Jews for Jesus v. M.B.T.A

CourtCourt of Appeals for the First Circuit
DecidedFebruary 5, 1993
Docket92-1277
StatusPublished

This text of Jews for Jesus v. M.B.T.A (Jews for Jesus v. M.B.T.A) 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
Jews for Jesus v. M.B.T.A, (1st Cir. 1993).

Opinion

USCA1 Opinion


February 5, 1993

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________

No. 92-1277

JEWS FOR JESUS, INC., and STEVEN SILVERSTEIN,

Plaintiffs, Appellees,

v.

MASSACHUSETTS BAY TRANSPORTATION AUTHORITY,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]
___________________

____________________

Before

Selya, Circuit Judge,
_____________
Coffin, Senior Circuit Judge,
____________________
and Boudin, Circuit Judge.
_____________

____________________

Walter B. Prince with whom Deborah A. Tootalian was on brief for
_________________ ____________________
appellant.
James M. Henderson with whom Thomas Patrick Monaghan, Walter M.
__________________ ________________________ __________
Weber, John G. Stepanovich, Mark N. Troobnick, Jay Alan Sekulow, and
_____ ___________________ _________________ _________________
Keith A. Fournier were on brief for appellees.
_________________

____________________

February 5, 1993
____________________

COFFIN, Senior Circuit Judge. This appeal arises from a
______________________________

challenge to the Massachusetts Bay Transit Authority's ("MBTA" or

"Authority") Guidelines for Noncommercial Expressive Activity on

MBTA Property. Plaintiffs Jews for Jesus and an individual

member of the organization contend that the Guidelines improperly

restrict their First Amendment right of free speech. The

district court agreed and invalidated the offending provisions of

the Guidelines. The MBTA then appealed. We affirm the

invalidation of the complete ban on expressive activity in

designated areas but reverse the invalidation of the prior

authorization requirement.

I.

The defendant MBTA is a municipal corporation that operates

the subway system serving the metropolitan Boston region. The

subway system contains 80 train stations. Each station is

divided into two sections, the "free" area outside the turnstiles

and the "paid" area inside the turnstiles, leading to the trains.

The Authority promulgated a set of Guidelines to govern

noncommercial expressive activity in the subway system. The

Guidelines define such activity as:

[c]onducting any of the following activities for
political or non-profit purposes as defined by G.L. c.
180, 4 and G.L. c. 55, 1: solicitation of
signatures; distribution of printed materials;
handshaking or greeting individual transit patrons or
members of the public; or publicly addressing transit
patrons at a noise level greater than 85 decibels.

The Guidelines ban noncommercial expressive activity from the

paid areas of all the subway stations and the free areas of

twelve stations.1 Within the free areas of the remaining

stations, the Guidelines require prior authorization to engage in

noncommercial expressive activity.

Plaintiff Jews for Jesus is a not-for-profit corporation

that conducts religious activity. Plaintiff Steven Silverstein

is the branch leader of the Boston office of Jews for Jesus.

Plaintiffs' evangelistic activity consists primarily of

distributing free religious literature in public places. For

many years prior to the commencement of this suit, they

distributed materials throughout the paid areas of the transit

system.2

When the MBTA began to prohibit leafletting in the paid

areas, plaintiffs mounted a facial challenge to the Guidelines.

Their primary contention is that the Guidelines impose a ban on

leafletting, a form of protected speech, without justification.

The Authority counters that the regulations are a reasonable

infringement of First Amendment rights and are necessary to

preserve the system's transportation function. In particular,

____________________

1 The twelve stations are Science Park, North Station,
Government Center, Park Street, Boylston, Copley (Inbound),
Prudential, State Street (Northbound), Charles Street, Savin
Hill, Symphony, and Kenmore. The MBTA considers these stations
to lack sufficient space to permit any noncommercial expressive
activity.

2 The previous Guidelines for Political, Religious or
Educational Activity prohibited leafletting on only the subway
trains. By the commencement of this lawsuit, the MBTA
interpreted these guidelines as banning leafletting from the paid
areas as well and sought to eject plaintiffs from its stations
for violating the ban. The current Guidelines were adopted after
this suit began.

-3-

the MBTA points to a concern for public safety to justify the

restriction on leafletting.

Plaintiffs do not contest the legitimacy of public safety as

a government concern. Instead, the parties dispute the extent to

which plaintiffs' activities may threaten public safety. Jews
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for Jesus, Inc. v. Massachusetts Bay Transp. Auth., 783 F. Supp.
________________ _______________________________

1500, 1503 n.3 (D. Mass. 1991).

Following a consolidated preliminary injunction hearing and

trial on the merits, the district court concluded that neither

handshaking and greeting nor leafletting in fact threaten public

safety in the Boston subway system. Id. at 1503. Without
__

investigating solicitation of signatures or public address, the

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