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.
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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
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
court nevertheless invalidated the ban on all noncommercial
expressive activities because of the regulation's sweeping
restriction of protected speech. In so doing, the court applied
a tenet of overbreadth doctrine that permits facial invalidation
of a regulation whose reach beyond properly prohibited speech is
"substantial." Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973).
The court also invalidated the authorization requirement as an
impermissible prior restraint that did not promote public safety
concerns.
The court left intact the Guidelines' provisions regarding
expressive activity in areas where such activity was not banned.
These regulations protect public safety by establishing the
standards of conduct for the performance of permitted activity as
well as the penalty for violation of the restrictions.
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II.
On appeal, the MBTA contends that the district court applied
an erroneous standard to invalidate the Guideline provisions.
Our review, therefore, necessarily is, in many respects, de novo.
Senter v. General Motors Corp., 532 F.2d 511 (6th Cir. 1976); see
Sweeney v. Bd. of Trustees, 604 F.2d 106, 109 n.2 (1st Cir.
1979). The district court's factual findings concerning the
operation of and the activities within the subway system,
however, are reviewed only for clear error. Holmes v. Bateson,
583 F.2d 542, 552 (1st Cir. 1978). Our examination of the record
demonstrates that the court's findings are amply supported, and,
accordingly, we adopt them for our analysis.
A. Ban on Noncommercial Expressive Activities
The district court struck down the Authority's ban on
noncommercial expressive activities for sweeping too broadly and
being, in fact, unrelated to the MBTA's legitimate public safety
concerns. In reviewing the court's decision, we are concerned
not so much with the technical use of the overbreadth doctrine,
which often is confined to the ability of a party engaging in
unprotected activity to raise the rights of others whose
activities are protected, City Council v. Taxpayers for Vincent,
466 U.S. 789, 798 (1984), as with the underlying analysis of the
court that the MBTA did not justify the imposition of an absolute
ban.
The MBTA recommends that we analyze the Guidelines pursuant
to the public forum doctrine. Forum analysis strikes the balance
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between the public's right of access to public property for
expressive activity and the government's interest in limiting the
property's use based on the character of the property at issue.
Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37,
44 (1983). Fewer content-based restrictions are permissible in a
public forum, a location either traditionally or by designation
open to public discourse, than in a nonpublic forum, a location
traditionally closed to such discourse. Id. at 45. As the
Supreme Court has explained:
[D]istinctions in access on the basis of subject matter and speaker identity . . . may be impermissible in a public forum but are inherent and inescapable in the process of limiting a nonpublic forum to activities compatible with the intended purpose of the property. The touchstone for evaluating these distinctions is whether they are reasonable in light of the purpose which the forum at issue serves.
Id. at 49. Applying this framework, the MBTA asserts that the
alleged historical unavailability of the subway stations for
public discourse renders them nonpublic fora and that the
Guidelines are a reasonable regulation within this context.
The nature of the forum, however, traditionally has been
important only when the government tries to restrict access
according to the content of the message. In any kind of forum,
the government may impose certain restrictions so long as they
are not based on the content of the speech. Id. at 45.
We find it unnecessary to decide whether the Boston subway
stations are public or nonpublic fora because the MBTA's
Guidelines are content neutral. First, they restrict only the
mode of expression, not the message. Second, they are aimed at
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legitimate government concerns. "A regulation that serves
purposes unrelated to the content of expression is deemed
neutral, even if it has an incidental effect on some speakers or
messages but not others." Ward v. Rock Against Racism, 491 U.S.
781, 109 S. Ct. 2746, 2754 (1989). Accordingly, we assess the
activities ban as a content neutral regulation. See United
States v. Kokinda, 497 U.S. 720, 110 S. Ct. 3118, 3125-26 (1990)
(Kennedy, J., concurring) (rejecting use of forum analysis where
content neutral, reasonable time, place, and manner evaluation is
available).
A content neutral restriction may limit speech if it
reasonably regulates the time, place, and manner of expression
and is tailored narrowly to serve a substantial government
interest. Perry Educ. Ass'n, 460 U.S. at 45-46. Our review thus
focuses on two critical inquiries: "whether [the Authority's]
interest is sufficiently substantial to justify the effect of the
ordinance on [plaintiffs'] expression, and whether that effect is
no greater than necessary to accomplish the [Authority's]
purpose." City Council, 466 U.S. at 805; Shad v. Mount Ephraim,
452 U.S. 61, 71 (1981).
We realize that in recent decisions, the Supreme Court has
applied the nonpublic forum standard of reasonableness to content
neutral restrictions on free speech. See, e.g., Int'l Society
for Krishna Consciousness, Inc. ("ISKCON") v. Lee, 112 S. Ct.
2701, 2708 (1992); Kokinda, 110 S. Ct. at 3121. Traditionally,
however, the Court has employed the reasonableness test only for
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content-based restrictions in nonpublic fora. See, e.g.,
Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S.
788, 809 (1985) (applying reasonableness test to exclusion of
political advocacy organizations from charity drive aimed at
federal employees); Perry Educ. Ass'n, 460 U.S. at 49 (applying
same test to exclusion from school mail network based on identity
of proposed speaker); and Greer v. Spock, 424 U.S. 828, 831, 839
(1976) (applying same test to exclusion of partisan political
speech from military base). Regardless, because that test
requires the challenged regulations to be reasonable in light of
the forum's purpose and the surrounding circumstances, see, e.g.,
ISKCON, 112 S. Ct. at 2705, the two tests merge or collapse into
one another in cases where, as here, the government has failed to
present a credible reason why the regulations further the forum's
purpose. We now consider each form of activity in turn.3
1. Leafletting
The Authority contends that its concern for passenger safety
justifies the ban on leafletting. It argues that leafletting
threatens public safety by disrupting passenger flow and by
creating litter. In particular, it claims that leafletting
causes obstacles that, inter alia, encourage pickpocketing and
more adversely affect handicapped patrons who are slower to
adjust to obstacles. It further contends that litter causes
accidents and fires or other disruptions in service when paper
3 On appeal, the Authority concedes that the blanket restriction against greeting and handshaking is unreasonable. We therefore consider only the remaining restricted activities.
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clogs switching devices on the tracks. Public safety, of course,
is a substantial government concern that can justify some
incidental infringement of protected speech. ISKCON, 112 S. Ct.
at 2708-09.
We are mindful that "[a] ban on handbilling . . .
suppress[es] a great quantity of speech that does not cause the
evils that it seeks to eliminate." Ward, 109 S. Ct. at 2758 n.7
(citing Martin v. City of Struthers, 319 U.S. 141, 147-49
(1943)). The Authority thus bears a heavy burden in justifying
its absolute ban on leafletting, an activity that long has
enjoyed the full protection of the First Amendment. Lovell v.
City of Griffin, 303 U.S. 444, 450-52 (1938). Indeed, the
religious nature of plaintiffs' leafletting increases the MBTA's
burden; leafletting is a "form of religious activity [that]
occupies the same high estate under the First Amendment as do
worship in churches and preaching from the pulpits." Murdock v.
Pennsylvania, 319 U.S. 105, 108-09 (1943). The record in this
case amply supports the district court's determination that the
perceived threat to public safety does not justify a complete ban
on leafletting in the designated areas.
The Supreme Court has dismissed the danger to traffic
congestion as a justification to ban leafletting. The Court has
explained that "`[t]he distribution of literature does not
require that the recipient stop in order to receive the message
the speaker wishes to convey.'" ISKCON, 112 S. Ct. at 2713-14
(O'Connor, J., concurring) (quoting Kokinda, 110 S. Ct. at 3123).
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Bottlenecks, therefore, are unlikely to develop. Because
leafletting is a particularly unobtrusive form of expression, the
Court recently invalidated a ban on leafletting, even within a
nonpublic forum. Lee v. ISKCON, 112 S. Ct. 2709, 2709 (1992)
(per curiam); see ISKCON, 112 S. Ct. at 2708 (finding airport to
be nonpublic forum).
The Authority next contends that leafletting causes litter-
related hazards. The Supreme Court, however, long has recognized
that littering is the fault of the litterbug, not the leafletter.
Schneider v. State, 308 U.S. 147, 162 (1939). The normally
appropriate response to problems caused by litter, therefore, is
to punish the litterbug.
The record, moreover, does not support the Authority's
fears. Over a period of 18 months, the Authority's accident and
incident report listed more than 250 accidents, but it did not
indicate the type or cause of any of the reported events.
Defendant's Trial Exhibit 23A. These numbers alone do not
support generalizations that noncommercial leafletting causes
accidents. Besides, in accordance with the Guidelines,
plaintiffs regularly pick up leaflets that have been discarded
improperly by transit patrons. Indeed, the MBTA employees who
testified at trial did not know of any accidents, crimes, or
other incidents in which plaintiffs were implicated. We
therefore affirm the district court's determination that the
evidence did not demonstrate a causal connection between
leafletting and litter-related safety problems.
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The record reveals a myriad of other nontransit activity in
the stations that further weakens the justification for the
leafletting ban. See Grayned v. Rockford, 408 U.S. 104, 116
(1972) (holding that crux of time, place, and manner analysis is
"whether the manner of [banned] expression is basically
incompatible with the normal activity of a particular place at a
particular time"). Passengers bring in paper and food items for
immediate consumption. Vendors, including wandering newspaper
hawkers, sell newspapers, magazines, food, and drink within the
stations. Businesses leave promotional flyers unattended.
Musicians set up portable stations to perform, sell tapes, and
solicit contributions. The MBTA deliberately has invited into
the subway system a range of expressive activities that can
produce problems similar to those it attributes to leafletting.4
The condoned presence of these activities indicates that the
subway system can accommodate peaceful leafletting. See ISKCON,
112 S. Ct. at 2713-14 (O'Connor, J., concurring) (striking down
ban on leafletting where activity reasonably is compatible with
"shopping mall" environment of airport). We thus affirm the
district court's conclusion that litter does not justify the
complete ban on leafletting.
2. Solicitation of Signatures
4 As Edward Manning, the Superintendent of the Light Rail Department, testified, passengers "can slip easily on anything
that would be discarded on the platform." Tr. Vol. I at 64. (emphasis added). Indeed, Daniel Breen, the Building Structures Division Engineer, stated his opinion that concession stands and newspaper vendors also should be banned because of the "mess and the safety problems" they cause. Tr. Vol. I at 43, 49.
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Although the parties did not discuss this form of
expression, we realize that the Supreme Court has accorded the
solicitation of signatures for petitions a high level of
protection because it "involves both the expression of a desire
for political change and a discussion of the merits of the
proposed change." Meyer v. Grant, 486 U.S. 414, 421, 425 (1988).
It therefore "involves the type of interactive communication
concerning political change that is appropriately described as
`core political speech.'" Id. at 421-22. When restricting this
kind of speech, the government bears a greater burden to justify
its ban. Id. at 425; see also Burson v. Freeman, 112 S. Ct.
1846, 1857 (1992) (warning that ban against electioneering can
become "an impermissible burden" the farther from the polls it
extends).
Yet the MBTA has offered no support for its ban on
solicitation of signatures. The argument and the evidence
presented focus solely on the dangers to public safety posed by
leafletting. Because we do not see how peaceful solicitation of
signatures clashes with the multipurpose environment of the
subway system, we "cannot accept that a total ban on that
activity is reasonable without an explanation as to why such a
restriction `preserve[s] the property' for the several uses to
which it has been put." ISKCON, 112 S. Ct. at 2714 (O'Connor,
J., concurring) (quoting Perry Educ. Ass'n, 460 U.S. at 50-51).
Even extending the Authority's concern for public safety to
solicitation, we are not persuaded that the inferred risks would
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justify the ban on solicitation of signatures. First,
solicitation of signatures does not produce litter. The
solicitor does not give the petition to a passenger to keep but
is careful to hold on to every page of the petition. Second,
because no money changes hands, the risk of fraud, a major
concern justifying bans on solicitation of funds, ISKCON, 112 S.
Ct. at 2708, is absent. Third, although solicitation is more
disruptive of passenger flow because it invites a passenger to
stop to read the petition before deciding whether to add her
name, it is no more disruptive of traffic than other activities
in the transit system. Both the hawking of newspapers and the
playing of music create crowds as passengers stop to buy
newspapers, listen to a performance, or make donations to a
musician. In the absence of contrary evidence from the MBTA, the
peaceful solicitation of signatures appears compatible with the
environment of the Boston subway system.
3. Public Address
Finally, we turn our attention to the ban against public
address. As with solicitation, we conclude that the complete
lack of an explanation and evidence to support the ban on public
address compels its invalidation. The Authority confines public
address in the free areas to decibel levels below 95. It
evidently has determined that 95 decibels is the level above
which public safety is endangered. In any event, the MBTA has
not explained why, in light of this available and uncontested
restriction, the absolute ban is necessary.
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4. Other Guideline Provisions
The Authority, of course, may tailor the Guidelines narrowly
to achieve its interest in public safety. For example,
plaintiffs concede that the MBTA legitimately may ban expressive
activity during especially crowded peak hours when the dangers to
the public are greater.
Ironically, the Guidelines already contain narrowly drawn
time, place, and manner restrictions that satisfy the MBTA's
specific concerns. The Guidelines forbid littering, leaving
literature unattended, and interfering with the safety of the
passengers or the operation of the subway trains. In addition,
to minimize the risk of accidents, the MBTA maintains a 15-foot
safety zone around elevators, stairwells, kiosks, turnstiles, the
edge of any train platform, and other high risk structures. It
also bans expressive activity from areas less than 15 feet wide.
The Guidelines authorize the ejectment of any person who violates
these prohibitions. Finally, the MBTA may cancel authorization
of noncommercial expressive activity for a reasonable time when
public safety or the operation of the transit system so require.
Particularly with unchallenged time, place, and manner
regulations in place to protect the Authority's interest, the
complete ban on noncommercial expressive activity in the paid
areas and free areas of earmarked stations cannot stand.
We add that we are not unaware of the special conditions and
dangers of subway operation. We are, however, dealing with a
continuing injunction. Thus, to the extent that existing
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regulations prove inadequate, the Authority may adopt, if
justified, appropriately tailored regulations going beyond those
we have sustained, if and when the evidence, including changed
conditions, warrants such restrictions.
B. Prior Authorization Requirement
The Guidelines require a person to obtain authorization
before engaging in noncommercial expressive activity. To obtain
authorization, a person must telephone the Authority and indicate
for whom the authorization is requested, the number of
individuals involved, and the proposed location, time, and
activity. When a person receives permission to engage in
noncommercial expressive activity, she also receives a control
number. The Authority charts the number on the appropriate
station diagram and transmits the information to the station so
that the personnel there can oversee the activity. The request
line is available 15 and 1/2 hours each day, seven days a week.
The district court voided the authorization requirement as
an unconstitutional prior restraint. It explained that the MBTA
could not require a license to engage in ordinary speech like
handshaking or greeting and that the authorization requirement
did not promote the Authority's avowed interests in public safety
and evenhanded access to the subway stations for First Amendment
activities. We disagree with the court's conclusions and,
therefore, reverse the invalidation of the authorization
requirement.
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Although it is true that a regulation allowing the
government to deny use of its property "in advance of actual
expression" is a prior restraint, Southeastern Promotions, Ltd.
v. Conrad, 420 U.S. 546, 553 (1975), not all prior restraints
transgress the First Amendment. Id. at 558. A prior restraint
system is permissible if it contains certain safeguards designed
to protect against censorship. Freedman v. Maryland, 380 U.S.
51, 58-60 (1965). Where the prior restraint is content neutral,
the regulations must limit the time for issuing authorization and
must permit prompt judicial review. Id., construed in FW/PBS,
Inc. v. City of Dallas, 110 S. Ct. 596, 606-07 (1990).
The Guidelines satisfactorily incorporate these safeguards.
The Authority responds to each request at the time it is made.
The Guidelines further delineate the situations in which
authorization may be denied: when the desired location is
unavailable; when the planned activity endangers public safety;
and when the planned activity constitutes prohibited conduct.5
The applicant may appeal a denial of authorization, and the
filing of an appeal entitles the claimant to a hearing in
accordance with Mass. Regs. Code tit. 801, 1.02.
Given these safeguards, it is more appropriate to scrutinize
the permit system as a time, place, and manner regulation.
5 Prohibited conduct includes unlicensed commercial activity, distribution of food and drink, posting bills or otherwise affixing materials to an MBTA structure, setting up tables or portable equipment, carrying large placards or signs affixed to a pole, discarding or leaving unattended any printed material, and producing or amplifying sound to a level greater than 95 decibels.
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Heffron, 452 U.S. at 647 n.10, 649. The authorization
requirement is "not open to the kind of arbitrary application
that [the Supreme Court] has condemned as inherently inconsistent
with a valid time, place, and manner regulation because such
discretion has the potential for becoming a means of suppressing
a particular point of view." Id. at 649. Like the regulations
upheld in Heffron, id., the Guidelines allocate space on a first
come, first served basis, without regard to the messages
presented. The Authority does not even inquire about the
contents of the message.
As we noted above, a content neutral time, place, and manner
regulation passes constitutional muster if it is tailored
narrowly to serve a significant government interest. As part of
this inquiry, we also consider whether the regulation forecloses
alternative channels of communication. Perry Educ. Ass'n, 460
U.S. at 45-46. The authorization requirement satisfies these
strictures.
The Guidelines leave available ample channels of
communication for plaintiffs' message. Plaintiffs may
disseminate their leaflets in the streets, parks, and sidewalks
adjacent to the train stations. Within the transit system, if
plaintiffs are denied authorization in one location, they may
seek to use a different one or to reserve a different time.
The Authority asserts that the government interests
protected through the authorization requirement include ensuring
public safety and equal access for all who wish to engage in
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noncommercial expressive activity. In particular, the prior
authorization enables the Authority to arrange necessary police
coverage, an undeniably substantial government interest. Cox v.
New Hampshire, 312 U.S. 569, 576 (1941).
The question remains whether the prior authorization scheme
is tailored narrowly to advance the Authority's legitimate
interests. The district court answered this question negatively.
It reasoned that advance warning for police deployment is
unnecessary for a lone leafletter and that, for a larger
gathering, the Guidelines do not provide sufficient lead time to
redeploy the Authority's security forces. This reasoning
overlooks the fact that "the requirement of narrow tailoring is
satisfied `so long as the . . . regulation promotes a substantial
government interest that would be achieved less effectively
absent the regulation.'" Ward, 109 S. Ct. at 2758 (quoting
United States v. Albertini, 472 U.S. 675, 689 (1985)); see
Cornelius, 473 U.S. at 808.
The authorization scheme effectively promotes the MBTA's
interests. With respect to the lone leafletter, the district
court did not take into account the cumulative effect that a
number of lone leafletters converging on the same station can
have on public safety. The authorization scheme enables the
Authority to avoid scheduling conflicts among different
applicants and to contain the amount of activity at a level that
does not interfere with public safety.
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The requirement also copes with the problems attending the
staging of a large rally or gathering. In such an event, the
Authority reasonably could deny permission because of a risk to
public safety, if it does not have adequate time to deploy its
personnel. The Authority, moreover, boasts the ability to
redeploy its personnel quickly because it maintains a number of
police officers throughout the system, who can be diverted to a
station on short radio notice. The authorization scheme thus
enables the MBTA to monitor the activity in the system at any
time so that it can prevent and respond to problems affecting the
public. These benefits are sufficient to uphold the
authorization requirement. See Cox, 312 U.S. at 576.
III.
To summarize, we affirm the invalidation of the ban on
noncommercial expressive activity from designated areas and
reverse the invalidation of the prior authorization requirement.
Solicitation of signatures, leafletting, handshaking or greeting,
and public address all may occur within the paid and free areas
of the transit stations in accordance with the existing time,
place, and manner restrictions (e.g., requiring leafletters to
stay 15 feet away from the platform's edge) and the authorization
requirement. These provisions now apply to the paid areas as
well as to the free areas. If the distance restrictions preclude
activity in any of the free or paid areas, a complete ban on all
noncommercial expressive activity may apply to the affected area.
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Affirmed in part and reversed in part. No costs.
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