By Roger Parloff
June 27, 2008

Be careful what you say about trolley conductors in Boston. That’s the message Boston’s transit officials sent to a chain of seafood restaurants that devised an irreverent ad campaign that turned into a nasty battle over free speech.

Earlier this month, the Massachusetts Bay Transportation Authority yanked a series of advertisements that Legal Sea Foods, a Boston-based chain, started running on the sides of Boston buses and trolleys.

The ad campaign, devised by the DeVito/Verdi agency in New York, plays on a “really fresh fish” theme; each ad depicts a cartoon fish with a message bubble containing a borscht-belt-style insulting (i.e., “fresh”) remark.

Though some of the tart messages passed muster with the MBTA, at least one crossed the line, and the MBTA barred it. The forbidden message which had provoked complaints from the Boston Carmen’s Union, said, “This conductor has a face like a halibut.”

MBTA spokesman Joe Pesaturo says that the authority considered the ad “disparaging to employees,” “disrespectful,” and “not appropriate.”

Another ad, which bore a simple “Bite Me” message was also pulled down, but that was only due to a “miscommunication” between the MBTA and its transit advertising contractor, according to Pesaturo. (A DeVito/Verdi representative and Legal Sea Foods lawyer both say that Pesaturo is mistaken, and that the MBTA definitely barred the “Bite me” ad, too. The miscommunication, they say, was over yet a third ad.)

The MBTA had no problem with ads that proclaimed, “Hey lady, I’ve seen smaller noses on a swordfish,” and “This trolley gets around more than your sister.”

When the two ads were initially taken down, Legal Sea Foods hired First Amendment icon Martin Garbus, a partner at Davis & Gilbert, whose previous clients have included Lenny Bruce, Daniel Ellsberg, and Don Imus. Garbus wrote a letter threatening legal action on the grounds that the MBTA was violating Legal Sea Foods’ commercial free speech rights. (Though commercial speech gets less First Amendment protection than political speech, it still gets some, which is why, for instance, ads for lawyers, tobacco, and liquor can only be regulated — not banned outright.)

The halibut ad could not violate the MBTA’s rules against “demeaning or disparaging” advertisements, he argued, because “no reasonable person would take this quip by a talking fish seriously.”

On Thursday, Legal Seafood began running a new set of advertisements that mock the MBTA’s decision to pull down the earlier ad. The new ads will be the same as the old one, except for a big, red “censored” banner covering the words that triggered the controversy.

Legal Sea Foods new “censored” campaign may have defused the controversy for the moment. After mulling over the propriety of these “censored” ads for a week, according to a DeVito/Verdi representative, the MBTA okayed them on Wednesday.

The ad agency DeVito/Verdi knows well the free advertising attracted by a public controversy. In 1997 it devised the now famous bus-side campaign for New York Magazine that poked fun at then-Mayor Rudolph Giuliani by calling itself “Possibly the only good thing in New York that Rudy hasn’t taken credit for.” Giuliani tried unsuccessfully tried to have the ad taken down.

In an interview Garbus warns that the MBTA’s actions to date have created a “chilling effect for all ad writers,” although he seems to have a little trouble working himself into a full lather over this one. “I mean, this is not Armageddon,” he admits.

To my mind, Garbus’s threatening letter was commendably understated. Under the circumstances, I suspect a lot of Bostonians would have just told the MBTA: “Get scrod.”

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