Case 1:19-cv-05649 Document 1 Filed 06/18/19 Page 1 of 40

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DAME PRODUCTS,
Plaintiff,
-againstTHE METROPOLITAN TRANSIT
AUTHORITY, JANNO LIEBER, individually
and in his official capacity as Chief
Development Officer and President of MTA
Capital Construction, and PAT FOYE,
individually and in his official capacity as
Chairman and Chief Executive Officer of the
MTA,

COMPLAINT

Defendants.
Plaintiff Dame Products, by and through its attorneys, Emery Celli Brinckerhoff
& Abady LLP, for its Complaint alleges as follows:
PRELIMINARY STATEMENT
1.

Imagine you are a woman standing in an MTA subway car. Look left,

and you see phallic cactuses—both flaccid and erect—which promote erectile dysfunction
medication beneath the slogan “hard made easy.” Look right, and your eye catches an
advertisement for “Kyng”-sized condoms, their foil packets shiny. Across the way is an image
of a woman, midriff exposed and bra visible beneath her sheer shirt. The ad, which touts
female libido medication, reads: “Turned on. On your terms.” And just overhead are
advertisements for the Museum of Sex, featuring sets of naked buttocks or women dancing in a
room full of inflated plastic breasts.
2.

Now imagine you reach your destination and step off of the train.

Plastered eight feet high on the station wall is an advertisement for breast augmentation
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services; a woman suggestively cradles petite tangerines and enormous grapefruits in front of
her chest. A neighboring photograph of bare cleavage features the words: “Made in New
York.” A sign promoting a travel booking company proclaims: “Get Wet. (On the beach, not
from the guy next to you).” And prominently displayed is an advertisement for the 2010 movie
“The Virginity Hit” that trumpets: “Still a Virgin? For help call 888-743-4335 toll free.”
3.

Just a few of these images are pictured here:

4.

This scenario is not just your imagination. Each one of these

advertisements was submitted to the MTA for display in trains, buses, and subway stations.
Each one was given the MTA’s stamp of approval. Each one was displayed in full view of
every New Yorker who uses public transit to commute—adults and children alike. The
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businesses behind each advertisement reaped the tremendous financial benefit and prestige of
advertisement space on the MTA’s well-trafficked property.
5.

But what you do not see in the subway car, in the station, or anywhere

else around you are advertisements for Plaintiff Dame Products (“Dame”), which manufactures
tasteful, innovative, and widely-praised tools for women’s sexual wellness.
6.

You do not see Dame’s advertisements because the MTA—in

contravention of the First Amendment, due process, equal protection, and common sense—has
banned them from being displayed on MTA property.
7.

In July 2018, Dame submitted advertisements to the MTA for approval.

The MTA then strung Dame along for six months. In that time, Dame spent approximately
$150,000 of its scant resources to incorporate the MTA’s feedback, submit revised
advertisements, and order additional inventory, all in reliance on the MTA’s representation that
it would accept Dame’s materials.
8.

But in December 2018, the MTA precipitously denied Dame’s request.

Although the MTA has previously welcomed advertisements that celebrate human sexuality
and openly discuss sexual health and function—not to mention advertisements that use sexual
imagery or explicit text to sell consumer goods—the MTA excluded Dame from this vibrant
public discourse and denied Dame coveted advertising space.
9.

Unable to justify this arbitrary and unlawful decision, the MTA cited

only a bogus interpretation of its own advertising regulations ginned up for the sole purpose of
quashing Dame’s proposed images.
10.

The advertisements banned by the MTA (all pictured below) include

these:

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11.

The MTA’s decision to reject Dame’s advertisements reflects no

legitimate principle of law. Instead, it reveals the MTA’s sexism, its decision to privilege male
interests in its advertising choices, and its fundamental misunderstanding of Dame’s products,
which have transformed the sexual health and wellness of more than 100,000 consumers.
12.

In 2019, the MTA’s Victorian view of female sexuality and the First

Amendment cannot stand. The MTA’s censorship of Dame’s advertisements cannot stand. All
New Yorkers—and all women—deserve better.
13.

This civil rights action pursuant to 42 U.S.C. § 1983 seeks damages for

the MTA’s violations of Dame’s rights to free speech, due process, and equal protection under
the First and Fourteenth Amendments of the United States Constitution, declarations that the
MTA’s conduct was unlawful and improper, and an injunction requiring the MTA to approve
and display Dame’s advertisements.
JURISDICTION AND VENUE
14.

This action arises under the First and Fourteenth Amendments to the

United States Constitution, 42 U.S.C. §§ 1983 and 1988.

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15.

This Court has jurisdiction under 28 U.S.C. §§ 1331 and 1343.

16.

Venue is proper in this Court under 28 U.S.C. § 1391(b) because

Defendant is located in this District and because a substantial part of the events giving rise to
the claims occurred in this District.
JURY DEMAND
17.

Plaintiff demands trial by jury.
PARTIES

18.

Plaintiff Dame Products is incorporated under the laws of the State of

New York. Dame was founded to revolutionize the sex toy industry and design exceptional
tools for sex to enhance intimacy.
19.

Dame achieves its objectives through a variety of lawful means,

including through the exercise of its right to freedom of speech under the United States
Constitution. Dame exercises its right to freedom of speech and promotes its objectives by,
inter alia, purchasing advertising space on transit authority property in major cities throughout
the United States, including New York City.
20.

Defendant Metropolitan Transit Authority is a public benefit corporation

duly organized under the laws of the State of New York. It operates buses, subways, and
regional rail lines in and around New York City.
21.

As a government agency, the MTA is mandated to comply with the First

and Fourteenth Amendments to the United States Constitution. For the purposes of claims
arising under 42 U.S.C. § 1983, the MTA is treated as a municipal agency when determining
its liability.

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22.

At all relevant times herein, Defendant Janno Lieber was and is the

Chief Development Officer and President of MTA Capital Construction. In his capacity as
Chief Development Officer and President of MTA Capital Construction, Defendant Lieber, on
behalf of the MTA, was and is responsible for adopting, creating, and enforcing the policies
and practices of the MTA, including the MTA Advertising Policy (the “Policy”), a publicly
available document that governs which advertisements are selected for display on MTA
Property. Defendant Lieber is being sued in his individual and official capacity.
23.

At all relevant times herein, Defendant Pat Foye was and is the

Chairman and Chief Executive Officer of the MTA. In his capacity as Chairman and Chief
Executive Officer, Defendant Foye, on behalf of the MTA Board of Directors, was and is
responsible for adopting, creating, and enforcing the policies and practices of the MTA,
including the MTA Advertising Policy. Defendant Foye is being sued in his individual and
official capacity.
FACTUAL ALLEGATIONS
I.

The History of Plaintiff Dame Products
24.

Dame is a groundbreaking company that has revolutionized the sex toy

industry in just four years since its inception.
25.

In the words of The New York Times: Dame leads “a tech-savvy and

female-led women’s sexuality movement that has made its home in New York.” 1
26.

Dame’s Founders, Chief Executive Officer Alexandra Fine and Chief

Technology Officer Janet Lieberman, realized they were onto something when their first

1

See www.nytimes.com/2017/08/18/nyregion/women-of-sex-tech-unite.html, last accessed June 18, 2019.

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collaboration, the vibrator “Eva,” raised more than $500,000 on Indiegogo, a crowdfunding
website, in November 2014.
27.

Intent on refining their in-depth research, smart design, and empathic,

consumer-centered approach, Fine and Lieberman teamed up and began crafting meticulously
engineered vibrators and other sex tools and toys that have been praised by news outlets
including The New York Times, W Magazine, Vanity Fair, Fast Company, Forbes, BBC, the
Today Show, and Wired.
28.

Dame’s advertisements—including advertisements that were rejected by

the MTA—currently appear on New York City kiosks and bus stops via Intersectional Media
and on podcasts including Savage Lovecast and The Reductress Minute.
Alexandra Fine and Janet Lieberman: Dame’s Founders
29.

CEO Alexandra Fine, a lifelong student of sexual health, earned her

Masters’ Degree in Clinical Psychology with a concentration in sex therapy from Columbia
University.
30.

After receiving her degree, Fine realized that she could better serve the

sex tech industry by means of entrepreneurship than through her planned career in sex therapy.
In 2014, she began developing vibrator prototypes on her own, seeking feedback from friends
to assess viability and pinpoint key areas for innovation.
31.

Fine’s groundbreaking contributions to the sex tech field led Forbes

Magazine to name her to its prestigious “30 Under 30 – Retail and Ecommerce” list in 2018.
32.

Dame CTO Janet Lieberman obtained her B.S. in mechanical

engineering from MIT and spent nearly a decade designing and creating an array of unique

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products, from dustpans and bath thermometers to 3D printers. Lieberman has particular
expertise in the consumer electronics industry.
33.

After a number of years honing her acumen in the design community,

Lieberman noticed that vibrators—marketed almost entirely to women—were neither
developed nor manufactured to the same standards as most other consumer goods.
34.

Realizing their distinct backgrounds and skillsets formed a perfect

complement, Fine and Lieberman joined forces in Brooklyn in 2014 and founded Dame
Products 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’s Mission to Close the “Pleasure Gap” and Promote Sexual Health and Wellness
35.

Dame was founded to address fundamental inequalities between men

and women in heterosexual encounters.
36.

“Pleasure is not equitable.” 2 Cisgendered, heterosexual women are four

times more likely than men to say that sex is not pleasurable for them. 3 And cisgendered,
heterosexual men have twenty- to fifty-percent more orgasms than cisgendered, heterosexual
women during partnered sexual encounters. 4
37.

One study showed that cisgendered men “usually” or “always” have

orgasms during sex, while only thirty-nine percent of cisgendered women said the same. 5

2
Nina Callens and Rena McDaniel, “What Is the Pleasure Gap?”, available at
www.dameproducts.com/blogs/journal/what-is-the-pleasure-gap, last accessed on June 18, 2019.
3
Id.
4
Id.
5
Lisa D. Wade, Emily C. Kremer, and Jessica Brown, The incidental orgasm: the presence of clitoral knowledge
and the absence of orgasm for women, 42(1) Women Health 117 (2005).

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38.

Another showed that forty-three percent of women suffer from some

kind of sexual dysfunction, compared with only thirty-one percent of men. 6
39.

And another showed that women report more pain during sex than men. 7

40.

Dame seeks to level the playing field by designing products that can

make sex equally enjoyable for men and women. Dame’s current array of five tools for sex is
designed to close the notorious “pleasure gap” by catering to women’s arousal, libido,
pleasure, and sexual wellness.
41.

Dame’s research—and a plethora of research conducted by medical

professionals specializing in sexual wellness—proves that vibrators and other sex tools are not
just ways to create or enhance physical sensations of pleasure. As the medical community has
long known, genital vibration is also beneficial—and for many women, essential—for treating
a variety of sexual conditions.
42.

Vibrators are frequently prescribed by medical professionals to address

an array of women’s sexual health issues, from libido- and arousal-related difficulties to
physical pain and discomfort. 8
43.

Genital vibration can effectively treat anorgasmia (the inability to have

an orgasm). 9 It can facilitate arousal and orgasm as a treatment for female sexual arousal

6
Linda L. Barkacs, Craig B. Barkacs & Kristine Ehrich, Girls Just Want to Have Fun: Issues Surrounding the
Marketing of Sexual Enhancement Products for Women, 18 J. L. Bus. & Eth. 63, 64 & n.6 (2012) (hereinafter
“Barkacs”).
7
E.J. Bartler & R.B. Fillingim, Sex differences in pain: a brief review of clinical and experimental findings,
111(1) British Journal of Anaesthesia, 52, 52 (2013).
8
Jordan E. Rullo, Tierney Lorenz, Matthew J. Ziegelmann, Laura Meihofer, Debra Herbenick & Stephanie S.
Faubion, Genital vibration for sexual function and enhancement: a review of evidence, Sexual and Relationship
Therapy 1, 2 (2018) (hereinafter “Rullo”); see also Debra Herbenick, Michael Reece, Stephanie Sanders, Brian
Dodge, Annahita Ghassemi, & J. Dennis Fortenberry, Prevalence and Characteristics of Vibrator Use by Women
in the United States: Results from a Nationally Representative Study, 6 Journal of Sexual Medicine 1857, 1857-58
(2009) (hereinafter “Herbenick”); Danielle J. Lindemann, Pathology Full Circle: A History of Anti-Vibrator
Legislation in the United states, 15 Colum. J. Gender & L. 326, 336-341 (2006).
9
See Rullo at 1 (“V]ibrators can be classified by the FDA as obstetrical and gynecological therapeutic devices for

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disorder. 10 It can increase women’s sexual desire. 11 And it improves overall sexual health and
function. 12
44.

Vibrator usage can also ameliorate unpleasant genital symptoms.

Genital vibration can decrease physical discomfort associated with genito-pelvic pain
penetration disorder, provoked vestibulodynia, and vulvodynia. 13 It can facilitate blood flow to
the genitals, thereby relieving vaginal dryness. 14 And vaginal stimulation may decrease pain
sensitivity without sacrificing tactile sensitivity. 15
45.

Because insufficient arousal may lead to pain during sex or difficulty

achieving orgasm, a vibrator’s tendency to increase female arousal is particularly significant. 16
46.

One nationally representative study of 2,056 women concluded that

vibrator use is “(i) common among diverse groups of women; (ii) associated with healthpromoting behaviors; (iii) associated with positive sexual function; and (iv) rarely related to
negative side effects.” 17
47.

In short, vibrator usage is “a valuable tool for health care providers in

the treatment of sexual function concerns.” 18

the treatment of sexual dysfunction . . . vibrators have been shown to provide sexual health benefits for patients”).
10
Rullo at 5-6, Herbenick at 1857-66.
11
Id. at 5.
12
Id. at 8.
13
Id. at 7.
14
Sandra R. Leiblum, Arousal disorders in women: complaints and complexities, 178 Medical Journal of
Australia 638, 638-39 (2003) (hereinafter “Leiblum”).
15
Beverly Whipple and Barry R. Komisaruk, Elevation of Pain Threshold by Vaginal Stimulation in Women, 21
Pain 357, 357 (1985); see also Stuart Brody, The Relative Health Benefits of Different Sexual Activities, 7
International Society for Sexual Medicine 1336, 1341 (2010) (hereinafter “Brody”).
16
Leiblum at 638-39; Rullo at 5, Herbenick at 1863.
17
Herbenick at 1863.
18
Rullo at 8.

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48.

Sexual wellness and satisfaction, in turn, are positively correlated with

an array of broader health benefits, and “individuals who engage in regular sexual activity have
better health.” 19
49.

For example, frequent intercourse has been linked to a greater

satisfaction with one’s mental health and has mood-enhancing benefits, 20 and frequent
masturbation and orgasm has been linked with mood enhancement, the reduction of
menopausal symptoms, and emotional intelligence. 21
50.

Orgasm can relieve dysmenorrhea (menstrual cramps) and more

generalized physical pain, even during labor and childbirth. 22
51.

And vibrator users are more likely to obtain regular gynecological

exams and perform genital self-examinations. 23
52.

The health benefits associated with genital vibration and a healthy sex

life are integral to Dame’s mission. By marshaling these benefits in conjunction with
comprehensive consumer feedback, Dame revolutionized the sex toy industry.
53.

Before Dame upended the vibrator market with its signature product, a

hands-free vibrator called Eva, 24 many sex toys on the market were ineffective for women,
intrusive for men in heterosexual partnerships, or simply inferior in design or function.

Lisa M. Diamond & David M. Huebner, Is Good Sex Good For You? Rethinking Sexuality and Health, 6(1)
Social and Personality Psychology Compass 54, 56 (2012).
20
Brody at 1340.
21
Breanne Fahs & Elena Frank, Notes from the Back Room: Gender, Power, and (In)Visibility in Women’s
Experiences of Masturbation, 51(3) Journal of Sex Research 241, 243 (2014) (hereinafter “Fahs”).
22
Roy J. Levin, Sexual Activity, health, and well-being – the beneficial roles of coitus and masturbation, 22:1
Sexual and Relationship Therapy 135, 142, 144 (2007).
23
Fahs at 243.
24
www.dameproducts.com/products/eva-ii, last accessed on June 18, 2019.
19

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54.

Dame’s meticulously-designed products address all of these

deficiencies. Eva is the first hands-free vibrator on the sexual device market. It allows women
to enjoy clitoral stimulation during penetrative sex while freeing their hands for use elsewhere.
55.

What is more, Eva conforms to a wide variety of differently-shaped and

-sized vulvas. It enhances penetrative sex of any kind by providing the clitoral stimulation
many women need to achieve orgasm. And it facilitates partner-focused intimacy by
eliminating the need for a sex toy to be manually held to the body during intercourse or other
sexual activity.
56.

Eva flew off the shelves to women—and their sexual partners—eager

for precisely this new kind of sex toy. Eva’s popularity has proven so enduring that Dame
currently markets and sells Eva II, a smaller, more streamlined version of the company’s initial
offering that was tweaked to incorporate first-round consumer feedback.
57.

In short, Eva—and Dame’s array of other vibrators and sexual tools—

accomplish exactly what Dame has always set out to do: help women marshal the myriad
health benefits associated with sexual wellness.
II.

After Stringing Dame Along for Months, The MTA Suddenly Bans the Proposed
Advertisements

Dame Requests to Advertise on MTA Property
58.

In August 2018, Dame reached out to the MTA’s advertising contractor,

OUTFRONT Media (“OUTFRONT”), hoping to purchase remnant inventory and display its
advertisements on the MTA’s trains, buses, and facilities. Dame made clear that it was eager
to advertise its products on the MTA’s vehicles, facilities, and other property (the “Property”).

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59.

Dame understood that its advertisements would be vetted pursuant to the

MTA’s publicly-available Advertising Policy, which is designed to “establish uniform,
reasonable, and viewpoint-neutral standards for the display of advertising” on the Property.
60.

The MTA website displays Frequently Asked Questions about the

Policy, which reiterate that the “MTA is committed to ensuring that [the Policy] is enforced in
a viewpoint-neutral fashion.”
61.

Dame submitted six sample advertisements to Howard Marcus

(“Marcus”), a representative of OUTFRONT, on July 24, 2018.

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62.

Upon receipt of these advertisement submissions, Marcus welcomed

Dame with open arms, responding that the advertisements were “[v]ery thought provoking.”
63.

Dame emailed Marcus on August 1, August 7, August 14, and August

21, 2018, seeking an update on its submission and hoping for a response from the MTA. Each
time, Marcus informed Dame that no response had materialized.
64.

On September 6, 2018, Dame again emailed Marcus, offering to

resubmit its proposed advertisements and inquiring about the MTA’s delay.
65.

Marcus responded: “It’s being circulated through the various

departments. This is a sensitive subject so it does take a bit longer for approval.”
66.

Finally, on September 14, 2018, Marcus emailed Dame. He explained

that the MTA had “an uneasy sense regarding the undertone of the ad,” and requested that
Dame “submit a version without the ‘trains’ and ‘tunnel’ text.”
67.

Dame responded, noting that it had “already begun working on some

other versions of our ads” and that it was “excited to submit some creative options.”
Dame Carefully Revises its Proposed Advertisements to Reflect the MTA’s Feedback
68.

Just over a week later, Dame submitted a second round of proposed

advertisements to Marcus on September 24, 2018. These revised advertisements reflected
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OUTFRONT’s creative feedback and sought to accommodate the MTA’s concerns, as
communicated to Dame by Marcus.

69.

Dame told Marcus that “[w]e do, of course, still make some train

references but they are indeed much softer.”
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70.

That same day, Marcus replied: “Ha, I like these.” He told Dame that he

would send its new submissions to his supervisor and would keep them posted.
71.

No update came for several weeks. Dame wrote to Marcus on October

1, 2018 and October 4, 2018. Marcus did not reply.
72.

On October 5, 2018, Marcus at last responded to Dame. He said that the

MTA had “[n]o objections” to the first two revised advertisements, “Toys for Sex” and “Get
from Point A to Point O.”
73.

Dame was thrilled its advertisements would, as planned, be displayed on

MTA Property. “This is fantastic news,” Dame wrote to Marcus, saying: “We will pop
champagne for this one.”
74.

However, the news was not all good. Marcus told Dame that the

remaining four advertisements were “not allowable as submitted” because they “entangle the
MTA and its service and customers with the promoted product, which is contrary to one of the
Advertising Policy’s objectives.”
75.

In response, Dame expressed its excitement about the two approved ads,

but noted that the other four advertisements were merely “plays on words” and that other
advertisements the MTA had already approved themselves “entangle the MTA experience with
the ad messaging.”
76.

As an example, Dame cited two advertisements for Thinx (underwear

for menstruation) which the MTA had approved. One reads: “Period-Proof Underwear That’s
Gr8 For Like If Your Period Unexpectedly Comes and There’s Delays Due to Train Traffic.”

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77.

The other reads: “Period-Proof Underwear That’s Actually Waaay Less

Gross and Waaay More Hygienic Than That Pole You’re Holding RN [Right Now].”

78.

Dame pointed out that both of these advertisements—already approved

and displayed on MTA property—plainly implicated the MTA and its train service. “If the
THINX [ads] with the gross poles and the delays due to train traffic went through,” Dame
wrote to Marcus, “these certainly ought to.”
79.

Dame further wrote: “[We] bring your attention to these

[advertisements] not because there was anything wrong with them, but the opposite—just to
show that if these did, in fact, go through, then Dame’s copy should too.”
80.

Nevertheless, Dame offered to “massage the messaging a little” and

submit further revised advertisements.
81.

Marcus responded only that the relevant “guidelines prohibit this type of

connection to the MTA.”

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82.

While Dame worked to incorporate the MTA’s feedback, it

communicated with Marcus about moving forward with the two advertisements that the MTA
had approved.
83.

Marcus provided Dame with logistical details about payment, timelines,

and other necessary information. At substantial expense and with much anticipation, Dame
prepared to finalize its advertisements.
The MTA Rejects Dame’s Advertisements Without Notice
84.

On November 2, 2018, Dame submitted a third set of advertisements to

Marcus. These advertisements removed any mention of the MTA or its services and focused,
instead, on customer testimonials.
85.

Dame told Marcus: “We strongly view these as the best representation of

our brand + products while also remaining cognizant of MTA feedback.”

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86.

Marcus responded: “I think this shows a nice effort and I will send

87.

Yet again, the MTA was radio silent for weeks. Dame contacted Marcus

over.”

on November 7, November 9, November 13, November 16, and November 19. Marcus was
unable to provide updates on the status of Dame’s proposed ads.
88.

On November 26, 2018, Marcus finally contacted Dame. Dame’s ads—

painstakingly revised for months in order to cater to the MTA’s feedback—had been rejected,
including the two ads the MTA had previously approved for display.
89.

Marcus wrote: “I wish I had some better news. It looks like we will be

unable to run this ad content. The MTA will be releasing a new Q and A regarding advertising
guidelines. I will send it over as soon as I receive it.”
90.

On December 3, 2018, Marcus again contacted Dame, forwarding a

Memorandum from Defendant Janno Lieber, the MTA’s Chief Development Officer. The
letter stated, in relevant part:
After a careful review, the MTA determined that the proposed ads
promote a sexually oriented business, which has long been prohibited by
the MTA’s advertising standards.
Under these advertising standards, which have been established by the
MTA Board, the MTA and its advertising contractors do not accept for
display on MTA properties any advertisement that does not comply with
any of our specific standards; these standards are applied evenly to all
genders and are posted online on the MTA’s website . . .
In our view, as reflected in a recently issued addition to the MTA’s
Frequently Asked Questions relating to advertising, advertisements
promoting sex toys or devices, such as the ads Dame Products has
proposed for display, are promoting a sexually oriented business. No ads
for sex toys or devices have previously been displayed on MTA
properties.
91.

Marcus wrote, “My apologies for how this turned out.”
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92.

Upon information and belief, the section of the MTA’s Frequently

Asked Questions cited by Defendant Lieber was concocted specifically to “justify”
Defendants’ denial of Plaintiff’s proposed advertisements.
Dame Unsuccessfully Attempts to Reason with the MTA
93.

Hoping for answers, Dame emailed Marcus and others, asking the MTA

to explain how certain advertisements it previously approved “are not sexual.” Dame
explained that “vibrators are excellent for uplifting low libido” and included eight medical
studies regarding the sexual health benefits of genital vibration.
94.

Dame received no response.

95.

Dame’s CEO, Alexandra Fine, sent Marcus a lengthy response to the

MTA’s ban of its advertisements, requesting that Marcus forward the message to his
supervisors. The response read:
To our potential partners at the MTA,
I’m Alexandra Fine, co-founder, and CEO of Dame Products. We’re a company
from Brooklyn that develops toys for love, intimacy and yes: sex.
We just received word through our contact at Outfront Media that our ad campaign
– which was greenlit months ago – has since been rejected in light of new
advertising guidelines.
First, I want to express my appreciation for the difficulty and importance of getting
advertisement guidelines right. We got into this business to make a positive impact
on the world, and we agree that ads shouldn’t be harmful or deceitful.
That’s why this change of heart comes as a surprise to us. The ads we submitted
were tasteful, attractive, and above all, honest. There were no scantily-clad bodies,
no bawdy puns, and no disingenuous claims. Our campaign featured simple, clean
product shots and quotes from our many happy customers – real people from
different ages and backgrounds who felt that our products added value to their lives,
and wanted others to know it.

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With this in mind, we have to assume that our ads were denied on the basis that
vibrators are for pleasure, while products promoting erectile dysfunction and libido
drugs, for instance, address some clinical idea of “arousal.”
As a Master in clinical psychology specializing in sexual health, I can tell you that
vibrators are proven to boost libido and aid arousal. I’d be happy to send along
some of the many scientific studies saying so. Please let us know if this could be a
quick fix for our campaign.
We’re proud of the fact that our products have a profound impact on our customers’
lives without the need for pharmaceuticals. We’ve worked hard to make toys that
are safe for the body, satisfying, reliable, and easy to use whether you’re 19 or 99.
We do this because people with vulvas have not been at the wheel when it comes
to developing products for their own pleasure. We’re finally bringing their desires
and experiences to bear in a male-dominated industry rife with phallic monstrosities
and toxic materials, and packaging them in a way that’s no more vulgar than any
other high-end brand. That you’ve turned down ads featuring testimonials from
our happiest customers is especially disheartening. In rejecting our campaign,
you’ve created a gulf between people with vulvas and the innovators working
diligently to improve their lives.
I also want to make it clear that by rejecting a campaign we’ve been working on for
months, you’ve set us back financially. We’re a female-owned, majority-minority
company, and a jewel in Brooklyn’s startup scene, contributing to New York’s tax
base while employing women and minorities in STEM positions. A great deal of
time and money was spent responding and bending to your direct feedback. We
went through several rounds of revisions, saved up money, and passed on other
opportunities, paying agencies and freelancers all the while. Your “No” came after
three weeks of silence, just before our holiday season. If your agency claims to
help the small business women of the Empire State, then we would love to
understand your reasoning behind this exhausti[ng] and abortive review process.
96.

The MTA never responded to Dame’s letter.

97.

Dame forwarded the same letter to Andy Byford, the President of the

New York City Transit Authority, hoping that his influence within the MTA might prompt
reconsideration of the decision to ban Dame’s proposed advertisements.
98.

Byford responded, noting that he had no authority over advertising

decisions but offering to put Dame in touch with John McKay and Fredericka Cuenca, staff

21

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members at MTA’s Headquarters. “While I can’t change the whole MTA,” Byford wrote, “I
am determined to make my bit, New York City Transit, responsive and transparent.”
99.

Byford wrote to Fine: “I cringed when I read of your experience.”

100.

The MTA’s “Frequently Asked Questions” about its Advertising Policy

directs advertisers to contact Cuenca if they believe the Policy “is being enforced in a
viewpoint discriminatory manner by the MTA or its advertising licensee.”
101.

But McKay and Cuenca never responded to Dame’s letter.

Dame Suffers Substantial Economic Harm as a Result of the MTA’s Decision
102.

As CEO Alexandra Fine noted to Marcus, Dame—a small startup—

suffered substantial economic losses from the MTA’s denial of its proposed advertisement.
103.

Between May 2018, when Dame began creating its pitch to the MTA,

and December 2018, when the MTA banned Dame’s ads, Dame spent approximately $150,000
on staff payment, advertisement revision and development, and preparation for what the MTA
had led Dame to believe would be an extensive advertising campaign.
104.

Dame also bypassed other business opportunities in reliance on the

MTA’s representation that it intended to run Dame’s advertisements.
105.

Dame has no way to recoup the costs it has already lost because of the

MTA’s unlawful decision to ban its advertisements. And it is impossible to calculate how
much revenue Dame will never realize because the MTA did not approve its advertisements.
106.

This financial damage cannot be undone.

The MTA’s Historically Poor Treatment of Companies That Sell Sex Tools for Women
107.

This is not the first time that the MTA has courted—and then banned—a

company seeking to advertise tools for sex on MTA Property.
22

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108.

In May 2018, the MTA banned proposed advertisements from sex toy

company Unbound—including the one pictured below—on the grounds that they violated the
agency’s prohibition against obscene content. 25

109.

After substantial public outcry, the MTA reversed course later that

month, pledging to the New York Times that it would “work with the company toward a
resolution that is agreeable to all parties and allows their ads on the system.” 26
110.

Despite this public pledge, the MTA never made good on its word.

111.

Instead, the MTA ordered Unbound to change its proposed imagery,

eliminating what the MTA deemed “phallic symbols” in its advertisements. 27

25
Section B.7 of the MTA’s Advertising Policy bars advertising that “[d]epicts or describes in a patently offensive
manner sexual or excretory activities so as to satisfy the definition of obscene material as contained in New York
Penal Law § 235.00.”
26
See www.nytimes.com/2018/05/17/nyregion/subway-sex-toy-ads-mta.html, last visited on June 18, 2019.
27
See www.vice.com/en_us/article/3k9gx3/mta-bans-sex-toys-ads-dame-unbound, last visited on June 18, 2019.

23

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112.

Citing a number of advertisements containing phallic imagery that the

MTA had already approved, Unbound refused to cave to what it termed the MTA’s “ridiculous
double standard.” 28
113.

The advertisements Unbound submitted were never approved or

displayed by the MTA.
III.

The MTA Has Long Embraced Advertisements That Are Visually Explicit,
Sexually Suggestive, or That Promote Sexually Oriented Businesses
114.

In his letter denying Dame’s request for advertisement space on MTA

Property, Defendant Janno Lieber cited Section B.15 of the MTA’s Advertising Policy. That
Section states that the MTA “will not accept any advertisement for display in or on the
Property if it . . . [p]romotes an escort service or sexually oriented business.”
115.

Lieber stated that advertisements promoting sexually oriented businesses

have “long been prohibited by the MTA’s advertising standards.”
116.

But this supposedly long-standing prohibition has been applied unevenly

and unfairly, if at all.
117.

The MTA has repeatedly approved advertisements that promote

businesses that are “sexually oriented” under any reasonable definition. It has repeatedly
approved advertisements that use overt sexual imagery to sell products. It has repeatedly
approved advertisements that contain explicit sexual slogans or text. These decisions promote
much-needed public discussion about sex.
118.

But MTA has never explained why some sexually-oriented

advertisements are allowed, while others are not.

28

See www.vice.com/en_us/article/3k9gx3/mta-bans-sex-toys-ads-dame-unbound, last visited on June 18, 2019.

24

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119.

For example, the MTA has approved numerous advertisements for hims,

a company that sells medication to treat erectile dysfunction. Advertisements for hims feature
cactuses meant to resemble flaccid or erect penises as well as explicit sexual slogans or puns.
One advertisement reads: “man problems. man solves.” Another reads: “thanks to science, ED
can be optional.” A third: “hard made easy.”

120.

The MTA apparently did not apply the Policy to hims or concluded that

hims—a company that markets medication to give men erections for the purpose of sex—is not
a “sexually oriented business.”
121.

The MTA did so despite the fact that hims’ phallic imagery is far more

overt and explicit than the advertisements submitted by Unbound.
122.

The MTA approved advertisements for other companies that market

erectile dysfunction medication. One advertisement for a company called Roman riffs on the

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stigma against erectile dysfunction: “Erectile dysfunction meds prescribed online, delivered to
your ‘friend’s’ door.”

123.

The MTA apparently did not apply the Policy to Roman or concluded

that Roman—a company that, like hims, markets medication to give men erections for the
purpose of sex—is not a “sexually oriented business.”
124.

The MTA has approved advertisements sponsored by the New York

City Health Department for “Kyng”-sized condoms and PrEP, a pill that protects against HIV.
One advertisement reads: “Sexy. Seguro [safe].” The other reads: “We Play Sure.”

125.

The MTA apparently did not apply the Policy to the Department of

Health or concluded that this campaign to encourage condom and PrEP usage—for the purpose
of intercourse or other sexual activity—was not “sexually oriented.”

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126.

The MTA has approved multiple advertisements for hers, a brand that

markets birth control and libido medication for women. One hers advertisement reads: “Birth
control. Now in my control.” Another reads: “Turned on. On your terms.” And a third: “Men
have 26 pills to make them hard. It’s time we got ours.”

127.

The MTA apparently did not apply the Policy to hers or concluded that

hers—a business that markets birth control pills designed to prevent pregnancy from sex and
medication to increase women’s libido and arousal for sex—is not a “sexually oriented
business.”
128.

The MTA has approved advertisements for Thinx, a company that

markets underwear for menstruation. Thinx’s unique, frank advertisements feature raw eggs
and peeled oranges alongside women in belly-baring tops and panties.

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129.

The MTA has approved multiple advertisements for the Museum of

Sex—which, in fact, sells and profits from Dame’s products. One Museum of Sex
advertisement features sets of naked buttocks. Another depicts a woman and four men
entwined on a couch; one man’s crotch is clearly outlined by his tight leather pants. A third
shows two women dancing in a room whose walls are made of plastic breasts.

28

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130.

The MTA apparently did not apply the Policy to the Museum of Sex

concluded that the Museum—a profitable business whose mission is “advocating open
discourse surrounding sex and sexuality” 29—is not a “sexually oriented business.”
131.

The MTA approved an advertisement for the dating service OkCupid.

Depicting two women gazing into one another’s eyes and one woman grabbing the other’s rear
end, the advertisement reads: “DTFall Head Over Heels.” The abbreviation “DTF” refers to
the common phrase “down to fuck.” 30

29
30

See www.museumofsex.com/museum/about/history/, last accessed on June 18, 2019.
See https://en.wiktionary.org/wiki/DTF, last accessed on June 18, 2019.

29

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132.

The MTA apparently did not apply the Policy to OkCupid or concluded

that OkCupid—a dating and hookup service whose advertisements use an explicit sexual
pun—is not a “sexually oriented business.”
133.

Dame applauds the MTA’s decision to feature advertisements for

businesses—like hims, hers, Roman, the Museum of Sex, and Thinx—that support sexual and
reproductive wellness and foster open discourse about human sexuality. But the MTA has
never explained to Dame—or to the public—why it selectively and baselessly applied the
Policy to exclude Dame’s advertisements.
134.

In addition to advertisements about sexual health and function, MTA

trains, subway stations, and buses are also rife with advertisements that use sexual imagery or
explicit sexual text to sell other consumer goods.
135.

For example, the MTA approved an advertisement for breast

augmentation services. It pictures the same woman, twice: first, frowning while holding
miniature tangerines in front of her chest, and, second, delightedly displaying large grapefruits
instead. On at least one train, this advertisement has been defaced with tags that read, “this
oppresses women.”

30

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136.

The MTA has approved multiple other advertisements for breast

augmentation services, one featuring little other than a large pair of breasts and the other
featuring a naked woman, breasts concealed only by the word “BIG.”

137.

The MTA has approved an advertisement for wanderu, a travel booking

company, with the explicit slogan: “Get Wet. (On the beach, not from the guy next to you).”

138.

The MTA has approved an advertisement for Brooklinen, a luxury

bedding company, that utilize a series of sexual double-entendres. For example, one image
that reads “For me time, or ‘me’ time” features a woman in bed, head blissfully thrown back
and bra visible, with one hand disappearing beneath the covers. Another image reads “For
throuples, or three’s a crowd,” and features three pairs of socked feet protruding from beneath
bedcovers. A third image features a man and woman lying in bed and reads: “For foreplay, or
four-twenty.”

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139.

And the MTA has approved an advertisement for the 2010 movie “The

Virginity Hit,” which reads: “Still a Virgin? For help call 888-743-4335 toll free.”

140.

These advertisements are undeniable. The MTA has, apparently,

declined to apply its prohibition on advertisements for “sexually oriented businesses” in the
case of companies that market medication for erectile dysfunction in men and low libido in

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women; campaigns that tout condom usage and prophylactic HIV medication; and a museum
that profits from selling tickets for exhibits about sex and sexual activity.
141.

Yet, inexplicably, the MTA used that prohibition to target Plaintiff

Dame Products and exclude Dame’s advertisements from display on MTA Property.
142.

It did so even though Dame’s high-end, tasteful sex tools facilitate

female arousal and desire, just like the libido pills widely advertised on MTA Property by hers.
143.

It did so even though Dame’s products facilitate successful penetrative

sex, just like the erectile dysfunction medication widely advertised on MTA Property by
Roman and hims.
144.

It did so even though Dame’s products foster open, engaged discourse

about sexual health and wellness, just like the New York City Health Department’s MTA
campaigns to promote condoms and PrEP.
145.

The MTA’s decision to apply its Policy selectively to ban Dame’s

advertisements is irrational. It is arbitrary. And it is unconstitutional.
146.

The MTA has established a standardless standard—some sex-related

products are welcomed; other similarly-situated products are banned.
147.

This uneven enforcement excludes Dame from a public forum that the

MTA has made available for products relating to sex.
148.

The MTA believes it has carte blanche to censor and quash commercial

speech without any legitimate basis. It does not.
IV.

The MTA’s Refusal to Run Dame’s Advertisements Reflects Its Victorian View of
Sexuality and Disproportionately Harms Women
149.

The only explanation for the MTA’s refusal to approve Dame’s

advertisements is its squeamishness about openly acknowledging female sexual pleasure.
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150.

The MTA is not alone in its disdainful attitude towards the notion that

women should, can, and do enjoy sex. Our “culture’s discomfort with women’s sexuality” is
well-known. 31
151.

For example, the MTA approved multiple advertisements for hers,

which markets medication to increase women’s libido. But hers advertisements emphasize
function, not pleasure.
152.

The MTA is apparently comfortable advertising a product that renders

women physically aroused enough for successful penetration. But the MTA stops short when
asked to advertise a product that ensures women actually enjoy penetration and other forms of
sexual activity.
153.

That is censorship, it is sexism, and it entrenches a profoundly damaging

vision of women’s sexuality and equality.
154.

As commentators on sexual enhancement devices and advertisement

opined: “If those deciding what can be advertised actually hold any such (unstated) views, then
it offers at least some explanation as to why sexual aids for men can be openly marketed while
female ones are to be shunned.” 32
155.

The MTA may not ban Dame’s advertisements simply because it is

uncomfortable acknowledging a fact that has been true since time immemorial: Women—like
all people—enjoy sex. Women—like all people—are entitled to enjoy sex. Women—like all
people—are entitled to have satisfying, intimate, and physically pleasurable sex, whether alone
or with other people.

31
32

Barkacs at 64 & n.8.
Id. at 71.

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156.

Because women suffer disproportionately from sexual dissatisfaction

and dysfunction, advertisements for vibrators almost exclusively target women.
157.

The dearth of such advertisements on MTA Property speaks volumes.

158.

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.
FIRST CAUSE OF ACTION
42 U.S.C. § 1983 – First Amendment Violation
159.

Plaintiff repeats and realleges the preceding paragraphs as if fully set

160.

Defendant MTA has designated its Property a public forum for

forth herein.

commercial speech like advertisements. Commercial speech is core protected activity under
the First Amendment.
161.

In any kind of public forum, the government is prohibited from

discriminating on the basis of the speaker’s viewpoint.
162.

When Defendants denied Plaintiff’s applications to advertise its products

on the Property, they impermissibly curtailed Plaintiff’s speech on the basis of viewpoint in
contravention of the First Amendment.
163.

Defendants’ denial operates as a prior restraint on Plaintiff’s protected

speech that barred Plaintiff’s advertisements from being displayed in public.
164.

Furthermore, Defendant MTA’s Advertising Policy gives Defendants

unbridled discretion in determining whether to accept or reject applications for advertisement
space on the Property. The Policy thus constitutes a prior restraint and impermissibly
empowers government officials to discriminate and censor speech in violation of the First
Amendment.
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165.

Because of this unbridled discretion, Defendants’ decisions about which

advertisements to display and which to ban are wildly inconsistent. For example, the MTA
either did not apply the Policy at all to companies that market erectile dysfunction medication
or determined that those companies are not “sexually oriented businesses” under Section B.15
of the Policy.
166.

In contrast, and with no legitimate basis, the MTA either selectively

applied the Policy to Plaintiff or determined that Plaintiff is a “sexually oriented business.”
167.

The Policy provides no reliable standards by which Defendants can

assess whether to accept or reject a proposed advertisement. The Policy fails to define key
terms and necessitates that Defendants exercise their judgment in each individual case. The
Policy gives Defendants unfettered power to discriminate against disfavored businesses by
suppressing their expression—and Defendants used that power to discriminate against Plaintiff.
168.

As a result of Defendants’ unlawful conduct, Plaintiff suffered the

injuries hereinbefore alleged.
SECOND CAUSE OF ACTION
42 U.S.C. § 1983 – Fourteenth Amendment – Void for Vagueness
169.

Plaintiff repeats and realleges the preceding paragraphs as if fully set

170.

The Due Process Clause of the Fourteenth Amendment prohibits states

forth herein.

from promulgating statutes and regulations that are unconstitutionally vague. A statute and/or
regulation is void for vagueness if it “fails to provide people of ordinary intelligence a
reasonable opportunity to understand what conduct it prohibits.” Hill v. Colorado, 530 U.S.
703, 732 (2000).

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171.

Section B.15 of Defendant MTA’s Advertising Policy states that the

MTA “will not accept advertisement for display in or on the Property if it . . . [p]romotes an
escort service or sexually oriented business.”
172.

This provision of Defendant MTA’s Advertising Policy is

unconstitutionally vague. The Policy does not define the term “sexually oriented business” or
provide adequate guidance as to the definition of a “sexually oriented business.”
Compounding this facial deficiency, Defendants have applied the Policy inconsistently and
without a rational basis, leading to selective and arbitrary enforcement.
173.

People of ordinary intelligence, including Plaintiff and its staff, are

forced to guess the meaning of that unspecified term and whether this provision of the Policy
applies to them.
174.

As a result of Defendants’ unlawful conduct, Plaintiff suffered the

injuries hereinbefore alleged.
THIRD CAUSE OF ACTION
42 U.S.C. § 1983 – Fourteenth Amendment – Equal Protection Violation (“Class of
One”)
175.

Plaintiff repeats and realleges the preceding paragraphs as if fully set

176.

The MTA intentionally treated Plaintiff differently than similarly

forth herein.

situated businesses whose advertisements have been approved and displayed on MTA
Property. These businesses are applicable comparators for purposes of assessing the irrational
discrimination at issue in this case.
177.

Unlike other businesses that market sexually-oriented products—like

hims (erectile dysfunction medication), Roman (erectile dysfunction medication and condoms),

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hers (women’s libido medication), the Museum of Sex, and OkCupid (dating and hookup
service), Plaintiff was denied the opportunity to display its advertisements on MTA Property.
Plaintiff, hims, Roman, hers, the Museum of Sex, and OkCupid all market sexually-oriented
products and are identically situated with respect to Defendant MTA.
178.

This differential treatment of similarly-situated businesses lacked any

reasonable nexus to a legitimate governmental policy. This differential treatment was
intentional, wholly arbitrary, and without a rational basis.
179.

Defendants offered no justification for its singling out of Plaintiff other

than a self-serving statement in Defendant MTA’s Frequently Asked Questions that was hastily
drafted to cover up Defendants’ arbitrary rejection of Plaintiff’s advertisements.
180.

Defendants deliberately chose not to explain the true reasons for the

denial of Plaintiff’s application and chose, instead, to invoke pretextual justifications for the
denial in order to impeded Plaintiff’s ability to vindicate its constitutional rights.
181.

Plaintiff was singled out for this adverse treatment, which came only

after Defendant MTA provisionally approved Plaintiff’s proposed advertisements, thereby
maximizing financial harm to Plaintiff.
182.

As a result of Defendants’ unlawful conduct, Plaintiff suffered the

injuries hereinbefore alleged.
FOURTH CAUSE OF ACTION
Article I, Section 8, of the New York State Constitution – Freedom of Speech
183.

Plaintiff repeats and realleges the preceding paragraphs as if fully set

forth herein.

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184.

The MTA has designated its Property a public forum for commercial

speech like advertisements. Commercial speech is core protected activity under Article I,
Section 8 of the New York State Constitution.
185.

When Defendant MTA denied Plaintiff’s applications to advertise its

products on the Property, it impermissibly curtailed Plaintiff’s speech on the basis of viewpoint
in contravention of Article I, Section 8 of the New York State Constitution.
186.

Defendant MTA’s denial operates as a prior restraint on Plaintiff’s

protected speech in contravention of Article I, Section 8 of the New York State Constitution.
187.

As a result of Defendants’ unlawful conduct, Plaintiff suffered the

injuries hereinbefore alleged.
*

*

*

WHEREFORE, Plaintiff respectfully requests judgment against Defendants as
follows:
a.

Compensatory damages in an amount to be determined at trial;

b.

A declaration that Defendants’ denial of Plaintiff’s application for

advertising space violates the First Amendment to the United States Constitution, the Equal
Protection Clause, and Article I, Section 8 of the New York State Constitution;
c.

A declaration that Defendants’ prohibition on advertisements promoting

a “sexually oriented business” is void for vagueness;
d.

An injunction ordering Defendants to display Plaintiff’s proposed

advertisements of November 2, 2018 on MTA Property;
e.

Reasonable attorneys’ fees and costs under 42 U.S.C. § 1988; and

f.

Such other and further relief as this Court may deem just and proper.

39

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Dated: New York, New York

June 18, 2019

40

EMERY CELLI BRINCKERHOF 
ABADY LLP

?1

'ardEmery 
Emma L. Freeman 
600 Fifth Avenue, 10th Floor

New York, New York 10020

(212) 763-5000

  
  
 

  

Attorneys for Plaintiff