AFDI v. MBTA ( 2015 )

United States Court of Appeals
For the First Circuit
No. 14-1018
No. 14-1289
AMERICAN FREEDOM DEFENSE INITIATIVE; PAMELA GELLER;
AND ROBERT SPENCER,
Plaintiffs-Appellants,
v.
MASSACHUSETTS BAY TRANSPORTATION AUTHORITY; AND BEVERLY A. SCOTT,
INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS CHIEF EXECUTIVE
OFFICER / GENERAL MANAGER OF THE MBTA,
Defendants-Appellees.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Lynch, Chief Judge,
Stahl and Barron, Circuit Judges.
Robert Joseph Muise, with whom David Yerushalmi and American
Freedom Law Center were on brief, for appellants.
Joseph D. Steinfield, with whom Jeffrey J. Pyle, Julia A.
Brennan, and Prince Lobel Tye LLP were on brief, for appellees.
March 30, 2015
BARRON, Circuit Judge. These consolidated appeals
require us to decide whether the First Amendment permits the
Massachusetts Bay Transportation Authority ("MBTA") to refuse to
display a pair of paid, private advertisements on the trains,
buses, and transit stations that the MBTA operates. Many circuits
and district courts have addressed the First Amendment issues that
public transit authority advertising policies raise. We set forth
our approach most recently and most thoroughly in Ridley v.
Massachusetts Bay Transportation Authority, 390 F.3d 65 (1st Cir.
2004).
In that case, we considered a free speech challenge to
the same aspect of the MBTA's advertising policy at issue in these
appeals: the restriction on the display of advertisements that
"demean or disparage" individuals or groups. And, as in Ridley, we
again conclude that this restriction does not violate the First
Amendment, either on its face or as it was applied. We thus affirm
the District Court, which reached that same conclusion with respect
to the MBTA's refusal to run the two advertisements at issue here,
each of which concerns a highly charged issue -- the Israeli-
Palestinian conflict.
I.
The MBTA operates the public transit system in the
greater Boston area. Through an advertising agent, the MBTA makes
its buses, trains, and transit stations available for the display
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of advertisements by private parties. The MBTA accepts most
advertisements only upon payment, though the MBTA apparently
accepts some public service advertisements for no charge. But the
key fact is that the MBTA will not run every advertisement it
receives, even when the advertiser is willing to pay the going
rate. Instead, each advertisement must conform to the MBTA's
Advertising Program Guidelines.
Those Guidelines state that the MBTA's program objectives
are maximizing revenue from both advertising and ridership;
preserving a safe and orderly operation and a welcoming environment
for riders; and avoiding the identification of the MBTA or the
Commonwealth with the point of view of the advertisements or the
advertisers. To further those ends, the Guidelines restrict what
the advertisements may say. The Guidelines also set forth a
procedure by which the MBTA may review proposed advertisements that
might contain prohibited content. Under that procedure, the MBTA
may suggest changes that would permit the advertisements to be
accepted upon re-submission.
In these appeals, the parties dispute the lawfulness of
the application of the Guidelines to bar two advertisements about
the Israeli-Palestinian conflict. These advertisements were
submitted by the American Freedom Defense Initiative ("AFDI"), a
non-profit advocacy organization dedicated to "freedom of speech
. . . and individual rights."
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AFDI offered to pay the MBTA to run the first of the
advertisements in October 2013. But the actual roots of the
dispute reach back somewhat earlier. Months before, the MBTA ran
a different non-profit group's advertisement concerning the
Israeli-Palestinian conflict. The message of that earlier
advertisement was very different from the one in AFDI's
advertisement. AFDI makes that fact a centerpiece of its First
Amendment challenge.
The earlier advertisement was submitted in September 2013
by a group called the Committee for Peace in Israel and Palestine.
The advertisement depicted four maps reflecting different points in
time with the caption, "Palestinian Loss of Land - 1946 to 2010."
The advertisement also contained bold text to the right of the maps
stating that "4.7 Million Palestinians are Classified by the U.N.
as Refugees."
The MBTA accepted the advertisement, and it began to run
for a fee in October 2013. After receiving complaints about the
advertisement later that month, the MBTA briefly ceased displaying
the advertisement. But, shortly thereafter, the MBTA re-posted the
advertisement. The MBTA claimed that there had been a
miscommunication between it and its advertising agent, but did not
otherwise explain its decision either to pull the Committee for
Peace advertisement or to re-post it.
-4-
Very soon after the MBTA announced it would re-post the
Committee for Peace advertisement, AFDI submitted the first of the
advertisements at issue in these appeals. This advertisement
included, without attribution, a modified version of a quotation
from the political theorist Ayn Rand.1 The advertisement read as
follows:
IN ANY WAR
BETWEEN THE
CIVILIZED MAN
AND THE SAVAGE,
SUPPORT THE
CIVILIZED MAN.
b SUPPORT ISRAEL b
DEFEAT JIHAD
AFDI asked the MBTA to display this ad in ten transit stations
where the Committee for Peace advertisement also had been posted.
The MBTA applied the Guidelines' stated procedures for
reviewing submitted advertisements. The MBTA, through its General
Manager, defendant Beverly Scott, then rejected AFDI's submission.
The MBTA concluded that AFDI's submission violated one of its
Guidelines -- namely, the prohibition on "advertisement[s]
contain[ing] material that demeans or disparages an individual or
group of individuals."2 Scott notified AFDI of the decision on
1
In response to a question about the 1973 Arab-Israeli war,
Ayn Rand was quoted as saying, as a reason to support Israel,
"[w]hen you have civilized men fighting savages, you support the
civilized men, no matter who they are." Ayn Rand, Egalitarianism
and Inflation, Address at the Ford Hall Forum (Oct. 20, 1974).
2
The guideline further provides that, "[f]or purposes of
determining whether an advertisement contains such material, the
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November 4, 2013.3 Two days later, AFDI brought suit in federal
court. The suit alleged violations of the First and Fourteenth
Amendments and sought a preliminary injunction ordering the MBTA to
run the ad.
The District Court denied the preliminary injunction
request on December 20, 2013. See Am. Freedom Def. Initiative v.
Mass. Bay Transp. Auth. ("MBTA I"), 989 F. Supp. 2d 182 (D. Mass.
2013). The District Court agreed with AFDI "that the most
reasonable interpretation of their advertisement is that they
oppose acts of Islamic terrorism directed at Israel." Id. at 189.
Nonetheless, the District Court concluded that the references to
"jihad" and "savage[s]," taken together and considered in light of
the reference to "war," could, as the MBTA argued, reasonably be
construed to demean or disparage Muslims or Palestinians, rather
than to take aim only at terrorist acts. Id. at 188. The District
Court also concluded that even though the Committee for Peace
advertisement "deeply offends [AFDI] and . . . other members of the
community" and "portrays Israel in a negative light," that
MBTA will determine whether a reasonably prudent person,
knowledgeable of the MBTA's ridership and using prevailing
community standards, would believe that the advertisement contains
material that ridicules or mocks, is abusive or hostile to, or
debases the dignity and stature of, an individual or group of
individuals."
3
The District Court found that there was no evidence that
anyone either explained to AFDI how this first submission violated
the Guidelines or provided AFDI an opportunity to bring the
advertisement into compliance.
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advertisement "does not do so in a way that violates the demeaning
and disparaging guideline." Id. at 191. By contrast, the District
Court explained, "labeling a member of a group 'a savage', as
defendants not unreasonably believe is done by plaintiffs'
advertisement, directly debases that person’s dignity." Id.The District Court expressed concern that the MBTA could
use the guideline to strip messages of their effectiveness. But
the District Court read this Court's decision in Ridley v.
Massachusetts Bay Transportation Authority, 390 F.3d 65 (1st Cir.
2004), to require the conclusion that, in this context, advertisers
"do not have the right to use whatever terms they wish to use . . .
simply because they are the most effective means of expressing
their message." MBTA I, 989 F. Supp. 2d at 190.
Two weeks later, AFDI submitted a revised version of its
proposed advertisement. This second submission read as follows:
IN ANY WAR BETWEEN THE CIVILIZED MAN AND THOSE ENGAGED IN SAVAGE
ACTS,
SUPPORT THE CIVILIZED MAN.
DEFEAT VIOLENT JIHAD
b SUPPORT ISRAEL b
Unlike AFDI's first ad, this second submission referred
to "violent jihad" instead of merely "jihad." In addition, the
second version's "defeat" clause preceded its "support" clause. In
the first AFDI advertisement, by contrast, the two clauses appeared
in the opposite order. Finally, and most crucially given the
District Court's opinion in MBTA I, AFDI's second version changed
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the language at the beginning of the advertisement. The new
language juxtaposed "the civilized man" with "those engaged in
savage acts" rather than with "the savage," as had been the case in
the first version.
The MBTA accepted AFDI's second submission and requested
specifications so that the advertisement could be displayed within
a week of its submission. But AFDI chose not to have the MBTA run
this second version. Instead, AFDI submitted a new version the day
after learning the MBTA had accepted its second submission.
This third advertisement, which AFDI claimed was merely
a "tweak[ed]" version of the accepted submission, read as follows:
IN ANY WAR BETWEEN THE CIVILIZED MAN AND THE SAVAGE,
SUPPORT THE CIVILIZED MAN.
DEFEAT VIOLENT JIHAD
b SUPPORT ISRAEL b
This third version maintained the second version's reference to
"violent jihad" (as opposed to merely "jihad," as in AFDI's first
ad). The "defeat" and "support" clauses also appeared in the same
order as they had in the second ad -- and thus, once again, in the
opposite order from how they had appeared in the first ad. But
unlike the second ad, which had been accepted, the third version
returned to the juxtaposition that had appeared in the initial,
rejected version. The revised language once again counterposed
"the civilized man" and "the savage" rather than "the civilized
man" and "those engaged in savage acts."
-8-
The MBTA rejected AFDI's third submission. The MBTA
concluded that, like AFDI's first submission, the third ad violated
the guideline that prohibits advertisements containing material
demeaning or disparaging individuals or groups. AFDI then again
brought suit, seeking another preliminary injunction.
The District Court denied the motion "on the grounds
previously set out in its opinion in" MBTA I. Am. Freedom Def.
Initiative v. Mass. Bay Transp. Auth. ("MBTA II"), No.
1:14-cv-10292-NMG, 2014 WL 1093138, at *3 (D. Mass. Mar. 17, 2014).
In addition, the District Court charged AFDI with "blatant
gamesmanship" -- submitting this third version instead of having
the MBTA run the second one -- and noted that this "bad faith" was
an independent ground for denying the requested equitable relief.
Id.After AFDI timely appealed both decisions, the parties
agreed to consolidate the two cases, given their common issues of
fact and law and that the appeals involve the same parties. AFDI
advances three basic contentions on appeal.
AFDI argues first that the MBTA has so opened up its
buses, trains, and transit stations to private advertisements that
the MBTA has effectively established what is known as a designated
public forum. See Perry Educ. Ass'n v. Perry Local Educators'
Ass'n, 460 U.S. 37, 45-46 (1983). For that reason, AFDI argues,
the MBTA may regulate the content of advertisements only through
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restrictions that are narrowly tailored to serve a compelling
interest. See Pleasant Grove City, Utah v. Summum, 555 U.S. 460,
469-70 (2009) (designated public fora "are subject to the same
strict scrutiny as restrictions in a traditional public forum").
Further, AFDI argues that, under that strict standard, the MBTA
cannot justify the content-based decision to reject the
advertisements at issue here.
AFDI next argues that, even if the MBTA has not
established a designated public forum and instead is operating only
what is known as a nonpublic forum, the MBTA's guideline
prohibiting the display of an advertisement that "demeans or
disparages" individuals or groups is still facially
unconstitutional. And that, AFDI says, is for either of two
reasons. AFDI argues that the MBTA's guideline necessarily
discriminates on the basis of an advertisement's viewpoint. See
Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 806
(1985) (explaining that speech restrictions in nonpublic fora must
be viewpoint neutral). And, alternatively, AFDI argues that the
guideline is so vague that it confers too much un-cabined
discretion on the MBTA to sort between permitted and prohibited
ads. See Ridley, 390 F.3d at 93-95 (discussing the high bar
vagueness challenges face in nonpublic forum context).
Finally, AFDI argues that even if its forum argument and
facial challenges do not succeed, the MBTA still violated AFDI's
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First Amendment rights. AFDI contends that the MBTA's actual
application of its guideline (especially given the MBTA's decision
to run the Committee for Peace advertisement) was unconstitutional.
Specifically, AFDI contends that the MBTA discriminated against the
viewpoint expressed in the two rejected AFDI advertisements or, at
least, acted unreasonably in denying those ads given the purposes
of the MBTA's overall advertising policy.
We consider each of these arguments in turn. In doing
so, we explain why, in light of our prior ruling in Ridley --
which, if not strictly controlling as to each issue, is instructive
as to all -- we find none of these arguments persuasive.
II.
Before turning to the merits of AFDI's argument, we note
that we are reviewing the denial of a preliminary injunction. In
evaluating AFDI's contentions, the standard of review is thus abuse
of discretion. Sindicato Puertorriqueño de Trabjadores, SEIU Local
1996 v. Fortuno, 699 F.3d 1, 9 (1st Cir. 2012). That standard,
however, applies in this context only to "issues of judgment and
balancing of conflicting factors." Water Keeper Alliance v. U.S.
Dep't of Def., 271 F.3d 21, 30 (1st Cir. 2001) (quoting Cablevision
of Bos., Inc. v. Public Improvement Comm'n, 184 F.3d 88, 96 (1st
Cir. 1999)). By contrast, findings of fact are reviewed for clear
error, and rulings on legal issues are reviewed de novo. Id. at
30-31. Moreover, in order to secure preliminary injunctive relief,
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AFDI must "establish a 'strong likelihood' that they will
ultimately prevail" on the merits of their First Amendment claim.4
Sindicato Puertorriqueño, 699 F.3d at 10 (quoting Respect for Me.
PAC v. McKee, 622 F.3d 13, 15 (1st Cir. 2010)).
III.
We start with AFDI's contention that the MBTA's
advertising program is so unselective that it constitutes a
designated public forum. The MBTA argues we must reject that
contention. In support of this point, the MBTA relies on Ridley,
which held that the MBTA's advertising program was a nonpublic
forum. See 390 F.3d at 78-79. And the MBTA further contends that
the law of the circuit doctrine makes Ridley's holding on the forum
issue binding on this panel. See United States v. Rodriguez, 311
F.3d 435, 438-39 (1st Cir. 2002) (prior panel decision are
"inviolate" absent intervening authority (quoting United States v.
Chhien, 266 F.3d 1, 11 (1st Cir. 2001))).
As a result, the MBTA argues, its content-based
restrictions on speech need not be narrowly tailored to serve a
compelling interest, as AFDI contends. Instead, the MBTA argues
4
In light of our conclusion that AFDI has not demonstrated
that it is likely to succeed on the merits in either of its
challenges, and because likelihood of success on the merits is the
"sine qua non" of the four-part inquiry a district court must
undertake in adjudicating a preliminary injunction request, New
Comm Wireless Servs., Inc. v. SprintCom, Inc., 287 F.3d 1, 9 (1st
Cir. 2002), we do not address the final three factors of the
preliminary injunction inquiry in this opinion.
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that the restrictions must be upheld under the more forgiving
standards that apply in nonpublic fora. See Davenport v. Wash.
Educ. Ass'n, 551 U.S. 177, 189 (2007) (restrictions in nonpublic
fora are permitted so long as they do not discriminate on the basis
of viewpoint and are reasonable in light of the purposes for which
the forum was established).
But even though Ridley held that the MBTA was operating
a nonpublic forum, AFDI is right that "the forum question is not a
static inquiry." Thus, we must still consider whether the MBTA has
done anything since Ridley to transform its advertising program
from a nonpublic forum into a designated public forum, in which
case the MBTA's content-based restriction on disparaging or
demeaning advertisements then would be subject to more exacting
scrutiny. See Ridley, 390 F.3d at 76 (courts look to "explicit
expressions about intent" as well as the actual practice of the
government actor in question to determine whether said actor
intended to designate a place or program as a public forum).
Ridley based its forum holding in part on the MBTA's
formally expressed intention. Ridley explained that the MBTA had
consistently maintained that its advertising program constituted a
nonpublic forum rather than a designated one open to the display of
all manner of private communication without regard to the content
of the message. See id. at 77. But Ridley did not rely on the
MBTA's expressed intention alone. See id. Ridley also made clear
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that, although the MBTA did run many private advertisements, the
MBTA had not in practice opened itself up as a forum for the
communication of ideas generally. Instead, Ridley concluded that
the MBTA was trying only to capitalize on the market for display
advertising as part of its general effort to increase revenue. See
id. at 79.
Ridley further observed that the MBTA's selectivity in
choosing advertisements was, from the start, consistent with that
overriding commercial purpose. See id. at 78. Ridley explained
that the MBTA had concluded that riders of subways and buses might
not appreciate certain kinds of content in the advertisements that
those riders would encounter. Thus, the MBTA set forth a number of
rules restricting advertising content that were crafted to maximize
advertising revenue without thereby adversely affecting its
ridership. See id. at 72, 77-78 (describing the MBTA's advertising
policy).
As was true in Ridley, the MBTA's advertising policy
still states that the MBTA operates a nonpublic forum. And the
MBTA's Guidelines still consist of the same basic rules regarding
prohibited advertising content as were in place at the time of
Ridley. Nor does AFDI argue otherwise.
AFDI contends instead that the MBTA's decision to run the
Committee for Peace advertisement shows that the MBTA is now, in
actual practice, willing to permit speech on even the most
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controversial of issues. And thus, AFDI argues, the MBTA has
effectively created a designated public forum, because it is simply
incongruous for a nonpublic forum to allow itself to be open to the
display of such controversial advertising.
Contrary to AFDI's contention, however, the MBTA's
decision to run the Committee for Peace advertisement did not
transform the nature of the forum. Ridley involved a challenge to
the MBTA's attempt to regulate speech on such controversial topics
and issues as religion and the debate over the legalization of
marijuana. See id. at 69. In defending those restrictions at that
time, the MBTA did not argue that all speech on such topics and
issues was per se off limits. See id. at 83. The MBTA instead was
quite clear that its Guidelines allowed such speech. See id. And
yet, Ridley concluded that the MBTA's willingness to accept
advertisements on those hot-button matters did not make the MBTA's
advertising program a designated public forum. See id. at 81-82.
It is true, as AFDI argues, that the Supreme Court held
in Lehman that an urban transit authority had not created a
designated public forum when it limited advertising space on its
transit cars "to innocuous and less controversial commercial and
service oriented advertising." Lehman v. City of Shaker Heights,
418 U.S. 298, 304 (1974). But Ridley took account of Lehman and
concluded that it did not require a nonpublic forum to limit itself
to such anodyne messages. See Ridley, 390 F.3d at 78-79. Ridley
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concluded that, for purposes of forum analysis, the MBTA's
advertising program was indistinguishable from the program at issue
in Lehman, even though the MBTA -- unlike the transit authority at
issue in Lehman -- had opened itself up to a wider range of
advertisements, including many controversial ones. See id. at 78-
82. Ridley thus makes clear that, contrary to AFDI's contention,
the MBTA need not reject all but "innocuous and less controversial"
advertisements in order to maintain a nonpublic forum.
In so holding, Ridley followed the Supreme Court's
instruction that a governmental proprietor creates a designated
public forum "only by intentionally opening a nontraditional forum
for public discourse." E.g., Cornelius, 473 U.S. at 802. True, a
governmental actor's stated intent cannot determine the nature of
the forum in the face of countervailing actions by that actor. See
Ridley, 390 F.3d at 77. But Ridley explained that the MBTA's
expressed intent, as implemented through various restrictions on
advertising content, fit with the MBTA's announced purposes in
establishing the advertising program as a nonpublic forum --
namely, the MBTA's desire to balance its interest in maximizing
revenue from advertising against its interest in ensuring customer
satisfaction. See id. at 80. Moreover, Ridley relied on the
Supreme Court's observation in Arkansas Education Television
Commission v. Forbes, 523 U.S. 666 (1998), that by recognizing the
distinction between a government's decision to open its property to
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private messages selectively rather than generally, "we encourage
the government to open its property to some expressive activity in
cases where, if faced with an all-or-nothing choice, it might not
open the property at all." Ridley, 390 F.3d at 80 (quoting Ark.
Educ. Television Comm'n, 523 U.S. at 680).
We are aware that, as AFDI points out, a number of out-
of-circuit decisions have held that transit systems' advertising
spaces constitute designated public fora. These cases have done
so, moreover, after noting that those transit systems have allowed
controversial advertisements. See, e.g., United Food & Commercial
Workers Union, Local 1099 v. Sw. Ohio Reg'l Transit Auth., 163 F.3d
341, 355 (6th Cir. 1998) (holding that a transit authority had
"demonstrated its intent to designate its advertising space a
public forum" by accepting a wide array of controversial
advertisements in contravention of its policy barring such
advertisements); N.Y. Magazine v. Metro. Transp. Auth., 136 F.3d
123, 130 (2d Cir. 1998) (suggesting that "deliberate acceptance of
the possibility of clashes of opinion and controversy" is
inconsistent with operating a nonpublic forum); Planned Parenthood
Ass'n/Chi. Area v. Chi. Transit Auth., 767 F.2d 1225, 1232-33 (7th
Cir. 1985) (holding that a transit authority had created a
designated public forum where it had accepted a wide range of
controversial advertising).
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But Ridley controls in this appeal. And Ridley plainly
held that a transit agency's decision to allow the display of
controversial advertising does not in and of itself establish a
designated public forum. Ridley also held that the MBTA had not
established such a forum even though the MBTA permitted such
advertising. See 390 F.3d at 81-82. Moreover, Ridley reached that
conclusion after considering those very same sister circuit cases
and concluding that each "is distinguishable on its facts." Id. at
81.
Ridley is not alone in so analyzing the forum issue. The
Ninth Circuit recently concluded that the Seattle transit system's
paid advertising program was a nonpublic forum. Seattle Mideast
Awareness Campaign v. King County, __ F.3d ___, Nos. 11-35914, 11-
35931, 2015 WL 1219330, at *6 (9th Cir. Mar. 18, 2015). We agree
with the Ninth Circuit that a transit authority, like Seattle's and
the MBTA, that allows a wider range of speech than was permitted in
Lehman is not automatically stripped of its ability to adopt other
viewpoint-neutral criteria for selecting content that reasonably
served the agency's overriding commercial purpose. See id. at *6.
Like the MBTA's, Seattle's program granted only "selective access"
to advertisers, and the selective criteria the agency used to
determine which ads could be run were consistently applied. Id. at
*5. Further, as here, the advertising program was "part of a
government-run commercial enterprise, and the expressive activities
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the government permit[ted]" under that program were "only
incidental to" the commercial use. Id. Thus, the Ninth Circuit
concluded -- as do we -- that the bare fact that a transit system
runs some controversial ads does not mean that its advertising
program becomes a designated public forum. See id. at *6 ("Any
such rule would undermine the [Supreme] Court's efforts to
'encourage the government to open its property to some expressive
activity in cases where, if faced with an all-or-nothing choice, it
might not open the property at all.'" (quoting Ark. Educ.
Television Comm'n, 523 U.S. at 680)).
That brings us to AFDI's last point on this issue. AFDI
argues that whatever the nature of the MBTA's advertising program
in general, when the MBTA accepted an advertisement on the Israeli-
Palestinian conflict -- a highly politicized and controversial
issue -- the MBTA necessarily established a designated public forum
with respect to speech about that particular issue.
But this argument, too, cannot be reconciled with Ridley.
There, we "reject[ed] the argument that because a government
commercial enterprise has opened up discussion on one particular
'topic' . . . it must allow any and all discussion on that topic."
Id. at 91. Ridley therefore necessarily held that the fact that
the MBTA had accepted advertising certain to inspire controversy of
one sort or another did not mean that the MBTA runs a designated
public forum. See id. And nothing in the record before us reveals
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developments that permit us to reach a different conclusion. Thus,
the MBTA's advertising program is a nonpublic forum. The MBTA may
therefore restrict the content of the advertisements it accepts for
display so long as such restrictions are not viewpoint-based and
are reasonable in light of the purposes for which the forum was
established.
IV.
According to AFDI, even if the MBTA is operating a
nonpublic forum, the MBTA has nonetheless selected a
constitutionally impermissible criterion for restricting speech.
And, AFDI maintains, that is true regardless of how the MBTA
applied that criterion to AFDI's particular advertisements. To
make that argument, AFDI first claims that the demeaning or
disparaging guideline on its face discriminates on the basis of
viewpoint. And, second, AFDI argues that the guideline is so
inherently vague that it must be struck down on its face for
conferring excessive discretion on the MBTA to select messages it
favors and reject ones it dislikes.
These facial attacks, however, like the challenge to the
nature of the forum itself, run directly into our decision in
Ridley and the law of the circuit doctrine. Ridley squarely held
that exactly the same guideline was not invalid on its face. See
390 F.3d at 90-91, 93-96. And Ridley's holding still binds us.
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With respect to viewpoint discrimination, Ridley
explained that the demeaning or disparaging guideline is merely a
"[r]easonable ground rule[]" under which "all advertisers on all
sides of all questions are allowed to positively promote their own
perspective and even to criticize other positions so long as they
do not use demeaning speech in their attacks." Id. at 91. Thus,
we rejected the contention that the demeaning or disparaging
guideline is an attempt by the government "to give one group an
advantage over another in the marketplace of ideas." Id.; cf.
Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 84 (1983)
(Stevens, J., concurring in the judgment) (distinguishing between
a law that "regulates communications for their ideas" and a law
that regulates communications "for their style").
With respect to vagueness, Ridley identified "two basic
concerns." Id. at 93. Those concerns were: "1) concerns about
fair notice, and about the related danger of chilling expression,
and 2) concerns about excessive discretion being invested in
administering and enforcing officials." Id.But Ridley made clear that the MBTA's advertising
Guidelines in general raise "no serious concern about either notice
or chilling effects" for the simple reason that "there are no
consequences for submitting a non-conforming advertisement and
having it rejected." Id. at 94. And AFDI offers no basis for
concluding that the MBTA implements its policy differently in that
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regard at present. In fact, AFDI's own experience -- in which it
had a second advertisement accepted after its first had been
rejected -- would seem inconsistent with that conclusion.
With respect to excessive discretion, Ridley explained
that "a grant of discretion to exercise judgment in a non-public
forum must be upheld so long as it is 'reasonable in light of the
characteristic nature and function' of that forum." Id. at 95(quoting Griffin v. Sec'y of Veterans Affairs, 288 F.3d 1309, 1323
(Fed. Cir. 2002)). Ridley further observed that "selectivity and
discretionary access are defining characteristics of non-public
fora, which unlike public fora are not intended to be open to all
speech." Id. (internal quotation marks omitted). And Ridley
concluded that the words "demean" and "disparage" are not so
unclear that the guideline effectively confers the kind of
excessive discretion that might raise concerns about surreptitious
viewpoint discrimination or the unreasonable targeting of messages
for reasons unrelated to the revenue-generating purposes of the
forum. See id. at 95-96.
That leaves one last wrinkle. At oral argument, counsel
for the MBTA, in response to questioning by the court about
hypotheticals, noted that the demeaning or disparaging guideline
requires the MBTA to determine what "a reasonably prudent person,
knowledgeable of the MBTA's ridership and using prevailing
community standards, would believe." And counsel went even further
-22-
and explained, in responding to hypothetical applications, that he
believed the MBTA would not apply the demeaning or disparaging
guideline to some groups that the community would deem worthy of
opprobrium. On that basis, he opined that even though the
guideline did not permit the display of the AFDI advertisements
under challenge, the MBTA would construe the guideline to permit
advertisements using otherwise identical language that targeted a
group the MBTA deemed to be held in general disrepute by the
public.
At points in its briefs to us, AFDI appears to argue that
the MBTA should construe its guideline in that very way. AFDI
contends in these passages that its first and third advertisements
could not reasonably be understood to be demeaning or disparaging
because they merely criticize terrorists. But in its rebuttal at
oral argument, AFDI seized on the response to questions by the
MBTA's counsel. AFDI argued that the guideline would be suspect if
it did not protect certain groups that the MBTA determined were
beyond the pale. And AFDI did so with good reason.
If the MBTA counsel's response to hypotheticals about the
MBTA's authority were in fact the MBTA's view, and it had acted
accordingly, then there would be a substantial argument that the
guideline would be suspect under the Supreme Court's opinion in
R.A.V. v. City of St. Paul, Minn., 505 U.S. 377 (1992). In R.A.V.,
the Supreme Court invalidated a municipal ordinance that prohibited
-23-
"plac[ing] on public or private property a symbol, object,
appellation, characterization or graffiti" amounting to fighting
words "on the basis of race, color, creed, religion or gender."
Id. at 380-81, 391; see also Chaplinsky v. New Hampshire, 315 U.S.
568, 572 (1942) (defining fighting words).
Even though fighting words have no "claim upon the First
Amendment," the Supreme Court held the ordinance unconstitutional.
R.A.V., 505 U.S. at 386, 391. The Court concluded that the
ordinance went "beyond mere content discrimination, to actual
viewpoint discrimination," and thus violated the First Amendment.
Id. at 391. The ordinance did so, the Court explained, because it
prohibited only "those symbols that communicate a message of
hostility based on" one of the ordinance's enumerated
characteristics: "race, color, creed, religion or gender," thereby
leaving similarly hostile messages focused on other characteristics
unrestricted. Id. at 393.
And while R.A.V. involved a direct restriction on private
speech and not the regulation of speech in a nonpublic forum,
Ridley noted the potential R.A.V. problem with a demeaning or
disparaging guideline that would protect certain groups or
individuals but not others, notwithstanding that the MBTA's
advertising program was a nonpublic forum. See Ridley, 390 F.3d at90-91 n.11. Precedent from outside our circuit, moreover, has
relied on R.A.V. to invalidate a transit authority's demeaning or
-24-
disparaging advertising guideline that explicitly protected some
groups but not others. See Am. Freedom Def. Initiative v. Metro.
Transp. Auth., 880 F. Supp. 2d 456, 474-78 (S.D.N.Y. 2012).
Furthermore, accepting the MBTA's counsel's logic would
raise concerns that the guideline was impermissibly vague. The
test for whether speech falls within the guideline's ambit would
then no longer be defined only by the meaning of the words
"disparaging" and "demeaning." Instead, the MBTA would have
reserved to itself the discretion to decide in each case whether
"prevailing community standards" would deem the targeted individual
or group worthy of the guideline's protection. That would raise
the concern that the MBTA had reserved to itself discretion to pick
and choose between favored and disfavored views.
But we are not bound to accept counsel's guess about how
the agency would apply the guideline in hypothetical cases. And
there is no evidence in the record that the MBTA in fact construes
the guideline as counsel suggested that it might. Nor does the
text of the guideline compel that hypothetical construction. We
thus decline to attribute such a constitutionally suspect
interpretation of the regulation to the MBTA. See Edward J.
DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council,
485 U.S. 568, 575 (1988) (explaining that, where possible, if "an
otherwise acceptable construction of a statute would raise serious
constitutional problems, the Court will construe the statute to
-25-
avoid such problems"); see also Markadonatos v. Vill. of Woodridge,
760 F.3d 545, 550 (7th Cir. 2014) (noting that "the doctrine of
constitutional avoidance functions to minimize friction between
courts and legislatures (including state and municipal
legislatures)").
We instead conclude, as we did in Ridley, that "[t]he
current regulation simply prohibits the use of advertisements that
'demean[] or disparage[] an individual or group of individuals,'
without listing any particular protected groups," 390 F.3d at 90-
91, and thus without suggesting that any individual or group may be
so disparaged or demeaned. Under Ridley, therefore, "the guideline
is just a ground rule." Id. at 91. As such, the guideline does
not attempt to give one group an advantage over another in the
marketplace of ideas. We thus follow our prior holding. The
MBTA's guideline prohibiting advertisements containing material
that "demeans or disparages" individuals or groups is not invalid
on its face.
V.
That brings us to the final issue on appeal: the
constitutionality of the MBTA's actual application of its demeaning
or disparaging guideline to AFDI's ads. For even though the MBTA's
advertising platform is a nonpublic forum and the guideline at
issue is facially valid, it could still be the case that the MBTA
violated the First Amendment if the rejection of AFDI's submissions
-26-
were either viewpoint-based or "unreasonable in light of the
purpose of the forum." Id. at 90.
A.
According to AFDI, the MBTA did engage in viewpoint
discrimination in turning down AFDI's first and third
advertisements. AFDI chiefly advances that contention by asserting
that the ads the MBTA rejected are no more demeaning or disparaging
than the Committee for Peace advertisement (which the MBTA ran).
AFDI argues that its rejected submissions differ from the Committee
for Peace advertisement only in the side of the Israeli-Palestinian
conflict that they favor. And thus, AFDI contends, viewpoint
discrimination necessarily explains the MBTA's different treatment
of those ads.
But the record shows otherwise. The MBTA determined that
the text of AFDI's first and third ads did use language that
assigned a demeaning or disparaging label to an individual or
group. But the MBTA also determined that the text of the Committee
for Peace advertisement -- which used no such directly targeted,
negative language at all -- did not. And Ridley supports the
conclusion that the MBTA's reliance on such a linguistic
distinction does not constitute viewpoint discrimination.
In Ridley, we considered the MBTA's treatment of three
advertisements submitted by a representative of the Church with the
Good News, a religious group. See 390 F.3d at 73-75. The MBTA
-27-
accepted the first two. Id. at 73-74. The MBTA found that the
third, however, violated the demeaning or disparaging guideline.
Id. at 74-75. The MBTA's reason for its decision was similar to
the reason the MBTA relies on here. See id.The religious group's first advertisement, which the MBTA
accepted, read as follows:
Christians in the Bible never observed 'Christmas'
neither did they believe in lies about Santa Claus,
flying reindeer elves and drunken parties. How can you
honor Jesus with lies? prophet-andre.com.
Id. at 73.
Good News then made a second submission. The MBTA
initially rejected it, but then ultimately accepted after
promulgating new guidelines. Id. at 74. This second advertisement
stated:
The Bible says in Rev 12:9 'And Satan which deceiveth the
whole world.' Yes, Satan set up over a thousand false
religions in the world causing wars, racism and hatred in
the world. There is only one true religion. All the
rest are false. www.prophet-andre.com."
Id.Good News then submitted a final advertisement. Id. The
MBTA ultimately rejected this one. Id. at 74-75. That final
advertisement read as follows:
The Bible teaches that there is only one religion. There
are no scriptures in the Bible that teach that God set up
the Catholic religion, the Baptist religion, the
Pentecostal religion, the Jehovah's Witness religion or
the Muslim religion. These religions are false. The
Bible says in Revelation 9:12, 'And Satan, which
deceiveth the whole world.' The whole world is going to
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hell if they do not turn from their ungodly ways. God
sent Prophet Andre into this world to teach the people
the Truth. www.prophetandre.com.
Id.We upheld the MBTA's rejection of the third advertisement
against a charge of viewpoint discrimination. See id. at 92. We
explained that the MBTA had not based its judgment to refuse to run
this ad -- and to agree to run the others -- on a preference for
one view over another. See id. Instead, we concluded that the
MBTA based its decision on the relative directness and harshness of
the hostile characterizations with which the respective submissions
targeted individuals or groups. See id.The first advertisement merely "questioned the
waywardness of today's Christians," and the second "issued a
condemnation of other religions" generally. Id. But the third
submission, we explained, "went a vitriolic further step." Id.Specifically, the third Good News advertisement "directly demeaned
a number of religions" -- many of which "are likely to be the
shared religions of a number of the MBTA riders" -- "by calling
them false" and, more pointedly, telling their respective adherents
that "they are 'going to hell.'" Id.Here, too, the MBTA concluded that the AFDI's first and
third ads went a "vitriolic further step." Neither advertisement
goes quite so far as the last Good News submission in calling out
its intended targets by name. But both of AFDI's rejected versions
-29-
do plainly equate with "the savage" those who are Israel's enemy in
"war" and who practice "jihad" or "violent jihad." In that
respect, AFDI's rejected advertisements are more targeted than
either of the two accepted Good News ads. And, of course, to
describe an opponent as not only uncivilized but savage is to
disparage or demean that opponent in terms not unlike those used in
the third Good News ad. See Oxford English Dictionary (3d ed.
2012) (defining the term "savage" as meaning, among other things,
"[a] person living in a wild state; a member of a people regarded
as primitive and uncivilized" and "a cruel and brutal person");
American Heritage Dictionary of the English Language (5th ed. 2014)
(defining "savage" as "a member of a people regarded as primitive,
uncivilized, brutal, or fierce").
AFDI responds as follows. It notes that numerous legal
definitions of the Committee for Peace advertisement's operative
term -- "refugee" -- require that one either have been or will be
persecuted in order to fall within its ambit. See, e.g., 8 U.S.C.
§ 1101(a)(42) (defining "refugee" as one who is unable to return to
one's national homeland "because of persecution or a well-founded
fear of persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion");
United Nations Convention Relating to the Status of Refugees, July
28, 1951, 189 U.N.T.S. 137, 152 (similar). AFDI argues that this
advertisement thus in effect labels Israel a persecutor. And for
-30-
that reason, AFDI argues, this advertisement is as disparaging or
demeaning as AFDI's rejected submissions.
But the Committee for Peace advertisement, in calling
Palestinians "refugees," does not label anyone as a persecutor.
Neither the word "persecutor" nor any reasonably synonymous hostile
label is used at all. And the fact that the advertisement calls
Palestinians "refugees" -- however offensive or inaccurate a
supporter of Israel might find the use of that label -- does not
change that simple fact. Thus, the MBTA has identified a
distinction that is unrelated to the viewpoint the ads express and
instead relates directly to the guideline's purpose: to screen out
content that is demeaning or disparaging.
Consistent with the conclusion that this linguistic focus
is not viewpoint based, we note that the MBTA did accept the second
AFDI advertisement. The MBTA did so even though that second AFDI
ad, like AFDI's first and third ones, plainly conveyed a viewpoint
distinct from the one that is conveyed by the Committee for Peace
advertisement. And the MBTA did so because it determined, on the
basis of the language used rather than the view advanced, that the
second AFDI advertisement lacked the demeaning or disparaging
language that the guideline prohibits. For although the second
AFDI advertisement is no doubt critical of certain persons or
groups, it used the epithet "savage" only to characterize the
nature of certain acts, not to describe the perpetrators of those
-31-
acts. That is, the second AFDI advertisement, though critical, did
not directly denigrate anyone.
In this respect, the MBTA consistently applied the
guideline in each of these cases. The MBTA focused each time on
the directness of the hostile language used to describe groups or
individuals. And the MBTA maintained that focus in applying the
guideline both to messages offered in support of Israel and to one
advanced to promote the Palestinian cause. Such consistent
application is at odds with the contention that the MBTA engaged in
viewpoint discrimination.5 See Ridley, 390 F.3d at 82 ("The
bedrock principle of viewpoint neutrality demands that the state
not suppress speech where the real rationale for the restriction is
disagreement with the underlying ideology or perspective that the
speech expresses."); see also McGuire v. Reilly, 386 F.3d 45, 62
(1st Cir. 2004) ("The essence of a viewpoint discrimination claim
is that the government has preferred the message of one speaker
over another.").
5
We note in this regard that the MBTA accepted not only
AFDI's second version of its ad, but also an advertisement from a
"pro-Israel" organization called "StandWithUs.com" that purports to
directly rebut the Committee for Peace advertisement. The Stand
With Us advertisement contains three maps of the Middle East, the
first depicting "3000 years ago," the second 1920, and the third
"today." The maps visually contrast the sizes of, on the one hand,
the "Ancient Jewish Kingdom" of 3000 years ago and the "Jewish
Homeland" of 1920 with, on the other, the "State of Israel," the
latter of which is depicted as being far smaller than either of the
former.
-32-
AFDI does argue that its second advertisement is not
nearly as effective at conveying AFDI's message as the two rejected
advertisements would have been. And that may well be true. But as
we have explained, there is no evidence that the MBTA barred AFDI's
first and third advertisements because of the viewpoint they
expressed. Thus, the fact that the application of the demeaning or
disparaging guideline prevented AFDI from putting forth its message
through a more effective means does not show that the MBTA wished
to disfavor AFDI's point of view. That consequence is merely an
incidental effect of the MBTA's application of the general ground
rule against the use of demeaning or disparaging language to
individual or groups. And because, as Ridley held, that ground
rule does not itself favor any particular viewpoint, neither does
its neutral application. See Ridley, 390 F.3d at 82 ("The essence
of viewpoint discrimination is not that the government incidentally
prevents certain viewpoints from being heard in the course of
suppressing certain general topics of speech, rather, it is a
governmental intent to intervene in a way that prefers one
particular viewpoint in speech over other perspectives on the same
topic.").
For these reasons, we conclude that, although the MBTA
accepted the Committee for Peace advertisement, the MBTA did not
engage in viewpoint discrimination in rejecting AFDI's first and
third submissions.
-33-
B.
That leaves one last issue. AFDI argues that the MBTA
failed to apply the demeaning or disparaging guideline in a way
that is "reasonable in light of the purpose served by the forum."
Id. at 93 (quoting Cornelius, 473 U.S. at 806). That is because,
AFDI contends, the distinctions the MBTA drew between AFDI's
advertisements -- which, AFDI says, turned simply on whether the
term "savage" was used as a noun or an adjective -- do not
reasonably advance any purpose that the MBTA's guideline may
legitimately serve.
To support that argument, AFDI once again focuses (at
least in part) on the Committee for Peace advertisement. AFDI
points out that even though that ad provoked strongly negative
reactions from many members of the public, the MBTA still permitted
the ad to run. By contrast, AFDI argues, the MBTA rejected the
first and third AFDI ads. The MBTA did so, AFDI argues, on the
basis of unreasonable speculation -- namely, that the shift from
the use of "savage" as an adjective in AFDI's second ad to the use
of "savage" as a noun in the first and third versions would provoke
concern among the MBTA's customers. AFDI contends that
noun/adjective distinction is "patently unreasonable" given that
the MBTA's stated rationale for the demeaning or disparaging
guideline relates to the interest in promoting ridership. In
AFDI's view, it is simply not reasonable to believe that riders
-34-
would be more likely to be troubled by the message conveyed by the
two rejected AFDI ads than by either the accepted AFDI ad or the
Committee for Peace ad.
In evaluating that argument, we start with the fact that
Ridley held that the disparaging or demeaning guideline does
reasonably serve the purposes of the transit authority in
establishing the nonpublic forum. Id. at 93. The guideline does
so, Ridley explained, because a transit authority may reasonably
conclude that disparaging or demeaning advertisements are
especially incompatible with the mission of operating buses,
trains, and transit stations for the benefit of the public. Id.
The harshness and targeted nature of ads containing such language
makes them different -- and, at least one could reasonably
conclude, more concerning -- than other ads. And that includes ads
that do not contain such language but may themselves provoke
intense disagreement or even cause offense. See id. at 92-93.
Thus, the question we must focus on in conducting our
reasonableness review is relatively narrow. We must determine
whether the MBTA acted reasonably in concluding that the rejected
advertisements (and not the accepted ones) fall within that
especially denominated category of prohibited advertisements -- a
category, we emphasize, that cuts across all advertisements, no
matter the viewpoint they express.
-35-
In evaluating the reasonableness of the MBTA's decision
that AFDI's first and third submissions fall within that prohibited
category (and that AFDI's second version and the Committee for
Peace ad do not), we are mindful that "there can be more than one
reasonable decision, and an action need not be the most reasonable
decision possible in order to be reasonable." Id. at 90. And
given this relatively generous standard, we conclude that, although
the issue is close, the MBTA has reasonably applied the guideline
in a manner that advances its purpose.
In rejecting AFDI's as-applied viewpoint discrimination
challenge, we explained why the Committee for Peace ad differs from
the first and third AFDI ads along the dimension that the guideline
makes relevant. The Committee for Peace ad makes no use of
language that directly ascribes a hostile characterization to
anyone. Its criticism is implicit and indirect, even if some might
infer that the hostile term "persecutor" was intended. By
contrast, AFDI's first and third advertisements, by using the word
"savage" to describe certain of Israel's enemies, went "a vitriolic
further step." See id. at 93. Thus, the MBTA could reasonably
conclude that the first and third ads were disparaging and
demeaning while the Committee for Peace ad was not.
That same distinction also explains why the MBTA could
reasonably distinguish the use of "savage" in the first and third
AFDI ads from the use of "savage" in the second AFDI ad. That
-36-
second ad simply did not use the directly disparaging or demeaning
noun "savage" to describe one side of a debate. The two rejected
ads, by contrast, did. Those ads used the word "savage" to
describe not just certain types of actions, as the second AFDI ad
did in describing certain acts as "savage." Those ads instead used
the word "savage" to characterize the nature of those who are
responsible for those acts -- namely those engaged in a war against
Israel.
And while neither of AFDI's rejected submissions directly
states that those with whom Israel is at "war" are "savages," we
cannot say the ads' subtlety in that one regard makes the MBTA's
decision to reject them unreasonable. In context, the target of
the opprobrium was focused. The ads aimed at those who practice
jihad or violent jihad in the "war" against Israel, a focus that
reasonably led the MBTA to identify the ads as targeted at that
country's Muslim and Palestinian enemies in particular. By
contrast, the Committee for Peace ad did not use any direct,
vitriolic descriptor, while the second AFDI ad used one only to
describe acts and not any individual or group. Thus, just as we
found in Ridley that the MBTA could reasonably discern material
distinctions among the three Good News ads in the stridency and
targeted nature of the language used, see id. at 92-93, so, too,
here.
-37-
Whether these linguistic and grammatical distinctions
reflect distinctions in substance that would be meaningful to the
public is, of course, hard to know. Nor is it clear that these
distinctions actually reflect differences in the messages that the
advertisements' sponsors intended to communicate. Nor is it even
clear that the MBTA has properly identified the intended object of
the harsh language AFDI used in the rejected ads.
But an administrative rule of this sort is, in
application, sure to present close cases about its parameters. And
such a rule is sure as well to require in some cases some careful
parsing of the language and meaning of the speech the rule
restricts. Our review, however, is only for reasonableness. We
thus decline AFDI's invitation, in such a borderline case, to
undertake such review in a manner that would effectively transfer
to the federal judiciary the detailed and case-specific application
of a facially constitutional public transit authority advertising
guideline. We are especially disinclined to do so when reviewing
a denial of a preliminary injunction, given that AFDI may still
press its constitutional challenge on a more developed record. Cf.
Syndicato Puertoriqueño, 699 F.3d at 10 (plaintiffs seeking
preliminary injunction must "establish a 'strong likelihood' that
they will ultimately prevail" on the merits (quoting Respect Me.
PAC, 622 F.3d at 15)).
-38-
We thus conclude that the application of the guideline to
the advertisements at issue here was not just viewpoint neutral.
We also conclude that the application of the guideline was
reasonable in light of the valid purposes Ridley held that the
guideline serves.6
VI.
For the foregoing reasons, the judgments of the District
Court in MBTA I and MBTA II are affirmed.
-Opinion Concurring In Part And Dissenting In Part Follows-
6
We note that the District Court's main reason for denying
preliminary injunctive relief as to AFDI's third ad was that AFDI
had supposedly acted in bad faith and engaged in gamesmanship by
altering the second advertisement and then submitting the third
version. We need not resolve whether this ground for denying the
requested relief was permissible, because we affirm the District
Court on other grounds. But we do note that the MBTA had
established a mechanism for the submission of revised
advertisements that had been previously rejected. In submitting
the third advertisement, therefore, AFDI was using that process to
probe the parameters of the government's speech restriction in
order to vindicate its interest in running the most effective
advertisement possible. And, in response, the MBTA did not
conclude that AFDI had forfeited its right to receive further
guidance. Instead, the MBTA applied the guideline once again.
-39-
STAHL, Circuit Judge, concurring in part and dissenting
in part. I concur in part because I recognize that Ridley v.
Massachusetts Bay Transportation Authority, 390 F.3d 65 (1st Cir.
2004), controls Parts III and IV of the majority's analysis. I
respect that the law of the circuit doctrine dictates the outcome
of the forum question and the facial validity of the guideline at
issue. I write separately to express my opinion that Ridley was
wrongly decided. By opening up its advertising facilities to
controversial topics of the gravest political issues of our day,
the MBTA has created a designated public forum for speech, not a
nonpublic forum. I dissent from Part V of the majority opinion
because even under the more forgiving standard mandated by Ridley,
the MBTA engaged in viewpoint discrimination and acted unreasonably
when it rejected AFDI's third advertisement.
It goes without saying that discussions of the Israeli-
Palestinian conflict and Israel's role in the Middle East have
become ever more contentious, heated, and often vitriolic. In
enacting the Bill of Rights, the framers recognized that vigorous
debate on matters of public concern was necessary and desirable in
a functioning Republic. The First Amendment not only protects each
speaker's ability to offer his or her perspective on fractious
issues without fear of government muzzling, but affirmatively
encourages such robust argument in the public sphere. E.g., Red
Lion Broad. Co. v. F.C.C., 395 U.S. 367, 390 (1969) ("It is the
-40-
purpose of the First Amendment to preserve an uninhibited
marketplace of ideas . . . rather than to countenance
monopolization of that market . . . ."). Indeed, "[s]peech on
matters of public concern . . . is at the heart of the First
Amendment's protection." Snyder v. Phelps, 131 S. Ct. 1207, 1215
(2011) (internal quotation marks and citations omitted).
Thus, from the beginning, the government has been limited
in its ability to restrict speech in traditional public fora such
as sidewalks and parks, which serve a role as "sites for discussion
and debate" and "venues for the exchange of ideas." McCullen v.
Coakley, 134 S. Ct. 2518, 2529 (2014). That said, the First
Amendment does not require governmental entities to allow all
matter and manner of speech on government-owned property. E.g.,
Int'l Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672,
678 (1992). For example, in Lehman v. City of Shaker Heights, a
plurality of the Supreme Court concluded that a public transit
system which opened itself up to commercial advertisements had
created a nonpublic forum in which it could choose not to accept a
political candidate's campaign advertising. 418 U.S. 298, 304
(1974). Lehman noted that the Shaker Heights transit system's
advertising policy explicitly forbade "political advertising." Id.
at 299. The system consistently enforced that policy: in twenty-
six years of operation, the transit system had accepted commercial
advertising, advertising from churches, and advertising from "civic
-41-
and public-service oriented groups," but had never "accepted or
permitted any political or public issue advertising." Id. at
300–01.
Following Lehman, some of our sister circuits have deemed
public transit advertising facilities nonpublic fora where the
transit authority's policy limits advertising facilities to
commercial speech, and/or the authority had consistently rejected
non-commercial submissions that addressed political or civic
issues. Am. Freedom Def. Initiative v. Suburban Mobility Auth. for
Reg'l Transp. (SMART), 698 F.3d 885, 890–92 (6th Cir. 2012)
(finding that Michigan public bus system established a nonpublic
forum where SMART's written policy "banned political
advertisements, speech that is the hallmark of a public forum" and
"restrict[ed] the type of content that nonpolitical advertisers
[could] display"); Children of the Rosary v. City of Phoenix, 154
F.3d 972, 978 (9th Cir. 1998) (White, J.) (finding a nonpublic
forum where the city "consistently promulgate[d] and enforce[d]
policies restricting advertising on its buses to commercial
advertising"); Lebron v. Nat'l R.R. Passenger Corp. (Amtrak), 69
F.3d 650, 656 (2d Cir. 1995) (holding that a large billboard in New
York City's Pennsylvania Station constituted a nonpublic forum
where Amtrak had "never opened [the advertising facility] for
anything except purely commercial advertising").
-42-
By contrast, other circuits have considered controversial
advertisements in the context of public transportation systems and
rightly concluded that when public transit facilities open
themselves up to a variety of non-commercial speech, those
facilities become designated public fora for members of the public
to opine, discuss, and comment upon the civic and political issues
of the day. United Food & Commercial Workers Union, Local 1099 v.
Sw. Ohio Reg'l Transit Auth., 163 F.3d 341, 355 (6th Cir. 1998);
Christ's Bride Ministries, Inc. v. Se. Pa. Transp. Auth., 148 F.3d
242, 252 (3d Cir. 1998); N.Y. Magazine v. Metro. Transp. Auth., 136
F.3d 123, 130 (2d Cir. 1998); Planned Parenthood Ass'n/Chi. Area v.
Chi. Transit Auth., 767 F.2d 1225, 1232-33 (7th Cir. 1985); Lebron
v. Wash. Metro. Area Transit Auth., 749 F.2d 893, 896 (D.C. Cir.
1984); see also DiLoreto v. Downey Unified Sch. Dist. Bd. of Educ.,
196 F.3d 958, 966 (9th Cir. 1999) (observing that "where the
government historically has accepted a wide variety of advertising
on commercial and non-commercial subjects, courts have found that
advertising programs on public property were public fora"). Thus,
in United Food, a Sixth Circuit case, the state agency operating
transit service in Cincinnati (known by the acronym SORTA) sold
advertising space on its buses and bus shelters. 163 F.3d at 346.
The agency's advertising policy explicitly excluded submissions
with "controversial public issues that may adversely affect SORTA's
ability to attract and maintain ridership" and required all posted
-43-
advertisements to be "aesthetically pleasing." Id. SORTA accepted
"a wide variety of advertisements . . . including public-service,
public-issue, and political advertisements in addition to
traditional commercial advertisements," id., but rejected the
plaintiff's pro-union advertisement as "aesthetically unpleasant
and controversial" in violation of the policy, id. at 347. While
acknowledging that SORTA had consistently applied its policy in the
past, id. at 353, the Sixth Circuit held that SORTA nevertheless
had designated its advertising space a public forum by "accepting
a wide array of political and public-issue speech," id. at 355.
"Acceptance of political and public issue advertisements, which by
their very nature generate conflict, signals a willingness on the
part of the government to open the property to controversial
speech, which the [Supreme Court] in Lehman recognized as
inconsistent with operating the property solely as a commercial
venue." Id. (citing Lehman, 418 U.S. at 303–04). The Second
Circuit similarly observed in New York Magazine, "[a]llowing
political speech . . . evidences a general intent to open a space
for discourse, and a deliberate acceptance of the possibility of
clashes of opinion and controversy that the Court in Lehman
recognized as inconsistent with sound commercial practice." 136
F.3d at 130; see also Planned Parenthood Ass'n/Chi. Area, 767 F.2d
at 1233 (holding that Chicago transit advertising facilities was a
public forum and noting that where defendant "has accepted
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political and public-issue advertising. . . . Lehman is not
controlling"); but see Seattle Mideast Awareness Campaign v. King
County ("SeaMAC"), ___ F.3d ___, Nos. 11-35914, 11-35931, 2015 WL
1219330, at *6 (9th Cir. Mar. 18, 2015) (holding, over dissent,
that bus advertising program created a limited public forum even
where it accepted political speech).
The majority opines that Ridley had the opportunity to
consider almost all of these cases and ultimately chose to conclude
that each was "distinguishable on its facts." Ridley, 390 F.3d at
80. Ridley also proclaimed that the MBTA's advertising program was
"indistinguishable" from the one described in Lehman, id. at 78,
apparently ignoring the fact that the Shaker Heights advertising
program in Lehman had never accepted any political or public issue
advertising, 418 U.S. at 300–01; see also Lehman v. City of Shaker
Heights, 296 N.E.2d 683, 684 (Ohio 1973) (noting that the city "has
not opened up its transit vehicles to any exchange or presentation
of ideas, political or otherwise").
I am in disagreement with the Ridley decision, and would
have held that the MBTA, by opening its advertising facilities to
all forms of public discourse, created a designated public forum
akin to the fora discussed in United Food, Christ's Bride, New York
Magazine, and Planned Parenthood Association/Chicago Area, and
distinguishable from the virtually commercial-only fora addressed
in Lehman, Children of the Rosary, and Lebron v. Amtrak. Instead,
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relying on the MBTA's self-serving declarations, Ridley concluded
that the authority's policy evidenced an intent "not to open its
advertising space to all persons and organizations for public
dissemination of their views on all topics without limitation" and
that its enforcement of the guidelines "further show[ed] that it
intended not to create such a forum." 390 F.3d at 78.
In order to create a designated public forum, the
governmental entity need not accept every speaker and all topics.
Indeed, a forum can become public where the government by its
actions has designated the forum "for use by the public at large
for assembly and speech, for use by certain speakers, or for the
discussion of certain subjects" in order to "open [the non-
traditional public forum] to assembly and debate." Cornelius v.
NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 802 (1985)
(emphasis added); see also Int'l Soc'y for Krishna Consciousness,
505 U.S. at 678 (describing a designated public forum, "whether of
a limited or unlimited character," as "property that the State has
opened up for expressive activity by part or all of the public").
An agency or governmental entity, like the MBTA, may
create a designated public forum even where it does not allow
certain categories of speech to participate in its advertising
program, such as advertisements for mature video games or alcoholic
products. Cf. N.Y. Magazine, 136 F.3d at 129–30. A guidelines'
ban on political campaign ads does not make the advertising
-46-
facilities a nonpublic forum if the governmental entity
affirmatively opens up its facilities to advertisements concerning
civic or political issues unrelated to a particular campaign
season. Here, as the Ridley dissent cogently noted, the MBTA made
and continues to make its facilities the "modern analogue" to
traditional public fora. Ridley v. Mass. Bay Transp. Auth., 390
F.3d 65, 108 (1st Cir. 2004) (Torruella, J., concurring in part and
dissenting in part). Indeed, the Committee for Peace submitted its
advertisement to the transit authority because the availability of
advertising in a system used by millions of people each day
provides a singular opportunity to sway public opinion about the
Israeli-Palestinian conflict. See id. at 109 ("The MBTA's
advertising system is indeed a powerful tool with which to
influence public opinion, one which should be opened to the
crucible of competing viewpoints to the largest extent possible.").
The Ridley dissent highlights a weakness in the current
forum analysis framework, in that it can allow the government's own
self-serving statements about its intended use for a public place
to outweigh the forum's inherent attributes. As Justice Kennedy
has observed in the past, if "public forum jurisprudence is to
retain vitality, we must recognize that certain objective
characteristics of Government property and its customary use by the
public may control the case." United States v. Kokinda, 497 U.S.
720, 737–38 (1990) (Kennedy, J., concurring in the judgment). By
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relying primarily on "the government's defined purpose for the
property" rather than on "the actual, physical characteristics and
uses of the property," the mode of forum analysis embraced in
Ridley "leaves the government with almost unlimited authority to
restrict speech on its property by doing nothing more than
articulating a nonspeech-related purpose for the area." Int'l
Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 695
(1992) (Kennedy, J., concurring in the judgments). Building a
constitutional framework around a category as rigid as "traditional
public forum" leaves courts ill-equipped to protect First Amendment
expression "in times of fast-changing technology and increasing
insularity." Id. at 697–98 (observing that "our failure to
recognize the possibility that new types of government property may
be appropriate forums for speech will lead to a serious curtailment
of our expressive activity").
Ridley exemplifies Justice Kennedy's concerns, in that
its analysis relied heavily on the MBTA's attempts to control
speech on its property through its advertising guidelines, 390 F.3d
at 76-82, but only cursorily examined the forum's characteristics
and compatibility with expressive activity, id. at 77. By doing
so, the Ridley majority ignored the indisputable fact that, like an
airport, a public transit system is "one of the few
government-owned spaces where many persons have extensive contact
with other members of the public." Int'l Soc'y for Krishna
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Consciousness, 505 U.S. at 698 (Kennedy, J., concurring in the
judgments). Such unique suitability for open discourse between
citizens is indicative of a public, rather than a private, forum.
Cf. McCullen, 134 S. Ct. at 2529 (observing that public streets
"remain one of the few places where a speaker can be confident that
he is not simply preaching to the choir" because members of the
public cannot avoid "uncomfortable message[s]," which the First
Amendment regards as "a virtue, not a vice").
Nevertheless, recognizing that Ridley controls the forum
analysis in this appeal, I concur with Part III of the majority's
opinion. Bound by the law of the circuit, I also join Part IV of
the majority's opinion, acknowledging that the "demeaning and
disparaging" guideline at issue here contains the same language as
the guideline deemed facially valid by Ridley, even though I agree
with the Ridley dissent that the guideline and its invocation of
"prevailing community standards" permits "subjective, ad hoc
determinations about speech that appears controversial because it
endorses a minority viewpoint." Ridley, 390 at 98 (Torruella, J.,
concurring in part and dissenting in part); cf. SeaMAC, 2015 WL
1219330, at *8 (observing that a transit authority's exclusion of
advertisements it deems "objectionable under contemporary community
standards," standing alone, "would be too vague and subjective to
be constitutionally applied"); Planned Parenthood Ass'n/Chi. Area,
767 F.2d at 1230 (questioning whether "a regulation of speech that
-49-
has as its touchstone a government official's subjective view that
the speech is 'controversial' could ever pass constitutional
muster").
But I depart with the majority opinion at Part V, because
even if the advertising facilities at issue constituted a nonpublic
forum, the MBTA's rejection of Advertisement III was neither
viewpoint neutral nor reasonable. In particular, I disagree with
the majority that the Committee for Peace advertisement "does not
label anyone as a persecutor." To the contrary, the advertisement
all but declares that the Israeli nation-state is the persecuting
entity responsible for the supposed Palestinian refugee crisis.
The ad depicts four maps, labeled "Palestinian Loss of Land -- 1946
to 2010." The first map, captioned "1946," depicts part of the
region then controlled by the British under the British Mandate for
Palestine, labeling that area "Palestine." The next three maps
place the word "Israel" in the same font and in the same place as
"Palestine" is located in the first map. Over the course of the
next three maps, the amount of land labeled "Israel" increases as
the green section -- denoted in the key as representing
"Palestinian land" -- shrinks. If Israel, and by extension the
Jewish people, are not fingered as persecutors by the ad, who,
exactly, is the ad targeting as responsible for displacing 4.7
million Palestinians? While the majority brushes off the criticism
as merely "implicit and indirect," a reasonable rider of the MBTA
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would find the message quite clear: Israelis took over Palestinian
land, thereby displacing Palestinians and creating a refugee crisis
in the millions. The characterization is not only inaccurate7 but
arguably demeaning and disparaging of the Israeli people in
violation of the MBTA's own guideline. While Committee for Peace
might not use the term "persecutor," it is a short inferential step
to reach that interpretation, in the same way that the viewer of
AFDI's first submitted advertisement must juxtapose "civilized man"
and "savage," and then infer from AFDI's call to "support Israel"
and "defeat jihad" that the ad is setting up Israel as the
civilized man, and the jihadist as the savage. The reader must
take an additional inferential leap to conclude, as the MBTA does,
that "savage" refers not just to jihadis but to Muslims generally.
By accepting the Committee for Peace advertisement but not AFDI's
7
I note that this number is inaccurate and misleading. The
United Nations Relief and Works Agency for Palestinian Refugees in
the Near East (UNRWA) estimates that there were 750,000 individuals
designated as refugees in 1950 as a result of the conflict between
1946 and 1948. The 4.7 million number and similar estimates denote
the descendants of these refugees who are currently eligible to
register for UNRWA services. See Palestine Refugees, UNITED NATIONS
RELIEF & WORKS AGENCY FOR PALESTINIAN REFUGEES IN THE NEAR EAST,
http://www.unrwa.org/palestine-refugees, (last visited Mar. 24,
2015) (estimating that "[t]oday, some 5 million Palestine refugees
are eligible for UNRWA services"); UNITED NATIONS RELIEF & WORKS AGENCY
FOR PALESTINIAN REFUGEES IN THE NEAR EAST, CONSOLIDATED ELIGIBILITY AND
REGISTRATION INSTRUCTIONS, at 3, available at
http://unispal.un.org/pdfs/UNRWA-CERi.pdf (last visited Mar. 24,
2015) (setting out criteria for eligibility to register). A rider
of the MBTA viewing the Committee for Peace Ad may come away with
the erroneous impression that the proclamation of the nation-state
of Israel in 1948 displaced 4.7 million people.
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submission, the MBTA allowed its riders access to one perspective
on the Israeli-Palestinian conflict, while denying them exposure to
AFDI's perspective.8 In contrast, the Ninth Circuit recently found
no evidence of viewpoint discrimination where Seattle's transit
program withdrew acceptance of an anti-Israel bus poster "as part
of a single, blanket decision to reject all submitted ads on the
8
Notably, multiple district courts have awarded preliminary
injunctive relief in similar factual circumstances, albeit under
the strict scrutiny standard dictated by finding that a transit
advertising program constitutes a designated public forum. Two of
these cases involved the exact AFDI ad at issue here. Am. Freedom
Def. Initiative v. Wash. Metro. Area Trans. Auth., 898 F. Supp. 2d
73, 83 (D.D.C. 2012) (finding a likelihood of success on the merits
where WMATA failed to use the least restrictive means of assuring
public safety, which might be threatened by displaying AFDI's
"support the civilized man" ad in the subway system); Am. Freedom
Def. Initiative v. Metro. Transp. Auth., 880 F. Supp. 2d 456,
476–77 (S.D.N.Y. 2012) (finding the MTA's guideline barring
advertisements deemed "demeaning on the basis of . . . religion" --
used to justify rejection of AFDI's "civilized man" submission --
inconsistent with the First Amendment). The Eastern District of
Michigan rejected a city's refusal to accept an anti-Israel ad it
deemed violative of the transit authority's guideline that all
advertisements be "in good taste" and not "defame[] or . . . hold
up to scorn or ridicule a person or group of persons." Coleman v.
Ann Arbor Transp. Auth., 904 F. Supp. 2d 670, 697 (E.D. Mich.
2012). Most recently, the Eastern District of Pennsylvania granted
AFDI's motion for a preliminary injunction compelling display of an
advertisement demanding an end to "all [U.S.] aid to Islamic
countries" under the slogan "Islamic Jew-Hatred: It's in the Quran"
and next to a picture of Adolf Hitler and "his staunchest ally, the
leader of the Muslim world, Haj Amin Al-Husseini." Am. Freedom
Def. Initiative ("AFDI") v. Se. Pa. Transp. Auth. ("SEPTA"), -- F.
Supp. 3d --, 2015 WL 1065391, at *1 (E.D. Pa. Mar. 11, 2015). The
court concluded that SEPTA's "anti-disparagement" guideline was a
content-based and viewpoint discriminatory restriction on speech.
Id. at *9–10. While noting that the guideline "was a principled
attempt to limit hurtful, disparaging advertisements," the district
court rightly concluded that such "laudable . . . aspirations do
not, unfortunately, cure First Amendment violations." Id. at *12.
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Israeli-Palestinian conflict." SeaMAC, 2015 WL 1219330, at *10.
The Seattle authority's advertising policy prohibited advertising
which "may foreseeably result in harm to, disruption of, or
interference with the transportation system." Id. at *9. Noting
that the transit system had received numerous credible threats in
response to a news report that it had approved an ad criticizing
"Israeli War Crimes," the Ninth Circuit concluded that the system
reasonably applied its policy by "simultaneously reject[ing] all
pending ads on the Israeli-Palestinian conflict" due to the "threat
of disruption posed to the transit system" and rider safety. Id.
The system then "revised its advertising policy to exclude all
political or ideological ads from that point forward." Id. at *3.
In contrast, the MBTA's incongruous decision to post the
Committee for Peace ad, but reject AFDI's submissions, at the very
least, raises the specter of viewpoint discrimination by the MBTA.
As we have said in the past, "grave damage is done if the
government, in regulating access to public property, even appears
to be discriminating in an unconstitutional fashion." AIDS Action
Comm. of Mass., Inc. v. Mass. Bay Transp. Auth., 42 F.3d 1, 12 (1st
Cir. 1994). Admittedly, the MBTA here offers its "demeaning and
disparaging" policy as a neutral justification for the difference
in treatment -- something it could not do in AIDS Action. But even
a neutral policy, if it creates "opportunities for discrimination
-53-
. . . [that] have been borne out in practice," id., cannot survive
under the First Amendment.
Furthermore, even if one accepts the majority's
conclusion in Part V.A that the MBTA applied its prohibition on
demeaning and disparaging advertisements in a viewpoint-neutral
manner, I would reverse because the MBTA acted unreasonably in
rejecting the third AFDI ad. This advertisement differed from the
first advertisement in that it narrowed the scope of the condemned
practice from "jihad" (a term which could refer broadly to an
individual Muslim's internal spiritual struggle) to "violent jihad"
(a phrase which can only be read to refer to terrorist practices
roundly denounced as extremist by both Muslims and non-Muslims).
This change clarified that the ad denounced not all adherents of
jihad as "savages," but instead proponents of violent jihad.
The district court found that the "most reasonable
interpretation" of AFDI's first ad, which referred to jihad
generally, was that AFDI "oppose[s] acts of Islamic terrorism
directed at Israel," but concluded that it was nevertheless
"plausible for the [MBTA] to conclude that [AFDI's first ad]
demeans or disparages Muslims or Palestinians." Am. Freedom Def.
Initiative v. Mass. Bay Transp. Auth., 989 F. Supp. 2d 182, 188–89
(D. Mass. 2013). I acknowledge that "an action need not be the
most reasonable decision possible in order to be reasonable,"
Ridley, 390 F.3d at 90, and thus agree with the district court and
-54-
the majority that the MBTA's denial of the first ad could be
construed as reasonable and thus pass muster in a nonpublic forum.
Not so with the third advertisement, which explicitly
advocates for the defeat of "violent jihad," and not "jihad" in
general. The only reasonable reading of "savage" in the context of
defeating "violent jihad" is a reference to a category of
individuals engaged in an extremist campaign characterized by
bloodshed and terror. The MBTA's acceptance of the second ad,
which juxtaposed the civilized man with "those engaged in savage
acts," demonstrates that the transit authority does not find it
demeaning or disparaging to decry an individual's violent actions.
Why then is it demeaning to describe that same individual, engaged
in savage acts with violence as his goal, as a savage? The First
Amendment protects and encourages full-throated debate, not only
sanitized and diluted discussion.9
Perhaps the logical end to the MBTA's "demeaning or
disparaging" guideline is to forbid condemnation of any individual
9
The majority does not reach the merits of the district
court's finding that AFDI submitted the third ad in bad faith. See
Am. Freedom Def. Initiative v. Mass. Bay Transp. Auth., No.
1:14-cv-10292-NMG, 2014 WL 1093138, at *3 (D. Mass. Mar. 17, 2014).
However, the majority rightly notes that AFDI's submission of the
third ad after the MBTA's acceptance of its second ad merely
indicated AFDI's desire to "probe the parameters of the
government's speech restriction in order to vindicate its interest
in running the most effective advertisement possible." Ante, at 39
n.6. For those reasons, I would hold that the district court's bad
faith finding amounts to clear error, and thus does not bar
equitable relief where AFDI demonstrated a likelihood of success on
the merits of its First Amendment claim.
-55-
or group, even if that individual or group's actions are generally
regarded as worthy of denouncement. But at oral argument, MBTA's
counsel stated that the guideline would not prohibit the posting of
an advertisement maligning an individual that society commonly
accepts as worthy of denigration, such as Adolf Hitler. Such an
answer betrays the unreasonableness and viewpoint-based nature of
the decision here.
As the Supreme Court has repeatedly emphasized,
the fact that society may find speech
offensive is not a sufficient reason for
suppressing it. Indeed, if it is the
speaker's opinion that gives offense, that
consequence is a reason for according it
constitutional protection. For it is a
central tenet of the First Amendment that the
government must remain neutral in the
marketplace of ideas.
F.C.C. v. Pacifica Found., 438 U.S. 726, 745–46 (1978). This
central tenet may appear to lead to "verbal tumult, discord, and
even offensive utterance," but if "the air may at times seem filled
with verbal cacophony[, that] is . . . not a sign of weakness but
a strength." Cohen v. California, 403 U.S. 15, 25 (1971).
The MBTA seeks to maximize the financial returns it can
receive from the use of its facilities for advertising. Having
accepted virtually all advertisements with an eye toward filling
its coffers, the MBTA's attempt to then limit submitted speech
which some officials deem unacceptable is violative of the First
Amendment. For the reasons stated above, I concur with Parts III
-56-
and IV of the majority's analysis, and respectfully dissent from
Part V.
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APPENDIX
Committee for Peace ad
AFDI's first submission
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AFDI's second submission
AFDI's third submission
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StandWithUs.com ad
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