MANHATTAN (CN) — Miffed that its tasteful ad submissions were turned away while lurid ads for men’s arousal products and erectile-dysfunction treatments already wallpaper the subways, a Brooklyn vibrator company claimed Tuesday in a federal complaint that New York City's Metropolitan Transportation Authority has a sexist double standard on racy advertisements.
Represented by Emery Celli Brinckerhoff & Abady, the sex toy company Dame Products says the MTA unevenly enforces a prohibition on ads that promote sexually oriented business to exclude ads focused on women’s health and wellness.
Dame submitted its ads to the MTA for approval in July 2018 and says it was strung along for six months until the MTA denied all of them, citing an alleged prohibition in MTA advertising standards.
“The MTA believes it has carte blanche to censor and quash commercial speech without any legitimate basis. It does not,” the 40-page complaint states. “Because women suffer disproportionately from sexual dissatisfaction and dysfunction, advertisements for vibrators almost exclusively target women.”
Dame claims that refusing to permit its ads on MTA trains excludes it from a public forum that the MTA has made available for other products relating to sex. It says this violates the First and 14th Amendments and the New York Constitution, and that the policy, if there is such a policy, should be declared void for vagueness.
“The dearth of such advertisements on MTA property speaks volumes,” the complaint states. “By banning Dame’s advertisements, the MTA is telling the women of New York City that it does not care about their sexual health, well-being, and pleasure.”
Dame says the MTA allows subway ads for other sexually oriented businesses, including the erectile dysfunction treatment “hims,” whose subway ads feature cactuses meant to resemble flaccid or erect penises, and risqué ads for the Museum of Sex, a profitable business whose mission is “advocating open discourse surrounding sex and sexuality.”
Dame Products, “a female-owned, majority-minority company, and a jewel in Brooklyn’s startup scene,” was founded in 2014 by Alexandra Fine and Janet Lieberman, the complaint states. It purposed is “to imbue the sex toy industry with sorely-needed research; smart design; empathic, consumer-centric methods; and a focus on sexual health and well-being.”
Dame says it spent $150,000 between May and December 2018 to prepare its campaign on the MTA, bypassing other opportunities in reliance on MTA’s representation that it intended to run Dame’s ads.
The MTA allegedly ignored Dame's requests for explanation why some sexually oriented ads are allowed while others are not.
Dame seeks an injunction ordering the MTA to display its proposed ads.
MTA spokesman Maxwell Young denied that the MTA advertising policy discriminates because of gender or viewpoint.
"The MTA’s FAQs about its advertising policy clearly states that advertisements for sex toys or devices for any gender are not permitted, and advertising for FDA-approved medication — for either gender — is permitted," Young said in a statement.
"In its proprietary capacity as the operator of a transit system used by all New Yorkers, the MTA is constitutionally entitled to draw reasonable content-based distinctions between different types of advertisements and to consider its diverse customers," Young added.
He said the MTA plans to retain prominent First Amendment attorney Victor Kovner for its defense.
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