Ridley v. Massachusetts Bay Transportation Authority

must рrovisions Confidentiality prevent pub steps reasonable

“take identity,” minor’s learning of the

lic from Supreme “refuse[d] Court

but the validity facial on the

base a decision mere of unautho possibility on the

statute employ

rized, illegal state disclosure Ctr., 513, 110 Akron U.S. at

ees.” area left grey

S.Ct. 2972. Considerable Because we two standards.

between these entirety Act in its found the already

have grounds, howev

unconstitutional other

er, unnecessary delve further find it we confidentiality pro an evaluation

into

visions.

III. Conclusion above, we affirm

For the reasons stated declaring Act court’s order district enjoining its enforce-

unconstitutional and

ment.

Affirmed. individually RIDLEY, and on

Lischen congrega- of members of the

behalf with the Good

tion of the Church Inc.,

News; Climate, Change The

Plaintiffs, Appellants, BAY TRANSPOR-

MASSACHUSETTS AUTHORITY; and Michael

TATION capacity, Mulhern, in his official

H.

Defendants, Appellees. 03-1970, 03-2285.

Nos. Appeals, Court

United States

First Circuit. 6,May

Heard 2004.

Decided Nov. Schwarz,

Harvey A. with whom Laurie Frankl, Rodgers, Schwartz, A. Powers & Wunsch, Sarah Fdn. of ACLU Massa- brief, appellants. chusetts were on Pierce, Rudolph F. with whom A. James Aliosi, Jr., Kochansky, Peter N. and Goul- brief, ston & Storrs were on appellees. TORRUELLA, LYNCH, Before and LIPEZ, Judges. Circuit LYNCH, Judge. Circuit appeals, These two consolidated at the request parties, of all raise First Amend- challenges rejection ment to the pro- posed advertising submitted to a Boston- system, area transit the Massachu- Bay Transportation Authority setts (“MBTA”). Climate, MBTA, Change Inc. v. 03-2285, rejected

No. three designed questions raise marijuana about on ground laws the stated promote illegal the ads would use of marijuana among children. other case, 03-1970, in- Ridley v. No. MBTA rejection volves the of one advertisement religious group from a grounds on the guidelines pro- ad violated the MBTA’s hibiting advertisements which demean or disparage group individual or of individ- uals. Several First Amendment doctrines are at issue.

Change brought the Climate suit fed- May eral court on 2000. The lead rejected nar- MBTA were must be is that the ads argument forum so objective is a space designated row and cannot leave exces- un- rejection of the advertisements is officials, sive discretion state Change constitutional. Climate Finally, MBTA comply. do urges court strongly decide argues the Climate the district issue, arguing: attorney’s court in not awarding erred of the Determining the nature “forum” fees. mandatory first step at issue is a Ridley Lischen filed suit in state court deciding First Amendment case such 8, 2002, on January behalf of herself present as the one because extent “[t]he with the other members Church to which can control (“Good News”). Good News The MBTA depends access on the nature of the Ridley to federal removed the action forum.” relevant Cornelius NAACP alleged court. The suit that the Fund,

Legal and Educ. Defense reject compelling lacked reasons to the ad- 87 L.Ed.2d [105 vertisement, rejection that the of the ad- (1985). protection provid- Both 567] product vertisement was the plaintiffs for the First ed Amendment discrimination, and that the MBTA’s expression government’s ability and the guideline narrowly involved was tai- speech vary to restrict ac- plaintiffs vague cording speech forum in which lored and was too to withstand con- proposed. Perry Educ. Ass’n v. Per- scrutiny. stitutional Ass’n, 37, ry Local Educators’ Although Ridley did the fo- not discuss 948, 44-46 [103 794] L.Ed.2d brief, rum issue in her did note the brief (1983). action, A reviewing court’s first that outcome of the the forum issue therefore, to conduct a must be “deliber- Change Rid- govern the Climate would the analysis, e.g., Chicago ate v. Met- Acorn ley Ridley’s reply argued case. brief also Auth., Expo. ro. Pier & 150 F.3d public the line of express- cases and (7th Cir.1998)” and determine “the ly that challenged the MBTA’s assertion Eng. nature the forum first.” New reasonable, the restrictions were a stan- Kinton, Reg’l Carpenters v. Council of applies dard of review which if the forum (1st Cir.2002). F.3d n. 4 In argu- was a forum. public And at oral Kinton, specifically rejected this Court ment, response questions to multiple skipping as “awkward” this crucial fo- from relationship the court as the analysis step rum a first it as “because Ridley’s issue, analysis claims to the forum requires reviewing tribunal to know Ridley argued counsel for that the forum the results before knowing of a test analysis to Ridley’s test Id. was relevant claims applies.” dispositive and could be of those claims. created desig- Because Ridley For if example, argued that the forum, argues, nated “a content- MBTA a public had created forum as ar- prohibition be narrowly based must drawn Climate, gued Change the would be she interest,” a compelling to effectuate state judgment on Fur- ground. entitled to that and the MBTA has violated these stan- ther, Ridley Change counsel for both and addition, In Change dards. the Climate ap- the Climate moved the consolidate argues, no matter what the nature forum, peals grounds on the that common issues rejection the MBTA’s its ads present of fact constitutes It and law were and the same viewpoint discrimination. argues guidelines lawyers plaintiffs. that both represent also under Final Judg- and for modification of this denied all forms The district court Ridley change on June court ment on law grounded relief to some advertising pro- that the MBTA assumed change or of relevant factual circum- forum and gram non-public constituted occurring this stances after the date of rejections Ridley’s adver- held judgment. The motion be accom- must viewpoint on dis- tisements were not based precise showing panied crimination, “content but rather on valid change change of law of relevant demeaning or dis- prohibiting restriction factual circumstances. trial held

paraging content.” The court rejected Change The court also the Cli- stipu- on the that the factual record based attorney’s mate’s motion for fees. insufficiently clear for it lation was cases, opinion covering both we Ridley on grant requested the relief parties’ arguments about what address guidelines viewpoint were dis- whether type of “forum” MBTA face or whether criminatory their We hold program constitutes. first gave MBTA adminis- vague were too a public did create forum. Nonetheless, much discretion. trators too Second, we address whether the MBTA’s guideline Ridley the court revisited the guidelines and its pertinent decisions Change question when it issued reject parties’ advertising are unlaw- both opinion. Climate viewpoint ful as a form discrimination August the district court also Oh unreasonable use the forum. We Change for the MBTA in the Cli- found on their guidelines hold that face mate, avoiding the forum issue. again reasonable, neutral However, with the law on non- consistent reject Ridley was the decision to ad fora, court reviewed viewpoint discriminatory nor un- neither its decision re- However, we reasonable. hold ject ads under a reasonableness test. these rejection of the three the Climate of the The court found each three viewpoint ads constituted discrimination misleading mes- provided Finally, and we consid- was unreasonable. marijuana, sages legality about the and at challenge guidelines er targeted that two of the ads minors. As vague delegate issue in both cases are such, held, rejection the court the MBTA’s to the MBTA’s em- too much discretion of the ads was reasonable and not view- pertinent hold that ployees. We point discriminatory. The district court facially guidelines unconstitutional. guideline MBTA pro- also found hibiting promote illegal materials which discriminatory

activity I. was Nonetheless, in on its face. Facts said that opinion, Climate court also case, disputed in There are no facts Ridley guideline prohibiting demean- to to only disputes as what conclusions are ing disparaging material was “some- only from those facts. Although be drawn vague” what on its face “still leaves arbitrary present advertising policy MBTA much room for decisions.” too result, issue, history judgment, the district recount the of deal- As we parties, pertinent court ordered: which is ing between the public forum claim and to other both to the jurisdiction to The court retains consider facts dis- claims. Some are reserved for supported motion for modifica- well party. guidelines particular cussion as to the tion the MBTA’s amended beneficial services to the provide the MBTA as to A. Facts (iii) Authority to in the be otherwise or- quasi-governmental is a MBTA The re- Only interest.” if there then public provide to purpose whose ganization advertising space does the mains unsold in the Common- transportation MBTA, choice, a third sell advertise- Mass. Gen. of Massachusetts. wealth nonprofit, a reduced tax- ments at rate to 161A, § provides MBTA Laws ch. The exempt public governmental charities or 1.2 dai- to million customers transportation fill the The agencies remaining space. million in the Greater ly people and to 2.5 the full charges fee of 50% of MBTA riders, many For Boston area. non- rate to those commercial available. only transportation option is the organizations. The advertisements profit operates approximately The MBTA fall into this last at issue both cases here routes, lines, subway a 13-branch four bus advertisements, All whatever category. network, ferry rail and six ser- commuter subject guidelines. type, are partnered The vice routes. MBTA pro- Department Boston School with the recognizes The MBTA that its two stat- 60,000 transportation up Boston vide directives, utory maximizing fare revenue annually. The school students ridership maximizing non-trans- 15,000to approximately MBTA distributed revenue, portation can at times be odds. students, 20,000 vast passes to Boston years, In numerous over the instances school. majority high of whom were complaints has received significant MBTA purpose MBTA ad- principal The particular from its customers adver- about and max- vertising program generate was management tisements. MBTA statutory revenue. The MBTA has imize complaints threaten concerned such would increase both to “maximize and directives ridership and fare those revenue. Often as well ridership,” fare revenue and total placed by MBTA’s adver- ads had been policies implement as to “establish and tising seeking prior contractor without of non- provide for the maximization approval. then re- The MBTA from all sources.” transportation revenues advertisements; usually viewed the 161A, § 11. The ch. Mass. Gen. Laws had contractor violated the advertising program this sec- effectuates accepting the The MBTA advertisements. 40,000 purpose. ond MBTA has about has, accordingly, from of its inception “car advertising spaces, including interior advertising program adopted both trains, buses, in and trol- displays card” procedural and de- guidelines, substantive leys, king and exterior dis- tail-light size below, to limit of adver- types scribed the buses, platform on and plays station Indeed, in it would at- accept. tisements displays. tempting ridership, to increase the MBTA Courtesy program initiated a Counts private advertising a contrac-

Through says: distributes brochure that “We’re (“Via- tor, Outdoor of Braintree Viacom courtesy.” committed to com”), all of its attempts the MBTA to sell advertising space at commercial the usual B. Facts as to Advertisements space If sold at those

rates. all is not Plaintiffs’ rates, may, that it policy is first Change 1. the Climate itself, to advertise- “display without cost (i) Climate, calculated Change not-for-profit ments or announcements revenue, travel, good- provocative advertising conducts group, increase its (ii) compensation companies campaigns generate will or in order to debate use of criminalizing about the laws as such were in conflict with the MBTA’s marijuana. It has conducted such adver- policies on drugs and alcohol. She at- D.C., tising campaigns Washington, in in rejection tached to her letter MBTA’s using advertising on transit part the Metro workplace use, rules on drug alcohol system. It to do sought the same in Bos- advertising guidelines, prohibi- ton, starting in three submitting tion on advertising products. tobacco It designed to catch people’s appears “policies” MBTA’s on drugs to attention and make them rethink the wis- which she referred internal were of the drug dom laws. workplace rules. no There were advertis- ing guidelines dealing specifically with (the advertisement, The first “Teen marijuana or drugs. other The MBTA Ad”), is a photograph teenage color of a reject continued the ads for different backwards, girl cap with a on baseball times, stated reasons at later as discussed caption cool, saying: “Smoking pot is not sum, below. the MBTA’s 2003 revised ya Marijuana we’re stupid, but know. guidelines prohibit advertisements which is NOT heroin. cocaine or Tell us the promote goods the use of illegal ...” services Change sought truth the Climate or unlawful conduct. The MBTA has this stat- place poster advertisement on cards promoted each of ed that the ads illegal on the inside of buses. marijuana by juveniles. use of (the advertisement, The second “Mother Ad”), contains a of an picture adult female Ridley board, writing saying:

who is on white got “I’ve great three kids. I them love Good News has in past advertised anything. more than I don’t want them to radio, Pages, Yellow jail pot. smoke But I know more is a lot newspaper, and via posted messages on dangerous smoking pot.” Change than vehicles, including a motor home. sought place Climate this advertise- Ridley On November submit- subway ment in MBTA stations. ted first of what would three adver- (the advertisement, The third “Police tisements to the advertising rep- Ad”), photograph color police- two resentative, copy Viacom. The read: standing flag, men in front of an American Christians the Bible never observed impor- with text “Police stating: are too “Christmas” neither did believe in ... ... ... good tant too valuable too Claus, flying lies about Santa reindeer marijuana on arresting people waste elves and drunken parties. How can real when criminals on the loose.” you prophet-an- honor Jesus with lies? sought the Climate to run ad dre.com buses, on the exterior of as it had done Washington, sys- earlier D.C. transit initially running Viacom balked at the ad- All

tem. three advertisemеnts con- also vertisement, it afoul saying fell address, the www.change- tain web site (since then-guideline replaced) MBTA’s theclimate.org. permitting any it to exclude “advertise- viewers, to director, The ment that indecent as child marketing Lucy Shorter, children, rejected or a nature frighten the ads in is of ei- January 2000. (1) emotionally physically.” The reasons were that ther or After a stated the three (2) promote marijuana, delay Ridley’s ads two after the use weeks and really MBTA, the three attorneys ads were “reform” ads as the the ACLU contacted part legalize of an effort marijuana and MBTA the decided allow advertisement The 15, 2001, Demeaning disparaging. or adver- four week

on December that demeans was dis- tisement contains material The advertisement contract. group and Downtown or disparages the Park Street individual played at race, color, stations, major the two sta- individuals on basis of Crossing MBTA ancestry, religion, origin, gen- national tions. der, age, disability, ethnicity, or sexual 2001, 26, Ridley asked On December orientation. of the adver- change the content MBTA to in the MBTA posted that was tisement guidelines also reflected The revised 2002 two weeks of her exist- system for the last an MBTA internal the results of debate copy The stated: ing contract. new MBTA look at the over when the would 12:9 says in Rev “And Satan The Bible in an advertise- contents a website listed Yes, whole world.” which deceiveth the The had list- ment. MBTA considered the false reli- up set over thousand Satan initially rejecting Ridley’s ed website when wars, causing racism gions the world the 2002 second advertisement. Under only and hatred the world. There of a referenced guidelines, contents are false. religion. one All rest true only website would be considered com www.prophet-andre. judged guidelines when “the under advertisement, rejected MBTA message sponsorship of the advertise- own finding that the advertisement’s both reasonably ment cannot be determined that guideline text conflicted with to that website. The without reference” which, upon a website text referenced a more guidelines compre- formalized examination, that violated contained text four procedure hensive differ- review guideline.1 then-extant same Viacom, layers scrutiny (by ent ac- guideline read: “The MBTA will Administrator, MBTA Contract denigrate ... cept Counsel, and MBTA General General race, groups religion, on gender, based any Manager) advertisement could before display political affiliation ethnic or rejected on guidelines. based facilities.” Authority’s transit upon Ridley April told on The MBTA injunction Ridley sought preliminary guidelines, these under new post the second force thе MBTA accept would her second advertisement. denied advertisement. The district court stance, change Based on this this court 28,'2002, and Rid- request January on July Ridley’s appeal dismissed as moot on ley interlocutory appeal with this filed an 26, 2002. below, appeal court. As recounted time, By Ridley longer no wanted was mooted. her On post second advertisement. June promulgated new set The MBTA she submitted a third advertise- Ad- Regulating “Interim Guidelines MBTA, ment to the one now issue. vertising” April 2002. One of The ad stated: provided that the MBTA only there is one display “shall or maintain adver- The Bible teaches that religion. scriptures that is: There are no in the tisement” read, part, 1. The website PENTECOSTALS religion [sic] are some of the false JEHOVAH WITNESSES These up: Satan set MUSLIMS CATHOLICS JEWISH SO-CALLED BAPTISTS up products depiction teach that set or containing Bible that God ads violence, religion, firearms or Baptist religion, graphic Catholic or ads that promote illegal goods use of religion, the Pentecostal the Jehovah’s or services or unlawful religion guidelines pro- conduct. The also religion. Witness or the Muslim containing hibit ads religions profanity, obscene or These are false. The Bible sexually prurient material or 9:12, Satan, images nude says in Revelation “And (as law), those terms defined in state which deceiveth the whole world.” The misleading false or speech, commercial li- if going whole world is to hell do speech, belous or copyright infringing ungodly ways. not turn from their God speech. guidelines prohibit further sent this Prophet Andre into world to Truth, “political campaign speech,” defined as: people teach www.pro- (1) “speech that specific refers to a ballot phetandre.com. initiative, question, petition, or referen- rejected The MBTA third this advertise- (2) dum, any or refers to candidate for 14, 2002, writing ment in on August after Finally, guidelines office.” the 2003 procedure, full review on the basis that contains, prohibit advertisement or disparaged the ad demeaned list of implies, or an declares endorsement specific religions violation of the 2002 MBTA or the state. guideline. 17, 2003, January On MBTA issued II. guidelines.2 a revised third set of Under engage We de novo review of guidelines, the 2003 the MBTA “shall not ultimate conclusions of law mixed display” advertisements that are: questions of law and fact in First Amend Demeaning or The adver- disparaging. Hurley ment cases. v. Irish-American tisement contains material that demeans Gay, Group Lesbian and Bisexual Bos an or disparages group individual ton, 557, 567, 515 U.S. 115 S.Ct. For purposes individuals. determin- (1995); L.Ed.2d 487 Bose Corp. Con an ing whether advertisement contains U.S., Inc., sumers Union material, such the MBTA will determine (1984). 80 L.Ed.2d 502 reasonably prudent person, whether a Change argues the Climate knowlеdgeable of the ridership a designated public has created community and using prevailing stan- reject any forum and thus its decision dards, would believe that the advertise- scrutiny meet strict stan- must ment contains material that ridicules or analysis dards. Public itself has mocks, to, or is abusive or hostile debas- many con- unhelpful been criticized of, es the dignity stature individual texts, particularly where the one or group of individuals. operating a commercial en- The MBTA third concluded that the adver- terprise income earning permitting from comply tisement did with the 2003 See, Tribe, advertising. e.g., H. Laurence guidelines. 12-24, § American Constitutional Laio (2d (“[Wlhether 1988) guidelines explicitly The 2003 or not a articulated ed. prohibitions other as well: the MBTA forum’ given place ‘public will is deemed accept significant ordinarily tobacco less than the nature MBTA, Those were the order result work Climate v. advisory (D.Mass.2002). of an board constituted F.Supp.2d 125 interlocutory after the district court issued its 76 range the a advertisements on its vehicles despite speech restriction — ‍‌​​​​‌‌‌‌‌‌‌​​​​‌‌​​​​‌‌‌‌​​​​​​‌‌‌‌​​‌‌​​‌​‌​​‌‍Schauer, rhetoric.”); says Frederick in its it has and stations. The MBTA

Court’s Institutions, and First Principles, has, all. it public not a forum at If created Amendment, 84, 97 112 Harv. L.Rev. that it is at most a the MBTA insists (“Of (1998) down which the paths all of the forum,4 public equiva- limited is the dealing govern- with the go might Court forum, a that non-public lent of and cases, ‘forum the so-called enterprise ment rejection the advertisements is within satisfactory.”). appears least doctrine’ fo- appropriate non-public to a limits heavily on Change the Climate relies rum. and that argument requests public forum the issue be decided. Analysis A. Forum Supreme Court has discussed The Supreme has re Court public traditional types different fora: peatedly government held must fora, fora, public non-public designated pub have intent create Gunther, in Gerald fora. See discussion affirmative designated public lic forum in order for a (12th 1292-94 Constitutional Law forum to “The does not government arise. Tribe, 12-24, § ed.1991); at 986-97. supra, a public create forum inaction or argues that the stan- the Climate discourse, only by permitting in a limited but speech for restrictions dard review scrutiny. designated public intentionally opening is strict a nontraditional fo forum non-public Cornelius, forum Ridley admits that a public rum for discourse.” 473 forum) (sometimes public called a limited 802, To 105 S.Ct. 3439. determine a lesser usually application results intent, ex courts must consider both ar- accept We “reasonableness” standard. expressions intent and “the plicit about 3 that strict guendo premises these scruti- government policy practice of the ny applies public to a forum’s exclusion it to designate ascertain whеther intended speech. place traditionally open assembly not public and debate as a forum.” Id. We argue that while the MBTA’s

Plaintiffs also property “examine[ ] nature not a traditional advertising program is compatibility expressive and its activi forum, effectively has public ty government’s to discern the intent.” forum for the designated public created a nature accepted property, Id. As expression of ideas because designa phrase assumption, public 4. Contrary Ridley's "limited forum” has been ways. phrase always used in different We used the type tion of the of forum does public synonym "limited as for forum” example, dictate the standard of review. For "designated public v. Dela forum” Berner always scrutiny may apply to a strict 20, (1st Cir.1997), hanty, 129 F.3d public See Denver Area Educ. Tele forum. again England Reg’l New Council Car FCC, 727, 741- comm. Consortium v. Kinton, (1st penters v. F.3d Cir. (1996) 135 L.Ed.2d 888 hand, 2002). we On other used the an over First Amendment embodies C‘[T]he phrase synonym "limited forum” arching protect speech from commitment to Cmty. "nonpublic Fund forum” in government regulation through judicial close Kane, (1st Progress v. Cir. F.2d thereby enforcing scrutiny, the Constitution's 1991). is echoed elsewhere. This confusion constraints, imposing judicial for but without See, e.g., Magazine v. New York Metro. Trans straitjacket rigid mulas so become Auth., (2d portation 136 F.3d & n. responding from disables 1998). adopt usage equating Cir. We lim problems.”). to serious non-public ited forum with further. do not discuss issue

77 regardless MBTA run advertisements and so found unconstitutional does nothing property type there is inherent in of forum created. some precludes expres- its use for plaintiffs’ argument The assumes that activity. sive That leaves the nonetheless January before the MBTA had creat- expressive particular issue of whether ac- a designated public ed That forum. tivity may be inconsistent with the nature unlikely: consistently the MBTA has had property. The MBTA deter- significant both substantive content limita- types mined that of expressive some activi- tions procedural on the ad- limitations ty are not consistent with the commercial vertisements it would accept, and there is runs. enterprise it affirmatively little evidence the MBTA in- advertising guidelines, the 2003 public so, tended to a create forum. Even expressly MBTA states that MBTA “[t]he public has not created a forum its constitute intends facilities non- advertising program under 2003 public subject to forums are the view- guidelines, which are at issue here. point-neutral forth restrictions set below.” Since the MBTA has had substan Nonetheless, a intent statement of contra- ads, guidelines tive all prohibiting tobacco by policy prac- dicted consistent actual libelous, slanderous, and all or obscene not be enough supрort tice would to Procedurally, ads. it required all advertis argument. ers to application submit an to the MBTA’s argues the Climate that we contractor, which had instruc give weight express should little to to any potentially tions send ads conflict statement of intent: it heed paying would guidelines with the to the MBTA re government allow a opportunity imper view, right and the MBTA reserved to missibly merely newly censor to label reject any ad it wished. In AIDS Action ing the question non-public forum MBTA, Comm. Massachusetts v. past forum. history The of characteriza (1st Cir.1994), F.3d this court noted relevant; may tion of a forum well be but early guidelines that these lot to left a be mean present does not characteriza desired. tion forum may disregarded. about a In 1995 prohibited further change is free to the na to, designed ads which were indecent to any ture of nontraditional as it frighten, child viewers. Then in Cornelius, wishes. which, guidelines MBTA created new Thus, previ S.Ct. 3439. even if MBTA’s addition, containing prohibited ads de- designated ous intent was to maintain a conduct, pictions of violent criminal fire- forum, it would be free decide in children, arms, ads harmful profanity,

good close the forum at time. faith denigrate and ads that based on groups changes There is no evidence that the 2003 race, gender, ethnic, political religion, adopted pretext reject were as mere prohibitions affiliation. These plaintiffs advertisements. To the con indicia of an intent create a fo- trary, response the MBTA acted in rum. expressed constitutional concerns about its prior guidelines, intensify and cannot be faulted for The January guidelines trying closely to adhere more to the both limita- procedural consti the substantive and tutional line. And if the MBTA. protections MBTA revised tions and used guideline merely impermissi January ruse for define better discrimination, ble would be substantive limitations and further ban Kinton, v. promote Reg’l Carpenters or the Council promote appear ads that of (1st Cir.2002) (no 9, 22 F.3d goods or services the use of unlawful designated intent to create a forum exists conduct, as well as commission of unlawful [government’s] policy if of restricted “even Procedurally, the political campaign ads. enforced”). erratically By consis- access stringent also create more ads as in of tently limiting it saw violation potential- MBTA review of mechanisms for if the policy, doing imperfectly, its so even of limi- ly prohibited litany ads. Given its a MBTA evidenced intent not to create incep- from the tations on advertisements designated public forum. strengthening program, tion its and of 2003, the MBTA those limitations importantly, Supreme Most the relevant has, 2003, through its policy at least compels cаse Court law conclusion open expressed an intent not adver- designated not the MBTA has created a persons organiza- all tising space only The public Supreme forum. Court public opinion of their directly point, plurality tions for dissemination on case City Heights, all limitation. topics views on without Lehman Shaker 298, 41 L.Ed.2d 770 enforcing practice of The MBTA’s (1974), a all city found where banned further that it intended not to policy shows issues) (i.e., “political” candidate and ad- years such a forum. In the five create vertising system, on ac- its transit while litigations, preceding these the MBTA re- religious, well cepting commercial as as jected at least seventeen advertisements civic, public-service oriented advertise- not in conformance with differ- that were ments, city had not a designat- created policy. aspects ent of its Various adver- ed forum. Id. at 94 S.Ct. 2714. rejected violating, tisements were much opinion found that “[i]n prohibitions other on among grounds, way newspaper periodical, same that a violence, indecency, profani- ads depicting station, or even a radio or need television women, ty, denigration of for contain- accept every proffer ing products. tobacco general public, city sys- from the transit points Change Climate one develop tem has discretion to and make contradictory example seemingly of a en concerning type reasonable choices respect with to ads policy forcement advertising that in its may displayed containing in an attempt argue tobacco vehicles.” 94 S.Ct. 2714. Leh- Id. erratically that the MBTA has indistinguishable enforced its man is from the instant Lehman, policy.5 written One or more instances As in case. bans policy political overtly politi- erratic enforcement of a does not candidate and some here, government’s advertising. sys- itself defeat the intent not to cal As the transit England merely accept tem in did not ads create forum. See New Lehman organizations 5. one who the Climate introduced evidence of those believe display ad you that the MBTArefused to an from shouldn’t smoke! What we care about is organization called the Surfrider Founda- you your cigarette.” dispose of The ad how tion, encourage group goal whose is to ef- then has information about the harmful butts, responsible disposal cigarette on beaches, cigarettes tips fects of and has basis of the MBTA’s ban on advertisements butts, disposal cigarette responsible How- products for tobacco because it included a ever the MBTA allowed an ad for airline picture рeople smoking. The ad contained Italia, picture contained a of a wom- A1 which pictures couple, during of one three motorcycle cigarette with a one an on smoking, talking, disposing and then hand, caption: "Let’s create buzz.” cigarettes. begins: ad their "We’re entities, using accepted from commercial but also such facilities. Id. at “churches, public- ads from and civic and groups.” service Id. oriented distinguishable Widmar from this Lehman, claimant, S.Ct. 2714. First, for multiple case reasons. the pur here, was denied access to both exterior pose of the forum created in Widmar was advertising space. interior Id. at 320 expressive to encourage by activities stu 12, (Brennan, J., n. 2714 94 dissent- S.Ct. 265, 102 dent groups. Id. S.Ct. To ing). system, The transit is true of the implement purpose, campus the facili here, had written which generally ties were made available to all entity,

were managed party third restriction, groups, student without and so which some of involved exercise discretion. the groups subsidy received a form of from 298-300, Id. at 94 S.Ct. 2714. Widmar, government. Id. Unlike primary of purpose advertising government Lehman’s rationale that a program expression; is not to facilitate instrumentality public does not become a Further, rather it generate is to revenue. forum simply because it is used for com upon restrictions of the MBTA use munication ideas been of has since rein advertising, including the requirement Supreme forced later Court cases. See an application, payment, and the MBTA’s Perry Ass’n v. Perry Educ. Local Edu limitation, policy great extensive far Ass’n, 9, 37, cators’ 460 U.S. 49 n. 103 er than in Widmar. 948, (1983); S.Ct. 74 L.Ed.2d 794 United Widmar, States Postal Service v. Council Green Since analogous we know of no Ass’ns, 114, burgh 129, Civic 453 101 U.S. Supreme Court case the forum applying 2676, (1981). S.Ct. L.Ed.2d 517 69 Leh analysis which has found the govern- favorably City man was v. cited R.A.V. designated public ment had created a fo- Paul, Minnesota, 377, St. 505 See, U.S. 390 e.g., rum. Arkansas Educ. Television 6, 2538, n. Forbes, 112 120 L.Ed.2d 666, S.Ct. 305 Com’n v. 523 U.S. 118 S.Ct. (1992); Kokinda, States v. 497 1633, United (1998); 140 L.Ed.2d 875 Rosenberger 720, 725-26, 3115, U.S. 110 S.Ct. 111 v. Rector and Visitors the Univ. (1990) opinion). L.Ed.2d 571 (plurality In 819, 2510, Virginia, 515 U.S. 115 S.Ct. 132 deed, in International Soc’y (1995), Krishna Chapel L.Ed.2d 700 Lamb’s v. Ctr. Consciousness, Lee, 672, Inc. Dist., v. 505 U.S. Moriches Free Union Sch. 2701, (1992), 112 120 S.Ct. L.Ed.2d 541 384, 2141, 124 113 S.Ct. L.Ed.2d 352 court, Lehman, citing (1993); Cornelius, 788, reiterated that a 473 105 U.S. S.Ct. lower scrutiny usually applies level of 3439, 567; Perry L.Ed.2d Education government proprietor. when the Ass’n, 37, acts as U.S. 678, 112

Id. at S.Ct. 2701. 794; Legal Corp. L.Ed.2d Services cf. Velazquez, 531 U.S. 121 S.Ct. only Supreme Court case which (2001). L.Ed.2d 63 each of these Vincent, plaintiff points Widmar v. cases, challenged the Court assessed the 70 L.Ed.2d 440 government only restrictions under (1981). Widmar held that a state where reasonableness/viewpoint neutrality test. university policy opening had its cam- pus Further, registered recognized facilities for all Court student has groups, designated public government it had created a deference to in deter- intent forum groups mining may for such and thus pro- violated the nature the forum mote, hinder, attempted First Amendment when it rather than First Amend- prevent religious group principles: student from ment open small number non-commercial encourage

[W]e activity advertisements, excluding political expressive to some service property where, religious advertising. with all-or- Id. The case did if faced cases issue, choice, not, might open though, address further nothing do, system of a all. That this distinction which we transit property at apparently more accepts intent does what is non-com- governmental turns on speech. advertising. Rath- unprotective of mercial render it that, er, reality it reflects Likewise, circuit, relying on Leh- one fora, exception of traditional man, recently held the choice of wheth- government retains non-public was a space bus benches property as a designate er Jewelry, Inc. Uptown forum. Pawn specified speakers. classes City F.3d 1278- Hollywood, v. Comm’n, (11th Cir.2003). city had Although Arkansas Educ. Television 680, 118 at 1633. accepted pawnbro- ads from previously kers, a adopted policy prohibiting new the question This court addressed a those ads. The court found this was rejection of advertisements restriction, permissible content-based Action, 1. a in 42 F.3d ago decade AIDS seeking encourage higher adver- to caliber Although the district court had concluded tising to maximize revenue. forum, this public a MBTA was at 9. the issue. Id. court declined reach Supreme opinions Court control Nonetheless, Instead held that the MBTA had en- we briefly case. discuss cir- we gaged in dissimilar treatment advertise- opinions cuit on which the Climate innu- containing sexual content and ments we suggesting agree relies. Without endo, by explicit movie allowing a rather each, reasoning distinguish- each rejecting advertise- cases, advertisement while able on its facts. In each these from an anti- featuring ments condoms here, system accepted explicitly unlike group. (but AIDS Id. at 10-11. That amount- advertising, important not political an type ed to the of content discrimination analysis. dispositive) factor forum “gave appearance rise to an of view- Ministries, In Christ’s Bride Inc. v. point which had not been discrimination” Pennsylvania Transp. Southeastern de- adequately explained. Id. 11. The Auth., (3d Cir.1998), F.3d a transit does cision in AIDS Action not assist advertising system’s space was held that the plaintiffs on the claim sys designated public forum where the created a forum. had use its program tem an affirmative Rosary City space promote of social is Children “awareness Phoenix, (9th Cir.1998), catalyst change.” then- provide 154 F.3d 972 sues” and “a similarly program, Id. at 249-52. retired Associate Justice White Under system advertising manager picked pub found transit did issues of that the Phoenix designated public advertising. lic concern for free Id. at 249. create forum Further, plaintiffs exterior on advertisements had accepting advertising panels on MBTA, run, and approved at 976. Like the in fact been and had buses. Id. only system accept advertising sparked from were refused after had did had system primarily controversy. Id. 245-46. SEPTA political candidates. advertising, guidelines6 run a no similar to ran commercial but did those 1) only ads other Its were instruction contractor concentrate restrictions altogether. also of “vir- practice MBTA. SEPTA had non-commercial access,” tually permitting having unlimited argument This suffers from several flaws. requested law, Lehman, modifications of advertisements As a matter of under only times. Id. at 252. three dividing line forum between and a non-public dividing forum is not the line

Similarly,7 Planned Parenthood between commercial advertisements and Chicago Area v. Ass’n/Chicago Transit paid non-profit from (7th Auth., Cir.1985), 767 F.2d 1225 groups. under Educ. And Arkansas Tele a public court found the CTA had created Comm’n, vision the MBTA not to be put range it had a wide accepted where “all-or-nothing to an choice.” 523 U.S. at public-issue advertising, claimed to have 680, 118 S.Ct. 1633. a policy excluding controversial adver- tisements, such policy, but fact had no Also, fact, as a matter of General Man- guidelines, had no had accepted written ager Robert Mulhern testified he re- advertisements, controversial was jected a potential removing solution of all up policy found to have come with such a advertising, non-commercial because: solely reject plain- to defend its decision to I people believe that there’s lot of out advertising. tiffs Id. at 1232-33. rely information, there on who that that Magazine In New York v. Metro. only ‍‌​​​​‌‌‌‌‌‌‌​​​​‌‌​​​​‌‌‌‌​​​​​​‌‌‌‌​​‌‌​​‌​‌​​‌‍prac- some times that —that’s the (2d Auth., Cir.1998), Transp. 136 F.3d 123 tical to government access have the court that the held MTA had created a from people time to time. For who live in public forum space out- city in the inner that are made aware of accepted maga- side of its buses when it a important programs important social Mayor’s zine’s advertisements using services, truly believe] that we are [I guidelines name written which im- under public in performing a service another posed no on political speech, restriction than transportation flavor rather ser- then removed advertisements when vice. letting We’re them know about Mayor objected. Id. at 130. government services or social services or might not-for-profit services that have a Change the additional ar Climate’s direct on impact quality their life. guments equally on the forum issue unpersuasive. argues By It refusing advertising pro- that the MBTA to limit the gram solely advertising, made an “affirmative” decision continue to commercial thus, was, evidencing advertising, allow non-commercial de an intent spite that being potential disputes open public advised the forum to all discourse. pro- could be avoided Nor was its own simply eliminating adopting tobacco; 2) large part, than that it was too Id. at alcohol reserved it controversial. a veto to itself final without as to accepted public-service, public 347. SORTA veto; 3) when it exercise that issue, would it political, and commercial advertise- manager accept- contract from restricted the ments, excluding subject policy ato advertis- slanderous, "libelous, ing or obscene” adver- ing political enough on issues controversial (which tisements was not the basis for the ridership. they might adversely affect Id. advertisement). rejection plaintiffs Id. at gave holdings— at 359. The court alternative 250-51. created, public that if no forum was the re- unreasonable, that SORTA striction was but In United Food & Commercial Workers Un- designated public had created a ion, Reg’l v. Local 1099 Southwest Ohio Tran- accepting virtually advertising. unlimited Id. Auth., (6th Cir.1998), sit F.3d 341 163 at 363. system rejected proposed transit a union’s because, wrap-around bus advertisement in 82 issues, Rosenberger

gram public speech expresses. inform the about See v. Bride, Va., in 242. The 148 F.3d Rector and Univ. 515 Christ’s Visitors of a 819, 829, is not inconsistent with MBTA’s decision 115 132 U.S. S.Ct. L.Ed.2d forum, nor is public (1995); not to create Reilly, desire v. McGuire F.3d Cir.2004) (“The (1st it MBTA’s role as inconsistent with the of a essence actor. market viewpoint discrimination claim is that the preferred government message has that, argue be Finally, plaintiffs another.”). speaker one over A distinction litigation the MBTA did prior to this cause viewpoint based if it “denies access to a “in a limit constitution solely to speaker suppress point manner,” the court should ally permissible Cornelius, he espouses.” view designated public find that created 806, 105 S.Ct. 3439. essence view reasoning fundamentally This mis forum. point govern is not that the discrimination anal nature of the forum understands the incidentally prevents ment certain view ysis. govern on focus is whether points being from heard course intentionally ment has decided to create suppressing general topics certain Cornelius, forum. U.S. rather, it speech, governmental is a intent not, If it then erratic 105 S.Ct. 3439. has way prefers intervene one policy of a would not matter. enforcement particular viewpoint speech over other Further, limit even if the had See, perspectives topic. e.g., the same impermissible constitutionally ed “in a ads Sch., Good News Club Cent. by engaging manner” discrim Milford 107-09, ination, create a would not (school opened L.Ed.2d 151 none intended. The forum where was teaching resources after school for the policy clearly an intent evidenced religious moral values cannot exclude forum, to maintain control the over group that wishes to teach about those a designat the MBTA did not create thus values a religious perspective from without result, ed As a the public forum. standard discrimination); viewpoint engaging Ro scrutiny. of review is not strict senberger, 515 U.S. 115 S.Ct. Viewpoint B. Discrimination and Un- 700; Chapel 132 L.Ed.2d Lamb’s Ctr.

reasonableness in Both Claims Dist., Free Moriches Union Sch. Change Ridley the Climate and 2141, 124 L.Ed.2d (1993); McGuire, 57-59, F.3d at 64-65 Athough (fact applying that “buffer zone” statute fo program is neither traditional might incidentally around clinics abortion forum, regula rum a designated nor speech burden anti-abortion more than tions are still unconstitutional under the pro-abortion speech is irrelevant to its if Amendment the distinctions drawn First viewpoint neutrality). they are viewpoint based or if are unrea light purposes sonable of the served Change Viewpoint the Climate: Dis- Cornelius, the forum. 473 U.S. at crimination and Unreasonableness S.Ct. 3439. rejected were de- principle The bedrock of view scribed earlier. facts fol- Other material point the neutrality that state not demands low. speech real suppress where the rationale Prince, for the the disagreement restriction Robert who was the General underlying Manager the MBTA at time ideology perspective that rejected by promoted marijuana Short- lines. The Teen Ad the Climate’s ads were er, use, thought, by implying testified that he had not seen he that while cocaine rejected all really he have and heroin were harmful but mari- ads would they encouraged juana that was not. grounds three on the use He held these worries marijuana among juveniles, thus although explicitly use ad states that “[s]moking Further, juveniles pot harmful to and in violation is not were cool.” he policy. then-existing targeted He found was concerned that the ad was “geared young juveniles, Ad based on picture Teen to be towards the teen- telling marijuana age girl that is not and the fact people, language them that know”) heroin, (“cool,” “ya two cocaine or so it’s the lesser of written in terms evils, juveniles it.” Prince okay generally but it’s smoke would use. sending message not view the did ad Mulhern testified that the Mother Ad juveniles truth should be told the use, marijuana promoted also while drugs. about Ad, as clear” was “not as thе Teen part Mother Ad could also thought

Prince that the Mother Ad was targeted juveniles, also harmful to because the ad at He depicting children. testified that okay implies marijuana, stating “that it’s to smoke less mother she is concerned law.” against smoking pot, which is Prince said about children her the ad T don’t chil- my message they words meant “that want sends the to children that ... jail but I know “can pot, [pot] great dren smoke smoke and still be kids.” dangerous, more therefore I’m going permit so Mulhern testified that he would they the fact that to Change post overlook are allowed the Climate to an ad advocat- ” opposite Prince some ing viewpoint, saying: break law.’ said that “I’ve legitimate viewpoint could people got great have three kids. I love them more jail than anything. is more harmful to child than I don’t want them to marijuana but not a smoking, pot. my pot, that was smoke But if kids smoke jail.” he allow displayed go would to be should on the MBTA “[i]t [chil- because allows Mulhern testified that the Police Ad was okay dren] to think it’s to break the law.” rejected “it that suggests smoking because Ad, crime,”

As to the marijuana Police Prince stated: “It’s is not a real and so telling police going them that the an promotes illegal activity. disagreed are not He marijuana take smoking very seriously, “police to with that the view resources should loose, marijuana prosecutions.” that there are real criminals on the not for be used fur- okay posted and it’s to break the law.” He he would ad to He said allow an be “says smoking ther stated that ad that if it expressed opposite viewpoint, say- marijuana valuable, will be a upon ing: important, good. not looked “Police are act.” arresting criminal asked whether he Police be used for people When should agreed expressed that marijuana the ad a for crimes.” Mulhern conceded used, police specifi- how be Prince that did not children target about should the ad replied: “I young cally, thought know ad tells stated that that chil- people but he that should commit a criminal act.” dren more susceptible receiving were message marijuana that is not a real Mulhern, acting Michael Man- General were other people. crime than ager of the MBTA and person authority accept reject testimony final or adver- The MBTA also introduced tisements, reject Kelley, that he would all testified Cornelia the head Boston School, three ads under the current Latin a school for guide- exam how, twelve, marijuana.” asked which uses use of When through grades seven more not transporting replied implies than that it that one will for she 2,100 2,400 Kelley marijuana had is “anoth- of its students. be аrrested for which about the Teen Ad: concern mixed following message young people.” er message marijuana there that a “There is Kelley conceded that her students Ms. it’s as bad as cocaine okay; is easily exposed to similar ads could be mind, my message, And the heroin. city. walking in the The difference while young for very confusing message that’s that she considered the MBTA to be was that a sense there mari- There is people. house. But an extension of the school asked, despite juana acceptable.” When is so, even she conceded that there had been says “Smoking pot that the fact that the ad encouraged classrooms at the discussion cool,” why it would lead students is not legalizing issue of mari- school about the marijuana okay, is Kel- smoking think that juana. ley replied: evi- Climate also introduced ad, that’s a real you If look at of ads: types dence of two different other young people. And message mixed accepted by the MBTA which could be ads get whom I deal the students with activity promoting illegal among seen as great different deal of stimulation juveniles encourage compli- and ads which looking at there ways. you’re And what argues It drug ance with laws. this sec- And message. when clear-cut is expresses of ads the view that the ond set age, try ... are that we and see children drug laws sound. clearly they understand what’s to it that legal. and what’s not And legal Change the introduced several Climate says marijuana not cocaine or really is beverages ac- different ads for alcoholic marijuana It out of the heroin. takes past. cepted MBTA the One heroin, of cocaine and where we realm Wine, Trinity con- ad Oaks that mari- consistently young people tell picture of a woman in a backless tains juana drug you illegal is an will be being by man. It hugged dress states: you for it or will be arrested for expelled “Trinity soap opera. not a But Oaks. It’s it.... bottom, provocative.” At the ad wine,” Kelley that a student would not and has a conceded states: “Remember disciplined expressing picture view: of a bottle. Prince wine testified juveniles Marijuana not co- this ad not harmful to “Tell us truth. was heroin,” stated she did because the ad was to adults. caine but addressed to run appropriate not think the on ad was ad, Another for Doc Hard Lemo- Otis a mixed the MBTA because it sends mes- nade, an depicts eating a woman’s mouth sage to students. cube, ice IT THE and states “DO ON Kelley particularly that was testified she the corner there is bottle ROCKS.” it concerned about the Mother Ad because Lemonade,” “Doc Otis Hard alcoholic appeared to at a depict teacher chalk- beverage, poured into a being lemonade by stating jail felt that that is board. She ice, perfect “The glass slogan: with the dangerous smoking pot, more than the ad questioned way to break the ice.” When give message young does not a clear as this were harm- to whether ads such as people smoking pot illegal. that juveniles, Mulhern that ful to conceded juveniles, illegal use but Kelley expressed also concern that the alcohol was fall that ads not under “conveys police Police Ad that countenance found alcohol did America, spe- England not New and guideline this because ads did well as the cifically target juveniles. Prince also Drug was Office of National Control Policy, that it about ad and testified simply: asked this Waiting states “Are You for Your juveniles not harmful to because the was Kids to Talk to You Pot?” And About young people, ad was not but advertisement, addressed fourth sponsored the Of- asked tell to adults. When how he could Drug Policy, fice of National Control con- somebody ad “geared was towards dice, pair tains a one with a skull on one 20,” somebody 22 and who’s not who’s side, you and states: “Just because sur- responded: Prince “Because alcohol for drugs, your vived doesn’t mean children anybody age Prince illegal.” under that will.” nothing that protected conceded the ad position The MBTA’s under the current young people from influence. guidelines reject is that it still would Kelley testified she was also con- Change Climate’s three ads because alco- cerned about the advertisements for targets each encourages ad children and beverages holic that her students see of illegal drugs. present the use

the MBTA. The distinction she was saw not prohibit do ads “harmful” to legal age at a that alcohol was certain but children. The MBTA takes the posi- also marijuana any age. use of not legal was permit tion that would ads which ex- also tes- the Climate introduced pressed adults the timony that the has run numerous marijuana rethought laws should be so drug discourage advertisements that use. long marijuana as the ads said that use of trial, stipulated having At illegal. run four such ads. One was headlined: outset, At the empha it should be “TALK IS BETTER FOR KIDS YOUR guideline itself, sized that the MBTA’s THAN ... SO TALK!” It has a DRUGS rejection which allows of advertisements “McGruff, picture cartoon the Crime activity, promote illegal particularly Dog,” pointers talking as well as 8 children, among is constitutional. It clear drugs, one’s children such “Tell about as: ly viewpoint-neutral purpose, serves

your you approve kids don’t of the stuff’ surely given it is reasonable the character say you “Tell no ... them to and that advertising program. istics of the MBTA’s they know know difference between indisputable It is the MBTA has a right fin- wrong.” The advertisement legitimate, viewpoint-neutral interest by stating: steps ishes “Follow these messenger convey used as a being you’ll helpin’ yourself, your and me kids messages promoting illegal among conduct ... take bite out crime.” juveniles. legitimate It is also for the advertisement, A sponsored by second juveniles MBTA to consider that it has America, Drug picture Free contains Further, among passengers. as a ven playground, two children at a dor, MBTA has a interest in legitimate school, “Everyday my headline: after kid offending stop riders so that then- to_If you likes can’t fill in this All patronage. why of these are reasons blank, you a asking. need to start It’s against guideline the itself is constitutional way drugs. proven to steer kids clear of attack. viewpoint-discrimination It’s not It’s Ask: pestering. parenting. Questions. we on instead are Who? What? When? Where? What focus advertisement, The A third decisions the MBTA to re Anti-Drug.” specific the of sponsored ject Climate by Partnership Drug-Free for a the three adver-

86 they goal requires their or that do not The mere recitation tisements. (or goal all. protection their of child at rationales serve viewpoint-neutral of ACLU, 875-79, 844, guide- v. 521 viewpoint-neutral of a See Reno U.S. presentation (1997) line) 2329, 117 reject to the three S.Ct. 138 L.Ed.2d 874 for its decisions (“[T]he statutory regula- mere fact that a does not immunize those impor- for scrutiny. speech The recitation of tion of was enacted decisions from ... may purpose protecting be tant children viewpoint-neutral grounds mere inquiry into validi- motive. See does not foreclose its pretext for an invidious Cor- nelius, 811-13, ty.”); Denver Area 105 S.Ct. 3439. Telecomm. Consor- 473 U.S. tium, 2374; 755-60, terms, government rarely 518 116 practical In U.S. S.Ct. Cal., v. flatly Sable Communications Inc. engaging viewpoint admits 126-27, FCC, 115, 130-31, 492 109 U.S. discrimination. 2829, (1989); Bolger 106 L.Ed.2d 93 S.Ct. discrimi Suspicion 60, Youngs Corp., v. Prods. 463 Drug U.S. its zenith when nation is afoot is at 73-75, 2875, 469 103 77 L.Ed.2d S.Ct. speech critical of the speech restricted is (1983); Jacksonville, City Erznoznik v. strong government, there is a risk because 212-14, 2268, 45 U.S. will act to censor (1975). L.Ed.2d 125 See, e.g., oppose ideas that its own. Texas fifty years ago, Almost Justice Frank- Johnson, 397, 411-17, 109 v. 491 U.S. S.Ct. a Michigan furter found unconstitutional (1989) (striking 105 L.Ed.2d statute; obscenity he emphasized that statute); flag desecration down criminal swept broadly carry statute too to out flag-burner’s expressed “dissatisfac action aim from protecting asserted children country,” policies tion with the of this ex sexually explicit v. material. Butler pression at the core of which was “situated 380, 383, Michigan, S.Ct. values,” our First Amendment state (1957), 1 L.Ed.2d 412 Justice Frankfurter had no to what shall power “prescribe stated: Va. Bd. (quoting orthodox” W. State that, by quaran- The State insists thus Barnette, 624, 642, Educ. v. 319 U.S. tining general reading public against (internal (1943) S.Ct. 87 L.Ed. 1628 rugged grown books too men omitted)). quotation marks Because juvenile to shield inno- women order Change the Climate’s advertisements here cence, it is exercising power pro- political speech reflect core that is critical Surely, this general mote welfare. we existing governmental policy, to burn the house to roast pig.... especially wary viewpoint discrimina The incidence of this enactment is to tion. population Michigan reduce the adult Court, well, The Supreme has been reading only fit for what is children. particularly justifications leery 383, 77 Id. at S.Ct. quashing speech adults that rest on the purported protection of children. of these is ad While context cases protection compelling mittedly of children not an exact fit. Our case does interest, prohibition, only state see Denver Area Telecomm. not involve criminal but FCC, 727, 755, advertising. con accept Consortium refusal (1996), text in Denver Area Educational L.Ed.2d 888 Telecom regulations there carefully Court has examined munications Consortium is closest: purporting ability control ground, rest on often the issue was FCC’s finding broadly sexually explicit content cable sweep more than certain

87 sive, 734-36, MBTA 518 116 S.Ct. but other television. U.S. allowed sorts of advertisements, explicit sexually such In both Area and the other Denver advertisements, cases, movie “unrebutted ap question the was whether statutes of pearance viewpoint discrimination” is narrowly regulations or had been drafted found). Third, suspicion arises where the particular enough. Our focus decisions viewpoint-neutral ground is not actually advertisements, facial to exclude not the very by specific govern served well the validity Finally, of all of guideline. the issue; where, mental action at in other sex- regulation these eases involved of words, fit between means and ends is (but non-obscene) ually explicit speech; loose or nonexistent. This situation comes speech sexual is not involved in case. this See, variety up legal settings. e.g., Still, these do not differences weaken Elem, 765, Purkett v. 514 U.S. purported justifi- that a general principle (1995) (judges S.Ct. L.Ed.2d 834 speech for excluding cation to adults may pretext sometimes find in race-based grounds protecting children bewill equal protection to challenge peremptory if closely examined to see the decisions justifications where prosecutor’s strikes reasonably protect do children. challenges for are “implausible fantas There are various situations tic”); Dep’t Cmty. Tex. v. Bur Affairs that, will lead a court conclude dine, 248, 259, seemingly despite justifica neutral (1981) L.Ed.2d 207 (employer’s misjudg government, by tions offered nonethe qualifications job ments appli speech less decision to exclude may cants be relevant whether the em impermissible form discrimination. neutral, ployer’s merit-based reasons for First, Three are relevant here. state pretexts hiring are for un discrimination by VII). ments officials on rea der All Title three factors lead us for an sons action can indicate an improp given conclude the reasons See, Arlington e.g., er motive. Vill. MBTA in this case are insufficient Heights viewpoint Housing Corp., Metro. Dev. 429 avoid a conclusion of discrimina 252, 268, tion. U.S. 50 L.Ed.2d S.Ct. (1977). Second, govern where the position Inherent the MBTA’s is its rejects something

ment states that it be recognition save for the risk of induc- characteristic, of a cause certain but other ing juveniles marijuana, to smoke the re- things possessing the same characteristic run fusal to these for an accepted,8 sort underinclusive adult would audience be discrim- suspicion ness raises a the stated essentially ination. That conclusion is con- ground action neutral is meant ceded in the MBTA’s briefs. We find the See, impermissible e.g., shield motive. justification purported protecting chil- Cornelius, 3439; dren to be undermined for two basic rea- Action, (where AIDS 42 F.3d at 10-12 First, evidence, sons. there is direct excluding MBTA claimed to be condom- officials, MBTA through statements promotion rejecting advertisements because reason for advertise- sexually explicit patently actually were offen- ments was distaste comparison rightly purposes, important 8. For it is referencia].” not re- pre- case, clear that also guideline lied on this in our because containing speech about clude advertisements Change the Climate's advertisements do not "spe- public office" "candidate[s] for or about categories. fall these two into narrow question[s], petition[s], ballot initiative cific Second, viewpoint. long history running Climate’s there is evi- ads stressing rejection dence that the of these drug illegal that use and that drug is laws actually not advertisements does serve the obeyed. should be children, protecting alleged purpose of sought allay The MBTA has so MBTA offset the cannot direct evi- any suspicions viewpoint discrimination against dence it. by it representing that would run adver The MBTA’s initial statement of reasons saying tisements in bold text that the drug was, three ads rejecting part, changed, provided laws should be the ads part of Change that the ads were at acknowledge the same time that mari marijuana Climate’s to “reform effort This, juana illegal. says, use is it removes legalize.”9 in an [laws]” “effort This viewpoint concern abоut discrimina viewpoint was a direct statement of dis- tion it that proves because the same mes by crimination. It reinforced was later sage could be run if a different manner of guidelines. evidence the 2003 The under expression were But that used. is so. Manager MBTA General said he would simply MBTA’s concession means that publish and Police if they the Mother Ads it will run advertisements which do not opposite came to the conclusion—one with attract attention will but exercise its veto agreed expressing which he viewpoints — power over advertisements which are de with, compliance which reinforced but did signed to in delivering be effective a mes question, existing laws. sage. Viewpoint discrimination concerns Supporting direct evidence is our government arise when the intentionally rejection conclusion that the MBTA’s tilts playing speech; field for reducing these reasonably advertisements does not a message, effectiveness of opposed justification. serve its purported Dealing to repressing entirely, may it thus be an first with the Mother Ad and the Police viewpoint alternative form of discrimina Ad, clear are not targeted is R.A.V., tion. See children, they reasonably nor can con- be (It viewpoint S.Ct. 2538 discriminatory promote illegal marijuana strued to use for the “license one side of among juveniles. The ads do not advocate fight freestyle, a debate to requiring while Rather, illegal drug use. these two ads Marquis Queensber other to follow sophisticated argument make a rules.”); ry California, see also Cohen v. marijuana imposes criminalization of worse 15, 26, 29 L.Ed.2d consequences society than would alter- (1971) (the impact emotive of a partic by natives. posed The risk the Mother Ad ular expression means of is often more inducing juveniles and Police Ad of to en- important underlying than cognitive gage marijuana in illegal activity is re- impact message, of a and this emotive and, markably indeed, probably minimal impact protected also the Constitu nonexistent. MBTA certainly cor- tion). individually rect to evaluate each ad as to suspicion This compliance guidelines. with the discrimina- Its judgments deepened by tion is the fact must reasonable and it juve- would not be reasonable to think MBTA has run a number of promoting ads clearly niles were to no other exposed information alcohol that are more appealing to Indeed, juveniles about drugs. the MBTA has itself than the ads here. It is true that Lucy These were made comments Short- and the liaison between MBTA and its er, Marketing then Director for the contractor. alcohol, marijua- drugs legal there is a distinction: like was about which wеre na, not; cannot be sold to minors but legally which were thus her concern was that adults, may marijuana can sold to be promote the ad would confusion about not, legally in general, by be used either marijuana illegal. whether use was The adults or minors. That cannot the di- conclusion, however, MBTA’s requires an viding argument if the line is step additional the ads would not —that trying illegal MBTA to avoid inducing only teenagers marijuana’s confuse about conduct: correctly the MBTA has de- status, illegal but that this confusion would fended on the that the ads induce basis will teenagers marijuana. then lead to smoke illegal marijuana by use adults. in step reasoning supported Neither by

The more difficult issue concerns the the record. It first advertisement —the Teen cer- Ad. The Teen Ad must in be evaluated con- tainly may reasonably be direct- viewed as text. MBTA The has run numerous ads teenagers. ed to attract the attention of discourage drug encourage use and questionable What is far more is the rea- respect for and to the adherence current sonableness of the contention that the ad drug Some of ads spon- laws. these teenagers marijua- would induce smoke agencies, sored such as the says na. The sort. nothing ad itself of the Drug Office of National Policy, Control Indeed, says opposite “smok- —that is to goal drug whose further the current ing pot implies is not cool.” The ad then aid in laws and their enforcement. Juve- marijuana should not be seen as exposed frequently niles are to anti-drug equivalent to heroin cocaine. The clear- messages variety settings,10 a includ- marijuana est is that message usage Indeed, ing may in schools. schools be the decriminalized, should be while heroin and class, very students, place where debate cocaine should usage remain criminal. laws, the wisdom of certain as at Boston targeting teenagers not re- does ambiguous Latin. That this one at best move from the political the ad realm of teenagers would advertisement lead to be- speech. teenagers Many those who are voters, marijuana lieve legal, against are either or will a voters soon be information, and the barrage contrary ad is also aimed at adults. The is unlike- MBTA a put cannot thumb on the scale to ly. requires Yet the MBTA’s argument preclude Climate from effec- step. even further That one advertise- tively communicating message about ment, says its face use of mari- changing likely responsive the laws to cool,” juana actually is “not would induce group of voters. juveniles marijuana to smoke strikes us as point thin of implausibility. to the sup-

The MBTA’s own evidence fails justifications running pоrt argument. Kelley’s Headmaster sufficiently these im- advertisements are point was not that the Teen Ad would use, totality that on plausible of the evi- drug induce but the rather different point presented that the Ad mes- dence we conclude that “mixed sage.” message The mixed nature engaged discrimination. (March 2004), reported example, Budget Summary 10. For the White House FY 2005 year budget ‍‌​​​​‌‌‌‌‌‌‌​​​​‌‌​​​​‌‌‌‌​​​​​​‌‌‌‌​​‌‌​​‌​‌​​‌‍$149 that the fiscal included http://www.whitehousedrugpoli- available Anti-Drug million for National Youth Media cy.gov/ publications/policy/budgetsum04/bud- campaign, prevent drug use meant getsum05.pdf. Drug Strategy: teens. See National Control judgment of the district Moreover, reverse the rejection of We pro- muster under court to all three advertisements pass fail to three ads would Climate, laid analysis by Change out and direct prong posed the other Cornelius, any requires that restric entry declaratory judgment which of that the purpose in of light tion rejection be of these advertisements violated reasonable is, forum, rejection in their of because point, Amendment. At this there the First context, Cornelius, 473 unreasonable. injunctive to relief is no reason think that 3439; 806, Perry see also at 105 S.Ct. U.S. required. is also 49-54, Ass’n, 103 S.Ct. 460 U.S. at Educ. (“The evaluating Ridley: dis B. Discrimination Viewpoint [ ] touchstone for is whether non-public forum]

tinctions and Unreasonableness [in light purpose in of they are reasonable Climate, in we con- Unlike serves.”). at which the forum issue in engaged clude the MBTA has not that a particu standard is reasonableness in either viewpoint Ridley, discrimination hurdle; than larly there can be more high validity in or the the facial of its decision, and an action one reasonable Ridley’s applied advertise- guidelines as to decision need be the most reasonable guidelines prohibiting demean- ment. The in to be reasonable. Corne possible order ing are disparaging or ads themselves lius, Still, at 105 S.Ct. neutral. That is also true of the viewpoint judgment that these adver the MBTA’s application guidelines Ridley’s ad activity by mi illegal foster tisements will on here. the facts is, context, entirely unreasonable. nors in itself, guideline As to the we note Kokinda, 497 at 110 S.Ct. See U.S. the guidelines the 2003 Corsones, revision 3115; F.3d Huminski demeaning prohibit dispar continued to or (2d Cir.2004) (finding particular ads, in more aging general but did so non-public speech on in restriction terms, unreasonable). above, only categories not tied to certain The reasons stated race, religion, gender. such as Most lack fit which of between show likely made in of light that revision was rejection these three advertisements R.A.V., children, 392, 112 at are suffi U.S. protection and the regulation later case law.11 The current cient for our conclusion. race, сreed, color, religion, gen- policies, two their or 11. The MBTA’s earlier invoke mother, could, person's aspersions upon a groups, singling specific out of certain der— for seemingly example be ad usable dubitante, thought like hate be to be —would placards arguing in the of those libitum R.A.V., speech law at issue in banned racial, color, etc., tolerance and objects favor placing symbols certain or on equality, but could not be used those property "one or has reasonable when knows opponents. up could speakers’ One hold grounds placement] arous- [that to know such big- sign saying ... all "anti-Catholic anger, es or alarm resentment others misbegotten; "pap- are but not that all ots” creed, race, color, religion or basis of are, provoke insult ists” would R.A.V., gender.” religion.” "on St. violence the basis dicta, 2538. In the Court noted: authority to Paul has no such license one operation practical ... the ordinance fight freestyle, a debate while side of goes beyond even content discrimina- mere requiring Marquis other follow viewpoint tion actual discrimination. Queensberry rules. 391-92, Displays containing some words—odious Id. S.Ct. 2538. pro- epithets, example ability linguistic be racial to use certain tools in —would words, proponents argument, all But hibited to views. the course of in other can- statutorily monopo- "fighting settings not in certain words” that do not themselves Both the beliefs atheists. the use of advertisements describe simply prohibits however, sides, disparage[ positive language an individu- can use ] “demean[ ] individuals,” listing without group organizations, al their own be- to describe In this protected groups. liefs, particular and values. kinds of content Some context, just a rule: guideline ground remarks) (demeaning and disparaging in the no discrimination viewpoint there is disfavored, being being but no attempt- the state is not guideline because preferred over another. “reasonable The. advantage over ing give group one person” guide- referenced the MBTA’s marketplace in of ideas. See another the belong any of course does not lines Kagan, “Regulation Speech of Hate Elena particular religious group, pro- and would R.A.V.,” Chi. Pornography after 60 U. majority, minority, religious as tect well as (1993) (suggesting, based L.Rev. that would language beliefs from “demean problem that the language, on the court’s current disparage” or them. The MBTA’s have the statute in R.A.V. could been sig- nor has guideline neither intends as a by drafting a statute that did avoided tilting playing effect nificant groups protected single specific out speech. field for status).12 that Ridley argues because the current Similarly, under the MBTA’s accepted the first two ads it must MBTA on of all all advertisers all sides guideline, reject the argument the third. accept We positively promote are allowed to questions government a commercial en that because own to criticize perspective their even one opened up discussion on terprise positions long they as do not use other so “topic” religion), must (say, it particular demeaning in their attacks. No speech topic. any and all discussion that allow demeaning speech: advertiser can use rules, ground long so Reasonable as language disparaging atheists cannot use Christians, one give nor not intended to side an advan to describe the beliefs another, fall- over can be set without language tage disparaging can Christians use debate, given a only under classifications in by protection of a even if the lized one side effective, other, (for possibly regulation example, bigots side less other had statute ways get message its out. Under protected group under not a the statute were guidelines, second as in MBTA's first and inR.A.F.). R.A.V., playing in sort statute this of tilted challenge Ridley these earlier also cannot potentially possible. have field would been face, part regulations as an over- on their at in and the The criminal statute issue R.A.V. challenge. challenge a was not Such breadth regulation us, and is waived. made it quite enterprise at as a issue are commercial contexts, may have different and thus R.A.V. is guideline at issue here somewhat 12. This applicability here. no Cogswell City regulation at in like the issue Further, problem type of identified in Seattle, (9th Cir.2003). 347 F.3d 809 in problem for advertiser R.A.V. is not a challenged regulation plaintiff Cogswell, the position. Good is a reli- Good News’s News promote candidate to her- that allowed each fairly gion; rejected was advertisement city-printed pamphlet,” but in a “voters' self attempt to demean other understood as an discussing op- from her forbade candidate religions. attempt Good Any to demean pamphlet. upheld The ponents in the court falsity other or its on the News stance regulation restriction that this as content doubtlessly denigration religions would be viewpoint lead discrimination: did not religion” would "on the ... and thus basis of "ground "equally applica- rule” that is such prohibited even the initial two sets did not create a tilted ble to all candidates” only regulations. problem exists The R.A.V. speech. Id. at 816. playing field for group prevent- is where the individual object speaking ed from is not itself an It inapposite, as MBTA is not censor- ing prey to discrimination. religious at all. guidelines ing speech the effect of these here The stat- possible that messages prior acted heavily on some ute Wilson restraint will fall more contexts, of a film preventing showing than others in certain but deemed guidelines sacrilegious by any public view- the censors does not itself make 497, 503, discriminatory; place the intent and chief the state. Id. at point non-demeaning merely The impact.of requirement at issue here up minimum from prevent being put ensure a certain merely to Moreover, applicable system. that is to ev- in the MBTA’s own level of discourse eryone. only statute Wilson was aimed religious language speech, made reasonably The could conclude was goal “suppress clear real or two advertisements did the earlier imagined particular religious attacks on a religions, but disparage demean or other doctrine.” Id. 72 S.Ct. 777. the third advertisement did. goal of the MBTA’s here waywardness first questioned ad the nothing censoring religious to do with be- Christians; today’s the second issued liefs; the purpose instead is to maintain a religions. By con- condemnation other certain minimal level of decorum in all trast, third advertisement a vi- the went advertisements. directly triolic further demeaned step by calling them The religions, number second advertisement the third false. It told the adherents of those reli- share advertisement the same basic view- gions ways ungodly, point, yet that their are are the MBTA approved the second addition, “going rejected de- though to hell.” In those advertisement even religions likely meaned are to be third. This is further evidence that religions shared of the MBTA a number MBTA’s actions here were not motivated riders. That the chose not to ban Ridley’s particular distaste for view- (the point. presented the earlier two first under threat ads She has no evidence that suit) it was required any does not mean the MBTA ever specific allowed other accept third is had suggest ad. This true even advertisement that would view- discrimination, the MBTA made a mistake under its point her. For ex- towards guidelines in two ads. in accepting ample, first there is no evidence the record advertisements, religious other or oth- if Ridley argues that even the third ad- erwise, accepted despite containing were demeaning vertisement other reli- demeaning or content. disparaging gions, reject may still not subject the ad because the matter is the delay approving two-week Rid- protected govern- of religion. ley’s surely, one first advertisement not not, may argues, “attempt ment Ridley inferring viewpoint basis discrimina- protect being exposed saga to reli- citizens from tion. Nor is the connected with the offensive,” gious they might placement views find cit- of her second advertisement— Wilson, ing Burstyn, Joseph merely Inc. 343 this shows was honing 96 L.Ed. 1098 guidelines throughout peri- U.S. S.Ct. its this (1952), working a statute that set od and which invalidated was out its enforcement of li- up censorship which refused guide- board various issues connected with the censes for films. The case “sacrilegious” lines.13 true, stipulated, parties "denigration”

13. It as that the word MBTA’s in the first set event, guideline adequate and deci- record is MBTA’s While the challenge this kind of facial to the reject Ridley’s address advertisement sion Since, well, neutral, guidelines. parties have scheme regulatory issue, are no thoroughly briefed this there light must be “reasonable still im dispute, facts in and the issue raises by the forum” order to purpose served portant Cornelius, questions regarding applica upheld. tion First Amendment to the regulatory 3439. The scheme at is- MBTA, challenge. will we address eminently here is reasonable. The sue See, Records, e.g., Keeper In re 348 F.3d running purposes stated its (1st Cir.2003) (appellate consider “maximiz[ing] include program ation of an not upon issue raised but ruled through by making money adver- revenue” proper court below is where “[t]he reducing ridership tisements while issue, parties have briefed the facts [an] advertisements, through offensive “main- pertaining essentially to it are uncontra- taining welcoming a safe and environment” dicted, adjudication expedite and an will children), (including riders matters.”); AIDS Action Comm. Mas avoiding identification with the ads it (1st MBTA, 42 F.3d sachusetts v. preventing displays. guideline A demean- Cir.1994) (“[S]o long as the record is ade ing disparaging likely advertisements is quately developed, we will hesitate and is purposes to serve these well consis- involving resolve a mixed issue “Courtesy tent with the MBTA’s own fact/law core concern First Amendment even program. Counts”

though the district court did not it address instance.”). in the first Validity Facial Guidelines: Vague- C. of Vesting ness and Discretion of vagueness inquiry, The to the Change argues all, the Climate applies incorporates extent it here at fail, event, guidelines 1) must because two fair basic concerns: concerns about sufficiently they objec-' notice, are not clear and danger about and the related Ridley 2) Change tive. the Climate and also expression, about chilling concerns challenge regulatory on scheme being excessive discretion invested in ad ground vague that it is too and vests too ministering enforcing officials. See much in MBTA officials. In its 104, discretion Grayned 408 City Rockford, v. did Ridley opinion, the district court 108-09, 2294, 92 S.Ct. 33 L.Ed.2d Climate, (1972). In Change address claim. mere that a regulation fact however, the district court found that the it requires interpretation does make FEC, 93, prohibiting demeaning or guideline dispar- vague. v. 540 U.S. McConnell vague” 64, 619, aging material was “somewhat on 169 n. 124 S.Ct. 157 L.Ed.2d 491 (2003); Locke, 48, 49-50, its face “still leaves too much room for Rose v. 423 U.S. (1975). 243, arbitrary 96 S.Ct. 46 L.Ed.2d 185 decisions.” Ridley’s un- guidelines, which second ad- advertisement should not be considered under initially rejected, less itself has an unclear vertisement was means vir- the advertisement thing message. policy directly appli- tually as This new was “demean[] same the words advertisement, Ridley's cable disparage[]" in the second set of second containing guidelines, Ridley’s a website additional under which second ad- referenced (the “demeaning” eventually accepted. potentially content vertisement was But the religions adopted a same stated in second set of also new kind list "false” advertisement). determining policy listed the third website on analysis particular- First Amendment case is that it viewpoint- could lead to ly prone phrases being to words and discriminatory taken practice decisions in even out of context. vagueness Concerns about a facially under neutral regulation. We and about excessive discretion already arise most have concluded there was no view- strongly in point other contexts. The void-for- discrimination in Ridley, and that the vagueness argument classically arises Change discrimination in the Cli- where the government imposes criminal mate did not result from the face of those sanctions for conduct speech. guidelines. See Lachman, United States v. 387 F.3d cases that the Climate and (1st Cir.2004). 56-59 And the concern Ridley cite all deal with licensing schemes subjective making over decision has most regulating the speech exercise of in tradi effect in licensing schemes. tional public fora. The similarly dissent is the situation Neither here. relies on cases and standards that are out Here, there is no serious concern about context because deal with tradition effects, either notice or chilling See, where al fora. e.g., Forsyth County, there consequences are no for submitting Movement, a Ga. v. Nationalist 505 U.S. non-conforming 123, 130-33, advertisement and having 120 L.Ed.2d rejected. (1992) See Nat’l Endowment (striking permit down scheme e 569, 588-89, Finley, Arts v. 524 U.S. 118 for demonstration on steps); courthous (1998) (no S.Ct. 141 L.Ed.2d 500 Shuttlesworth City v. Birmingham, Ala., people serious concern that 147, 150-51, will “steer too (1969) far clear” and be chilled in the context of a L.Ed.2d (striking permit down regulation that quasi- streets). is not criminal or requirement protest city merely criminal and situations, establishes criteria for true, these it is delegations grants); Children Rosary City authority to grant speech licenses for Phoenix, (9th Cir.1998) 154 F.3d may operate prior such, restraints. As (relaxing vagueness standard in the delegations those stringent must meet the city context of a transportation system’s “narrow, containing standard of objective, advertising policy because claim “[t]his and definite guide standards to the licens unlike vagueness the usual in- challenge ing Shuttlesworth, authority.” 394 U.S. at volving a 150-51, fine or other sanction that has 89 S.Ct. settings 935. The conduct.”). potential to chill those unarguably cases. are public fora open everybody and to all types of inquiry Thus the reduces to an speech; very per limited obstructions investigation into whether the discretion mitted the licensing requirement are given to MBTA administrators under the primarily allowed so that the state can unconstitutionally scheme is excessive. maintain basic order. The void-for-vagueness doctrine and the delegation excessive doctrine are technical The regulatory scheme at issue ly distinct,” “analytically Sec’y v. scheme, here is not a licensing and the Griffin of Affairs, 1309, Veterans 288 F.3d 1329 MBTA advertising program is neither a (Fed.Cir.2002), overlap por but on the facts traditional designated public forum. Virtually See, here. all Supreme Kokinda, of the e.g., Court 725, 497 U.S. at 110 cases to determine excessive discretion (government S.Ct. 3115 holds as propri challenges etor, have dealt pub licensor, with traditional and not as when operating a forum). lic fora. Griffin, See at 288 F.3d 1321-22. non-public Excessive discretion danger of excessive discretion and vagueness inquiries under the First standard, inquiries, afoul of this are not unreason- imper- are not static Amendment ACLU, overbroad, 521 ably vague given vious to context. See Reno the nature 871-72, U.S. of the program and (1997) (the vagueness inquiry L.Ed.2d 874 its chief purpose raising revenue with- context, in a rigorous is most criminal ridership. out losing Some adver- kinds speech a high where there is risk will be tisements that will be consistent with this chilled); 581-83, Finley, 524 at 588- purpose may be difficult to pinpoint (requirements S.Ct. precision; degree interpre- exact some contexts, vague in might be other like a tation, concepts and some reliance on like statute, vague criminal were when standards,” “prevailing community is inev- grant process for a used as criteria In Griffin, itable. the court found that nature); subjective by Vill. was of Hoff- considerable discretion left in the hands of Estates, v. Flipside, man Estates Hoffman Department Veterans Affairs was Inc., 489, 498, acceptable preservation to ensure the (1982)(“The degree of vague- L.Ed.2d 362 the commemorative functions national ness that the Constitution tolerates —as cemeteries; is also entitled to well relative of fair no- importance as the in determining some discretion which ad- depends in part tice and fair enforcement — likely vertisements are to alienate rider- enactment.”). on the nature ship and cost it revenue. These decisions grant view is that a of discre Our objective description also “may defy tion in a judgment non-public to exercise ... vary with individual circumstances.” upheld long forum must be so as it is Griffin, 288 F.3d in light of characteristic “reasonable event, purposes accep- nature function” of forum. Grif advertising, rejection tance or words 1323; fin, Finley, 288 F.3d see also “disparage” like “demean” or have reason- 589-590, (approving U.S. at 118 S.Ct. 2168 ably meanings. recognize clear broad to take consideration We discretion into “general decency down, respect vague- standards of several have struck courts for the beliefs values of diverse grounds, speech ness codes that school grant public” process, American NEA incorporated similar somewhat terms. See given inherently subjective nature of Univ., Dambrot v. Mich. 55 F.3d Central types processes). these selection “[S]e (6th Cir.1995); Post, 1183-84 UWM lectivity” “discretionary access” are Regents Inc. v. Univ. Board of of non-public fora, defining characteristics of Sys., F.Supp. Wis. 114: 1178-81 which unlike fora are intended Mich., (E.D.Wis.1991); Doe v. Univ. of Griffin, to all open speech. See (E.D.Mich.1989). F.Supp. But 866-67 F.3d at 1323. Post, F.Supp. at 1179-80 UWM cf. (In university speech the context of a hate regulatory guide The MBTA’s regulation, “demean” not “un- the word is lines, reject any in Ridley advertise duly “reasonably it has a vague,” since ment that disparages “demeans or indi dignity meaning: clear” “to debase in or group vidual or of individuals” and which stature.”).14 These out of a “prevailing community use decisions come standards” to very concerns vagueness determine whether fall different context: it; changes changes against position guidelines in what is MBTA in in its important the MBTA's are now this case do show that the standard is too is that rules vague. reasonably past We decline to use the MBTA’s clear. affirmed. The de- point there are sanc- discrimination is more when pressing are in the (such Ridley, cision in which was entered expulsion) attached viola- tions as Change judg- court’s the Climate district challenged regulation. tions of ment, reversed that the finding is as to Further, acknowledge two we is “demeaning disparaging” guideline transportation ad courts considered constitutionally and as reten- flawed to the systems their vertising policies gave Entry jurisdiction tion this over issue. reject “controversial” adver discretion to declaratory to the judgment awarded to be unconstitutional. See tisements validity MBTA as to the facial of the sets Workers Un United Food & Commercial Ridley in issue both ion, Reg’l 1099 v. Southwest Ohio Local Change the Climate. The district court’s (6th Auth., Transit 163 F.3d 358-60 Change in the Climate on view- decision Cir.1998); Fed’n v. Metro. Nat’l Abortion point grounds discrimination is reversed Auth., Rapid Atlanta Transit judg- declaratory with enter directions (N.D.Gа.2000). F.Supp.2d 1327-28 Change Climate on those ment both, In distinguishable. cases grounds. to the court We remand district Further, a regu found. public forum was judgment this entry consistent with something is asking lation whether “con opinion and for of the issue determination precise inquiry, troversial” is a less attorney’s Change fees for the Climate. many down potential has the strike prevailed portions Since each side has advertisements, regulation than a more case, no are awarded. costs asking ] whether advertisements “demeanf someone. disparage[ ]” TORRUELLA, Judge Circuit

(Concurring part, part). Dissenting III. me in majority agrees Since the (“Change No. 03-2285 Case Climate ”) Attorney’s Fees engaged unconstitution- Change appealed the Climate from the discrimination rejecting al all attorney’s district court’s denial of fees. Change three of the Climate’s advertise- argued it was entitled the Climate ments, it appropriate I concur findings attorney’s fees on the that the appeal. the outcome of that Unfortunate- constitutionally guidelines were flawed. ly, join opinion my neither I can argument gone, now The basis for the colleagues learned on the remainder of its uphold any facial guidelines against we join analysis, nor in the outcome of Case challenge. ”). view, re- (“Ridley my No. 03-1970 Nonetheless, Change view- the Climate’s in- gardless of the nature of the forum point argument pre- volved, rejection Ridley’s discrimination § vailed. See 42 U.S.C. 1988. We remand unrea- proposed third advertisement was proceed- to the district court for further and constitutes discrimi- sonable nation, vague on ings attorney’s possible by fees. abuses made the subjective

and nature of the MBTA’s “de- or mean[ing] disparag[ing]” standard. IV. it unnecessary for this Consequently, Conclusion forge the of murky court to into waters issue, court it analysis decision of the district in the forum is worth not- —an Ridley ing, outcome in granting judgment case to the irrelevant the by the no the and not even raised ground MBTA the there was view- Climate

97 mocks, to, plaintiff See AIDS Action is abusive or hostile or Ridley. debases Mass., Bay of, Inc. v. dignity Comm. Mass. stature individual or (1st Cir.1994) Auth., 1, 12 Transp. 42 F.3d group of individuals.” unnecessary (finding analysis forum when Regardless of how the MBTA’s forum prohibition restriction violates on view classified, should be MBTA’s content- discrimination, point and undesirable on a (1) based restrictions must be “reasonable developed by fully plaintiff-ap record not in light of purpose by served the fo Tribe, pellant); see Laurence H. also rum,” Legal Cornelius v. NAACP &Def. 12-24, § American Law at Constitutional Fund, 788, 806, Educ. 473 U.S. 105 S.Ct. (2d ed.1988) (deeming “public 988 forum 3439, (2) (1985), 87 L.Ed.2d 567 not dis unnecessary unhelp classifications ... and criminate on the of viewpoint, basis see id. ful” challenges to content-based restrict (“Access 800, 105 S.Ct. 3439 tо a non ions).1 however, If, the nature of the public forum ... can long be restricted as by forum the MBTA’s opening created as the restrictions are ‘reasonable and facilities to commercial non-commer not an suppress expression [are] effort to decided, cial be can advertisers must we merely oppose because officials astray be led allow ourselves to ” speaker’s Perry view.’ (quoting Educ. protestations MBTA’s hollow it did Ass’n, Perry Ass’n v. Local Educators’ 460 not intend its facilities to open free 37, 46, U.S. 74 L.Ed.2d 794 expression. Accordingly, I would find that (3) (1983)), vague so not be as to lead a public MBTA has created forum for to arbitrary discriminatory application, expression such as con ideas those see, e.g., Grayned City Rockford, v. Ridley’s tained in third advertisement. S.Ct. L.Ed.2d (1972) Rejection Ridley’s (“[I]f I. arbitrary advertisement and discrimina tory prevented, enforcement is to laws I repeat need not much of the back- provide must explicit standards for those ground already provided by majority. them.”). Action, apply who also See AIDS say, offending guideline Suffice (“[The will, 42 F.3d at MBTA] allows the MBTA refuse advertise- least, according need to act to neutral ment that material that “contains demeans standards, apply and it need to will these or disparages group an individual or way standards in that there is such no guideline individuals.” The states that the appearance that [government] ‘the is seek MBTA will whether the determine adver- ing handicap particu expression tising offending language contains such ” lar (quoting City ideas.’ R.A.V. St. a reasonably pru- reference to “whether Paul, Minn., 377, 394, 112 knowledgeable dent person, of the MBTA’s (1992)). 2538, 120 ridership using prevailing community L.Ed.2d standards, rejection Ridley’s proposed would ad believe adver- .the points. tisement material that vertisement contains ridicules or fails on all these Indeed, ordinarily majority’s delving ’public significant less insistence on forum’ is analysis perplexing, given speech into forum than the nature of restriction— rhetoric."); recognition "[p]ublic analysis despite itself the Court's Frederick Institutions, Schauer, unhelpful many Principles, has been criticized and the First con- texts, Amendment, (1998) particularly gov- this one L.Rev. where the 112 Harv. ("Of operating enterprise paths ernment is commercial all of the down which the Court earning advertising.” might go Maj. op. dealing income from in en- cases, Tribe, 2-24, (citing supra, terprise § at 75 at at 922 the so-called 'forum doctrine' ("[W]hether given place appears satisfactory.”)). least or not a is deemed a brief, targets, but rather alerts appellant’s disparage in indicated As community concerning lan- to a fact their (perceived) standards” them “prevailing MBTA nоt a ease a offending in eternal salvation.2 This is guage contained attempt group defaming to breathe hate the followers of rule is the MBTA’s Juda ism, regulation interjecting Catholicism, religion validity into its or another as three-prong in Miller prong having one test individual some intrinsic flaw. 15, 24, Rather, v. 413 U.S. 93 S.Ct. California, Ridley’s attempts advertisement (1973), L.Ed.2d 419 for determin- people religion. to convert to her these ing speech is obscene. One out whether Telling they risking to people going however, is to insufficient prongs, is, not, three like key component hell it or a defect. because guideline’s cure the “Just choices explaining why religious are so three a limitations is definition including important, and reasonable minds could it does not follow that one of vague, disagree most with the certainly conclusion limitations, itself, standing by is not those any way a in such statement demeans ACLU, 844, 873, vague.” Reno v. it disparages very people aims (1997) 138 L.Ed.2d 874 save. a was That such statement consid Decency (holding that the Communications “hostile,” “mock[ing],” or ered “de Act, “contemporary a commu- which used mean[ing]” ambiguity highlights nity regulate test obscene standards” guide MBTA’s unreasonableness ‍‌​​​​‌‌‌‌‌‌‌​​​​‌‌​​​​‌‌‌‌​​​​​​‌‌‌‌​​‌‌​​‌​‌​​‌‍of the Internet, speech on the offended the First community “prevailing line. The stan it was unconstitution- Amendment because dard” formulation does not rescue the ally vague). rather, guideline vagueness; from permits they if MBTA authorities —even

Indeed, very idea the MBTA have the of intentions —to make best sub thing that there is such a as a considers jective, determinations ad hoc about community “prevailing standard” for de- speech that controversial appears because expression meaning disparaging is itself minority it endorses viewpoint. Key How would such a rule be ridiculous. Cf. 589, 603, Regents, ishian Bd. is in discerned? What evidence there (1967) (stat L.Ed.2d 629 that the third violat- record advertisement standard, ing protects the First Amendment ed other than the MBTA’s conclusory against “pall orthodoxy” subjective oppressive that it assertion schools). therefore, contrary, religious guideline, is message did? To the question vagueness.3 such the advertisement does void way, Ridley’s equivalent today’s 2. serves as In this advertisement would its functional society. people analogous public 2.5 million use facilities on service announce- basis, daily approximately stating: and it contains “Kids who ment smoke think 40,000 effect, cool, advertising spaces. really look but it makes them look stu- position MBTAis to control the pid.’’ dissemi- imagine be difficult It would large segment nation of to a information rejecting MBTA such an advertisement on the which, sense, public practical in a that it ridicules or demeans adolescеnt basis obliged exposed to be to whatever smokers. permit in its facilities. chooses "danger majority's suggestion, Maj. op. Consequently, of excessive 93- dis- vagueness inquiry impor- lead[ing] viewpoint-discrimina- cretion ... that the is not decisions,” tory quite it does tant in this case because not involve a id. serious. Further, majority licensing public in a forum while the indicates that con- scheme traditional unconvincing. majority vagueness if the cern about is at its zenith in Even is cor- licens- fora, ing rect this is not a schemes for traditional I am traditional sense, permit legal system precedent aware of that would in the transit no in long as does so non- religious religions ad- as it permitted The MBTA facilities, vertising way, apparent but discriminates it demeaning in its is from messages on the basis of among religious rejection Ridley’s third advertisement majority claims that their content. that criticism about reli- even text-based does not this content discrimination more gion likely be to strike MBTA will to discrimination be- amount “hostile,” “mocking,” “de- authorities as or positive- “are to religions all allowed cause it simply because names that meaning,” and even ly promote perspective their own Indeed, the third religion. advertisement long they so positions to criticize other say anything not that was not implicit did in their demeaning speech use at- do not advertisement, in the which de- second Maj. op. at 91. This conclusion tacks.” (un- 1,000 clared that there were over good like “all that a statement assumes named) religions. false If the sufficiently go heaven” re- to Catholics advertisement, they permit the second good go “all Buddhists by replying butted reasonably cannot be to applied forbid dialogue, From this we could to heaven.” Thus, position third.5 the MBTA’s is in- heartwarming conclusion that draw trinsically viewpoint oriented. go to good “all Buddhists” Catholics Ridley’s adver- religious nature of bad, however, or this is heaven. Good burden, tisement increases the MBTA’s that simply type message not the most for is a “form of reli- religious Especially for small religions espouse. gious activity occupies high the same Ridley’s, part [that] groups like essential that Amendment as do explaining their estate under First proselytizing preaching of their “all in the prophet, worship view the view churches Catholics, Buddhists, go- etc. are not good Pennsylva- from Murdock v. pulpits.” rather, heaven; are to ing they going nia, 105, 109, central to their mes- (1943); Jesus, hell.” This belief is L.Ed. also Jews see sage of It is the clearest Auth., conversion. Bay F.2d Transp. Inc. Mass. (eternal) consequences statement of (1st Cir.1993) (prohibiting ban convert, those not and it is who do stations). at MBTA religious leafletting that are undoubtedly hoping a fact may not principle “The go message’s viewers propel will suppress religious enact belief laws and learn more about their their website it is practice [merely unorthodox] because beliefs. that few violations is so understood well opinions.” in our Church

Further, recorded majority concludes while City Inc. v. Aye, the Lukumi Babalu may that an criticize other advertisement mistakenly permitted past. vagueness regulations those outside of con- it text, especially potential might case. when the ramifica- This be so an isolated Howev- er, implementation ignore have haphazard tions unconstitutional MBTA's one cannot practical a similar effect. unpredictable pattern of enforcement ads, only Ridley's regard but three stated rejected 4. The advertisement ads, also as those at issue in to earlier such scriptures in the Bible that "[t]here are no Action, suggests that AIDS 42 F.3d at 1. This up religion, teach that God set the Catholic misunderstanding oversight mere was no Baptist religion, religion, Pentecostal acceptance Ridley’s to the second led religion or the Muslim the Jehovah's Witness We allow MBTA must not advertisement. religion. religions are false.” These change its standards or enforcement guide- every application ought thereof time majority 5. The insists that analogous challenged. expressions lines permit bound to 100 520, 523, of an

Hialeah, may prohibit expression 113 ment not 508 U.S. S.Ct. (1993) society idea finds the idea (striking simply 472 at- because L.Ed.2d down 124 disagreeable.”)! Any re itself offensive religious of rites that tempted suppression sacrifices). be “hostile” ligious speech will viewed as animal included some, all, by at if not of those who do least First Amendment does Simply put, the it proclaims. not share the belief See Git authority regulate recognize state not York, 652, 673, v. 268 low New U.S. 45 merely because it expression religious J., (Holmes, 69 L.Ed. dis S.Ct. 1138 firmly “It persons. offend other is might incitement.”). (“Every senting) idea is an expression ... of settled Religious quintessentially belief may merely be- prohibited ideas be viewpoint. matter of The the ideas themselves offensive to cause are cannot allow dissemination of one view- Magazine Hustler some of their hearers.” bland, point that it finds inoffensive Falwell, 46, 56, 108 485 S.Ct. U.S. prohibit the dissemination of another view- (1988) 41 (quoting L.Ed.2d Street v. point that it finds or “demean- offensive York, 576, 592, New ing,” “point speech pro- all because of (1969)). Religious 22 L.Ed.2d just tection ... to shield those choices proselytizing of a speech especially — eyes of that in are mis- content someone’s mass nature most often found in advertis- guided, hurtful.” Hurley or even v. Irish- ing by religious organizations intended —is Lesbian, Gay, Group, Am. and Bisexual people’s at the of strongest to strike core 557, 574, 515 U.S. beliefs; sense, inevitably in that it is “hos- (1995). L.Ed.2d 487 Such distinctions are Placing the govern- tile” to those beliefs. based, viewpoint merely reasonable deciding position ment of whether to content restrictions. those expression allow the of beliefs de- nature, By are pending very prohibition against on whether “hostile” or community “demeaning” to the strikes at ads that are “hostile” to an individual or a prohi- group the heart of the First Amendment’s of individuals is based. guideline permit The from against regulation speech. bitions state would ads Cath- Johnson, 397, 414, Pentecostals, olics,. Witnesses, Texas v. Jehovah’s (1989) (“If 2533, 105 stating 5.Ct. L.Ed.2d 342 Muslims and others their beliefs— “viewpoints” religions their principle underlying there is a bedrock their —that MBTA, Amendment, govern- up” by it is that were God.6The howev- First “set earth, holy holy spirit a unique 6. Claims of charter and exclu- is directed God's or active Watchtower, commonplace 1, ,1973, sive salvation are western July force.” The religion. examples are below not dissim- Latter-day Church Jesus Christ Saints position espoused by Ridley from the ilar (Mormon): "This is not just another Church. her third advertisement: ; just family This one is not of Christian The Roman Church: "This is the Catholic king- This is the and the churches. Church Christ, in the we sole Church Creed God, only upon dom of true Church ' one, holy, apostol- profess to be catholic and earth, according face to the Lord’s own Catechism the Catholic # 811. ic.” Church Benson, Teaching Taft words.” Ezra holy apostolic "There is but one Catholic and (1988). Benson 164-5 "Behold Ezra Taft church, is no outside of which there salvation only; there save two the one churches altogether necessary ... it is for salvation for the Lamb and the Church of of God other every subject creature to the Roman devil; is the churches of the wherefore who (Austin Pontiff.” 1 Vatican Council II 364-65 belongeth so not to the of the lamb church O.P., ed.). Flannery, church; god great belongeth to that which is too, Jehovah's “Consider the fact Witnesses: abominations; and she is the mother alone, organization that Jehovah’s in all the er, permit Ridley refuses to to state in viewpoint in refusing discrimination Ridley’s opposite viewpoint: her belief that these third submission. God,

religions by were up” not “set but are analysis II. Forum “false,” only and that her belief is correct. I Although find it unquestionably viewpoint unnecessary This is and ill- discrimi- advised to nation, engage forum analysis in as essence of viewpoint- “[t]he cases, these appropriate that I com based discrimination is the state’s decision ment majority’s on the conclusions that pick among similarly and choose situat- the MBTA has not a designated created ed speakers order to advance or sup- public forum by opening its facilities to ad press partiсular ideology or outlook.” vertisers expressing a broad range of com (1st 20, Delahanty, Berner v. 129 F.3d 28 mercial and non-commercial views. Like Cir.1997). Circuits, the Second and Third I find that justification The MBTA’s for censoring this kind of advertising program public Ridley’s religious expressions in the third transportation facilities converts them into suggestion advertisement is the that some a designated public forum. See N.Y. riders might take offense to its content. Auth., Magazine v. Metro. Transp. 136 This is not a sufficient reason to stifle (2d 123, Cir.1998) F.3d 129-30 (concluding speech protected by the First Amendment. that advertising space on city outside of See Planned Parenthood Ass’n/Chicago designated forum); buses was a public Auth., Chicago Area v. Transit 767 F.2d Ministries, Christ’s Bride Inc. v. S.E. Pa. (7th Cir.1985) (“We 1225, 1230 question Auth., 242, (3d Transp. 148 F.3d 252-55 Cir.1998) regulation whether a of speech (finding that has as transportation au its government thority touchstone a had designated public official’s created a sub jective by forum speech accepting variety view that the is ‘controver advertise ments, despite rejection sial’ its of a pass could ever few such constitutional mus content), ter.”); advertisements based on their Int’l, see also Penthouse Ltd. v. denied, 1068, cert. 797, 525 Koch, (S.D.N.Y. 119 S.Ct. 1338, F.Supp. 599 1349-50 (1999); 142 L.Ed.2d 659 1984) see also AIDS (poster cannot prohibited be in sub MBTA, Action Committee v. 849 F.Supp. way stations because its content is offen (D.Mass.1994) 79, (finding 83 that MBTA’s some). sive to What the MBTA fails to advertising space in subway trolley “[zjealots understand is that have First forum), cars is a on other rights Amendment too.” Pinette Capi aff'd (1st Cir.1994). grounds, 42 F.3d Bd., Square tol Advisory Review and (6th Cir.1994), F.3d on other designated public A may forum be “cre- aff'd grounds, 753, 760, 515 U.S. 115 S.Ct. by government designation ated place of a (1995). I L.Ed.2d.650 invite the ma channel of communication for use jority to take principle note of that at large assembly speech, conclude, do, as I engaged the MBTA speakers, use certain or for the Mormon,

whore of all the earth”. Book which admonishes believers: "Thou shalt Nephi 14:10. gods have no other before me.” Exodus 20:3. anyone religion Islam: "If desires a other rejected This mandate would have to be (submission Allah) than Islam never will It offensive to non-Judeo-Christians because it is Qur’aan, accepted of Him.” Soorah Aal'im- “disparages” "hostile” to and believers in dei- raan 3:85. god. ties other than the Judeo-Christian Indeed, guideline prohibit would Commandment, expression even of the First Cornelius, matter, subjects.” preliminary appropri- As a it is certain discussion (citing 105 S.Ct. to state that fact that the MBTA 473 U.S. ate 46 n. Perry, chosen to in its include 948). if the was Even to the that it “intends that assertion effect open designated public obligated nonpublic facilities forums” constitute character indef open or to retain not be determinative of issue. should gеnerally initely, long as as the forum Otherwise, self-serving approach such a as by the standards open “it is bound same government simply allow the to de- would Per public in a traditional forum.” apply a whenev- property non-public clare forum 46, 103 at 948. ry, 460 U.S. of this er conflicts sort arose. See Int’l Lee, by majority, key the Krishna v. 505 the Soc. Consciousness As discussed (1992) 672, J., (Kennedy, the MBTA intended concur- inquiry is whether 695 U.S. advertising space public as a designate Similarly, its the fact that a ring). particular forum, we must answer con- question speech, regarding of category such as (1) prac- and sidering policy MBTA’s sales, is a forum tobacco excluded from regarding advertising space, its and tice preclude designation of a does (2) advertising the nature MBTA’s New Magazine, forum. York 136 compatibility expressive its space and (“[I]t at 129-30 cannot be true that if F.3d Cornelius, 802, activity. at U.S. any category government excludes S.Ct. 3439. speech from forum ... that forum be- forum.”). ipso non-public facto a comes Policy and Practice A. The charges fact Nor does the that the MBTA government’s prac and policy For the advertising space a fee for the use its forum, designated tice to create preclude designated pub- the creation of a “the must intend to make forum, “[djespite lic because the existence property ‘generally available’ to class fee, [government] may of a neverthe- Ark. Educ. Television speakers.” less have allowed indiscriminate use” of (“AETC”), Forbes Comm’n v. U.S. by “anyone willing pay.” forum Air 666, 678, 118 S.Ct. 140 L.Ed.2d 875 Ass’n, Avia- Dep’t Line Pilots Int’l v. (1998) Vincent, (quoting Widmar City Chicago, tion 45 F.3d 263, 264, 70 L.Ed.2d Cir.1995). (7th (1981)). the Climate asserts7 Furthermore, I believe it is worthwhile policy practice that the MBTA’s and have today to consider the within situation advertising avail space generally made its policies advertising context the MBTA’s non-profit organi to commercial able and years in the to the events leading up expression by any zations for the of views litigation. by noting in this I begin issue willing pay advertising fees. one Action, in we AIDS found any com dispute The MBTA does promulgated by that the policy may or mercial non-commercial advertiser coherent, “scarcely the MBTA was policy, [and] submit advertisements under very that oc- intentionally invite[d] that it has facilitated ac discrimination case, properly non-profit [that] for all of curred and was organizations cess enjoined.” period 42 F.3d 12. fering half-price them a discount on the liti- charged present fees commercial advertisers. between AIDS Action and the argu- again Ridley argued Ridley's vagueness I note has never ments, agree. analysis. fully Such with which I discussion is irrelevant will not accept from 1995 to at The MBTA advertise- gation, least required containing that: violent con- MBTA ments criminal tent, firearms, content, profane pro- inserted any advertisements at time [a]ll materials that motional is harmful placed by upon or Contractor juveniles, and shall advertisements that deni- display locations or devices be character, grate gender, based on reputable ap- groups religion, race, political of all shall be ethnic affiliation. pearance acceptable to and accordance with the Subsequently, through the MBTA went Standards for Character [MBTA’s] guidelines, two more revisions of its No li- Appearance Advertisements. majority in the opinion. described A new belous, slanderous, or advertise- obscene Regulating set of “Interim Guidelines ments, may accepted by the Contrac- Advertising,” promulgated April Authority’s for display upon tor or the 12, 2002, that the MBTA provided “shall shall transit facilities. Advertisements be any maintain display or advertisement” Authority to submitted advance the that is: Authority’s request review at the or for Demeaning or disparaging. The adver- reasonably the be- whenever Contractor tisement contains material that demeans may such lieves advertisements be ob- disparages or an individual or group jectionable meaning within of this the color, race, on the basis of individuals Article. religion, origin, ancestry, gen- national policy by an supplemented April This was der, disability, age, ethnicity, or sexual 21, 1995 letter from the MBTA Interim orientation. Manager, Mabardy, Robert which General additional guidelines: contained 17, 2003, yet the January On MBTA issued removing will refuse advertise- guidelines, another revision its viewers, race, etc., color, ment is indecent to child or language concerning the children, of a frighten community nature to either the adding “prevailing emotionally or physically. for determining standards” metric whether demeaning disparaging.

material is These shall not deemed to rule, “the general As a more restrictive lan- prohibit frightening indecent or for admission and more criteria guage that could double be considered access, control over less administrative entendre, that, provided if child asked likely will be public.” a forum deemed adult the indecent or meaning of such Pasco, City F.3d Hopper give a frightful language, the adult could (9th Cir.2001). years, Over the and truthful without reasonable answer for MBTA’s criteria admission have been to indecent or ac- frightening reference best, always and it has left confusing at or language. tivities ad- the initial determinations of whether may run afoul of In the MBTA formulated new bid vertisements the adver- subjective to advertising, tising policy for transit evaluation specifications advertising a private contained new version of the contractor. Those advertise- policy. specifications prohibit- The 1999 bid ments sent to for review have similarly subjective display for tobac- received a evaluation ed Thus, subjec- speci- employees. bid from MBTA products co echoed the 1992 fications, provisions policies these create following with the tive standards abuse, potential specifically poten- added: standards, apply and it Hop- discrimination. See will need these tial for (“The that there is way standards such a no per, potential at 1079 241 F.3d appearance [government] ‘the seek- discretion of such unbounded abuse particu- subjective ing handicap expression inherently by the heightened R.AV., itself.”). (quoting lar ideas.’” F.3d at 13 standard nature of the 2538). prac- In emphasize I tice, the MBTA has not restricted access a poli- not ‘create’ government may [t]he advertising space to its in a manner suffi- newly-discovered de- cy implement indicate an to maintain it cient to intent message. suppress particular sire to forum. non-public limited government invoke an may the Neither justify policy unenforced otherwise Action, we decided AIDS we When Therefore, gov- suppression. that “despite attempts found the MBTA’s more, is policy, stated without ernment’s gatekeeper, itself present vigilant as a gov- dispositive respect only [AIDS ads other than the 1993 in a intent forum. given ernment’s ads that know the MBTA awareness] we (citations Pilots, 45 F.3d at 1153 Air Line rejected recently are certain Calvin Klein omitted). determining whether might ads which somehow have been mis- designated MBTA has Klan, endorsing construed as the Ku Klux forum, then, one cannot space public as a rights an animal featur- and advertisement attempts to rely by the MBTA on recent dog.” Id. ing photograph of a maimed at advertising during the policy revise its reviewing application 9. In the MBTA’s prior litigation this to indicate its course of Action, advertising policies its since AIDS advertising nature intent on the changed. During I find that little has the space a forum. years preceding Change five the Climate’s PTD, policies interactions Similarly, the MBTA’s written first with between 1995 1999, post only considered reference to to cannot be without refused years preceding Examples fifteen application their the advertisements. include determining Psycho, whether the an advertisement the movie this action. designated property has to be which featured an of a nude woman image forum, bottom, we stated in a shower with at the previously have blood rejected than “in practice speaks that “actual louder because it was conflict with Fellowship, dignity workplаce Bible Inc. v. in the words.” Grace the MBTA’s Admin. No. 941 F.2d Maine Sch. Dist. Commonwealth’s domestic violence Cir.1991). (1st “[Consistency neither criteria programs,” of which are any policy advertising policy. is the hallmark of forth application set MBTA’s Rejection designed preserve non-public appears status of ads also to have oc- hoc, keep subjective A on an ad policy purporting of a forum. curred basis. For (or open expression only example, post forum MBTA closed refused adver- subjects) organiza- at all for from the policy on certain no tisement conservation if, Surfriders, purposes analysis discouraging peo- tion at aimed if practice, exceptions leaving it is not from butts on ple cigarette enforced beach, haphazardly permitted.” Hopper, apparently it included im- because Action, ages people smoking. post- F.3d at 1076. In we admon- The MBTA AIDS ed, however, to be A1 ished the MBTA that if it were advertisements for Italia will, speech, “it at the that holding allowed to restrict airline featured a woman least, according cigarette to act to neutral with the a buzz.” caption, need “Create Thus, rejection Supreme the ad hoc a handful of Court indicated that past principal ads over the decade cannot serve as “[i]n cases where the function of concluding the basis for that MBTA in- property disrupted by would be ex- advertising space non-pub- tended its as a pressive activity, [has the Court been] lic forum. particularly to hold that gov- reluctant designate ernment a public intended fo- Forum B. The Nature of the and Its Cornelius, rum.” at Compatibility Expression with hardly argue S.Ct. 3439. The MBTA can necessary It is also to examine “the advertising space generally in- compatibili- and its property nature compatible activity, with expressive ty activity with expressive to discern the that the function principal pro- MBTA’s Cornelius, government’s intent.” 473 U.S. viding transportation disrupted would be (citations omitted). 105 S.Ct. 3439 activity expressive proposed by inquiry examining This “the rela- involves Ridley, the Climate or since it has tionship between the reasons re- routinely advertising space made its avail- pur- on access and the forum’s striction public-issue able both commercial and pose.” United Food Commercial advertising range on a wide of issues Union, Workers Local 1099 v. Southwest See, any disruption. e.g., without Planned Auth., Reg’l Ohio Transit F.3d (“[S]ince Parenthood, 767 F.2d (6th Cir.1998). The district court in already permits CTA its facilities to be Change the prin- “[t]he Climate found public-issue political used for advertis- cipal purpose using of MBTA some of ing, it argue cannot such use is in- space for to earn reve- compatible primary use of nue in support goal facilities.”). It is clear transportation.” 214 providing F.Supp.2d “created a forum that is suitable for the ” (D.Mass.2002). 125, general, In 132 “the Bride, speech question.... in Christ’s courts will intent on part infer an the of 148 F.3d at 252. the government public to create forum majority wrongly emphasizes justification

where government’s for role with proprietary regard MBTA’s to its expressive the exclusion of certain conduct early an advertising space. In case ad- purpose, is unrelated to the forum’s even dressing public sys- advertising on transit speakers permission when must obtain to tems, Supreme Court held that be- Food, use the forum.” United 163 F.3d at commerce,” city engaged cause “the analysis 351. Forum must “in- therefore space, although car card inci- “[t]he scrutiny volve a of careful whether public dental of provision transpor- to the government-imposed restriction on access tation, part is a commercial of the ven- public property truly part to ‘the ture,” system city “a transit has discretion nonpublic forum process limiting a to develop to reasonable and make choices with compatible activities the intended “ concerning type advertising that property.’ of the Id. at 351-52 purpose may displayed be in its vehicles.” Leh- 49, (quoting Perry, at 948). City Heights, man v. 418 Shaker U.S. govern- will “that the Courts hold 298, 2714, 41 94 L.Ed.2d 770 S.Ct. only ment did not create a forum (1974). Lehman, public forum anal- Since when its standards for inclusion and exclu- ysis considerably developed has but has designed prevent sion are clear and are govern- continued to find that designated “[w]here interference with the forum’s acting proprietor, managing Id. ment is as a purpose.” Uptown In acting proprietary purpose. than rather operations, internal its Holly- regulate Jewelry, City power with the Pawn & Inc. as lawmaker (11th Cir.2003), subjected license, wood, action will not be F.3d its its actions heightened Maj. op. review to which at majority, discussed Lee, may subject.” be as a lawmaker that Circuit concluded the Eleventh The district 2701. shop on advertis- City’s prohibition pawn pur- finding principal that intent, “[t]he court’s an park benches “evidences ing of this using some pose of the forum, act in a create a but to not to to earn revenue advertising space capacity manage a commer- proprietary goal providing of the MBTA’s support Here, Id. at howev- cial venture.” Climate, 214 transportation,” Change er, posting there is no evidence that that the suggest F.Supp.2d would Ridley’s adver- Change the Climate’s or Lee, acting proprietor. as a MBTA is would have adverse effect tisements however, and re- it was “the cоmmercial ability revenue generate on the MBTA’s airport of an concourse stricted nature through space, regardless advertising did suggested government that the messages their are controver- of whether primarily intend the concourse to be described, previously As sial. Bride, 148 expression.” Christ’s posted range pub- commercial and (“We ... at 250 not read Lee F.3d do advertising lic-issue that would undermine runs every mean time like any argument has, by defini- enterprise a commercial proposed those now could excluded tion, open fo- decided to create protecting the interests of the revenue- rum.”). primary purpose While advertising generating capacity of advertising may gen- be to space MBTA’s then, Here, purpose of the space. “the revenue, it is that the erate clear closed, suggest forum does not that it is fact, and, encouraging allowing policy permitted points speech and the breadth (by offering a advertising non-commercial Bride, opposite in the direction.” Christ’s discount) judgment demonstrates its F.3d at 253. not conflict with its such does Pilots, Moreover, Supreme Air Line proprietary interests. Court has con- (finding at 1157 no “indication F.3d government’s practice sidered the of ex- groups to adver- permitting public interest cluding speech from a forum “not because vitality threaten of the tise would of categories speech the exclusion cre- deriving in City’s commercial interests forum, non-public ates a but because the displays.”). advertising from the revenue categories sheds nature excluded for Having opened advertising space light government on whether the was act- discourse, now non-commercial ing proprietor regulator.” as a or a New lawmaker, as a and not as a wishes to act 130; 136 Magazine, York F.3d at Corneli- regulate in proprietor, attempting (“The us, 805, at 473 U.S. 105 S.Ct. 3439 discourse, content of that which indicates [government limit access decision of the designated advertising space that it has itself; in dispositive to the [forum] Magazine, 136 public a forum. York New instead, suggests it is relevant for what (“Where acted government F.3d at 129 creating in [g]overnment’s intent about benefitting public, purpose forum.”). Lehman, In the Court found forum.”). ... the Court has found 26-year, ban consistently that the enforced contexts, however, limiting advertising ad- on non-commercial was consis- some government’s pro- as a vertising space has found consistent tent with the role been crime, ing violence, earned from social prietor, drugs, because issues like “[r]evenue abortion, long-term AIDS, suicide, commercial could be and religion. jeopardized by requirement that short- provisions of the MBTA’s Revised candidacy term or issue-oriented adver Interim Guidelines under which it refused displayed.” tisements be at to post Change the Climate’s advertise- Other courts have followed ments also indicate that it is acting as a Lehman to hold that a total ban on non regulator/lawmaker and not a propri- speech may commercial be consistent with guidelines prohibit etor. The the posting government acting proprietary in a any advertisement that “promotes or capacity and have found transportation ad encourages, appears or promote or en- vertising spaces non-public to be fora when courage, possession the use or of unlawful government “consistently promulgates services,” illegal goods or or unlawful policies restricting and enforces advertis conduct. The MBTA has not offered ... ing to commercial advertising.” Chil justification commercial for its interest Phoenix, Rosary dren City prohibiting advertisements containing such (9th Cir.1998); F.3d Lebron v. material, and we see “no commercial rea- (Amtrak), Nat’l R.R. Passenger Corp. why son any special [the has inter- MBTA] (2d Cir.1995). F.3d When conduct]; est in [preventing unlawful [the advertising space opened has been to non only MBTA’s] interest interest however, speech, commercial courts have upholding the law because it is the law.” distinguished the advertising space New Magazine, York 136 F.3d at 130. question from the total ban on non-com This certainly regulatory speech present mercial in Lehman. proprietary interest. Disallowing political speech, and allow- ing commercial speech only, indicates similarly Other courts have found the that making money is the main goal. advertising spaces of various urban trans- Allowing political speech, conversely, ev- portation systems designated to be a idences a general open space intent to forum when the discourse, and a accep- deliberate commercial, variety allowed “a wide possibility tance of the of clashes of public-service, public-issue, political opinion controversy that the Court ads,” Parenthood, Planned F.2d recognized Lehman as inconsistent 1232, “political and other non-commercial practice. with sound commercial advertising generally,” Maga- New York 130; Magazine, New York 136 F.3d zine, “public-service, 136 F.3d at Washington Lebron v. Metro. Area Tran public-issue, political (D.C.Cir. Auth., sit 749 F.2d in addition to traditional commercial ad- 1984)(“There is no ... question that Food, vertisements.” United 163 F.3d at subway WMATA has converted its stations cases, In contrary 346. these to the ma- public by accepting political into fora ... assertions, jority’s agency’s control advertising.”). long The MBTA has no public over issue un- advertising was not standing policy of prohibiting public-issue by like that in prac- exercised the MBTA advertisements like the Climate’s tice. Ridley’s. or excluding political While cam Bride, In paign speech from its Christ’s advertising space, Southeastern intentionally Pennsylvania Transportation Authority the MBTA has allowed and (SEPTA) encouraged advertising, designated public non-commercial was deemed a because, including public-issue advertising regard- while SEPTA asserted its community, “objec- ing enabling in and right advertising to refuse deemed reason,” any tionable for SEPTA had the and rid- SORTA to attract maintain its virtually “practice permitting unlimited ership, its broad-based discretion F.3d at access to the forum.” 148 251-52. that are too con- exclude advertisements in practice The Third Circuit found aesthetically pleasing. or not troversial only has control over “SEPTA exercised Although political public-issue ads, graphics two which had three contentious, speech it not is often does objected, and one of which which SEPTA speech necessarily follow that such will personal injury cases that could solicited interests. frustrate SORTA’s commercial against Id. at 252. be directed SEPTA.” Rather, in may only be the case rare will Food, circumstances the controversial Regional United the Southwest (SORTA) sufficiently rejected speech nature of such inter- Authority Transit had provision provision a of its fere with the Metro bus advertisement under “[ajdver- advertising policy prohibited excluding a services so as warrant tising public of controversial issues that political public-issue advertisement. adversely may ability affect SORTA’s Food, at United 163 F.3d ridership.” attract and maintain 163 F.3d Admittedly, opened not at 352. The Sixth Circuit concluded that advertising space to all ad- public-issue guiding “the lack of standards definitive vertising except that which it deems “ob- application advertising of SORTA’s reason,” jectionable any id., for but has SORTA, SEPTA, policy permits like promulgated advertising instead written reject proposed advertisement deemed policies and exercised control a hand- over objectionable reason.” F.3d at ful of years the five circumstances, 354. Under these Still, prior to at issue the events here. transportation authorities’ contention policies incoherent written the occa- advertising incompatible was issue sional, subjective exercise of control are by with the nature of the forum created insufficient to demonstrate an intent advertising spaces their could be sus- the MBTA close its as advertising space reasoning tained. Sixth Circuit’s public routinely posts forum when it instructivе: public-issue manner advertisements on all also find that pur- We SORTA’s stated of social issues. pose advertising limiting buses related, only best, tenuously to the Thus, policy practice the MBTA’s greater forum’s intended use. This is regarding space, and the Cornelius, situation like that space nature of that man- created and where the established MBTA, aged by an in- demonstrates process controlled solicitation to prevent designated tent the MBTA to create a ], disruption workplace, [AETC public forum. system broadcasting where lo- that, I Finally, must note not a while gistically possibly could not accommo- city park, sidewalk or MBTA’s facili- candidates, political date all or even analogue ties are modern to these tra- ], [Perry high where a school a di- had above, ditional fora. As mentioned controlling rect interest access to its 2.5 in people million Boston mail Greater system. internal Here there is no facilities, area use the MBTA’s and its 170 established causal link between SOR- routes, lines, goal enhancing trolley subway TA’s bus environment riders, enhancing for its rail SORTA’s stand- 13-branch commuter network transit through jority of their routes would allow the to con- point at some In addition trol information public across traditional fora. the content to which case, in public exposed ‍‌​​​​‌‌‌‌‌‌‌​​​​‌‌​​​​‌‌‌‌​​​​​​‌‌‌‌​​‌‌​​‌​‌​​‌‍through to the car cards at issue these adver- advertising tising spaces. allows on the outside of advertising MBTA’s' vehicles, obviously displayed system powerful is indeed tool with through public streets. public opinion, transit which to influence one subway opened Some of the cars on some which should be to the crucible of ground competing viewpoints largest lines that travel above are even to the extent way painted possible. such the whole exte- constitutes, effect, car

rior of the advertisement. The MBTA also allows ad- III. Conclusion vertising on the walls of the numerous bus I Although majority’s concur with the trolley public shelters that sit on the engaged conclusion that and can seen from the sidewalks rejected discrimination when it Thus, in addition to thoroughfare. proposed advertise- Climate’s traveling public, the MBTA’s ments, I from failure recog- dissent influence reaches into those on the tradi- regard nize similar discrimination with tional fora—the streets and side- Ridley’s I advertisements. further dissent above, walks of Greater Boston. As stated majority’s engage from the decision to position that MBTA is in a this means analysis, and from the outcome 40,000 advertising spaces to control thereof. large dissemination of information to a segment region’s population. It is least,

disquieting, say that the ma- APPENDIX MUKAMUSONI, Petitioner,

Allen ASHCROFT, Attorney John General, Respondent. No. 03-1723. Appeals, Court of United States First Circuit. 6, 2004. Heard Oct. Decided Dec.

Case Details

Case Name: Ridley v. Massachusetts Bay Transportation Authority

Court Name: Court of Appeals for the First Circuit

Date Published: Nov 29, 2004

Citation: 390 F.3d 65

Docket Number: 03-1970, 03-2285

Court Abbreviation: 1st Cir.