Photo courtesy of Alpha Media.

SB 1124 moves on after a 5 to 1 vote. Last month it also passed the education committee. If signed into law, it would go into effect this coming July.

A legislative review discusses potential legal ramifications with regard to First Amendment rights. Currently, the state allows internal advertising on school buses but not on the outside, despite a report by the Associated Press last year that said Florida was one of a half-dozen states to allow external ads. Colorado was the first state in the early 1990s to allow ads on the outside. Arizona, Tennessee and Texas (see photo, above) have since passed their own regulations, and New Jersey passed its law in January. Oklahoma and Washington state are also looking at legislation this spring, while a similar bill in Idaho recently was rejected.

The two sets of companion bills in the Florida House and Senate, if passed, would go into effect this July.

An analysis of SB 1124, a companion to HB 109, mentions that opponents of ads fear increased safety risks for students as well as other motorists while also stating that there have yet to be any studies linking school bus ads with increased crashes. But the most interesting aspects of the analysis center on the potential legal ramifications of school bus advertising, as it cites a 1974 U.S. Supreme Court ruling that interior advertising space on a city transit systems does not constitute a public forum. In a concurring opinion, Justice William Orville Douglas wrote, “…if we are to turn a bus or streetcar into either a newspaper or a park, we take great liberties with people who because of necessity become commuters and at the same time captive viewers or listeners.”

The decision to designate a public bus as a non-public forum was also at the center of a 1994 decision by the First Circuit U.S. Court of Appeals that affirmed a district court's opinion that the Massachusetts Bay Transportation Authority discriminated against a PSA that promoted the use of condoms to reduce the risk of spreading AIDS while at the same time allowing movie ads that depicted similar levels of sexual content. A position paper published this month by NASDPTS opposing school bus ads also cites the Massachusetts case as an example of a possible legal challenge to school districts. The Florida Association for Pupil Transportation published it's own paper opposing school bus ads in January.

According to the legislative staff review, SB 1124 does not provide guidelines on sponsor language and is not likely itself to be the subject to a court challenge. But the a greater potential for a legal challenge exists when a school board adopts policies for acceptance/rejection of sponsors. It remained unclear whether a court would interpret the listing of a sponsor’s name and logo on the outside of school buses as forcing ideas on student passengers similar to the impact of political advertising inside the bus or subway on passengers, as was the case with the Supreme Court ruling.

"In this case, the state would probably assert the protection of children as the state interest," reads the analysis. "Case law, however, still requires restrictions on speech to be viewpoint neutral. This is particularly notable if a district school board rejects certain sponsors and permits others who are similarly situated."

SB 1124 and HB 109 would require all bus ads to comply with district school board policies on content, placement, number and cost. The local school board would have to balance what constitutes “objectionable advertising” with an advertiser’s exercise of commercial speech. This would entail entering a contract with an advertiser to ensure that the ads would not include messages that are discriminatory in nature, not "child- or community-sensitive" or that relate to anti-social behavior.

If a bus does not comply, the district would be required to pull the bus from operation until it meets the requirements.

School board policy would decide the types of objectionable advertising, including those that are discriminatory in nature, contain material that is not child- and community-sensitive or relate to anti-social behavior. These policies would be incorporated into contracts with the advertising businesses.

The analysis states that the commissioner of education would indemnify a school district from liability arising from advertisements on school buses. But, the commissioner is not a party to these school district contracts, so the rationale for assigning this responsibility to the commissioner also remained unclear.

"Moreover, this provision would increase the litigation exposure on a state agency, which has no role in the school district’s decision to permit advertising on a school bus," the analysis reads. "The liability exposure should reside with the school district."