Boston has been abuzz lately with the sounds of absolutely nobody caring about how Legal Sea Foods advertises its restaurants.
The seafood chain began a campaign in January with ads on Boston cabs featuring its “fresh fish” – fresh like the prince of Bel-Air. The fish said things like, “The cab driver has a face like a halibut.” Nobody particularly noticed. Including the cab drivers.
Then in May they debuted the same campaign on the sides of Green Line trains. Now the fish said things like, “This conductor has a face like a halibut.” Nobody particularly noticed. Except some conductors.
Stephan G. MacDougall, president of the Boston Carmen’s Union, … fielded 40 phone calls from Green Line workers incensed by the ads.
“To say they are angered and offended is to put it lightly,” MacDougall said. “I will tell you this: If they don’t come down, we will not drive those trains.”
With this, a few people began to care. They do have a point: it is offensive and insulting. Even things said as a joke can be offensive. Did we learn nothing from Mean Girls, in which Tina Fey cautions the high school girls, “You all have got to stop calling each other sluts and whores – it just makes it okay for guys to call you sluts and whores?” Don’t tell me I’m the only one who watched that movie.
Complaining, however, was the worst move the Carmen’s Union (Local 589) could have made. They have a right to take offense, but it’s rather akin to arguing with the homeless guy about whether or not your drugs smell. Trust me. Nobody ever beat me up in middle school, and I was the guy who wore a vest to school every day. Ignoring the bullies must have worked at least a little. (Except that kid who tried picking on me on the last day of school – he ended up mopping hallways for the first week of summer while I was in Disney World. Seriously.)
Legal Sea Foods CEO Roger Berkowitz threw fuel into the fire the next week, with an “apology” on the radio:
“We should have never, ever said, ‘This conductor has a face like a halibut,’ when the truth is, most conductors don’t look anything at all like halibuts,” Berkowitz says in the new radio advertisement, produced by the New York ad agency DeVito/Verdi. “Some look more like groupers or flounders. I’ve even seen a few who closely resemble catfish. And there’s one conductor on the Green Line that looks remarkably like a hammerhead shark. So we feel very badly about this mischaracterization, and we won’t let it happen again.”
Somewhere in Boston 40 Green Line conductors were out purchasing soapboxes, and 350,000 Boston Globe subscribers were thinking about whether or not Legal Sea Foods was funny – and as a follow-up question whether they felt like some halibut for dinner.
Then Legal threw on the last log:
Initially, the MBTA said two of the five ads had to come down, but, without cause or warning, we found a third ad subsequently had been taken down.
This might lead a company to question whether its First Amendment rights have been violated. Nevertheless, we have bigger fish to fry, and hope that the conductors can accept the ads in the spirit they were created. I doubt any are truly offended. And if so, a halibut dinner is on us.
– Ida Faber, Marketing director for Legal Sea Foods. Printed as a letter to the editor of the Boston Globe, 19 June, 2008
Let’s stop right there. We’re already poised on the brink of raising a generation of illiterate txt spkrs (isn’t that the best editorial ever, by the way?) so let’s clarify something. The first amendment makes no guarantee whatsoever about who can advertise on the T or what those ads can say.
While Legal Sea Foods has a constitutional right to shout at the top of their voice that conductors look like fish, no advertising venue in the country has a constitutional obligation to print it. As Aaron Sorkin says, “You want free speech? Let’s see you acknowledge a man whose words make your blood boil who’s standing center stage and advocating at the top of his lungs that which you would spend a lifetime opposing at the top of yours.”
Of course, the real purpose of the statement was to keep the dialog going. When it failed, giant ads appeared a few days later announcing that Legal really had sent gift certificates for free dinners to the Carmen’s Union for any conductor who wanted them.
We can only hope this wraps up a publicity battle that was fought absolutely nowhere but the pages of a newspaper, and sufficiently drives up Legal’s sales revenues for the month of June. And the award for Best Supporting Actor goes to: the Carmen’s Union, for making it all possible.
Sorry. The first amendment says the government can’t restrict speech. The MBTA is an arm of the government. Therefore MBTA can’t arbitrarily limit speech.
That said, commercial speech (aka ads) is subject to lots of government regulation. I suppose MBTA could refuse the ads on “truth in advertising” grounds, arguing that the conductors do not actually look like halibuts. Then Legal Sea Foods could present evidence that the conductors do look like halibuts. “Your honor, exhibit A: Henry Limpet.”
(By the way, how do the human conductors know the ads don’t refer to the electric conductors that power the train?)
Legal Sea Foods’ equating the conductor to a halibut works in both directions. If the conductor looks like a halibut, doesn’t Legal’s halibut dinner special look like a conductor? That may not help sell meals. And maybe Legal should be sending Charlie passes to the halibuts to keep them happy too.
There’s a difference between restricting free speech and refusing to sponsor it.
A passenger can stand next to me on the T and spend the entire 30 minute commute justifying his position that women should never be allowed to hold jobs or vote (or defending the Nazis, if it’s time to bring out Godwin’s Law). He can even (gasp) say the conductor looks a little fishy. The first amendment has fallen when that becomes punishable.
But even a body politic and corporate, and political subdivision doesn’t need to sponsor a particular viewpoint by hosting its ads.
There may be no legal precedent yet, but there should be.