Ridley v. Massachusetts Bay Transportation Authority

United States Court of Appeals

For the First Circuit

No. 03-1970

No. 03-2285

LISCHEN RIDLEY,

individually and on behalf of members of the

congregation of the Church with the Good News; and

CHANGE THE CLIMATE, INC.,

Plaintiffs, Appellants,

v.

MASSACHUSETTS BAY TRANSPORTATION AUTHORITY; and

MICHAEL H. MULHERN, in his official capacity,

Defendants, Appellees.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Robert E. Keeton, Senior U.S. District Judge]

Before

Torruella, Lynch, and Lipez, Circuit Judges.

Harvey A. Schwarz, with whom Laurie A. Frankl, Rodgers,

Powers & Schwartz, Sarah Wunsch, and ACLU Fdn. of Massachusetts

were on brief, for appellants.

Rudolph F. Pierce, with whom James A. Aliosi, Jr., Peter

N. Kochansky, and Goulston & Storrs were on brief, for appellees.

November 29, 2004

LYNCH, Circuit Judge. These two appeals, consolidated at

the request of all parties, raise First Amendment challenges to the

rejection of proposed advertising submitted to a Boston-area public

transit system, the Massachusetts Bay Transportation Authority

("MBTA").

In Change the Climate, Inc. v. MBTA, No. 03-2285, the

MBTA rejected three advertisements designed to raise questions

about marijuana laws on the stated ground that the ads would

promote illegal use of marijuana among children. The other case,

Ridley v. MBTA, No. 03-1970, involves the rejection of one

advertisement from a religious group on the grounds that the ad

violated the MBTA's guidelines prohibiting advertisements which

demean or disparage an individual or group of individuals. Several

First Amendment doctrines are at issue.

Change the Climate brought suit in federal court on May

18, 2000. The lead argument is that the MBTA advertising space is

a designated public forum and so the rejection of the

advertisements is unconstitutional. Change the Climate strongly

urges the court to decide the forum issue, arguing:

Determining the nature of the "forum" at issue

is a mandatory first step in deciding a First

Amendment case such as the present one because

"[t]he extent to which the government can

control access depends on the nature of the

relevant forum." Cornelius v. NAACP Legal

Defense and Educ. Fund, 473 U.S. 788, 800

(1985). Both the protection provided for the

plaintiff's First Amendment expression and the

government's ability to restrict the

-2-

plaintiff's speech vary according to the forum

in which the speech is proposed. Perry Educ.

Ass'n v. Perry Local Educators' Ass'n, 460

U.S. 37, 44-46 (1983). A reviewing court's

first action, therefore, must be to conduct a

"deliberate analysis, e.g., Chicago Acorn v.

Metro. Pier & Expo. Auth., 150 F.3d 695, 702

(7th Cir. 1998)" and determine "the nature of

the forum first." New Eng. Reg'l Council of

Carpenters v. Kinton, 284 F.3d 9, 20 n.4 (1st

Cir. 2002). In Kinton, this Court

specifically rejected as "awkward" skipping

this crucial forum analysis as a first step

"because it requires a reviewing tribunal to

know the results of a test before knowing

which test applies." Id.

Because the MBTA has created a designated public forum, it argues,

"a content-based prohibition must be narrowly drawn to effectuate

a compelling state interest," and the MBTA has violated these

standards. In addition, Change the Climate argues, no matter what

the nature of the forum, the MBTA's rejection of its ads

constitutes viewpoint discrimination. It also argues that the

guidelines under which the ads were rejected must be narrow and

objective and cannot leave excessive discretion in state officials,

and the MBTA guidelines do not comply. Finally, Change the Climate

argues the district court erred in not awarding it attorney's fees.

Lischen Ridley filed suit in state court on January 8,

2002, on behalf of herself and other members of the Church with the

Good News ("Good News"). The MBTA removed the Ridley action to

federal court. The suit alleged that the MBTA lacked compelling

reasons to reject the advertisement, that the rejection of the

advertisement was the product of viewpoint discrimination, and that

-3-

the MBTA's guideline involved was not narrowly tailored and was too

vague to withstand constitutional scrutiny.

Although Ridley did not discuss the forum issue in her

brief, the brief did note that the outcome of the forum issue in

Change the Climate would govern the Ridley case. Ridley's reply

brief also argued the public forum line of cases and expressly

challenged the MBTA's assertion that the restrictions were

reasonable, a standard of review which applies if the forum was not

a public forum. And at oral argument, in response to multiple

questions from the court as to the relationship of Ridley's claims

to the forum analysis issue, counsel for Ridley argued that the

forum analysis was relevant to Ridley's claims and could be

dispositive of those claims. For example, Ridley argued that if

the MBTA had created a public forum as argued in Change the

Climate, she would be entitled to judgment on that ground.

Further, counsel for both Ridley and Change the Climate moved to

consolidate the appeals on the grounds that common issues of fact

and law were present and the same lawyers represent both

plaintiffs.

The district court denied all forms of relief to Ridley

on June 5, 2003. The court assumed that the MBTA advertising

program constituted a non-public forum and held that the rejections

of Ridley's advertisements were not based on viewpoint

discrimination, but rather on a valid "content restriction

-4-

prohibiting demeaning or disparaging content." The trial court

held that the factual record based on the stipulation was

insufficiently clear for it to grant the relief Ridley requested on

whether the guidelines were viewpoint discriminatory on their face

or whether they were too vague and gave MBTA administrators too

much discretion. Nonetheless, the court revisited the Ridley

guideline question when it issued its Change the Climate opinion.

On August 1, 2003, the district court also found for the

MBTA in Change the Climate, again avoiding the forum issue.

However, consistent with the law on non-public fora, the court

reviewed the MBTA's guidelines and its decision to reject these ads

under a reasonableness test. The court found that each of the

three advertisements provided misleading messages about the

legality of marijuana, and that two of the ads targeted minors. As

such, the court held, the MBTA's rejection of the ads was

reasonable and not viewpoint discriminatory. The district court

also found that the MBTA guideline prohibiting materials which

promote illegal activity was not viewpoint discriminatory on its

face. Nonetheless, in its Change the Climate opinion, the court

also said that the Ridley guideline prohibiting demeaning or

disparaging material was "somewhat vague" on its face and "still

leaves too much room for arbitrary decisions." As a result, in its

judgment, the district court ordered:

The court retains jurisdiction to consider any

well supported motion for modification of the

-5-

MBTA's amended guidelines and for modification

of this Final Judgment grounded on some change

of law or change of relevant factual

circumstances occurring after the date of this

judgment. The motion must be accompanied by a

precise showing of the change of law or change

of relevant factual circumstances.

The court also rejected Change the Climate's motion for attorney's

fees.

In this opinion covering both cases, we address the

parties' arguments about what type of "forum" the MBTA advertising

program constitutes. We hold first that the MBTA did not create a

public forum. Second, we address whether the MBTA's pertinent

guidelines and its decisions to reject both parties' advertising

are unlawful as a form of viewpoint discrimination or as an

unreasonable use of the forum. We hold that the guidelines on

their face are viewpoint neutral and reasonable, and that the

decision to reject the Ridley ad was neither viewpoint

discriminatory nor unreasonable. However, we hold that the

rejection of the three Change the Climate ads constituted viewpoint

discrimination and was unreasonable. Finally, we consider the

challenge that the guidelines at issue in both cases are vague and

delegate too much discretion to the MBTA's employees. We hold that

the pertinent guidelines are not facially unconstitutional.

-6-

I.

Facts

There are no disputed facts in this case, only disputes

as to what conclusions are to be drawn from those facts. Although

only the present 2003 MBTA advertising policy is at issue, we

recount the history of dealing between the parties, which is

pertinent both to the public forum claim and to other claims. Some

facts are reserved for discussion as to the particular party.

A. Facts as to the MBTA

The MBTA is a quasi-governmental organization whose

purpose is to provide public transportation in the Commonwealth of

Massachusetts. Mass. Gen. Laws ch. 161A, § 5. The MBTA provides

transportation to 1.2 million customers daily and to 2.5 million

people in the Greater Boston area. For many riders, the MBTA is

the only transportation option available. The MBTA operates

approximately 170 bus routes, four subway lines, a 13-branch

commuter rail network, and six ferry service routes. The MBTA has

partnered with the Boston School Department to provide

transportation to up to 60,000 Boston public school students

annually. The MBTA distributed approximately 15,000 to 20,000

passes to Boston students, the vast majority of whom were in high

school.

The principal purpose of the MBTA advertising program is

to generate and maximize revenue. The MBTA has statutory

-7-

directives both to "maximize and increase total fare revenue and

ridership," as well as to "establish and implement policies that

provide for the maximization of nontransportation revenues from all

sources." Mass. Gen. Laws ch. 161A, § 11. The advertising program

effectuates this second purpose. The MBTA has about 40,000

advertising spaces, including interior "car card" displays in

buses, trains, and trolleys, king size and tail-light exterior

displays on buses, and station and platform displays.

Through a private advertising contractor, Viacom Outdoor

of Braintree ("Viacom"), the MBTA attempts to sell all of its

advertising space at the usual commercial rates. If all space is

not sold at those rates, the MBTA policy is first that it may,

without cost to itself, "display advertisements or announcements

calculated (i) to increase its revenue, public travel, or goodwill

or (ii) as compensation to companies which provide beneficial

services to the Authority or (iii) to be otherwise in the public

interest." Only if there then remains advertising space unsold

does the MBTA, as a third choice, sell advertisements at a reduced

rate to nonprofit, tax-exempt public charities or governmental

agencies to fill the remaining space. The MBTA charges a fee of

50% of the full commercial advertising rate to those nonprofit

organizations. The advertisements at issue in both cases here fall

into this last category. All advertisements, of whatever type, are

subject to guidelines.

-8-

The MBTA recognizes that its two statutory directives,

maximizing fare revenue and ridership and maximizing non-

transportation revenue, can at times be at odds. In numerous

instances over the years, the MBTA has received significant

complaints from its customers about particular advertisements. The

MBTA management was concerned such complaints would threaten

ridership and fare revenue. Often those ads had been placed by the

MBTA's advertising contractor without seeking prior MBTA approval.

The MBTA then reviewed the advertisements; usually the contractor

had violated the guidelines by accepting the advertisements. The

MBTA has, accordingly, from the inception of its advertising

program in 1992, adopted both substantive and procedural

guidelines, described below, to limit the types of advertisements

it would accept. Indeed, in attempting to increase ridership, the

MBTA initiated a Courtesy Counts program and distributes a brochure

that says: "We're committed to courtesy."

B. Facts as to Plaintiffs' Advertisements

1. Change the Climate

Change the Climate, a not-for-profit group, conducts

provocative advertising campaigns in order to generate debate about

the laws criminalizing the use of marijuana. It has conducted such

advertising campaigns in Washington, D.C., in part using

advertising on the Metro transit system. It sought to do the same

in Boston, starting in 1999, by submitting three advertisements

-9-

designed to catch people's attention and make them rethink the

wisdom of the drug laws.

The first advertisement, (the "Teen Ad"), is a color

photograph of a teenage girl with a baseball cap on backwards, with

a caption saying: "Smoking pot is not cool, but we're not stupid,

ya know. Marijuana is NOT cocaine or heroin. Tell us the

truth . . ." Change the Climate sought to place this advertisement

on poster cards on the inside of buses.

The second advertisement, (the "Mother Ad"), contains a

picture of an adult female who is writing on a white board, saying:

"I've got three great kids. I love them more than anything. I

don't want them to smoke pot. But I know jail is a lot more

dangerous than smoking pot." Change the Climate sought to place

this advertisement in MBTA subway stations.

The third advertisement, (the "Police Ad"), is a color

photograph of two policemen standing in front of an American flag,

with text stating: "Police are too important . . . too

valuable . . . too good . . . to waste on arresting people for

marijuana when real criminals are on the loose." Change the

Climate sought to run this ad on the exterior of buses, as it had

done earlier in the Washington, D.C. transit system. All three

advertisements also contain the web site address,

www.changetheclimate.org.

-10-

The MBTA's marketing director, Lucy Shorter, rejected the

ads in January 2000. The reasons stated were that (1) the three

ads promote the use of marijuana, and (2) the three ads were really

"reform" ads as part of an effort to legalize marijuana and as such

were in conflict with the MBTA's policies on drugs and alcohol.

She attached to her rejection letter the MBTA's workplace rules on

drug and alcohol use, the advertising guidelines, and the

prohibition on advertising tobacco products. It appears the MBTA's

"policies" on drugs to which she referred were internal MBTA

workplace rules. There were no advertising guidelines dealing

specifically with marijuana or other drugs. The MBTA continued to

reject the ads for different stated reasons at later times, as

discussed below. In sum, the MBTA's 2003 revised guidelines

prohibit advertisements which promote the use of illegal goods or

services or unlawful conduct. The MBTA has stated that each of the

ads promoted illegal use of marijuana by juveniles.

2. Ridley

Good News has advertised in the past on the radio, in the

Yellow Pages, in the newspaper, and via posted messages on

vehicles, including a motor home.

On November 29, 2001, Ridley submitted the first of what

would be three advertisements to the MBTA's advertising

representative, Viacom. The copy read:

Christians in the Bible never

observed "Christmas"

-11-

neither did they believe in lies

about Santa Claus, flying reindeer

elves and drunken parties.

How can you honor Jesus with lies?

prophet-andre.com

Viacom initially balked at running the advertisement, saying it

fell afoul of the MBTA's then-guideline (since replaced) permitting

it to exclude any "advertisement that is indecent as to child

viewers, or is of a nature to frighten children, either emotionally

or physically." After a delay of two weeks and after Ridley's ACLU

attorneys contacted the MBTA, the MBTA decided to allow the

advertisement on December 15, 2001, for a four week contract. The

advertisement was displayed at the Park Street and Downtown

Crossing MBTA stations, two major stations.

On December 26, 2001, Ridley asked the MBTA to change the

content of the advertisement that was posted in the MBTA system for

the last two weeks of her existing contract. The new copy stated:

The Bible says in Rev 12:9 "And Satan which

deceiveth the whole world." Yes, Satan set up

over a thousand false religions in the world

causing wars, racism and hatred in the world.

There is only one true religion. All the rest

are false. www.prophet-andre.com

The MBTA rejected the advertisement, finding both that the

advertisement's own text conflicted with a guideline and that the

text referenced a website which, upon examination, contained text

that violated that same guideline.1 The then-extant guideline

1

The website read, in part,

-12-

read: "The MBTA will not accept advertisements . . . that denigrate

groups based on gender, religion, race, ethnic or political

affiliation for display in and upon the Authority's transit

facilities."

Ridley sought a preliminary injunction to force the MBTA

to post the second advertisement. The district court denied the

request on January 28, 2002, and Ridley filed an interlocutory

appeal with this court. As recounted below, that appeal was

mooted.

The MBTA promulgated a new set of "Interim Guidelines

Regulating MBTA Advertising" on April 12, 2002. One of the 2002

guidelines provided that the MBTA "shall not display or maintain

any advertisement" that is:

Demeaning or disparaging. The advertisement

contains material that demeans or disparages

an individual or group of individuals on the

basis of race, color, religion, national

origin, ancestry, gender, age, disability,

ethnicity, or sexual orientation.

The revised 2002 guidelines also reflected the results of an MBTA

internal debate over when the MBTA would look at the contents of a

website listed in an advertisement. The MBTA had considered the

These are some of the false religion [sic] Satan set up:

CATHOLICS

BAPTISTS

PENTECOSTALS

JEHOVAH WITNESSES

MUSLIMS

SO CALLED JEWISH

-13-

listed website when initially rejecting Ridley's second

advertisement. Under the 2002 guidelines, the contents of a

referenced website would only be considered and judged under the

guidelines when "the message or sponsorship of the advertisement

cannot reasonably be determined without reference" to that website.

The 2002 guidelines formalized a more comprehensive review

procedure with four different layers of scrutiny (by Viacom, the

MBTA Contract Administrator, the MBTA General Counsel, and the MBTA

General Manager) before any advertisement could be rejected based

on the guidelines.

The MBTA told Ridley on April 25, 2002, that under these

new guidelines, it would accept her second advertisement. Based on

this change of stance, this court dismissed Ridley's appeal as moot

on July 26, 2002.

By this time, Ridley no longer wanted to post her second

advertisement. On June 13, 2002, she submitted a third

advertisement to the MBTA, the one now at issue. The ad stated:

The Bible teaches that there is only one

religion. There are no scriptures in the

Bible that teach that God set up the Catholic

religion, the Baptist religion, the

Pentecostal religion, the Jehovah's Witness

religion or the Muslim religion. These

religions are false. The Bible says in

Revelation 9:12, "And Satan, which deceiveth

the whole world." The whole world is going to

hell if they do not turn from their ungodly

ways. God sent Prophet Andre into this world

to teach the people the Truth.

www.prophetandre.com.

-14-

The MBTA rejected this third advertisement in writing on August 14,

2002, after the full review procedure, on the basis that the ad

demeaned or disparaged a list of specific religions in violation of

the 2002 guideline.

On January 17, 2003, the MBTA issued a revised third set

of guidelines.2 Under the 2003 guidelines, the MBTA "shall not

display" advertisements that are:

Demeaning or disparaging. The advertisement

contains material that demeans or disparages

an individual or group of individuals. For

purposes of determining whether an

advertisement contains such material, the MBTA

will determine whether a reasonably prudent

person, knowledgeable of the MBTA's ridership

and using prevailing community standards,

would believe that the advertisement contains

material that ridicules or mocks, is abusive

or hostile to, or debases the dignity or

stature of, an individual or group of

individuals.

The MBTA concluded that the third advertisement did not comply with

the 2003 guidelines.

The 2003 guidelines explicitly articulated other

prohibitions as well: the MBTA will not accept advertisements for

tobacco products or ads containing a depiction of firearms or

graphic violence, or ads that promote use of illegal goods or

services or unlawful conduct. The guidelines also prohibit ads

2

Those guidelines were the result of the work of an advisory

board constituted by the MBTA after the district court issued its

interlocutory order in Change the Climate v. MBTA, 214 F. Supp. 2d

135 (D. Mass. 2002).

-15-

containing profanity, obscene or sexually prurient material or nude

images (as those terms are defined in state law), false or

misleading commercial speech, libelous speech, or copyright

infringing speech. The guidelines further prohibit "political

campaign speech," defined as: "speech that (1) refers to a specific

ballot question, initiative, petition, or referendum, or (2) refers

to any candidate for public office." Finally, the 2003 guidelines

prohibit any advertisement that contains, implies, or declares an

endorsement by the MBTA or the state.

II.

We engage in de novo review of ultimate conclusions of

law and mixed questions of law and fact in First Amendment cases.

Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston,

515 U.S. 557, 567 (1995); Bose Corp. v. Consumers Union of U.S.,

Inc., 466 U.S. 485, 501 (1984).

Change the Climate argues that the MBTA has created a

designated public forum and thus its decision to reject any

advertising must meet strict scrutiny standards. Public forum

analysis itself has been criticized as unhelpful in many contexts,

and particularly this one where the government is operating a

commercial enterprise earning income from permitting advertising.

See, e.g., Laurence H. Tribe, American Constitutional Law § 12-24,

at 992 (2d ed. 1988) ("[W]hether or not a given place is deemed a

'public forum' is ordinarily less significant than the nature of

-16-

the speech restriction--despite the Court's rhetoric."); Frederick

Schauer, Principles, Institutions, and the First Amendment, 112

Harv. L. Rev. 84, 97 (1998) ("Of all of the paths down which the

Court might go in dealing with the government enterprise cases, the

so-called 'forum doctrine' appears least satisfactory."). Change

the Climate relies heavily on the public forum argument and

requests that the issue be decided.

The Supreme Court has discussed different types of fora:

traditional public fora, designated public fora, and non-public

fora. See discussion in Gerald Gunther, Constitutional Law 1292-94

(12th ed. 1991); Tribe, supra, § 12-24, at 986-97. Change the

Climate argues that the standard of review for speech restrictions

in a designated public forum is strict scrutiny. Ridley admits

that a non-public forum (sometimes called a limited public forum)

usually results in application of a lesser "reasonableness"

standard. We accept arguendo3 these premises that strict scrutiny

applies to a public forum's exclusion of speech.

3

Contrary to Ridley's assumption, designation of the type of

forum does not always dictate the standard of review. For example,

strict scrutiny may not always apply to a public forum. See Denver

Area Educ. Telecomm. Consortium v. FCC, 518 U.S. 727, 741-42 (1996)

("[T]he First Amendment embodies an overarching commitment to

protect speech from government regulation through close judicial

scrutiny, thereby enforcing the Constitution's constraints, but

without imposing judicial formulas so rigid that they become a

straitjacket that disables the government from responding to

serious problems.").

-17-

Plaintiffs argue that while the MBTA's advertising

program is not a traditional public forum, the MBTA effectively has

created a designated public forum for the expression of ideas

because it has accepted a range of advertisements on its vehicles

and in its stations. The MBTA says it has not created a public

forum at all. If it has, the MBTA insists that it is at most a

limited public forum,4 which is the equivalent of a non-public

forum, and that its rejection of the advertisements is within the

limits appropriate to a non-public forum.

A. Forum Analysis

The Supreme Court has repeatedly held that the government

must have an affirmative intent to create a public forum in order

for a designated public forum to arise. “The government does not

create a public forum by inaction or by permitting limited

discourse, but only by intentionally opening a nontraditional forum

for public discourse.” Cornelius, 473 U.S. at 802. To determine

that intent, courts must consider both explicit expressions about

intent and “ the policy and practice of the government to ascertain

4

The phrase "limited public forum" has been used in different

ways. We used the phrase "limited public forum" as a synonym for

"designated public forum" in Berner v. Delahanty, 129 F.3d 20, 26

(1st Cir. 1997), and again in New England Reg'l Council of

Carpenters v. Kinton, 284 F.3d 9, 20 (1st Cir. 2002). On the other

hand, we used the phrase "limited public forum" as a synonym for

"nonpublic forum" in Fund for Cmty. Progress v. Kane, 943 F.3d 137,

138 (1st Cir. 1991). This confusion is echoed elsewhere. See,

e.g., New York Magazine v. Metro. Transit Auth., 136 F.3d 123, 128

& n.2 (2d Cir. 1998). We adopt the usage equating limited public

forum with non-public forum and do not discuss the issue further.

-18-

whether it intended to designate a place not traditionally open to

assembly and debate as a public forum." Id. We also "examine[]

the nature of the property and its compatibility with expressive

activity to discern the government’s intent." Id. As to the

nature of the property, the MBTA does run advertisements and so

there is nothing inherent in the property which precludes its use

for some expressive activity. That nonetheless leaves the issue of

whether particular expressive activity may be inconsistent with the

nature of the property. The MBTA has determined that some types of

expressive activity are not consistent with the commercial

enterprise it runs.

In the 2003 advertising guidelines, the MBTA states

expressly that "[t]he MBTA intends that its facilities constitute

nonpublic forums that are subject to the viewpoint-neutral

restrictions set forth below." Nonetheless, a statement of intent

contradicted by consistent actual policy and practice would not be

enough to support the MBTA's argument.

Change the Climate argues that we should give little

weight to this express statement of intent: paying it heed would

allow a government the opportunity impermissibly to censor merely

by newly labeling the forum in question a non-public forum. The

past history of characterization of a forum may well be relevant;

but that does not mean a present characterization about a forum may

be disregarded. The government is free to change the nature of any

-19-

nontraditional forum as it wishes. Cornelius, 473 U.S. at 802.

Thus, even if MBTA's previous intent was to maintain a designated

public forum, it would be free to decide in good faith to close the

forum at any time. There is no evidence that the 2003 changes were

adopted as a mere pretext to reject plaintiff's advertisements. To

the contrary, the MBTA acted in response to expressed

constitutional concerns about its prior guidelines, and cannot be

faulted for trying to adhere more closely to the constitutional

line. And if the MBTA revised a guideline merely as a ruse for

impermissible viewpoint discrimination, that would be found

unconstitutional regardless of the type of forum created.

The plaintiffs' argument assumes that before January

2003, the MBTA had created a designated public forum. That is

unlikely: the MBTA has consistently had both significant

substantive content limitations and procedural limitations on the

advertisements it would accept, and there is little evidence the

MBTA affirmatively intended to create a public forum. Even so, the

MBTA has not created a public forum in its advertising program

under its 2003 guidelines, which are at issue here.

Since 1992, the MBTA has had substantive guidelines

prohibiting all tobacco ads, and all libelous, slanderous, or

obscene ads. Procedurally, it required all advertisers to submit

an application to the MBTA's advertising contractor, which had

instructions to send any ads potentially in conflict with the

-20-

guidelines to the MBTA for review, and the MBTA reserved the right

to reject any ad it wished. In AIDS Action Comm. of Massachusetts

v. MBTA, 42 F.3d 1, 12 (1st Cir. 1994), this court noted that these

early guidelines left a lot to be desired.

In 1995 the MBTA further prohibited ads which were

indecent to, or designed to frighten, child viewers. Then in 1999,

the MBTA created new guidelines which, in addition, prohibited ads

containing depictions of violent criminal conduct, firearms,

profanity, ads harmful to children, and ads that denigrate groups

based on gender, religion, race, ethnic, or political affiliation.

These prohibitions are not the indicia of an intent to create a

public forum.

The January 2003 guidelines intensify both the

substantive and procedural limitations and protections used by the

MBTA. The January 2003 guidelines better define the substantive

limitations and further ban ads that promote or appear to promote

the use of unlawful goods or services or the commission of unlawful

conduct, as well as political campaign ads. Procedurally, the 2003

guidelines also create more stringent mechanisms for MBTA review of

potentially prohibited ads. Given the litany of limitations on

advertisements from the inception of its program, and the

strengthening of those limitations in 2003, the MBTA has, at least

by 2003, through its policy expressed an intent not to open its

-21-

advertising space to all persons and organizations for public

dissemination of their views on all topics without limitation.

The MBTA's practice of enforcing its policy further shows

that it intended not to create such a forum. In the five years

preceding these litigations, the MBTA rejected at least seventeen

advertisements that were not in conformance with different aspects

of its policy. Various advertisements were rejected for violating,

among other grounds, the prohibitions on ads depicting violence,

indecency, profanity, denigration of women, and for containing

tobacco products.

Change the Climate points to one example of a seemingly

contradictory enforcement of the policy with respect to ads

containing tobacco in an attempt to argue that the MBTA has

erratically enforced its written policy.5 One or more instances of

erratic enforcement of a policy does not itself defeat the

government's intent not to create a public forum. See New England

5

Change the Climate introduced evidence that the MBTA refused

to display an ad from an organization called the Surfrider

Foundation, a group whose goal is to encourage responsible disposal

of cigarette butts, on the basis of the MBTA's ban on

advertisements for tobacco products because it included a picture

of people smoking. The ad contained three pictures of one couple,

during which they are smoking, talking, and then disposing of their

cigarettes. The ad begins: "We're not one of those organizations

who believe you shouldn't smoke! What we care about is how you

dispose of your cigarette." The ad then has information about the

harmful effects of cigarettes on beaches, and has tips for

responsible disposal of cigarette butts. However the MBTA allowed

an ad for the airline Al Italia, which contained a picture of a

woman on a motorcycle with a cigarette in one hand, with the

caption: "Let's create a buzz."

-22-

Reg'l Council of Carpenters v. Kinton, 284 F.3d 9, 22 (1st Cir.

2002) (no government intent to create a designated forum exists

"even if [government's] policy of restricted access is erratically

enforced"). By consistently limiting ads it saw as in violation of

its policy, even if doing so imperfectly, the MBTA evidenced its

intent not to create a designated public forum.

Most importantly, the relevant Supreme Court case law

compels the conclusion that the MBTA has not created a designated

public forum. The only Supreme Court case directly on point, the

plurality opinion in Lehman v. City of Shaker Heights, 418 U.S. 298

(1974), found that where a city banned all "political" (i.e.,

candidate and issues) advertising on its transit system, while

accepting commercial as well as religious, civic, and public-

service oriented advertisements, the city had not created a

designated public forum. Id. at 304. The opinion found that “[i]n

much the same way that a newspaper or periodical, or even a radio

or television station, need not accept every proffer of advertising

from the general public, a city transit system has discretion to

develop and make reasonable choices concerning the type of

advertising that may be displayed in its vehicles.” Id. at 303.

Lehman is indistinguishable from the instant case. As in Lehman,

the MBTA bans political candidate and some overtly political

advertising. As here, the transit system in Lehman did not merely

accept ads from commercial entities, but also accepted ads from

-23-

"churches, and civic and public-service oriented groups." Id. at

300. In Lehman, the claimant, as here, was denied access to both

exterior and interior advertising space. Id. at 320 n.12 (Brennan,

J., dissenting). The transit system, as is true of the MBTA here,

had written guidelines which were managed by a third party entity,

and which involved some exercise of discretion. Id. at 298-300.

Lehman's rationale that a government instrumentality does

not become a public forum simply because it is used for

communication of ideas has since been reinforced by later Supreme

Court cases. See Perry Educ. Ass'n v. Perry Local Educators'

Ass'n, 460 U.S. 37, 49 n.9 (1983); United States Postal Service v.

Council of Greenburgh Civic Ass'ns, 453 U.S. 114, 129 (1981).

Lehman was cited favorably in R.A.V. v. City of St. Paul,

Minnesota, 505 U.S. 377, 390 n.6 (1992); and United States v.

Kokinda, 497 U.S. 720, 725-26 (1990) (plurality opinion). Indeed,

in International Soc'y for Krishna Consciousness, Inc. v. Lee, 505

U.S. 672 (1992), the court, citing Lehman, reiterated that a lower

level of scrutiny usually applies when the government acts as

proprietor. Id. at 678.

The only Supreme Court case to which plaintiff points is

Widmar v. Vincent, 454 U.S. 263 (1981). Widmar held that where a

state university had a policy of opening its campus facilities for

all registered student groups, it had created a designated public

forum for such groups and thus violated the First Amendment when it

-24-

attempted to prevent a religious student group from using such

facilities. Id. at 277.

Widmar is distinguishable from this case for multiple

reasons. First, the purpose of the forum created in Widmar was to

encourage expressive activities by student groups. Id. at 265. To

implement this purpose, the campus facilities were made generally

available to all student groups, without restriction, and so the

groups received a form of subsidy from the government. Id. Unlike

Widmar, the primary purpose of the MBTA advertising program is not

to facilitate expression; rather it is to generate revenue.

Further, the restrictions upon use of the MBTA advertising,

including the requirement of an application, payment, and the

MBTA's extensive policy of limitation, are far greater than in

Widmar.

Since Widmar, we know of no analogous Supreme Court case

applying the forum analysis which has found that the government had

created a designated public forum. See, e.g., Arkansas Educ.

Television Com’n v. Forbes, 523 U.S. 666 (1998); Rosenberger v.

Rector and Visitors of the Univ. of Virginia, 515 U.S. 819 (1995),

Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384

(1993); Cornelius, 473 U.S. 788; Perry Education Ass'n, 460 U.S.

37; cf. Legal Services Corp. v. Velasquez, 531 U.S. 533 (2001). In

each of these cases, the Court assessed the challenged government

-25-

restrictions only under the reasonableness/viewpoint neutrality

test.

Further, the Court has recognized that deference to

government intent in determining the nature of the forum may

promote, rather than hinder, First Amendment principles:

[W]e encourage the government to open its

property to some expressive activity in cases

where, if faced with an all-or-nothing choice,

it might not open the property at all. That

this distinction turns on governmental intent

does not render it unprotective of speech.

Rather, it reflects the reality that, with the

exception of traditional public fora, the

government retains the choice of whether to

designate its property as a forum for

specified classes of speakers.

Arkansas Educ. Television Comm’n, 523 U.S. at 680.

This court addressed the question of rejection of

advertisements by the MBTA a decade ago in AIDS Action, 42 F.3d 1.

Although the district court had concluded that the MBTA was a

public forum, this court declined to reach the issue. Id. at 9.

Instead we held that the MBTA had engaged in dissimilar treatment

of advertisements containing sexual content and innuendo, by

allowing a rather explicit movie advertisement while rejecting

advertisements featuring condoms from an anti-AIDS group. Id. at

10-11. That amounted to the type of content discrimination that

"gave rise to an appearance of viewpoint discrimination" which had

not been adequately explained. Id. at 11. The decision in AIDS

-26-

Action does not assist plaintiffs on the claim that the MBTA has

created a public forum.

In Children of the Rosary v. City of Phoenix, 154 F.3d

972 (9th Cir. 1998), then-retired Associate Justice White similarly

found that the Phoenix transit system did not create a designated

public forum by accepting advertising on exterior panels on buses.

Id. at 976. Like the MBTA, the system did not accept advertising

from political candidates. The system primarily ran commercial

advertising, but did run a small number of non-commercial public

service advertisements, excluding political and religious

advertising. Id. The case did not, though, address the further

issue, which we do, of a transit system which accepts what is

apparently more non-commercial advertising.

Likewise, one circuit, relying on Lehman, has recently

held that advertising space in bus benches was a non-public forum.

Uptown Pawn and Jewelry, Inc. v. City of Hollywood, 337 F.3d 1275,

1278-79 (11th Cir. 2003). Although the city had previously accepted

ads from pawnbrokers, it adopted a new policy prohibiting those

ads. The court found this was a permissible content-based

restriction, seeking to encourage higher caliber advertising to

maximize revenue.

The Supreme Court opinions control this case.

Nonetheless, we discuss briefly circuit opinions on which Change

the Climate relies. Without suggesting we agree with the reasoning

-27-

in each, each is distinguishable on its facts. In each of these

cases, unlike here, the system accepted explicitly political

advertising, an important (but not dispositive) factor in forum

analysis.

In Christ's Bride Ministries, Inc. v. Southeastern

Pennsylvania Transp. Auth., 148 F.3d 242 (3d Cir. 1998), a transit

system's advertising space was held to be a designated public forum

where the system had an affirmative program to use its space to

promote "awareness of social issues" and provide "a catalyst for

change." Id. at 249-52. Under that program, the advertising

manager picked issues of public concern for free advertising. Id.

at 249. Further, the plaintiff's advertisements had in fact been

approved and had run, and were refused only after they had sparked

controversy. Id. at 245-46. SEPTA had no guidelines6 similar to

those of the MBTA. SEPTA also had a practice of "virtually

permitting unlimited access," having requested modifications of

advertisements only three times. Id. at 252.

6

Its restrictions were only 1) an instruction to its

contractor to concentrate on ads other than alcohol and tobacco; 2)

that it reserved to itself a final veto without guidelines as to

when it would exercise that veto; and 3) it restricted the contract

manager from accepting "libelous, slanderous, or obscene"

advertisements (which was not the basis for the rejection of

plaintiff's advertisement). Id. at 250-51.

-28-

Similarly,7 in Planned Parenthood Ass'n/Chicago Area v.

Chicago Transit Auth., 767 F.2d 1225 (7th Cir. 1985), the court

found the CTA had created a public forum where it had accepted a

wide range of public-issue advertising, claimed to have a policy of

excluding controversial advertisements, but in fact had no such

policy, had no written guidelines, had accepted controversial

advertisements, and was found to have come up with such a policy

solely to defend its decision to reject plaintiff's advertising.

Id. at 1232-33.

In New York Magazine v. Metro. Transp. Auth., 136 F.3d

123 (2d. Cir. 1998), the court held that the MTA had created a

public forum in the advertising space outside of its buses when it

accepted a magazine's advertisements using the Mayor's name under

written guidelines which imposed no restriction on political

speech, then removed the advertisements when the Mayor objected.

Id. at 130.

7

In United Food & Commercial Workers Union, Local 1099 v.

Southwest Ohio Reg'l Transit Auth., 163 F.3d 341 (6th Cir. 1998),

the transit system rejected a union's proposed wrap-around bus

advertisement because, in large part, it was too controversial.

Id. at 347. SORTA accepted public-service, public issue,

political, and commercial advertisements, subject to a policy

excluding advertising on political issues controversial enough that

they might adversely affect ridership. Id. at 359. The court gave

alternative holdings--that if no public forum was created, the

restriction was unreasonable, but that SORTA had created a

designated public forum by accepting virtually unlimited

advertising. Id. at 363.

-29-

Change the Climate's additional arguments on the forum

issue are equally unpersuasive. It argues that the MBTA made an

“affirmative” decision to continue to allow non-commercial

advertising, despite being advised that potential disputes could be

avoided by simply eliminating non-commercial advertising

altogether. This argument suffers from several flaws. As a matter

of law, under Lehman, the dividing line between a public forum and

a non-public forum is not the dividing line between commercial

advertisements and paid advertisements from non-profit groups. And

under Arkansas Educ. Television Comm'n, the MBTA is not to be put

to an "all-or-nothing choice." 523 U.S. at 680.

Also, as a matter of fact, General Manager Robert Mulhern

testified that he rejected a potential solution of removing all

non-commercial advertising, because:

I believe that there's a lot of people out

there who rely on that information, that some

times that –- that's the only practical access

to government they have from time to time.

For people who live in the inner city that are

made aware of important programs or important

social services, [I believe] that we truly are

performing a public service in another flavor

rather than transportation service. We're

letting them know about government services or

social services or not-for-profit services

that might have a direct impact on their

quality of life.

By refusing to limit the advertising program solely to commercial

advertising, the MBTA was, thus, not evidencing an intent to open

the forum to all public discourse. Nor was the MBTA adopting its

-30-

own program to inform the public about issues, as in Christ's

Bride, 148 F.3d 242. The MBTA's decision is not inconsistent with

a desire not to create a public forum, nor is it inconsistent with

the MBTA's role as a market actor.

Finally, plaintiffs argue that, because prior to this

litigation the MBTA did not limit advertisements "in a

constitutionally permissible manner," the court should find that it

created a designated public forum. This reasoning fundamentally

misunderstands the nature of the forum analysis. The focus is on

whether the government has intentionally decided to create a public

forum. Cornelius, 473 U.S. at 802. If it has not, then erratic

enforcement of a policy would not matter. Further, even if the

government had limited ads "in a constitutionally impermissible

manner" by engaging in viewpoint discrimination, that would not

create a public forum where none was intended. The MBTA's policy

clearly evidenced an intent to maintain control over the forum, and

thus the MBTA did not create a designated public forum. As a

result, the standard of review is not strict scrutiny.

B. Viewpoint Discrimination and Unreasonableness Claims in Both

Change the Climate and Ridley

Although the MBTA advertising program is neither a

traditional public forum nor a designated public forum, regulations

are still unconstitutional under the First Amendment if the

distinctions drawn are viewpoint based or if they are unreasonable

-31-

in light of the purposes served by the forum. Cornelius, 473 U.S.

at 806.

The bedrock principle of viewpoint neutrality demands

that the state not suppress speech where the real rationale for the

restriction is disagreement with the underlying ideology or

perspective that the speech expresses. See Rosenberger v. Rectors

and Visitors of Univ. of Va., 515 U.S. 819, 829 (1995); McGuire v.

Reilly, 386 F.3d 45, 62 (1st Cir. 2004) ("The essence of a

viewpoint discrimination claim is that the government has preferred

the message of one speaker over another."). A distinction is

viewpoint based if it "denies access to a speaker solely to

suppress the point of view he espouses." Cornelius, 473 U.S. at

806. The essence of viewpoint discrimination is not that the

government incidentally prevents certain viewpoints from being

heard in the course of suppressing certain general topics of

speech, rather, it is a governmental intent to intervene in a way

that prefers one particular viewpoint in speech over other

perspectives on the same topic. See, e.g., Good News Club v.

Milford Cent. Sch., 533 U.S. 98, 107-09 (school that has opened its

resources after school for the teaching of moral values cannot

exclude religious group that wishes to teach about those values

from a religious perspective without engaging in viewpoint

discrimination); Rosenberger, 515 U.S. 819; Lamb's Chapel v. Ctr.

Moriches Union Free Sch. Dist., 508 U.S. 384 (1993); McGuire, 386

-32-

F.3d at 57-59, 64-65 (fact that "buffer zone" statute applying

around abortion clinics might incidentally burden anti-abortion

speech more than pro-abortion speech is irrelevant to its viewpoint

neutrality).

1. Change the Climate: Viewpoint Discrimination and

Unreasonableness

The advertisements rejected were described earlier.

Other material facts follow.

Robert Prince, who was the General Manager of the MBTA at

the time Change the Climate's ads were rejected by Shorter,

testified that while he had not seen the ads in 2000, he would have

rejected all three on the grounds that they encouraged marijuana

use among juveniles, and thus were harmful to juveniles and in

violation of the then-existing policy. He found the Teen Ad to be

"geared towards young people, telling them that marijuana is not

cocaine or heroin, so it's the lesser of two evils, but it's okay

to smoke it." Prince did not view the ad as sending a message that

juveniles should be told the truth about drugs.

Prince thought that the Mother Ad was also harmful to

juveniles, because the ad implies "that it's okay to smoke

marijuana, which is against the law." Prince said the words meant

"that 'I don't want my children to smoke pot, but I know jail is

. . . more dangerous, so therefore I'm going to overlook the fact

that they are allowed to break the law.'" Prince said that some

-33-

people could have the legitimate viewpoint that jail is more

harmful to a child than marijuana smoking, but that was not a

viewpoint he would allow to be displayed on the MBTA because "[i]t

allows [children] to think it's okay to break the law."

As to the Police Ad, Prince stated: "It's telling them

that the police are not going to take marijuana smoking very

seriously, that there are real criminals on the loose, and it's

okay to break the law." He further stated that the ad "says that

smoking marijuana will not be looked upon as a criminal act." When

asked whether he agreed that the ad expressed a viewpoint about how

police should be used, Prince replied: "I know this ad tells young

people that they should commit a criminal act."

Michael Mulhern, acting General Manager of the MBTA and

the person with final authority to accept or reject advertisements,

testified that he would reject all three ads under the current 2003

guidelines. The Teen Ad promoted marijuana use, he thought, by

implying that cocaine and heroin were really harmful but marijuana

use was not. He held these worries although the ad states

explicitly that "[s]moking pot is not cool." Further, he was

concerned that the ad was targeted at juveniles, based on the

picture of the teenage girl and the fact that the language is

written in terms ("cool," "ya know") that juveniles would generally

use.

-34-

Mulhern testified that the Mother Ad also promoted

marijuana use, and while it was "not as clear" as the Teen Ad, the

Mother Ad could also in part be targeted at children. He testified

that by depicting a mother stating that she is less concerned about

her children smoking pot, the ad sends the message to children that

they "can smoke [pot] and still be great kids." Mulhern testified

that he would permit Change the Climate to post an ad advocating

the opposite viewpoint, saying: "I've got three great kids. I love

them more than anything. I don't want them to smoke pot. But if

my kids smoke pot, they should go to jail."

Mulhern testified that the Police Ad was rejected because

"it suggests that smoking marijuana is not a real crime," and so

promotes an illegal activity. He disagreed with the view that

"police resources should not be used for marijuana prosecutions."

He said he would allow an ad to be posted if it expressed the

opposite viewpoint, saying: "Police are important, valuable, good.

Police should be used for arresting people for marijuana crimes."

Mulhern conceded that the ad did not target children specifically,

but stated that he thought that children were more susceptible to

receiving the message that marijuana is not a real crime than were

other people.

The MBTA also introduced testimony of Cornelia Kelley,

the head of the Boston Latin School, a public exam school for

grades seven through twelve, which uses the MBTA for transporting

-35-

more than 2,100 of its 2,400 students. Kelley had the following

concern about the Teen Ad: "There is a message there that marijuana

is okay; it's not as bad as cocaine or heroin. And the message, to

my mind, that's a very confusing message for young people. There

is a sense there that marijuana is acceptable." When asked,

despite the fact that the ad says that "Smoking pot is not cool,"

why it would lead students to think that smoking marijuana is okay,

Kelley replied:

If you look at that ad, that's a real mixed

message to young people. And the students

with whom I deal get a great deal of

stimulation in different ways. And what

you're looking at there is not a clear-cut

message. And when children . . . are that

age, we try and see to it that they understand

clearly what's legal and what's not legal.

And that really says marijuana is not cocaine

or heroin. It takes marijuana out of the

realm of cocaine and heroin, where we

consistently tell young people that marijuana

is an illegal drug and you will be expelled

for it or you will be arrested for it . . . .

Kelley conceded that a student would not be disciplined for

expressing the view: "Tell us the truth. Marijuana is not cocaine

or heroin," but stated that she did not think the ad was

appropriate to run on the MBTA because it sends a mixed message to

students.

Kelley testified that she was particularly concerned

about the Mother Ad because it appeared to depict a teacher at a

chalkboard. She felt that by stating that jail is more dangerous

-36-

than smoking pot, the ad does not give a clear message to young

people that smoking pot is illegal.

Kelley also expressed concern that the Police Ad "conveys

that police countenance the use of marijuana." When asked how, she

replied that it implies that one will not be arrested for marijuana

which is "another mixed message to young people."

Ms. Kelley conceded that her students could easily be

exposed to similar ads while walking in the city. The difference

was that she considered the MBTA to be an extension of the school

house. But even so, she conceded that there had been discussion

encouraged in classrooms at the school about the issue of

legalizing marijuana.

Change the Climate also introduced evidence of two

different types of ads: other ads accepted by the MBTA which could

be seen as promoting illegal activity among juveniles and ads which

encourage compliance with drug laws. It argues this second set of

ads expresses the view that the drug laws are sound.

Change the Climate introduced several different ads for

alcoholic beverages accepted by the MBTA in the past. One is an ad

for Trinity Oaks Wine, which contains a picture of a woman in a

backless dress being hugged by a man. It states: "Trinity Oaks.

It's not a soap opera. But it is provocative." At the bottom, the

ad states: "Remember the wine," and has a picture of a wine bottle.

-37-

Prince testified that this ad was not harmful to juveniles because

the ad was addressed to adults.

Another ad, for Doc Otis Hard Lemonade, depicts a woman's

mouth eating an ice cube, and states "DO IT ON THE ROCKS." In the

corner there is a bottle of "Doc Otis Hard Lemonade," an alcoholic

lemonade beverage, being poured into a glass of ice, with the

slogan: "The perfect way to break the ice." When questioned as to

whether ads such as this were harmful to juveniles, Mulhern

conceded that alcohol use was illegal for juveniles, but found that

alcohol ads did not fall under this guideline because the ads did

not specifically target juveniles. Prince was also asked about

this ad and testified that it was not harmful to juveniles because

the ad was not addressed to young people, but to adults. When

asked how he could tell this ad was "geared towards somebody who's

22 and not somebody who's 20," Prince responded: "Because alcohol

for anybody under that age is illegal." Prince conceded that

nothing in the ad protected young people from its influence.

Kelley testified that she was also concerned about the

advertisements for alcoholic beverages that her students see on the

MBTA. The distinction she saw was that alcohol was legal at a

certain age but use of marijuana was not legal at any age.

Change the Climate also introduced testimony that the

MBTA has run numerous advertisements that discourage drug use. At

trial, the MBTA stipulated to having run four such ads. One was

-38-

headlined: "TALK IS BETTER FOR YOUR KIDS THAN DRUGS . . . SO TALK!"

It has a cartoon picture of "McGruff, the Crime Dog," as well as 8

pointers for talking to one's children about drugs, such as: "Tell

your kids you don't approve of the stuff" and "Tell them to say no

. . . and that you know they know the difference between right and

wrong." The advertisement finishes by stating: "Follow these steps

and you'll be helpin' yourself, your kids and me . . . take a bite

out of crime."

A second advertisement, sponsored by Drug Free America,

contains a picture of two children at a playground, with the

headline: "Everyday after school, my kid likes to __________. If

you can't fill in this blank, you need to start asking. It's a

proven way to steer kids clear of drugs. It's not pestering. It's

parenting. Ask: Who? What? When? Where? Questions. The Anti-

Drug." A third advertisement, sponsored by Partnership for a Drug-

Free New England and America, as well as the Office of National

Drug Control Policy, states simply: "Are You Waiting for Your Kids

to Talk to You About Pot?" And the fourth advertisement, sponsored

by the Office of National Drug Control Policy, contains a pair of

dice, one with a skull on one side, and states: "Just because you

survived drugs, doesn't mean your children will."

The MBTA's position under the current guidelines is that

it would still reject Change the Climate's three ads because each

ad targets children and encourages the use of illegal drugs. The

-39-

present guidelines do not prohibit ads "harmful" to children. The

MBTA also takes the position that it would permit ads which

expressed to adults the viewpoint that the marijuana laws should be

rethought so long as the ads said that use of marijuana is illegal.

At the outset, it should be emphasized that the MBTA's

guideline itself, which allows rejection of advertisements that

promote illegal activity, particularly among children, is

constitutional. It clearly serves a viewpoint-neutral purpose, and

it is surely reasonable given the characteristics of the MBTA's

advertising program. It is indisputable that the MBTA has a

legitimate, viewpoint-neutral interest in not being used as a

messenger to convey messages promoting illegal conduct among

juveniles. It is also legitimate for the MBTA to consider that it

has juveniles among its passengers. Further, as a vendor, the MBTA

has a legitimate interest in not offending riders so that they stop

their patronage. All of these are reasons why the guideline itself

is constitutional against a viewpoint-discrimination attack.

What we focus on instead are the specific decisions of

the MBTA to reject the three Change the Climate advertisements.

The MBTA's mere recitation of viewpoint-neutral rationales (or the

presentation of a viewpoint-neutral guideline) for its decisions to

reject the three advertisements does not immunize those decisions

from scrutiny. The recitation of viewpoint-neutral grounds may be

a mere pretext for an invidious motive. See Cornelius, 473 U.S. at

-40-

811-13. In practical terms, the government rarely flatly admits it

is engaging in viewpoint discrimination.

Suspicion that viewpoint discrimination is afoot is at

its zenith when the speech restricted is speech critical of the

government, because there is a strong risk that the government will

act to censor ideas that oppose its own. See, e.g., Texas v.

Johnson, 491 U.S. 397, 411-17 (1989) (striking down criminal flag

desecration statute; flag-burner's action expressed

"dissatisfaction with the policies of this country," expression

which was "situated at the core of our First Amendment values," and

state had no power to "prescribe what shall be orthodox" (quoting

W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943)

(internal quotation marks omitted)). Because Change the Climate's

advertisements here reflect core political speech that is critical

of existing governmental policy, we are especially wary of

viewpoint discrimination.

The Supreme Court, as well, has been particularly leery

of justifications for quashing speech to adults that rest on the

purported protection of children. While the protection of children

is a compelling state interest, see Denver Area Telecomm.

Consortium v. FCC, 518 U.S. 727, 755 (1996), the Court has

carefully examined regulations purporting to rest on this ground,

often finding that they sweep more broadly than their goal requires

or that they do not serve their goal of child protection at all.

-41-

See Reno v. ACLU, 521 U.S. 844, 875-79 (1997) ("[T]he mere fact

that a statutory regulation of speech was enacted for the important

purpose of protecting children . . . does not foreclose inquiry

into its validity."); Denver Area Telecomm. Consortium, 518 U.S. at

755-60; Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115,

126-27, 130-31 (1989); Bolger v. Youngs Drug Prods. Corp., 463 U.S.

60, 73-75 (1983); Erznoznik v. City of Jacksonville, 422 U.S. 205,

212-14 (1975).

Almost fifty years ago, Justice Frankfurter found

unconstitutional a Michigan obscenity statute; he emphasized that

the statute swept too broadly to carry out its asserted aim of

protecting children from sexually explicit material. In Butler v.

Michigan, 352 U.S. 380, 383 (1957), Justice Frankfurter stated:

The State insists that, by thus quarantining

the general reading public against books not

too rugged for grown men and women in order to

shield juvenile innocence, it is exercising

its power to promote the general welfare.

Surely, this is to burn the house to roast the

pig. . . . The incidence of this enactment is

to reduce the adult population of Michigan to

reading only what is fit for children.

Id. at 383.

The context of these cases is admittedly not an exact

fit. Our case does not involve a criminal prohibition, but only a

refusal to accept advertising. The context in Denver Area

Educucational Telecommunications Consortium is closest: there the

issue was the FCC's ability to control certain sexually explicit

-42-

content on cable television. 518 U.S. at 734-36. In both Denver

Area and the other cases, the question was whether statutes or

regulations had been drafted narrowly enough. Our focus is

particular decisions to exclude advertisements, not the facial

validity of the guideline. Finally, all of these cases involved

the regulation of sexually explicit (but non-obscene) speech;

sexual speech is not involved in this case. Still, these

differences do not weaken the general principle that a purported

justification for excluding speech to adults on the grounds of

protecting children will be examined closely to see if the

decisions reasonably do protect children.

There are various situations which will lead a court to

conclude that, despite the seemingly neutral justifications offered

by the government, nonetheless the decision to exclude speech is a

form of impermissible discrimination. Three are relevant here.

First, statements by government officials on the reasons for an

action can indicate an improper motive. See, e.g., Vill. of

Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 268

(1977). Second, where the government states that it rejects

something because of a certain characteristic, but other things

possessing the same characteristic are accepted,8 this sort of

8

For comparison purposes, it is important to be clear that the

MBTA guidelines also preclude advertisements containing speech

about "candidate[s] for public office" or about "specific ballot

question[s], initiative petition[s], or referend[a]." The MBTA has

rightly not relied on this guideline in our case, because Change

-43-

underinclusiveness raises a suspicion that the stated neutral

ground for action is meant to shield an impermissible motive. See,

e.g., Cornelius, 473 U.S. at 812; AIDS Action, 42 F.3d at 10-12

(where MBTA claimed to be excluding condom-promotion advertisements

because they were sexually explicit and patently offensive, but

MBTA allowed other sorts of sexually explicit advertisements, such

as movie advertisements, "unrebutted appearance of viewpoint

discrimination" is found). Third, suspicion arises where the

viewpoint-neutral ground is not actually served very well by the

specific governmental action at issue; where, in other words, the

fit between means and ends is loose or nonexistent. This situation

comes up in a variety of legal settings. See, e.g., Purkett v.

Elem, 514 U.S. 765, 768 (1995) (judges may sometimes find pretext

in race-based equal protection challenge to peremptory strikes

where prosecutor's justifications for challenges are "implausible

or fantastic"); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S.

248, 259 (1981) (employer's misjudgments of the qualifications of

job applicants may be relevant to whether the employer's neutral,

merit-based reasons for hiring are pretexts for discrimination

under Title VII). All three factors lead us to conclude that the

reasons given by the MBTA in this case are insufficient to avoid a

conclusion of viewpoint discrimination.

the Climate's advertisements do not fall into these two narrow

categories.

-44-

Inherent in the MBTA's position is its recognition that

save for the risk of inducing juveniles to smoke marijuana, the

refusal to run these advertisements for an adult audience would be

viewpoint discrimination. That conclusion is essentially conceded

in the MBTA's briefs. We find the purported justification of

protecting children to be undermined for two basic reasons. First,

there is direct evidence, through statements by MBTA officials,

that the reason for rejecting the advertisements was actually

distaste for Change the Climate's viewpoint. Second, there is

evidence that the MBTA's rejection of these advertisements does not

actually serve the alleged purpose of protecting children, and so

the MBTA cannot offset the direct evidence against it.

The MBTA's initial statement of reasons for rejecting the

three ads was, in part, that the ads were part of Change the

Climate's effort to "reform marijuana [laws]" in an "effort to

legalize."9 This was a direct statement of viewpoint

discrimination. It was reinforced by later evidence under the 2003

guidelines. The MBTA General Manager said he would publish the

Mother and Police Ads if they came to the opposite conclusion –-

one with which he agreed -- expressing viewpoints which reinforced

compliance with, but did not question, existing laws.

9

These comments were made by Lucy Shorter, then Director of

Marketing for the MBTA and the liaison between the MBTA and its

advertising contractor.

-45-

Supporting the direct evidence is our conclusion that the

MBTA's rejection of these advertisements does not reasonably serve

its purported justification. Dealing first with the Mother Ad and

the Police Ad, it is clear that they are not targeted at children,

nor can they reasonably be construed to promote illegal marijuana

use among juveniles. The ads do not advocate illegal drug use.

Rather, these two ads make a sophisticated argument that the

criminalization of marijuana imposes worse consequences on society

than would alternatives. The risk posed by the Mother Ad and

Police Ad of inducing juveniles to engage in illegal marijuana

activity is remarkably minimal and, indeed, probably nonexistent.

The MBTA is certainly correct to evaluate individually each ad as

to its compliance with the guidelines. Its judgments must be

reasonable and it would not be reasonable to think that juveniles

were exposed to no other information about drugs. Indeed, the MBTA

has itself a long history of running ads stressing that drug use is

illegal and that drug laws should be obeyed.

The MBTA has sought to allay any suspicions of viewpoint

discrimination by representing that it would run advertisements

saying in bold text that the drug laws should be changed, provided

the ads at the same time acknowledge that marijuana use is illegal.

This, it says, removes any concern about viewpoint discrimination

because it proves that the same message could be run if a different

manner of expression were used. But that is not so. The MBTA's

-46-

concession means simply that it will run advertisements which do

not attract attention but will exercise its veto power over

advertisements which are designed to be effective in delivering a

message. Viewpoint discrimination concerns arise when the

government intentionally tilts the playing field for speech;

reducing the effectiveness of a message, as opposed to repressing

it entirely, thus may be an alternative form of viewpoint

discrimination. See R.A.V., 505 U.S. at 392 (It is viewpoint

discriminatory for the government to "license one side of a debate

to fight freestyle, while requiring the other to follow Marquis of

Queensberry rules."); see also Cohen v. California, 403 U.S. 15, 26

(1971) (the emotive impact of a particular means of expression is

often more important than the underlying cognitive impact of a

message, and this emotive impact is also protected by the

Constitution).

This suspicion of viewpoint discrimination is deepened by

the fact that the MBTA has run a number of ads promoting alcohol

that are clearly more appealing to juveniles than the ads here. It

is true that there is a distinction: alcohol, like marijuana,

cannot legally be sold to minors but can be sold to adults, and

marijuana may not, in general, legally be used by either adults or

minors. That cannot be the dividing line if the argument is that

the MBTA is trying to avoid inducing illegal conduct: the MBTA has

-47-

correctly not defended on the basis that the ads will induce

illegal marijuana use by adults.

The more difficult issue concerns the first advertisement

-- the Teen Ad. It certainly may reasonably be viewed as directed

to attract the attention of teenagers. What is far more

questionable is the reasonableness of the contention that the ad

would induce teenagers to smoke marijuana. The ad itself says

nothing of the sort. Indeed, it says the opposite -- that "smoking

pot is not cool." The ad then implies that marijuana should not be

seen as equivalent to heroin or cocaine. The clearest message is

that marijuana usage should be decriminalized, while heroin and

cocaine usage should remain criminal. The targeting of teenagers

does not remove the ad from the realm of political speech. Many of

those who are teenagers are either voters or will soon be voters,

and the ad is also aimed at adults. The MBTA cannot put a thumb on

the scale to preclude Change the Climate from effectively

communicating a message about changing the laws to a likely

responsive group of voters.

The MBTA's own evidence fails to support its argument.

Headmaster Kelley's point was not that the Teen Ad would induce

drug use, but the rather different point that the Ad presented a

"mixed message." The mixed nature of the message was about which

drugs were legal and which were not; thus her concern was that the

ad would promote confusion about whether marijuana use was illegal.

-48-

The MBTA's conclusion, however, requires an additional step -- that

the ads would not only confuse teenagers about marijuana's illegal

status, but that this confusion would then lead teenagers to smoke

marijuana. Neither step in the reasoning is supported by the

record.

The Teen Ad must be evaluated in context. The MBTA has

run numerous ads that discourage drug use and encourage respect for

and adherence to the current drug laws. Some of these ads are

sponsored by government agencies, such as the Office of National

Drug Control Policy, whose goal is to further the current drug laws

and aid in their enforcement. Juveniles are exposed frequently to

anti-drug messages in a variety of settings,10 including in schools.

Indeed, schools may be the very place where students, in class,

debate the wisdom of certain laws, as at Boston Latin. That this

one at best ambiguous advertisement would lead teenagers to believe

that marijuana is legal, against a barrage of contrary information,

is unlikely. Yet the MBTA's argument requires even a further step.

That one advertisement, which on its face says use of marijuana is

"not cool," would actually induce juveniles to smoke marijuana

strikes us as thin to the point of implausibility. The MBTA's

10

For example, the White House reported that the fiscal year

2003 budget included $149 million for a National Youth Anti-Drug

Media campaign, meant to prevent drug use by teens. See National

Drug Control Strategy: FY 2005 Budget Summary 90 (March 2004),

available at http://www.whitehousedrugpolicy.gov/

publications/policy/budgetsum04/budgetsum05.pdf.

-49-

justifications for not running these advertisements are

sufficiently implausible that on the totality of the evidence we

conclude that the MBTA has engaged in viewpoint discrimination.

Moreover, the rejection of the three ads would fail to

pass muster under the other prong of analysis laid out in

Cornelius, which requires that any restriction be reasonable in

light of the purpose of the forum, because their rejection is, in

context, unreasonable. Cornelius, 473 U.S. at 806; see also Perry

Educ. Ass'n, 460 U.S. at 49-54 ("The touchstone for evaluating []

distinctions [in a non-public forum] is whether they are reasonable

in light of the purpose which the forum at issue serves."). The

reasonableness standard is not a particularly high hurdle; there

can be more than one reasonable decision, and an action need not be

the most reasonable decision possible in order to be reasonable.

Cornelius, 473 U.S. at 808. Still, the MBTA's judgment that these

advertisements will foster illegal activity by minors is, in

context, entirely unreasonable. See Kokinda, 497 U.S. at 734;

Huminski v. Corsones, 386 F.3d 116, 155 (2d Cir. 2004) (finding

particular restriction on speech in non-public forum unreasonable).

The reasons stated above, which show the lack of fit between the

rejection of these three advertisements and the protection of

children, are sufficient for our conclusion.

We reverse the judgment of the district court as to all

three advertisements proposed by Change the Climate, and direct

-50-

entry of declaratory judgment that the rejection of these

advertisements violated the First Amendment. At this point, there

is no reason to think that injunctive relief is also required.

B. Ridley: Viewpoint Discrimination and Unreasonableness

Unlike in Change the Climate, we conclude that the MBTA

has not engaged in viewpoint discrimination in Ridley, either in

the facial validity of its guidelines or the guidelines as applied

to Ridley's advertisement. The guidelines prohibiting demeaning or

disparaging ads are themselves viewpoint neutral. That is also

true of the application of the guidelines to Ridley's ad on the

facts here.

As to the guideline itself, we note that the 2003

revision to the guidelines continued to prohibit demeaning or

disparaging ads, but did so in more general terms, not tied only to

certain categories such as race, religion, and gender. Most likely

that revision was made in light of R.A.V., 505 U.S. at 392, and

later case law.11 The current regulation simply prohibits the use

11

The MBTA's two earlier policies, in their singling out of

certain specific groups, could, dubitante, be thought to be like

the hate speech law at issue in R.A.V., which banned the placing of

certain symbols or objects on property when "one knows or has

reasonable grounds to know [that such placement] arouses anger,

alarm or resentment in others on the basis of race, color, creed,

religion or gender." R.A.V., 505 U.S. at 380. In dicta, the Court

noted:

In its practical operation . . . the ordinance

goes even beyond mere content discrimination

to actual viewpoint discrimination. Displays

containing some words--odious racial epithets,

-51-

of advertisements that "demean[] or disparage[] an individual or

group of individuals," without listing any particular protected

for example--would be prohibited to proponents

of all views. But "fighting words" that do

not themselves invoke race, color, creed,

religion, or gender--aspersions upon a

person's mother, for example--would seemingly

be usable ad libitum in the placards of those

arguing in favor of racial, color, etc.,

tolerance and equality, but could not be used

by those speakers' opponents. One could hold

up a sign saying . . . that all "anti-Catholic

bigots" are misbegotten; but not that all

"papists" are, for that would insult and

provoke violence "on the basis of religion."

St. Paul has no such authority to license one

side of a debate to fight freestyle, while

requiring the other to follow Marquis of

Queensberry rules.

Id. at 391-92.

The ability to use certain linguistic tools in the course of

argument, in other words, cannot in certain settings be statutorily

monopolized by only one side of a debate, even if the other side

had other, possibly less effective, ways to get its message out.

Under the MBTA's first and second guidelines, as in the statute in

R.A.V., this sort of tilted playing field would potentially have

been possible. The criminal statute at issue in R.A.V. and the

regulation of advertising by the government as a commercial

enterprise at issue are quite different contexts, and thus R.A.V.

may have no applicability here.

Further, the type of problem identified in R.A.V. is not a

problem for an advertiser in Good News's position. Good News is a

religion; its rejected advertisement was fairly understood as an

attempt to demean other religions. Any attempt to demean Good News

or its stance on the falsity of other religions would doubtlessly

be denigration "on the basis of . . . religion" and thus would be

prohibited even by the initial two sets of regulations. The R.A.V.

problem only exists where the individual or group that is prevented

from speaking is not itself an object of protection under the

classifications given in a statute or regulation (for example,

bigots were not a protected group under the statute in R.A.V.).

Ridley also cannot challenge these earlier regulations on

their face, as part of an overbreadth challenge. Such a challenge

was not made to us, and it is waived.

-52-

groups. In this context, the guideline is just a ground rule:

there is no viewpoint discrimination in the guideline because the

state is not attempting to give one group an advantage over another

in the marketplace of ideas. See Elena Kagan, "Regulation of Hate

Speech and Pornography after R.A.V.," 60 U. Chi. L. Rev. 873, 889

(1993) (suggesting, based on the court's language, that the problem

with the statute in R.A.V. could have been avoided by drafting a

statute that did not single out any specific groups for protected

status).12

Similarly, under the MBTA's current guideline, all

advertisers on all sides of all questions are allowed to positively

promote their own perspective and even to criticize other positions

so long as they do not use demeaning speech in their attacks. No

advertiser can use demeaning speech: atheists cannot use

disparaging language to describe the beliefs of Christians, nor can

Christians use disparaging language to describe the beliefs of

atheists. Both sides, however, can use positive language to

describe their own organizations, beliefs, and values. Some kinds

12

This guideline at issue here is somewhat like the regulation

at issue in Cogswell v. City of Seattle, 347 F.3d 809 (9th Cir.

2003). In Cogswell, the plaintiff challenged a regulation that

allowed each candidate to promote herself in a city-printed

"voters' pamphlet," but forbade a candidate from discussing her

opponents in the pamphlet. The court upheld this regulation as a

content restriction that did not lead to viewpoint discrimination:

such a "ground rule" that is "equally applicable to all candidates"

did not create a tilted playing field for speech. Id. at 816.

-53-

of content (demeaning and disparaging remarks) are being

disfavored, but no viewpoint is being preferred over another. The

"reasonable person" referenced in the MBTA's guidelines of course

does not belong to any particular religious group, and would

protect minority, as well as majority, religious beliefs from

language that would "demean or disparage" them. The MBTA's current

guideline neither intends nor has as a significant effect the

tilting of the playing field for speech.

Ridley argues that because the MBTA accepted the first

two ads it must accept the third. We reject the argument that

because a government commercial enterprise has opened up discussion

on one particular "topic" (say, religion), it must allow any and

all discussion on that topic. Reasonable ground rules, so long as

they are not intended to give one side an advantage over another,

can be set without falling prey to viewpoint discrimination. It is

possible that the effect of these guidelines will fall more heavily

on some messages than others in certain contexts, but this does not

itself make the guidelines viewpoint discriminatory; the intent and

chief impact of the non-demeaning requirement is merely to ensure

a certain minimum level of discourse that is applicable to

everyone.

The MBTA could reasonably conclude that the earlier two

advertisements did not demean or disparage other religions, but

that the third advertisement did. The first ad questioned the

-54-

waywardness of today's Christians; the second issued a condemnation

of other religions. By contrast, the third advertisement went a

vitriolic further step and directly demeaned a number of religions,

by calling them false. It told the adherents of those religions

that their ways are ungodly, they are "going to hell." In

addition, those demeaned religions are likely to be the shared

religions of a number of the MBTA riders. That the MBTA chose not

to ban the earlier two ads (the first under threat of suit) does

not mean it was required to accept the third ad. This is true even

had the MBTA made a mistake under its guidelines in accepting the

first two ads.

Ridley argues that even if the third advertisement is

demeaning to other religions, the government still may not reject

the ad because the subject matter is the protected one of religion.

The government may not, Ridley argues, "attempt to protect citizens

from being exposed to religious views they might find offensive,"

citing Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952), which

invalidated a statute that set up a censorship board which refused

licenses for "sacrilegious" films. The case is inapposite, as the

MBTA is not censoring religious speech here at all. The statute in

Wilson acted as a prior restraint preventing the showing of a film

deemed sacrilegious by the censors in any public place in the

state. Id. at 497, 503. The guidelines at issue here merely

prevent advertisements from being put up in the MBTA's own system.

-55-

Moreover, the statute in Wilson was aimed only at religious speech,

and the language made it clear that its goal was to "suppress real

or imagined attacks on a particular religious doctrine." Id. at

505. The goal of the MBTA's guidelines here has nothing to do with

censoring religious beliefs; the purpose instead is to maintain a

certain minimal level of decorum in all advertisements.

The second advertisement and the third advertisement

share the same basic viewpoint, yet the MBTA approved the second

advertisement even though it rejected the third. This is further

evidence that the MBTA's actions here were not motivated by

distaste for Ridley's particular viewpoint. She has presented no

evidence that the MBTA ever allowed any other specific

advertisement that would suggest viewpoint discrimination towards

her. For example, there is no evidence in the record that other

advertisements, religious or otherwise, were accepted despite

containing demeaning or disparaging content.

The two-week delay in approving Ridley's first

advertisement is surely not a basis for inferring viewpoint

discrimination. Nor is the saga connected with the placement of

her second advertisement -- this shows merely that the MBTA was

honing its guidelines throughout this period and was working out

its enforcement of various issues connected with the guidelines.13

13

It is true, as the parties stipulated, that the word

"denigration" in the MBTA's first set of guidelines, under which

-56-

While the MBTA's guideline and decision to reject

Ridley's advertisement are viewpoint neutral, the regulatory scheme

still must be "reasonable in light of the purpose served by the

forum" in order to be upheld. Cornelius, 473 U.S. at 806. The

regulatory scheme at issue here is eminently reasonable. The

MBTA's stated purposes in running its advertising program include

"maximiz[ing] revenue" by making money through advertisements while

not reducing ridership through offensive advertisements,

"maintaining a safe and welcoming environment" for its riders

(including children), and avoiding its identification with the ads

it displays. A guideline preventing demeaning or disparaging

advertisements is likely to serve these purposes well and is

consistent with the MBTA's own "Courtesy Counts" program.

C. Facial Validity of Guidelines: Vagueness and Vesting of

Discretion

Change the Climate argues that the guidelines must fail,

in any event, because they are not sufficiently clear and

objective. Change the Climate and Ridley also challenge the

Ridley's second advertisement was initially rejected, means

virtually the same thing as the words "demean[] or disparage[]" in

the MBTA's second set of guidelines, under which Ridley's second

advertisement was eventually accepted. But the second set of

guidelines also adopted a new policy determining that a website

listed on an advertisement should not be considered unless the

advertisement itself has an unclear message. This new policy was

directly applicable to Ridley's second advertisement, which

referenced a website containing additional and potentially

"demeaning" content (the same kind of list of "false" religions

stated in the third advertisement).

-57-

regulatory scheme on the ground that it is too vague and vests too

much discretion in MBTA officials. In its Ridley opinion, the

district court did not address the claim. In Change the Climate,

however, the district court found that the guideline prohibiting

demeaning or disparaging material was "somewhat vague" on its face

and "still leaves too much room for arbitrary decisions."

In any event, the record is adequate to address this kind

of facial challenge to the guidelines. Since, as well, the parties

have thoroughly briefed this issue, there are no facts in dispute,

and the issue raises important questions regarding the application

of the First Amendment to the MBTA, we will address this challenge.

See, e.g., In re Keeper of Records, 348 F.3d 16, 26 (1st Cir. 2003)

(appellate consideration of an issue raised but not ruled upon by

the court below is proper where "[t]he parties have briefed [an]

issue, the facts pertaining to it are essentially uncontradicted,

and an adjudication will expedite matters."); AIDS Action Comm. of

Massachusetts v. MBTA, 42 F.3d 1, 7 (1st Cir. 1994) ("[S]o long as

the record is adequately developed, we will not hesitate to resolve

a mixed fact/law issue involving a core First Amendment concern

even though the district court did not address it in the first

instance.").

The vagueness inquiry, to the extent it applies here at

all, incorporates two basic concerns: 1) concerns about fair

notice, and about the related danger of chilling expression, and 2)

-58-

concerns about excessive discretion being invested in administering

and enforcing officials. See Grayned v. City of Rockford, 408 U.S.

104, 108-09 (1972). The mere fact that a regulation requires

interpretation does not make it vague. McConnell v. FEC, 540 U.S.

93, 169 n.64 (2003); Rose v. Locke, 423 U.S. 48, 49-50 (1975).

First Amendment analysis is particularly prone to words

and phrases being taken out of context. Concerns about vagueness

and about excessive discretion arise most strongly in other

contexts. The void-for-vagueness argument classically arises where

the government imposes criminal sanctions for conduct or speech.

See United States v. Lachman, 387 F.3d 42, 56-59 (1st Cir. 2004).

And the concern over subjective decision making has most effect in

government licensing schemes. Neither is the situation here.

Here, there is no serious concern about either notice or

chilling effects, where there are no consequences for submitting a

non-conforming advertisement and having it rejected. See Nat'l

Endowment for the Arts v. Finley, 524 U.S. 569, 588-89 (1998) (no

serious concern that people will "steer too far clear" and be

chilled in the context of a regulation that is not criminal or

quasi-criminal and merely establishes criteria for grants);

Children of the Rosary v. City of Phoenix, 154 F.3d 972, 983 (9th

Cir. 1998) (relaxing the vagueness standard in the context of a

city transportation system's advertising policy because "[t]his

-59-

claim is unlike the usual vagueness challenge involving a fine or

other sanction that has the potential to chill conduct.").

Thus the inquiry reduces to an investigation into whether

the discretion given to MBTA administrators under the scheme is

unconstitutionally excessive. The void-for-vagueness doctrine and

the excessive delegation doctrine are technically "analytically

distinct," Griffin v. Sec'y of Veterans Affairs, 288 F.3d 1309,

1329 (Fed. Cir. 2002), but overlap on the facts here. Virtually

all of the Supreme Court cases to determine excessive discretion

challenges have dealt with traditional public fora. See Griffin,

288 F.3d at 1321-22. The danger of excessive discretion in this

case is that it could lead to viewpoint-discriminatory decisions in

practice even under a facially neutral regulation. We have already

concluded there was no viewpoint discrimination in Ridley, and that

the viewpoint discrimination in Change the Climate did not result

from the face of those guidelines.

The cases that Change the Climate and Ridley cite all

deal with licensing schemes regulating the exercise of speech in

traditional public fora. The dissent similarly relies on cases and

standards that are out of context because they deal with

traditional public fora. See, e.g., Forsyth County, Ga. v.

Nationalist Movement, 505 U.S. 123, 130-33 (1992) (striking down

permit scheme for demonstration on courthouse steps); Shuttlesworth

v. City of Birmingham, Ala., 394 U.S. 147, 150-51 (1969) (striking

-60-

down permit requirement for protest on city streets). In these

situations, it is true, delegations of authority to grant licenses

for speech may operate as prior restraints. As such, those

delegations must meet the stringent standard of containing "narrow,

objective, and definite standards to guide the licensing

authority." Shuttlesworth, 394 U.S. at 150-51. The settings for

those cases are unarguably public fora open to everybody and to all

types of speech; the very limited obstructions permitted by the

licensing requirement are allowed primarily so that the state can

maintain basic order.

The regulatory scheme at issue here is not a licensing

scheme, and the MBTA advertising program is neither a traditional

nor a designated public forum. See, e.g., Kokinda, 497 U.S. at 725

(government holds as proprietor, and not as licensor, when

operating a non-public forum). Excessive discretion and vagueness

inquiries under the First Amendment are not static inquiries,

impervious to context. See Reno v. ACLU, 521 U.S. 844, 871-72

(1997) (the vagueness inquiry is most rigorous in a criminal

context, where there is a high risk speech will be chilled);

Finley, 524 U.S. at 581-83, 588-89 (requirements that might be

vague in other contexts, like a criminal statute, were not vague

when used as criteria for a grant process that was subjective by

nature); Vill. of Hoffman Estates v. Flipside, Hoffman Estates,

Inc., 455 U.S. 489, 498 (1982)("The degree of vagueness that the

-61-

Constitution tolerates--as well as the relative importance of fair

notice and fair enforcement--depends in part on the nature of the

enactment.").

Our view is that a grant of discretion to exercise

judgment in a non-public forum must be upheld so long as it is

"reasonable in light of the characteristic nature and function" of

that forum. Griffin, 288 F.3d at 1323; see also Finley, 524 U.S.

at 589-590 (approving broad discretion to take into consideration

"general standards of decency and respect for the diverse beliefs

and values of the American public" in NEA grant process, given the

inherently subjective nature of these types of selection

processes). "[S]electivity" and "discretionary access" are

defining characteristics of non-public fora, which unlike public

fora are not intended to be open to all speech. See Griffin, 288

F.3d at 1323.

The MBTA's regulatory guidelines, which in Ridley reject

any advertisement that "demeans or disparages an individual or

group of individuals" and which use "prevailing community

standards" to determine whether advertisements fall afoul of this

standard, are not unreasonably vague or overbroad, given the nature

of the MBTA's advertising program and its chief purpose of raising

revenue without losing ridership. Some kinds of advertisements

that will be consistent with this purpose may be difficult to

pinpoint with exact precision; some degree of interpretation, and

-62-

some reliance on concepts like "prevailing community standards," is

inevitable. In Griffin, the court found that considerable

discretion left in the hands of the Department of Veterans Affairs

was acceptable to ensure the preservation of the commemorative

functions of national cemeteries; the MBTA is also entitled to some

discretion in determining which advertisements are likely to

alienate ridership and cost it revenue. These decisions also "may

defy objective description and . . . vary with individual

circumstances." Griffin, 288 F.3d at 1325.

In any event, for purposes of the acceptance or rejection

of advertising, words like "demean" or "disparage" have reasonably

clear meanings. We recognize that several courts have struck down,

on vagueness grounds, school speech codes that incorporated

somewhat similar terms. See Dambrot v. Central Mich. Univ., 55

F.3d 1177, 1183-84 (6th Cir. 1995); UWM Post, Inc. v. Board of

Regents of the Univ. of Wis. Sys., 774 F. Supp. 1163, 1178-81 (E.D.

Wis. 1991); Doe v. Univ. of Mich., 721 F. Supp. 852, 866-67 (E.D.

Mich. 1989). But cf. UWM Post, 774 F. Supp. at 1179-80 (In the

context of a university hate speech regulation, the word "demean"

is not "unduly vague," since it has a "reasonably clear" meaning:

"to debase in dignity or stature.").14 These decisions come out of

14

The changes in position by the MBTA in this case do not show

that the standard is too vague. We decline to use the MBTA's past

changes in its guidelines against it; what is important is that the

MBTA's rules are now reasonably clear.

-63-

a very different context: vagueness concerns are more pressing when

there are sanctions (such as expulsion) attached to violations of

a challenged regulation.

Further, we acknowledge that two courts considered public

transportation advertising policies that gave their systems

discretion to reject "controversial" advertisements to be

unconstitutional. See United Food & Commercial Workers Union,

Local 1099 v. Southwest Ohio Reg'l Transit Auth., 163 F.3d 341,

358-60 (6th Cir. 1998); Nat'l Abortion Fed'n v. Metro. Atlanta

Rapid Transit Auth., 112 F. Supp.2d 1320, 1327-28 (N.D. Ga. 2000).

The cases are distinguishable. In both, a public forum was found.

Further, a regulation asking whether something is "controversial"

is a less precise inquiry, and has the potential to strike down

many more advertisements, than a regulation asking whether

advertisements "demean[] or disparage[]" someone.

III.

Attorney's Fees

Change the Climate appealed from the district court's

denial of attorney's fees. Change the Climate argued it was

entitled to attorney's fees on the findings that the guidelines

were constitutionally flawed. The basis for the argument is now

gone, as we uphold the guidelines against any facial challenge.

Nonetheless, Change the Climate's viewpoint

discrimination argument has prevailed. See 42 U.S.C. § 1988. We

-64-

remand to the district court for further proceedings on attorney's

fees.

IV.

Conclusion

The decision of the district court in the Ridley case

granting judgment to the MBTA on the ground there was no viewpoint

discrimination is affirmed. The decision in Ridley, which was

entered in the district court's Change the Climate judgment, is

reversed as to the finding that the "demeaning or disparaging"

guideline is constitutionally flawed and as to the retention of

jurisdiction over this issue. Entry of declaratory judgment is

awarded to the MBTA as to the facial validity of the sets of

guidelines at issue in both Ridley and Change the Climate. The

district court's decision in Change the Climate on viewpoint

discrimination grounds is reversed with directions to enter

declaratory judgment for Change the Climate on those grounds. We

remand to the district court for entry of judgment consistent with

this opinion and for determination of the issue of attorney's fees

for Change the Climate. Since each side has prevailed on portions

of this case, no costs are awarded.

(Concurring and dissenting opinion follows.)

-65-

TORRUELLA, Circuit Judge (Concurring in part, Dissenting

in part). Since the majority agrees with me in Case No. 03-2285

("Change the Climate") that the MBTA engaged in unconstitutional

viewpoint discrimination by rejecting all three of Change the

Climate's advertisements, it is appropriate that I concur in the

outcome of that appeal. Unfortunately, I can neither join the

opinion of my learned colleagues on the remainder of its analysis,

nor join in the outcome of Case No. 03-1970 ("Ridley"). In my

view, regardless of the nature of the forum involved, the MBTA's

rejection of Ridley's third proposed advertisement was unreasonable

and constitutes viewpoint discrimination, abuses made possible by

the vague and subjective nature of the MBTA's "demean[ing] or

disparag[ing]" standard. Consequently, it is unnecessary for this

court to forge into the murky waters of forum analysis -- an issue,

it is worth noting, irrelevant to the outcome in Change the Climate

and not even raised by the plaintiff in Ridley. See AIDS Action

Comm. of Mass., Inc. v. Mass. Bay Transp. Auth., 42 F.3d 1, 12 (1st

Cir. 1994) (finding forum analysis unnecessary when restriction

violates prohibition on viewpoint discrimination, and undesirable

on a record not fully developed by plaintiff-appellant); see also

Laurence H. Tribe, American Constitutional Law § 12-24, at 988 (2d

ed. 1988) (deeming "public forum classifications . . . unnecessary

-66-

and unhelpful" in challenges to content-based restrictions).1 If,

however, the nature of the forum created by the MBTA's opening its

facilities to commercial and non-commercial advertisers must be

decided, we cannot allow ourselves to be led astray by the MBTA's

hollow protestations that it did not intend to open its facilities

to free expression. Accordingly, I would find that the MBTA has

created a public forum for the expression of ideas such as those

contained in Ridley's third advertisement.

I. Rejection of Ridley's advertisement

I need not repeat much of the background already provided

by the majority. Suffice it to say, the offending guideline allows

the MBTA to refuse any advertisement that "contains material that

demeans or disparages an individual or group of individuals." The

guideline states that the MBTA will determine whether the

advertising contains such offending language by reference to

"whether a reasonably prudent person, knowledgeable of the MBTA's

ridership and using prevailing community standards, would believe

1

Indeed, the majority's insistence on delving into forum

analysis is perplexing, given its recognition that "[p]ublic forum

analysis itself has been criticized as unhelpful in many contexts,

and particularly this one where the government is operating a

commercial enterprise earning income from advertising." Maj. op.

at 15-16 (citing Tribe, supra, at § 2-24, at 922 ("[W]hether or not

a given place is deemed a 'public forum' is ordinarily less

significant than the nature of the speech restriction--despite the

Court's rhetoric."); Frederick Schauer, Principles, Institutions,

and the First Amendment, 112 Harv. L. Rev. 84, 97 (1998) ("Of all

of the paths down which the Court might go in dealing with the

government enterprise cases, the so-called 'forum doctrine' appears

least satisfactory.")).

-67-

that the advertisement contains material that ridicules or mocks,

is abusive or hostile to, or debases the dignity or stature of, an

individual or group of individuals."

Regardless of how the MBTA's forum should be classified,

the MBTA's content-based restrictions must (1) be "reasonable in

light of the purpose served by the forum," Cornelius v. NAACP Legal

Def. & Educ. Fund, 473 U.S. 788, 806 (1985), (2) not discriminate

on the basis of viewpoint, see id. at 800 ("Access to a non-public

forum . . . can be restricted as long as the restrictions are

'reasonable and [are] not an effort to suppress expression merely

because public officials oppose the speaker's view.'" (quoting

Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 46

(1983)), and (3) not be so vague as to lead to arbitrary or

discriminatory application, see, e.g., Grayned v. City of Rockford,

408 U.S. 104, 108 (1972) ("[I]f arbitrary and discriminatory

enforcement is to be prevented, laws must provide explicit

standards for those who apply them."). See also AIDS Action, 42

F.3d at 13 ("[The MBTA] will, at the least, need to act according

to neutral standards, and it will need to apply these standards in

such a way that there is no appearance that 'the [government] is

seeking to handicap the expression of particular ideas.'" (quoting

R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 394 (1992)). The

MBTA's rejection of Ridley's proposed advertisement fails on all of

these points.

-68-

As indicated in appellant's brief, the "prevailing

community standards" language contained in the offending MBTA rule

is the MBTA's attempt to breathe validity into its regulation by

interjecting one prong of the three-prong test in Miller v.

California, 413 U.S. 15, 24 (1973), for determining whether speech

is obscene. One out of three prongs, however, is insufficient to

cure the guideline's defect. "Just because a definition including

three limitations is not vague, it does not follow that one of

those limitations, standing by itself, is not vague." Reno v.

ACLU, 521 U.S. 844, 873 (1997) (holding that the Communications

Decency Act, which used a "contemporary community standards" test

to regulate obscene speech on the Internet, offended the First

Amendment because it was unconstitutionally vague).

Indeed, the very idea that the MBTA considers that there

is such a thing as a "prevailing community standard" for demeaning

or disparaging expression is itself ridiculous. How would such a

rule be discerned? What evidence is there in the record that the

third advertisement violated this standard, other than the MBTA's

subjective and conclusory assertion that it did? To the contrary,

a religious message such as the advertisement in question does not

disparage its targets, but rather alerts them to a (perceived) fact

concerning their eternal salvation.2 This is not a case of a hate

2

In this way, Ridley's advertisement would be analogous to a

public service announcement stating: "Kids who smoke think they

look cool, but really it makes them look stupid." It would be

-69-

group defaming the followers of Judaism, Catholicism, or another

religion as having some intrinsic individual flaw. Rather,

Ridley's advertisement attempts to convert these people to her

religion. Telling people they are risking going to hell is, like

it or not, a key component of explaining why religious choices are

so important, and reasonable minds could most certainly disagree

with the conclusion that such a statement in any way demeans or

disparages the very people it aims to save. That such a statement

was considered "hostile," "mock[ing]," or "demean[ing]" highlights

the ambiguity and unreasonableness of the MBTA's guideline. The

"prevailing community standard" formulation does not rescue the

MBTA's guideline from vagueness; rather, it permits MBTA

authorities -- even if they have the best of intentions -- to make

subjective, ad hoc determinations about speech that appears

controversial because it endorses a minority viewpoint. Cf.

Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1967) (stating that

the First Amendment protects against an oppressive "pall of

orthodoxy" in schools). The guideline, therefore, is void for

vagueness.3

difficult to imagine the MBTA rejecting such an advertisement on

the basis that it ridicules or demeans adolescent smokers.

3

The majority's suggestion, Maj. op. at 59-62, that the

vagueness inquiry is not important in this case because it does not

involve a licensing scheme in a traditional public forum is

unconvincing. Even if the majority is correct that this is not a

traditional public forum in the legal sense, the MBTA transit

system serves as its functional equivalent in today's society. 2.5

-70-

The MBTA has permitted religious advertising in its

facilities, but discriminates among religious messages on the basis

of their content. The majority claims that this content

discrimination does not amount to viewpoint discrimination because

all religions "are allowed to positively promote their own

perspective and even to criticize other positions so long as they

do not use demeaning speech in their attacks." Maj. op. at 54.

This conclusion assumes that a statement like "all good Catholics

go to heaven" is sufficiently rebutted by replying "all good

Buddhists go to heaven." From this dialogue, we could draw the

heartwarming conclusion that "all good Catholics and Buddhists" go

to heaven. Good or bad, however, this is simply not the type of

message that most religions espouse. Especially for small groups

like Ridley's, an essential part of proselytizing is explaining

that in their view and the view of their prophet, "all good

Catholics, Buddhists, etc. are not going to heaven; rather, they

are going to hell." This belief is central to their message of

million people use its facilities on a daily basis, and it contains

approximately 40,000 advertising spaces. In effect, the MBTA is in

a position to control the dissemination of information to a large

segment of the public which, in a practical sense, is obliged to be

exposed to whatever advertising the MBTA chooses to permit in its

facilities. Consequently, the "danger of excessive discretion . .

. lead[ing] to viewpoint-discriminatory decisions," id. at 60, is

quite serious. Further, while the majority indicates that concern

about vagueness is at its zenith in licensing schemes for

traditional public fora, I am aware of no precedent that would

permit vagueness in regulations outside of this context, especially

when the potential ramifications of unconstitutional implementation

have a similar practical effect.

-71-

conversion. It is the clearest statement of the (eternal)

consequences for those who do not convert, and it is undoubtedly a

fact that they are hoping will propel the message's viewers to go

to their website and learn more about their beliefs.

Further, while the majority concludes that an

advertisement may criticize other religions as long as it does so

in a non-demeaning way, it is apparent from the rejection of

Ridley's third advertisement that even a text-based criticism about

religion4 will be more likely to strike MBTA authorities as

"hostile," "mocking," or "demeaning," simply because it names that

religion. Indeed, the third advertisement did not say anything

that was not implicit in the second advertisement, which declared

that there were over 1,000 (unnamed) false religions. If the

guidelines permit the second advertisement, they cannot reasonably

4

The rejected advertisement stated that "[t]here are no

scriptures in the Bible that teach that God set up the Catholic

religion, the Baptist religion, the Pentecostal religion, the

Jehovah's Witness religion or the Muslim religion. These religions

are false."

-72-

be applied to forbid the third.5 Thus, the MBTA's position is

intrinsically viewpoint oriented.

The religious nature of Ridley's advertisement increases

the MBTA's burden, for religious advertising is a "form of

religious activity [that] occupies the same high estate under the

First Amendment as do worship in the churches and preaching from

the pulpits." Murdock v. Pennsylvania, 319 U.S. 105, 109 (1943);

see also Jews for Jesus, Inc. v. Mass. Bay Transp. Auth., 984 F.2d

1319, 1324 (1st Cir. 1993) (prohibiting ban on religious

leafletting at MBTA stations). "The principle that government may

not enact laws that suppress religious belief or practice [merely

because it is unorthodox] is so well understood that few violations

are recorded in our opinions." Church of the Lukumi Babalu Aye,

Inc. v. City of Hialeah, 508 U.S. 520, 523 (1993) (striking down

attempted suppression of religious rites that included animal

sacrifices).

Simply put, the First Amendment does not recognize state

authority to regulate religious expression merely because it might

5

The majority insists that MBTA ought not be bound to permit

expressions analogous to those it mistakenly permitted in the past.

This might be so in an isolated case. However, one cannot ignore

the MBTA's haphazard and unpredictable pattern of enforcement with

regard not only to Ridley's three ads, but also to earlier ads,

such as those at issue in AIDS Action, 42 F.3d at 1. This suggests

that it was no mere oversight or misunderstanding that led to the

acceptance of Ridley's second advertisement. We must not allow the

MBTA to change its standards or its enforcement thereof every time

its application of the guidelines is challenged.

-73-

offend other persons. "It is firmly settled that . . . the public

expression of ideas may not be prohibited merely because the ideas

are themselves offensive to some of their hearers." Hustler

Magazine v. Falwell, 485 U.S. 46, 56 (1988) (quoting Street v. New

York, 394 U.S. 576, 592 (1969)). Religious speech -- especially

that of a proselytizing nature most often found in mass advertising

by religious organizations -- is intended to strike at the core of

people's strongest beliefs; in that sense, it is inevitably

"hostile" to those beliefs. Placing the government in a position

of deciding whether to allow the expression of those beliefs

depending on whether they are "hostile" or "demeaning" to the

community strikes at the heart of the First Amendment's

prohibitions against state regulation of speech. Texas v. Johnson,

491 U.S. 397, 414 (1989) ("If there is a bedrock principle

underlying the First Amendment, it is that the government may not

prohibit the expression of an idea simply because society finds the

idea itself offensive or disagreeable."). Any religious speech

will be viewed as "hostile" by at least some, if not all, of those

who do not share the belief it proclaims. See Gitlow v. New York,

268 U.S. 652, 673 (Holmes, J., dissenting) ("Every idea is an

incitement.").

Religious belief is quintessentially a matter of

viewpoint. The government cannot allow dissemination of one

viewpoint that it finds inoffensive or bland, and prohibit the

-74-

dissemination of another viewpoint that it finds offensive or

"demeaning," because the "point of all speech protection . . . is

to shield just those choices of content that in someone's eyes are

misguided, or even hurtful." Hurley v. Irish-Am. Gay, Lesbian, and

Bisexual Group, 515 U.S. 557, 574 (1995). Such distinctions are

viewpoint based, not merely reasonable content restrictions.

By its very nature, a prohibition against ads that are

"hostile" to an individual or a group of individuals is viewpoint

based. The guideline would permit ads from Catholics,

Pentecostals, Jehovah's Witnesses, Muslims and others stating their

beliefs -- their "viewpoints" -- that their religions were "set up"

by God.6 The MBTA, however, refuses to permit Ridley to state the

6

Claims of a unique holy charter and exclusive salvation are

commonplace in western religion. The examples below are not

dissimilar from the position espoused by Ridley in her third

advertisement:

The Roman Catholic Church: "This is the sole Church of

Christ, which in the Creed we profess to be one, holy, catholic and

apostolic." Catechism of the Catholic Church #811. "There is but

one holy Catholic and apostolic church, outside of which there is

no salvation . . . it is altogether necessary for salvation for

every creature to be subject to the Roman Pontiff." 1 Vatican

Council II 364-65 (Austin Flannery, O.P., ed.).

Jehovah's Witnesses: "Consider too, the fact that Jehovah's

organization alone, in all the earth, is directed by God's holy

spirit or active force." The Watchtower, July 1, 1973, at 402.

Church of Jesus Christ of Latter-day Saints (Mormon): "This

is not just another Church. This is not just one family of

Christian churches. This is the Church and the kingdom of God, the

only true Church upon the face of the earth, according to the

Lord's own words." Ezra Taft Benson, The Teaching of Ezra Taft

Benson 164-5 (1988). "Behold there are save two churches only; the

-75-

opposite viewpoint: her belief that these religions were not "set

up" by God, but are "false," and that only her belief is correct.

This is unquestionably viewpoint discrimination, as "[t]he essence

of viewpoint-based discrimination is the state's decision to pick

and choose among similarly situated speakers in order to advance or

suppress a particular ideology or outlook." Berner v. Delahanty,

129 F.3d 20, 28 (1st Cir. 1997).

The MBTA's justification for censoring Ridley's religious

expressions in the third advertisement is the suggestion that some

riders might take offense to its content. This is not a sufficient

reason to stifle speech protected by the First Amendment. See

Planned Parenthood Ass'n/Chicago Area v. Chicago Transit Auth., 767

F.2d 1225, 1230 (7th Cir. 1985) ("We question whether a regulation

of speech that has as its touchstone a government official's

subjective view that the speech is 'controversial' could ever pass

one is the Church of the Lamb of God and the other is the churches

of the devil; wherefore who so belongeth not to the church of the

lamb of god belongeth to that great church; which is the mother of

abominations; and she is the whore of all the earth". Book of

Mormon, 1 Nephi 14:10.

Islam: "If anyone desires a religion other than Islam

(submission to Allah) never will It be accepted of Him." Qur'aan,

Soorah Aal'imraan 3:85.

Indeed, the MBTA guideline would prohibit even expression of the

First Commandment, which admonishes believers: "Thou shalt have no

other gods before me." Exodus 20:3. This mandate would have to

be rejected as offensive to non-Judeo-Christians because it is

"hostile" to and "disparages" believers in deities other than the

Judeo-Christian god.

-76-

constitutional muster."); see also Penthouse Int'l, Ltd. v. Koch,

599 F. Supp. 1338, 1349-50 (S.D.N.Y. 1984) (poster cannot be

prohibited in subway stations because its content is offensive to

some). What the MBTA fails to understand is that "[z]ealots have

First Amendment rights too." Pinette v. Capitol Square Review and

Advisory Bd., 30 F.3d 675, 680 (6th Cr. 1994), aff'd on other

grounds, 515 U.S. 753, 760 (1995). I invite the majority to take

note of that principle and conclude, as I do, that the MBTA engaged

in viewpoint discrimination in refusing Ridley's third submission.

II. Forum analysis

Although I find it unnecessary and ill-advised to engage

in forum analysis in these cases, it is appropriate that I comment

on the majority's conclusions that the MBTA has not created a

designated public forum by opening its facilities to advertisers

expressing a broad range of commercial and non-commercial views.

Like the Second and Third Circuits, I find that this kind of

advertising program on public transportation facilities converts

them into a designated public forum. See N.Y. Magazine v. Metro.

Transp. Auth., 136 F.3d 123, 129-30 (2d Cir. 1998) (concluding that

advertising space on outside of city buses was a designated public

forum); Christ's Bride Ministries, Inc. v. S.E. Pa. Transp. Auth.,

148 F.3d 242, 252-55 (3d Cir. 1998) (finding that transportation

authority had created a designated public forum by accepting a

variety of advertisements, despite its rejection of a few such

-77-

advertisements based on their content), cert. denied, 525 U.S. 1068

(1999); see also AIDS Action Committee v. MBTA, 849 F. Supp. 79, 83

(D. Mass. 1994) (finding that MBTA's advertising space in subway

and trolley cars is a public forum), aff'd on other grounds, 42

F.3d 1 (1st Cir. 1994).

A designated public forum may be "created by government

designation of a place or channel of communication for use by the

public at large for assembly and speech, for use by certain

speakers, or for the discussion of certain subjects." Cornelius,

473 U.S. at 802 (citing Perry, 460 U.S. at 45, 46 n.7). Even if

the government was not obligated to open the designated public

forum or to retain its open character indefinitely, as long as the

forum is generally open "it is bound by the same standards as apply

in a traditional public forum." Perry, 460 U.S. at 46.

As discussed by the majority, the key inquiry is whether

the MBTA intended to designate its advertising space as a public

forum, a question we must answer by considering (1) the MBTA's

policy and practice regarding its advertising space, and (2) the

nature of the MBTA's advertising space and its compatibility with

expressive activity. Cornelius, 473 U.S. at 802.

A. The MBTA's Policy and Practice

For the government's policy and practice to create a

designated public forum, "the government must intend to make the

property 'generally available' to a class of speakers." Ark. Educ.

-78-

Television Comm'n v. Forbes ("AETC"), 523 U.S. 666, 678 (1998)

(quoting Widmar v. Vincent, 454 U.S. 263, 264 (1981)). Change the

Climate asserts7 that the MBTA's policy and practice have made its

advertising space generally available to commercial and non-profit

organizations for the expression of views by anyone willing to pay

its advertising fees. The MBTA does not dispute that any

commercial or non-commercial advertiser may submit advertisements

under its policy, and that it has intentionally facilitated access

for all non-profit organizations by offering them a half-price

discount on the fees charged to commercial advertisers.

As a preliminary matter, it is appropriate to state that

the fact that the MBTA has chosen to include in its guidelines an

assertion to the effect that it "intends that its facilities

constitute nonpublic forums" should not be determinative of that

issue. Otherwise, such a self-serving approach would allow the

government to simply declare property a non-public forum whenever

conflicts of this sort arose. See Int'l Soc. for Krishna

Consciousness v. Lee, 505 U.S. 672, 695 (1992) (Kennedy, J.,

concurring). Similarly, the fact that a particular category of

speech, such as that regarding tobacco sales, is excluded from a

forum does not preclude the designation of a public forum. New

York Magazine, 136 F.3d at 129-30 ("[I]t cannot be true that if the

7

I again note that Ridley has never argued forum analysis.

Such discussion is irrelevant to Ridley's viewpoint and vagueness

arguments, with which I fully agree.

-79-

government excludes any category of speech from a forum . . . that

forum becomes ipso facto a non-public forum."). Nor does the fact

that the MBTA charges a fee for the use of its advertising space

preclude the creation of a designated public forum, because

"[d]espite the existence of a fee, the [government] may

nevertheless have allowed indiscriminate use" of the forum by

"anyone willing to pay." Air Line Pilots Ass'n, Int'l v. Dep't of

Aviation of the City of Chicago, 45 F.3d 1144, 1155 (7th Cir.

1995).

Furthermore, I believe it is worthwhile to consider the

situation today within the context of the MBTA's advertising

policies in the years leading up to the events at issue in this

litigation. I begin by noting that in 1994, in AIDS Action, we

found that the advertising policy promulgated by the MBTA was

"scarcely coherent, [and] invite[d] the very discrimination that

occurred in [that] case, and was properly enjoined." 42 F.3d at

12. In the period between AIDS Action and the present litigation,

from 1995 to at least 1999, the MBTA required that:

[a]ll advertisements at any time inserted or

placed by the Contractor in or upon any

locations or display devices shall be of a

reputable character, and the appearance of all

advertisements shall be acceptable to and in

accordance with the [MBTA's] Standards for

Character and Appearance of Advertisements.

No libelous, slanderous, or obscene

advertisements, may be accepted by the

Contractor for display in or upon the

Authority's transit facilities.

Advertisements shall be submitted in advance

-80-

to the Authority for review at the Authority's

request or whenever the Contractor reasonably

believes such advertisements may be

objectionable within the meaning of this

Article.

This policy was supplemented by an April 21, 1995 letter from the

MBTA Interim General Manager, Robert Mabardy, which contained

additional guidelines:

The MBTA will refuse any advertisement that is

indecent to child viewers, or is of a nature

to frighten children, either emotionally or

physically.

. . .

These guidelines shall not be deemed to

prohibit indecent or frightening language that

could be considered double entendre, provided

that, if a child asked an adult the meaning of

such indecent or frightful language, the adult

could give a reasonable and truthful answer

without reference to indecent or frightening

activities or language.

In 1999, the MBTA formulated new bid specifications for

transit advertising, which contained a new version of the

advertising policy. The 1999 bid specifications prohibited the

display of advertisements for tobacco products and echoed the 1992

bid specifications, with the following provisions added:

The MBTA will not accept advertisements

containing violent criminal content, firearms,

profane content, promotional materials that is

harmful to juveniles, and advertisements that

denigrate groups based on gender, religion,

race, ethnic or political affiliation.

Subsequently, the MBTA went through two more revisions of

its guidelines, as described in the majority opinion. A new set of

-81-

"Interim Guidelines Regulating MBTA Advertising," promulgated on

April 12, 2002, provided that the MBTA "shall not display or

maintain any advertisement" that is:

Demeaning or disparaging. The advertisement

contains material that demeans or disparages

an individual or group of individuals on the

basis of race, color, religion, national

origin, ancestry, gender, age, disability,

ethnicity, or sexual orientation.

On January 17, 2003, the MBTA issued yet another revision of its

guidelines, removing the language concerning race, color, etc., and

adding the "prevailing community standards" metric for determining

whether material is demeaning or disparaging.

As a general rule, "the more restrictive the criteria for

admission and the more administrative control over access, the less

likely a forum will be deemed public." Hopper v. City of Pasco,

241 F.3d 1067, 1078 (9th Cir. 2001). Over the years, the MBTA's

criteria for admission have been confusing at best, and it has

always left the initial determinations of whether advertisements

may run afoul of the advertising policy to the subjective

evaluation of a private contractor. Those advertisements sent to

the MBTA for review have received a similarly subjective evaluation

from MBTA employees. Thus, the subjective standards in these

policies create a potential for abuse, specifically the potential

for viewpoint discrimination. See Hopper, 241 F.3d at 1079 ("The

potential for abuse of such unbounded discretion is heightened by

the inherently subjective nature of the standard itself.").

-82-

I emphasize that

[t]he government may not 'create' a policy to

implement its newly-discovered desire to

suppress a particular message. Neither may

the government invoke an otherwise unenforced

policy to justify that suppression.

Therefore, the government's stated policy,

without more, is not dispositive with respect

to the government's intent in a given forum.

Air Line Pilots, 45 F.3d at 1153 (citations omitted). In

determining whether the MBTA has designated its advertising space

as a public forum, then, one cannot rely on recent attempts by the

MBTA to revise its advertising policy during the course of this

litigation to indicate its prior intent on the nature of its

advertising space as a forum.

Similarly, the MBTA's written policies cannot be

considered without reference to their application in the years

preceding this action. In determining whether the government has

designated property to be a public forum, we have previously stated

that "actual practice speaks louder than words." Grace Bible

Fellowship, Inc. v. Maine Sch. Admin. Dist. No. 5, 941 F.2d 45, 47

(1st Cir. 1991). "[C]onsistency in application is the hallmark of

any policy designed to preserve the non-public status of a forum.

A policy purporting to keep a forum closed (or open to expression

only on certain subjects) is no policy at all for purposes of

public forum analysis if, in practice, it is not enforced or if

exceptions are haphazardly permitted." Hopper, 241 F.3d at 1076.

In AIDS Action, we admonished the MBTA that if it were to be

-83-

allowed to restrict speech, "it will, at the least, need to act

according to neutral standards, and it will need to apply these

standards in such a way that there is no appearance that 'the

[government] is seeking to handicap the expression of particular

ideas.'" 42 F.3d at 13 (quoting R.A.V., 505 U.S. at 394). In

practice, the MBTA has not restricted access to its advertising

space in a manner sufficient to indicate an intent to maintain it

as a non-public or limited public forum.

When we decided AIDS Action, we found that "despite the

MBTA's attempts to present itself as a vigilant gatekeeper, the

only ads other than the 1993 [AIDS awareness] ads that we know the

MBTA recently rejected are certain Calvin Klein ads which somehow

might have been misconstrued as endorsing the Ku Klux Klan, and an

animal rights advertisement featuring a photograph of a maimed

dog." Id. at 9. In reviewing the MBTA's application of its

advertising policies since AIDS Action, I find that little has

changed. During the five years preceding Change the Climate's

first interactions with PTD, between 1995 and 1999, the MBTA

refused to post only fifteen advertisements. Examples include an

advertisement for the movie Psycho, which featured an image of a

nude woman in a shower with blood at the bottom, rejected because

it was "in conflict with the MBTA's dignity in the workplace and

the Commonwealth's domestic violence programs," neither of which

criteria are set forth in the MBTA's advertising policy. Rejection

-84-

of ads also appears to have occurred on an ad hoc, subjective

basis. For example, MBTA refused to post an advertisement from the

conservation organization Surfriders, aimed at discouraging people

from leaving cigarette butts on the beach, apparently because it

included images of people smoking. The MBTA posted, however,

advertisements for Al Italia airline that featured a woman holding

a cigarette with the caption, "Create a buzz." Thus, the ad hoc

rejection of a handful of ads over the past decade cannot serve as

the basis for concluding that MBTA intended its advertising space

as a non-public forum.

B. The Nature of the Forum and Its Compatibility with Expression

It is also necessary to examine "the nature of the

property and its compatibility with expressive activity to discern

the government's intent." Cornelius, 473 U.S. at 802 (citations

omitted). This inquiry involves examining "the relationship

between the reasons for any restriction on access and the forum's

purpose." United Food and Commercial Workers Union, Local 1099 v.

Southwest Ohio Reg'l Transit Auth., 163 F.3d 341, 351 (6th Cir.

1998). The district court in Change the Climate found that "[t]he

principal purpose of the MBTA using some of this space for

advertising is to earn revenue in support of the MBTA's goal of

providing transportation." 214 F. Supp. 2d 125, 132 (D. Mass.

2002). In general, "the courts will infer an intent on the part of

the government to create a public forum where the government's

-85-

justification for the exclusion of certain expressive conduct is

unrelated to the forum's purpose, even when speakers must obtain

permission to use the forum." United Food, 163 F.3d at 351. Forum

analysis must therefore "involve a careful scrutiny of whether the

government-imposed restriction on access to public property is

truly part of 'the process of limiting a nonpublic forum to

activities compatible with the intended purpose of the property.'"

Id. at 351-52 (quoting Perry, 460 U.S. at 49). Courts will hold

"that the government did not create a public forum only when its

standards for inclusion and exclusion are clear and are designed to

prevent interference with the forum's designated purpose." Id.

The Supreme Court has indicated that "[i]n cases where

the principal function of the property would be disrupted by

expressive activity, the Court [has been] particularly reluctant to

hold that the government intended to designate a public forum."

Cornelius, 473 U.S. at 804. The MBTA can hardly argue that its

advertising space is generally incompatible with expressive

activity, or that the MBTA's principal function of providing

transportation would be disrupted by the expressive activity

proposed by Change the Climate or Ridley, since it has routinely

made its advertising space available to both commercial and public-

issue advertising on a wide range of issues without any disruption.

See, e.g., Planned Parenthood, 767 F.2d at 1232 ("[S]ince CTA

already permits its facilities to be used for public-issue and

-86-

political advertising, it cannot argue that such use is

incompatible with the primary use of the facilities."). It is

clear that the MBTA "created a forum that is suitable for the

speech in question . . . ." Christ's Bride, 148 F.3d at 252.

The majority wrongly emphasizes the MBTA's proprietary

role with regard to its advertising space. In an early case

addressing advertising on public transit systems, the Supreme Court

held that because "the city is engaged in commerce," and "[t]he car

card space, although incidental to the provision of public

transportation, is a part of the commercial venture," "a city

transit system has discretion to develop and make reasonable

choices concerning the type of advertising that may be displayed in

its vehicles." Lehman v. City of Shaker Heights, 418 U.S. 298, 303

(1974). Since Lehman, public forum analysis has developed

considerably but has continued to find that "[w]here the government

is acting as a proprietor, managing its internal operations, rather

than acting as lawmaker with the power to regulate or license, its

action will not be subjected to the heightened review to which its

actions as a lawmaker may be subject." Lee, 505 U.S. at 678. The

district court's finding that "[t]he principal purpose of the MBTA

using some of this space for advertising is to earn revenue in

support of the MBTA's goal of providing transportation," Change the

Climate, 214 F. Supp. 2d at 132, would suggest that the MBTA is

acting as a proprietor. In Lee, however, it was "the commercial

-87-

and restricted nature of an airport concourse which suggested that

the government did not intend the concourse to be primarily a forum

for expression." Christ's Bride, 148 F.3d at 250 ("We do not read

Lee . . . to mean that every time the government runs a commercial

enterprise it has, by definition, decided not to create an open

forum."). While the primary purpose of the MBTA's advertising

space may be to generate revenue, it is clear that the MBTA's

policy of allowing and, in fact, encouraging non-commercial

advertising (by offering a discount) demonstrates its judgment that

such advertising does not conflict with its proprietary interests.

Air Line Pilots, 45 F.3d at 1157 (finding no "indication that

permitting public interest groups to advertise would threaten the

vitality of the City's commercial interests in deriving revenue

from the advertising displays."). Having opened its advertising

space for non-commercial discourse, the MBTA now wishes to act as

a lawmaker, and not as a proprietor, in attempting to regulate the

content of that discourse, which indicates that it has designated

its advertising space a public forum. New York Magazine, 136 F.3d

at 129 ("Where the government acted for the purpose of benefitting

the public, . . . the Court has found a public forum.").

In some contexts, however, limiting advertising space has

been found consistent with a proprietary purpose. In Uptown Pawn

& Jewelry, Inc. v. City of Hollywood, 337 F.3d 1275, 1279 (11th

Cir. 2003), discussed by the majority, Maj. op. at 28, the Eleventh

-88-

Circuit concluded that the City's prohibition on pawn shop

advertising on park benches "evidences an intent, not to create a

public forum, but to act in a proprietary capacity to manage a

commercial venture." Id. at 1281. Here, however, there is no

evidence that posting Change the Climate's or Ridley's

advertisements would have any adverse effect on the MBTA's ability

to generate revenue through its advertising space, regardless of

whether their messages are controversial. As previously described,

the MBTA has posted a range of commercial and public-issue

advertising that would undermine any argument that advertisements

like those now proposed could be excluded in the interests of

protecting the revenue-generating capacity of its advertising

space. Here, then, "the purpose of the forum does not suggest that

it is closed, and the breadth of permitted speech points in the

opposite direction." Christ's Bride, 148 F.3d at 253.

Moreover, the Supreme Court has considered the

government's practice of excluding speech from a forum "not because

the exclusion of categories of speech creates a non-public forum,

but because the nature of the excluded categories sheds light on

whether the government was acting as a proprietor or a regulator."

New York Magazine, 136 F.3d at 130; Cornelius, 473 U.S. at 805

("The decision of the [g]overnment to limit access to the [forum]

is not dispositive in itself; instead, it is relevant for what it

suggests about the [g]overnment's intent in creating the forum.").

-89-

In Lehman, the Court found that the 26-year, consistently enforced

ban on non-commercial advertising was consistent with the

government's role as a proprietor, because "[r]evenue earned from

long-term commercial advertising could be jeopardized by a

requirement that short-term candidacy or issue-oriented

advertisements be displayed." 418 U.S. at 304. Other courts have

followed Lehman to hold that a total ban on non-commercial speech

may be consistent with the government acting in a proprietary

capacity and have found transportation advertising spaces to be

non-public fora when the government "consistently promulgates and

enforces policies restricting advertising . . . to commercial

advertising." Children of the Rosary v. City of Phoenix, 154 F.3d

982, 978 (9th Cir. 1998); Lebron v. Nat'l R.R. Passenger Corp.

(AMTRAK), 69 F.3d 650, 656 (2d Cir. 1995). When the advertising

space has been opened to non-commercial speech, however, courts

have distinguished the advertising space in question from the total

ban on non-commercial speech present in Lehman.

Disallowing political speech, and allowing

commercial speech only, indicates that making

money is the main goal. Allowing political

speech, conversely, evidences a general intent

to open a space for discourse, and a

deliberate acceptance of the possibility of

clashes of opinion and controversy that the

Court in Lehman recognized as inconsistent

with sound commercial practice.

New York Magazine, 136 F.3d at 130; Lebron v. Washington Metro.

Area Transit Auth., 749 F.2d 893, 896 (D.C. Cir. 1984)("There is no

-90-

. . . question that WMATA has converted its subway stations into

public fora by accepting . . . political advertising."). The MBTA

has no longstanding policy of prohibiting public-issue

advertisements like Change the Climate's or Ridley's. While

excluding political campaign speech from its advertising space, the

MBTA has allowed and intentionally encouraged non-commercial

advertising, including public-issue advertising regarding social

issues like drugs, crime, violence, abortion, AIDS, suicide, and

religion.

The provisions of the MBTA's Revised Interim Guidelines

under which it refused to post Change the Climate's advertisements

also indicate that it is acting as a regulator/lawmaker and not as

a proprietor. The guidelines prohibit the posting of any

advertisement that "promotes or encourages, or appears to promote

or encourage, the use or possession of unlawful or illegal goods or

services," or unlawful conduct. The MBTA has not offered any

commercial justification for its interest in prohibiting

advertisements containing such material, and we see "no commercial

reason why [the MBTA] has any special interest in [preventing

unlawful conduct]; [the MBTA's] interest is only the interest in

upholding the law because it is the law." New York Magazine, 136

F.3d at 130. This is certainly a regulatory and not a proprietary

interest.

-91-

Other courts have similarly found the advertising spaces

of various urban transportation systems to be a designated public

forum when the government has allowed "a wide variety of

commercial, public-service, public-issue, and political ads,"

Planned Parenthood, 767 F.2d at 1232, "political and other non-

commercial advertising generally," New York Magazine, 136 F.3d at

130, or "public-service, public-issue, and political advertisements

in addition to traditional commercial advertisements." United

Food, 163 F.3d at 346. In these cases, contrary to the majority's

assertions, the agency's control over public issue advertising was

not unlike that exercised by the MBTA in practice.

In Christ's Bride, the Southeastern Pennsylvania

Transportation Authority (SEPTA) was deemed a designated public

forum because, while SEPTA asserted its right to refuse advertising

deemed "objectionable for any reason," SEPTA had the "practice of

permitting virtually unlimited access to the forum." 148 F.3d at

251-52. The Third Circuit found that in practice "SEPTA has

exercised control over only three ads, two of which had graphics to

which SEPTA objected, and one of which solicited personal injury

cases that could be directed against SEPTA." Id. at 252.

In United Food, the Southwest Regional Transit Authority

(SORTA) had rejected an advertisement under a provision of its

advertising policy that prohibited "[a]dvertising of controversial

public issues that may adversely affect SORTA's ability to attract

-92-

and maintain ridership." 163 F.3d at 352. The Sixth Circuit

concluded that "the lack of definitive standards guiding the

application of SORTA's advertising policy permits SORTA, like

SEPTA, to reject a proposed advertisement deemed objectionable for

any reason." 163 F.3d at 354. Under these circumstances, the

transportation authorities' contention that the advertising at

issue was incompatible with the nature of the forum created by

their advertising spaces could not be sustained. The Sixth

Circuit's reasoning is instructive:

We also find that SORTA's stated purpose for

limiting advertising on buses only tenuously

related, at best, to the greater forum's

intended use. This is not a situation like

that in Cornelius, where the government

established a controlled solicitation process

to prevent disruption in the workplace, or

[AETC], where a public broadcasting system

logistically could not possibly accommodate

all political candidates, or even [Perry],

where a high school had a direct interest in

controlling access to its internal mail

system. Here there is no established causal

link between SORTA's goal of enhancing the

environment for its riders, enhancing SORTA's

standing in the community, and enabling SORTA

to attract and maintain its ridership, and its

broad-based discretion to exclude

advertisements that are too controversial or

not aesthetically pleasing. Although

political and public-issue speech is often

contentious, it does not follow that suc

This text is long and has been trimmed here. Open the source document for the complete record.