Dissenting:
My respected colleagues have- circled the wagons on this appeal, seeing the government regulators as though they were a long line of raiders poised on a nearby hilltop threatening to swoop down and attack innocent advertisers attempting to exercise their constitutional right to free speech. The appeal appears to me in a much less menacing light. Seeing no arrow aimed at the heart of the First Amendment, I must respectfully dissent. Stripped of the baggage of its highly-visible parties, this case simply involves commercial speech in a forum where the MTA’s regulations may properly and did reasonably regulate such speech.
The MTA’s 1994 advertising standards, which are the subject of this appeal, contain eight limitations on what an advertiser may display on MTA buses. Such advertisement may not: (i) be false, misleading or deceptive, (ii) promote unlawful or illegal goods or services, (iii) imply an endorsement by the MTA of the product or service, (iv) contain obscene material, as defined by New York Penal Law § 235.00, (V) contain an image or description which if sold to a minor would violate New York Penal Law § 235.21, (vi) contain an image or description that would violate New York Penal Law § 245.11, (vii) be libelous orviolate New York Civil Rights Law, § 50, and (viii) promote tobacco.
I
New York Magazine’s advertisement plainly violates § 50 of New York’s Civil Rights Law. Section 50, which has been law in New York for 95 years, makes it a misdemeanor to use, “for advertising purposes or for the purposes of trade, the name, portrait or picture of any living person” without first obtaining that person’s written consent. N.Y.Civ.Rights Law § 50 (McKinney 1992); see Groden v. Random House, Inc., 61 F.3d 1045, 1048 (2d Cir.1995). Section 51 of the New York Civil Rights Law provides those injured by such conduct with a cause of action for injunctive relief and damages. See N.Y.Civ.Rights Law § 51 (McKinney Supp. 1997-98). Since no common law right to privacy exists in New York; this statute is the only protection individual citizens have against non-consensual invasion of that right. See Cohen v. Hallmark Cards, Inc., 45 N.Y.2d 493, 497 n. 2, 410 N.Y.S.2d 282, 382 *133N.E.2d 1145 (1978); see also Arrington v. New York Times Co., 55 N.Y.2d 433, 440, 449 N.Y.S.2d 941, 434 N.E.2d 1319 (1982). No one disputes that the use of Mayor Giuliani’s name in the subject advertisement was without his consent.
An appropriation of a person’s name, portrait or picture violates § 50 only if it is used primarily for trade or advertising purposes. See Freihofer v. Hearst Corp., 65 N.Y.2d 135, 140, 490 N.Y.S.2d 735, 480 N.E.2d 349 (1985). The advertising purposes prong of the statute is implicated where the use of a person’s name is for the purpose of soliciting purchasers for defendant’s products. See, e.g., Flores v. Mosler Safe Co., 7 N.Y.2d 276, 284, 196 N.Y.S.2d 975, 164 N.E.2d 853 (1959) (holding that defendant safe company which reprinted in advertising circular a newsphoto of a burning building and accompanying news story mentioning plaintiffs name several times could be held liable for such advertising use). New York Magazine made use of the name of New York City’s Mayor primarily to attract readers to buy its product. Thus, on its face, § 50 applies. Moreover, the fact that the Mayor is a public figure does not alter this conclusion, for § 50 covers public, as well as private, figures. See Stephano v. News Group Publications, Inc., 64 N.Y.2d 174, 183, 485 N.Y.S.2d 220, 474 N.E.2d 580 (1984); Brinkley v. Casablancas, 80 A.D.2d 428, 439-41, 438 N.Y.S.2d 1004 (1st Dep’t 1981); Onassis v. Christian Dior-New York, Inc., 122 Misc.2d 603, 614-15, 472 N.Y.S.2d 254 (Sup.Ct.N.Y.County 1984), aff'd, 110 A.D.2d 1095, 488 N.Y.S.2d 943 (1st Dep’t 1985).
In addition, the two exceptions to § 50’s application, incidental use and public interest, have no application here. The incidental use exception is for fleeting, de minimis, uses. See, e.g., University of Notre Dame Du Lac v. Twentieth Century-Fox Film Corp., 22 A.D.2d 452, 454, 256 N.Y.S.2d 301 (1st Dep’t) (plaintiff named on three pages of 143 page book), aff'd, 15 N.Y.2d 940, 259 N.Y.S.2d 832, 207 N.E.2d 508 (1965). This exception does not apply because, as New York Magazine admits, the reference to the Mayor is central, not incidental, to the advertisement and its commercial impact.
Nor does the public interest exception govern. That exception does not apply to materials that are “quintessential” advertising. See Beverley v. Choices Women’s. Med. Ctr., Inc., 78 N.Y.2d 745, 751-53, 579 N.Y.S.2d 637, 587 N.E.2d 275 (1991) (holding that a commercial advertiser may not unilaterally override significant statutory privacy protection by wrapping its message in the cloak of public interest, however commendable that message’s educational and informational value). Nor is it relevant, as New York Magazine contends, that the advertisement is satire. See Onassis, 122 Misc.2d at 614-15, 472 N.Y.S.2d 254. Although the media is of course entitled to direct humor or satire at a public figure in non-advertising contexts, the unauthorized use of an individual’s name in an advertisement is not rendered lawful merely by the addition of humorous social commentary. See id. Hence, because neither the incidental use nor public interest exception applies, and no consent was obtained from thé person whose name was used, § 50 of the New York Civil Rights Law was violated by this advertisement.
II
Whether the City of New York can limit access to its property — here a city bus — for purposes of speech depends on the nature of the forum. Restrictions on speech on governmental property traditionally open to the public, like public streets and parks, are subject to strict scrutiny. But a city bus cannot be said to be a quintessential public forum in the same sense as a park or public street.
The MTA operates its bus system as a commercial venture. Thus, this function of government is not conducted in the authority’s role of lawmaker, but rather in a proprietary capacity. As such, the' transit system has the power to develop reasonable regulations with respect to what kinds of advertising it will accept. See, e.g., International Soc’y for Krishna Consciousness v. Lee, 505 U.S. 672, 678-83, 112 S.Ct. 2701, 2705-08, 120 L.Ed.2d 541 (1992) (reasoning that because airport terminals operated by public authorities are commercial establishments, restrictions imposed on expression within,them are satisfied by the requirement *134of reasonableness). And, even when a public authority opens a forum to some speech, it does not become a public forum unless the authority clearly intends it to be one. See Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788, 804, 105 S.Ct. 3439, 3450, 87 L.Ed.2d 567 (1985).
Here, since the MTA does accept some political advertising, it must be conceded that City buses are in fact dedicated to some First Amendment uses. However, the City signalled its intent that the sides of buses were not to be considered public fora through its regulations, which, among other things, ban advertising that violates § 50 of the New York Civil Rights Law. See Cornelius, 473 U.S. at 805, 105 S.Ct. at 3450 (“The decision of the Government to limit access to the [forum] ... is relevant for what it suggests about the Government’s intent in creating the forum.”).
It is my belief that the sides of MTA buses are a limited public forum that permit some forms of political speech. See Travis v. Owego-Apalachin Sch. Dist., 927. F.2d 688, 692 (2d Cir.1991) (“[I]n a limited public forum, government is free to impose a blanket exclusion on certain types of speech, but once it allows expressive activities of a certain genre, it may not selectively deny access for other activities of that genre.”). That, does not mean, as the majority apparently believes, that the test of strict scrutiny applies across the board to restrictions on non-political commercial advertising of the kind we have before us. Although bus placards have been dedicated to some First Amendment uses, and may not therefore be said to be a purely nonpublic forum, “regulation of the reserved nonpublic uses would still require application of the reasonableness test.” United States v. Kokinda, 497 U.S. 720, 730, 110 S.Ct. 3115, 3121, 111 L.Ed.2d 571 (1990); see also Perry Educ. Assn. v. Perry Local Educators Assn., 460 U.S. 37, 47-49, 103 S.Ct. 948, 956-57, 74 L.Ed.2d 794 (1983).
Ill
In 1994 the MTA promulgated the written advertising standards referred to above, clearly evincing its intent not to open its advertising space to all comers. In Lehman v. City of Shaker Heights, 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770 (1974), the Supreme Court explained that billboards and streetcar signs are thrust upon viewers without their choice — a radio or TV can be turned off, not so a billboard or bus placard. Id. at 302, 94 S.Ct. at 2716-17. When a City is engaged in commerce, the Court continued, it need not accept every advertisement offered, but may make reasonable choices with respect to the advertising displayed on its vehicles. Id. at 303, 94 S.Ct. at 2717. Such is precisely the situation in the case before us.
Restrictions on expression “can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral.” Cornelius, 473 U.S. at 806, 105 S.Ct. at 3451. The regulation excluding advertisements that violate New York Civil Rights Law § 50 is a reasonable exclusion, and one that is viewpoint neutral. The MTA declares that these regulations restricting speech serve two substantial governmental interests. The first is protecting the rights of privacy and publicity of the citizens of New York. As we recognized in Lerman v. Flynt Distributing Co., 745 F.2d 123, 128-29 (2d Cir.1984), the unconsented use of a person’s name for commercial purposes can inflict a kind of harm that mere disclaimer cannot heal. In Lerman we quoted language from an article co-authored by Justice Brandéis, which observed that “modern enterprise and invention have, through invasions upon [man’s] privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury.” Id. at 129 (quoting S. Warren and L. Brandéis, The Right of Privacy, 4 Harv.L.Rev. 193, 196 (1890)). Hence, a regulation restricting commercial advertising on government-owned property is a reasonable means of protecting the ever-shrinking realm of individual privacy.
The second interest is to conduct its commercial activities in a manner that avoids violating state law and any consequent litigation. The majority thinks the violation of the State Civil Rights Law presents no problem because an indemnity agreement protects the *135MTA. But indemnity agreements are not self-executing, and a party’s attempt to enforce their provisions often leads to extensive legal battles. In short, an indemnity agreement does not eliminate litigation.
As a consequence, having determined that the subject advertisement violates § 50 and that the MTA regulation survives the test of reasonableness, I conclude that plaintiff’s First Amendment challenge must fail.
IV
Finally, the majority uses as some part of the rationale for its decision the notion that the MTA regulations constitute a prior restraint. It seems to me difficult to mount a prior restraint argument in the circumstances of this appeal when the “prior” element is absent. It must be remembered that the advertisement at issue had already appeared on the sides of City buses both before the MTA attempted to remove it and at the time we heard the appeal. Cf. Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1289, 43 L.Ed.2d 448 (1975) (holding that municipal board’s denial of use of a city-leased theater for the production of a musical, before anyone had seen it, constituted an illegal prior restraint).
CONCLUSION
My concern with the majority’s conclusion in this case, simply stated, is that by affording the commercial speech at issue as much judicial protection as it has, it fails to distinguish between commercial and non-commercial speech. In so doing, the First Amendment guarantees that safeguard noncommercial speech are diluted, and all speech is thereby leveled at the lowest common denominator. See Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 456, 98 S.Ct. 1912, 1918-19, 56 L.Ed.2d 444 (1978).
Accordingly, I vote to reverse the district court’s issuance of an injunction and would remand the case to that court with a direction that the motion for such relief be denied.