooklyn Diocese featuring Pope Francis; and the Marble Collegiate ad I wrote about last week. All religious. What about disclaimers on ads that express viewpoints on political, moral, and related matters? Perhaps there are examples, but I couldn’t find any. More importantly, in no time at all I found three such ads without disclaimers.

IMG_20141221_174338_374First, there’s this ad for New York Cares, a volunteer organization that runs an annual coat drive. The ad clearly expresses a moral viewpoint, namely, that many New Yorkers go without winter coats, and the community has a moral obligation to respond. In fact, the ad’s use of the Statue of Liberty, a symbol of America and the refuge it has provided for the world’s “huddled masses,” adds a political dimension. How can we tolerate such poverty in this great republic of ours? To be sure, these messages are non-verbal, but that’s what makes them so powerful. There’s no MTA disclaimer.

08-airbnb-2.w529.h421.2xOr take this ad for Airbnb, a website that helps people rent space in their apartments to strangers for short stays. This ad campaign, which features New Yorkers saying how great Airbnb is for the city, has a political message as well, though you might not spot it if you’re not from New York. The company is trying to get the state legislature to loosen a law that restricts the use of private apartments as hotels. The ads are an obvious attempt to win public support for that effort. Still, notwithstanding the ad’s political implications, there’s no MTA disclaimer.

HillaryFinally, here’s the latest ad campaign for Manhattan Mini Storage. The company is famous for ironic, edgy ads that appeal, I guess, to sophisticated New York subway riders. Here, the political message seems pretty clear. True, this might be just another ironic ad (“Can you believe she’s running again?”) but I don’t think so, given the partisan messages in the company’s past ad campaigns, like ones poking fun at Michelle Bachmann and advocating gay marriage. Yet, again, no MTA disclaimer.

Now, the MTA would presumably defend its choice not to put disclaimers on the Airbnb and Manhattan Mini Storage ads because the policy formally applies only to noncommercial ads. But that seems arbitrary. As Marc DeGirolami pointed out last week, it’s very difficult to disentangle “commercial” from “noncommercial” expression. To my mind, the Hillary ad is the most obviously political, even though its sponsors are only trying to make money. Besides, the New York Cares ad is surely noncommercial–it’s for a volunteer organization.

As I say, perhaps the MTA has put disclaimers on non-religious viewpoint ads and I simply haven’t found them. It’s significant, though, that it’s so easy to find the disclaimer on religious viewpoint ads, and so easy to find political and moral viewpoint ads without the disclaimer. Here’s a thought: perhaps the MTA should stop trying to distinguish among ads and put disclaimers on all of them–commercial, noncommercial, political, moral, and religious. That would solve the appearance-of-endorsement problem, if the problem genuinely exists, and free up MTA resources for doing something important: running the subway.