AFDI v. MBTA

• Court: Court of Appeals for the First Circuit
• Decided: March 30, 2015
• Docket: 14-1289
• Status: Published

Opinion

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

-2- 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."

-3- 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

-5- 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.

-6- 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

-7- 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

-9- 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

-10- 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,

-11- 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.

-12- 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

-13- 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

-14- 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

-15- 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

-16- 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).

-17- 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

-18- 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

-19- 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.

-20- 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

-21- 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 at

90-91 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.

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."

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

-28- 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.

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

-44- 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,

-45- 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

-47- 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

-48- 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

-50- 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.

-51- 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.

-52- 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.

-57- APPENDIX

Committee for Peace ad

AFDI's first submission

-58- AFDI's second submission

AFDI's third submission

-59- StandWithUs.com ad

-60-