American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority

781 F.3d 571, 2015 U.S. App. LEXIS 5107
CourtCourt of Appeals for the First Circuit
DecidedMarch 30, 2015
DocketNos. 14-1018, 14-1289
StatusPublished
Cited by14 cases

This text of 781 F.3d 571 (American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority, 781 F.3d 571, 2015 U.S. App. LEXIS 5107 (1st Cir. 2015).

Opinions

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 [574]*574most 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 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.”

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 mis-[575]*575communication 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.

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. $

SUPPORT ISRAEL $

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 Scótt notified AFDI of the decision on 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 /”), 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 advertisement “does not do so in a way [576]*576that 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 $

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781 F.3d 571, 2015 U.S. App. LEXIS 5107, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-freedom-defense-initiative-v-massachusetts-bay-transportation-ca1-2015.