UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

Change the Climate, Inc, Plaintiff vs. Massachusetts Bay Transportation Authority (MBTA); Robert H. Prince Jr., General Manager of the MBTA, in his official capacity; and Lucy Shorter, Director of Marketing and Communications for the MBTA, as an individual and in her official capacity, Defendents.

Case Number 00CV10973-REK

Plaintiff Change the Climate, Inc.'s Statement of Uncontested Facts

A. The Parties.
Change the Climate ("CTC") is a not for profit organization which, quite literally, seeks to "change the climate" around the discussion of marijuana issues in the United States. Joe White, Executive Director of CTC, founded the organization in 1999, as a concerned parent and citizen, for the purpose of raising public awareness about marijuana issues, including the inordinate amount of tax dollars spent on marijuana law enforcement and the potential harm to our children resulting from arrest and incarceration. (Affidavit of Joseph White ("White Aff."), 2, attached as Exhibit 1; Deposition of Joe White ("White Dep."), pp. 26-27, 148-149, attached as Exhibit 2.)

CTC's mission is to stimulate debate about marijuana issues. Among its many concerns, CTC seeks to promote discussion about the negative consequences of the marijuana laws on our children, the extraordinary resources our government has devoted to marijuana law enforcement, the differences between marijuana and other drugs such as heroin and cocaine, and the proven beneficial medical and industrial uses of marijuana.¹ (White Aff., 3; White Dep., pp. 37-39, 148-49, 157-58, 168-70.) By engaging the public in discussion on marijuana issues, and attempting to combat misinformation with accurate information, CTC hopes to help reduce the level of hysteria that has so long dominated the public domain about marijuana. Toward that end, as Executive Director, White created and operates an interactive web site, www.changetheclimate.org. (White Aff., 3-4.)

One way CTC seeks to raise public awareness is through its media campaign. CTC embarked on a national advertising campaign in an effort to stimulate public debate through provocative advertisements on public transit systems throughout the nation's cities. (White Dep., pp. 23-26; White Aff. 5.) The media campaign intends to raise questions in people's minds about the broad issues of marijuana policy. (White Dep., pp. 28-30, 37-39, 67.) CTC chose the medium of public transit systems because it reaches the most number of people and is a proven vehicle to attract attention, to stimulate debate, and to raise issues in the public domain. (White Dep., pp. 23, 41.) Three advertisements used in CTC's campaign - one of which has already been successfully displayed on transit buses in our nation's capital - are the subject of this lawsuit. Copies of these proposed advertisements are attached as Exhibit B. (See also White Aff., 12.)

While CTC hopes to raise ideas and questions in peoples' minds about the efficacy of our current marijuana laws and policies through its provocative advertisements, in no way does the organization advocate the use of marijuana or any violation of existing laws. (White Aff., 5.) Woven throughout CTC's promotional materials, the interactive web site, and its media campaign are explicit messages that the truth need be spoken about marijuana and that marijuana is not for kids. (White Aff., 6; White Dep., pp. 40, 151-156, 161, 168.)

The defendant Massachusetts Bay Transportation Authority ("MBTA") is a body politic and political subdivision of the Commonwealth of Massachusetts. By statute, it is expressly authorized to "sell, lease or otherwise contract for advertising in or on the facilities of the authority." Mass.Gen.L. ch. 161A, §§ 2 and 3 (1993). During all times relevant to this action, the MBTA regularly authorized its exclusive advertising agent, Park Transit Display, Inc. ("PTD"), to post commercial and noncommercial advertisements, including advertisements expressing social, political and religious messages, in MBTA facilities, and on MBTA buses and trains (Deposition of Lucy V. Shorter ("Shorter Dep."), pp. 20, 80, attached as Exhibit 3; White Dep., p. 86.)

The defendant Robert Prince is the General Manager of the MBTA and is its Chief Executive Officer. He has occupied that position since 1997. (Deposition of Robert H. Prince, Jr. ("Prince Dep."), p. 6, attached as Exhibit 4.) Prince's self-described role in advertising decisions is that he provides ultimate approval or disapproval of an advertisement when an advertisement is called into question. (Prince Dep., p. 5.) Prince's approval is not required for all proposed advertisements submitted for display. (Id. at 49.) Based on the discretionary decisions of his staff, his approval is only required when there are questions about the acceptability of a proposed advertisement, at which time he considers the proposed ad, the recommendation of his staff, and, some times but not others, the MBTA guidelines, to give him some latitude in rendering a decision. (Prince Dep., pp. 16, 49 -51.) An internal sign-off sheet would reflect his decision. A copy of this sign-off sheet is attached as Exhibit C; see also Shorter Dep., p. 9.)

The defendant Lucy Shorter was employed by the MBTA for more than twenty years, and was the Director of Marketing Communications in the Marketing Department from 1992 to November 2000. (Shorter Dep., p. 5.) The Marketing department was the exclusive department that dealt with proposed advertisements for display on MBTA facilities and vehicles. (Id. at 6, 18-22.) An advertiser could not deal directly with the Marketing Department, however. At all times relevant to this action, all advertising placement had to go through PTD. (Id. at p. 80.) Elissa Albertelli, National Sales Manager of PTD, was Shorter's exclusive agent for that process. (Deposition of Elissa Albertelli ("Albertelli Dep."), p. 8, attached as Exhibit 5.)

Shorter was directly responsible for the MBTA's decision to reject the plaintiff's proposed ads based on her perception of the viewpoint of the ads, and her perception that Change the Climate's mission conflicted with the MBTA's advertising policies. A copy of Shorter's January 20, 2000 fax to Albertelli, stating the reasons for her decision, is attached as Exhibit D.

B. The Promotion of Discussion and Debate Our Nation's Failed Drug Policies Is An Important Matter of Public Concern.

To survey what has been written and spoken on the vast subject of our nation's war on drugs over the years is a task well beyond the scope of this case. What is material is that increasingly, respected public figures are urgently calling for citizens to do exactly what Change the Climate, through its media campaign, is trying to do: get people to think about and debate rational alternatives to our failed war on drugs.

An excerpt from Chief Judge Torruella's thoughtful article, The"War on Drugs": One Judge's Attempt At A Rational Discussion, bears on this point directly:

Drug enforcement policy involves the consideration of issues as diverse as international and national politics, law enforcement, sociology, economics, organizational dynamics, and penology, to mention only the most salient. In addition, there are complex scientific, pharmacological and health questions, and, of course, moral quandaries, raised by the various policy choices and alternatives. Nevertheless, I do not think that the complexity of the subject should deter us from exchanging views, for we must start at some point, and now is as good a time as any. In fact, I believe that more vigorous and frank public discussion of these issues is what is presently needed.²

Veteran Judge, former federal prosecutor and Navy JAG criminal defense attorney, James P. Gray, recently authored the new book, Why Our Drug Laws Have Failed And What We Can Do About It, in which he echoes Judge Torruella's sentiment:

The real problem in this area actually is not the drugs themselves. The real problem is that our citizens and our leaders simply will not look at the evidence, even though it is all around us. Our present policy is exacerbating the problems and will not stand up to scrutiny. What we really need to do is to open the subject to rigorous public debate. This is our best and perhaps our only hope for moving forward to a better strategy, and to adopting programs that will actually work. The advocates of the status quo stand firmly against any full or open discussion of federal drug policy, but what we really need to do is explore our options realistically, and tell each other the truth.³

Numerous other lawyers and judges have expressed those same concerns in "An Open Letter from Judges and Attorneys," sponsored by the Voluntary Committee of Lawyers, Inc.:

. . . . [W]e join with our colleagues in calling upon our profession, elected officials, the media and the public to initiate a truly open and honest evaluation of the efficacy and consequences of our drug control laws. Only a public debate guided by mutual respect can yield better drug laws in which fear, prejudice and punitive prohibitions yield to common sense, science, public health and human rights. As America we must never "surrender" to drugs, neither must she surrender to inertia or fear that shuts off debate, suppresses critical analysis, dismisses alternatives to current policies, and vilifies those who express dissenting views.⁴

The citations could go on and on and on, from speakers in the legal community to speakers in the scientific and medical community throughout society. The salient point, for the purposes of this litigation, is that the promotion of public discussion and debate on the subject of our nation's drug polices, and the efficacy of those policies, is a matter of important public concern unto itself.⁵

C. MBTA's Advertising Space.

Pursuant to its statutory grant of authority, the MBTA sells advertising space on MBTA subway cars, platforms, and buses for the display of commercial and noncommercial messages, including social and political public interest messages of advocacy organizations. Shorter testified to this fact directly at her deposition:

Question: Does the T have any policy under which it will not sell advertising to an advocacy organization?

(Objection to form.)

Answer: They're not policies. They're guidelines.

Question: By advocacy organization, I mean an organization that promotes a political or social viewpoint for or against an issue, for or against abortion, for or against animal rights, for or against littering. Does the T have a guideline under which it will not sell advertising space to such advocacy groups?

Defense Counsel: You're talking about while she was employed there?

Question: Yes, in the year 2000.

Answer: No.

Question: And, in fact, the T regularly makes its advertising space available to advocacy groups on public issues; isn't that correct?

Answer: It's a public service.

Question: What sort of public service ads are you familiar with the T running?

Answer: Ads from state agencies, deadbeat dads.

Question: Anti-drug ads?

Defense Counsel: You're asking about public service ads now?

Plaintiff's Counsel: Yes.

Answer: Yes.

(Shorter Dep., pp. 64-65).
Indeed, the MBTA makes its advertising space available to anybody who is willing to pay for the space and who provides an advertisement that meets the MBTA's advertising guidelines. Shorter, Prince and Albertelli all testified accordingly. For example, Shorter testified:

Question: Are you aware of the T ever rejecting an ad that complied with the guidelines?

(Objection.)

Answer: I don't recall any.

Question: So is it fair to say that anybody who wanted to purchase or to place ads on T facilities could do so long as they paid the price and as long as their ads complied with the guidelines?

Answer: Working through the contractor, yes.

(Shorter Dep., pp. 64-67.) Prince similarly testified:

Question: Does the T makes its advertising space available to anybody who is willing to pay for it and provide an ad that meets all of the guidelines?

Answer: Yes.

(Prince Dep., pp. 46-47.) And Albertelli's testimony followed suit:

Question: In your dealings with the MBTA, was there ever a time when the MBTA refused to provide advertising space for an advertisement that complied with its guidelines?

(Objection.)

Answer: I would think not.

(Albertelli Dep., p. 46.)
At all times relevant to this action, including the present, among the commercial advertisements that have been and continue to be on display are those for alcohol products. (Shorter Dep., p. 68, Albertelli Dep., p. 15.) Noncommercial advertisements on display have included and continue to include public interest messages ranging from religious messages to political and social messages reflecting viewpoints on important matters of public concern. For example, the MBTA has displayed and continues to display messages concerning abortion services, the protection of animals against inhumane treatment, domestic violence victim services, child support collection, AIDS awareness and prevention, and drug awareness and prevention. (Affidavit of Lisa Aunkst ("Aunkst Aff."), 4-9, attached as Exhibit 6; Affidavit of Lillian Hirales ("Hirales Aff."), 2-3, attached as Exhibit 7). Such issues are, of course, properly understood as important social and political issues of our time.⁶ (Prince Dep., pp. 41-45.)

The only product the MBTA categorically prohibits in its advertising policies is tobacco. (Shorter Dep., p. 68.) Despite the existence of this express restriction, advertisements reflecting the use, even the glamorization of what appear to be tobacco products are being displayed prominently on MBTA property as this brief is being written. (Aunkst Aff., 9.)

D. MBTA's Public Record of Unconstitutional Viewpoint Discrimination.

In three reported cases brought in this district concerning its advertising practices, the MBTA was found to have impermissibly discriminated against non-profit advertisers on the basis of the viewpoint of the message in the advertisements. See AIDS Action Committee of Massachusetts v. MBTA, 42 F.3d 1 (1st Cir. 1994), affirming and modifying 849 F. Supp. 79 (D.Mass. 1993) (attached to Plaintiff's Memorandum of Law as Exhibit 1a); Citizens to End Animal Suffering and Exploitation v. MBTA, C.A. No. 92-11118-MA (D.Mass. June 5, 1992) (attached as Exhibit 1b); Preterm, Inc. v. MBTA, C.A. No. 74-159-MA,1974 U.S. Dist. LEXIS 8555 (D.Mass. May 13, 1974) (attached as Exhibit 1c). In each of these cases, the MBTA was ordered to display the messages and refrain from so discriminating in the future. See AIDS Action, 42 F.3d at 38-40 (enjoining viewpoint discrimination and ordering MBTA to post safe sex practices advertisements); Citizens to End Animal Suffering, C.A. No. 92-11118-MA (ordering MBTA to post animal rights advertising placard); Preterm, C.A. No. 74-159-M,1974 U.S. Dist. LEXIS 8555, at * 6 (granting preliminary injunction and ordering display of ads concerning abortion services available at clinic).

Shorter was the Director of Marketing and Communications of the MBTA in 1994, when the First Circuit affirmed the district court injunction in AIDS Action. Despite the outcome in that case, Shorter testified that she never received any training whatsoever to prevent future violations of advertisers' First Amendment rights by MBTA officials. (Shorter Dep., pp. 16-17.) Despite this record of unconstitutional conduct, the MBTA did not distribute a single memorandum to educate employees in the aftermath of any of these decisions.⁷ Despite this record of unconstitutional conduct, Defendant Prince, the General Manager and CEO of the MBTA, testified that if, in his judgment, a political opinion is "harmful to juveniles," he could decline to run an advertisement on that basis. (Prince Dep., p. 41.)

E. MBTA's Advertising Approval Process.

At all times relevant to this action, the Marketing Department was the exclusive department that dealt with proposed advertisements for display on MBTA facilities and vehicles. (Shorter Dep., p. 5) Defendant Shorter was the point person from the Department with whom PTD, the MBTA's exclusive advertising agent, dealt in the advertising process. (Albertelli Dep., p. 7.) When a business wanted to buy advertising space on the MBTA, it did not have the option of dealing with the MBTA directly. It had to go through PTD. (Albertelli Dep., p. 8.)

In her capacity as Director of Marketing Communications, Shorter reviewed ads that came in from PTD and forwarded ads for final approval by the General Manager, who was at all times relevant, defendant Robert Prince. (Shorter Dep., p. 6, 13; Prince Dep., p. 5; Albertelli Dep., p. 25.) Shorter created a sign-off sheet for advertisements that she would review, to be sent for approval by Prince. (Shorter Dep., pp. 9-11.) Albertelli was never privy to this process or sheet. (Albertelli Dep., p. 24.) The procedure would be used when PTD was unsure whether a submitted ad fell within the MBTA guidelines. (Id. at 13-14.) Once she submitted an ad to Shorter, Albertelli would await an answer. (Albertelli Dep., p. 28.) Shorter testified that ninety-nine percent of the time, however, PTD would post the ad without seeking approval. (Shorter Dep., at 14.) Albertelli agreed. It was left to PTD's discretion whether the Marketing Department would need to see the ads in the first instance. (Albertelli Dep., pp. 12-14.) Albertelli's guiding criterion in determining whether to bring an ad to the MBTA's attention was whether the ad was "a little bit provocative." (Id. at p. 15.)

Albertelli also testified that when there was an ad copy in question, she and Shorter would discuss it, bring in the client at some point, and talk to him or her about the campaign and any objections raised by Shorter. (Albertelli Dep., p. 48.) Neither Albertelli nor Shorter ever invited White in to discuss objections to the plaintiff's ads. (Albertelli Dep., p. 33.)⁸

F. Change The Climate's Submission of Ads for Approval to the MBTA.

In September 1998, White contacted Albertelli at PTD to request information about the process for placement of advertisements on the transit authority's public advertising space. (White Dep., pp. 65, 108) Subsequently, Albertelli mailed a standard media kit to White, explaining advertising rates, demographic information, and population statistics on advertising coverage. (Albertelli Dep., p. 16; White Dep., p. 65)

In the spring of 1999, through a series of phone calls, White and Albertelli arranged a meeting in Cambridge to discuss a paid public service campaign for CTC. (Albertelli Dep., p. 17; White Dep., p. 68.) In telephone conversations and a meeting that took place at the Charles River Hotel on or about May 10, 1999, White explained to Albertelli that CTC wanted to get a message out in general around the subject of marijuana. (Albertelli Dep., p. 20; White Dep., pp., 85-86.) Albertelli recalls that White told her that CTC was looking to educate the public and raise public awareness on various issues surrounding marijuana and that she received for her review CTC materials, including some draft ads, early on in her dealings with White (Albertelli Dep., pp. 17, 40; White Dep., p. 85).⁹

During the course of their conversations, Albertelli explained to White that the process between PTD and the MBTA for getting advertisements approved was that samples of the "creative" (i.e. proposed copy of the ads) would first be sent to Shorter, and upon receiving a response from Shorter, a formal application would be made on his behalf. (White Dep., pp. 85, p. 112-13) White recorded the substance of one of these conversations with Albertelli in his day planner. One entry reads "she needs to run creative by MBTA." Copies of White's day planner entries of May 1999 are attached as Exhibit G. (See also White. Dep., pp. 112-13) Also during the course of their conversations, White recalls Albertelli telling him words to the effect that she didn't think that Shorter would have a problem with the mild content of the ads that CTC was proposing to display.¹⁰ (White Dep., p. 86.)

On May 11, 1999, Albertelli sent White proposals for media buys of varying monetary amounts from PTD, as well as additional information on advertising demographics and bus geographic coverage. (Albertelli Dep., p. 17.) Upon receiving the proposals, White sent Albertelli several proposed ads that he wished the MBTA to consider. A copy of a handwritten undated note to Albertelli from White, attaching several draft ads is attached as Exhibit H.

On May 21, 1999, at Albertelli's direction, White sent Shorter additional information about Change the Climate, so that she could learn more about the organization. Among other things, the information describes CTC's media campaign and the emphasis CTC places on its position that marijuana is not for kids. A copy of the May 21, 1999 letter to Shorter from White is attached as Exhibit I. Shorter received the packet and reviewed that information, as well as the proposed ads that White had sent to Albertelli. (Shorter Dep., p. 54.)

From May through December 1999, White called Albertelli on several occasions, inquiring about the MBTA's response to the advertising copy and other materials that he had mailed to both Albertelli and the MBTA, and how to complete the process and get the ads up and running. (White Dep., pp. 88, 90-91, 120-121.)

After more weeks of waiting and hearing nothing back, on January 3, 2000, White contacted Albertelli again and expressed his frustration with the MBTA's delay in responding to the creative sent months prior. (White Dep., p. 122.) Albertelli told White at that point that she would submit a formal application to get a response. (White Dep., p. 123.) The next day, White followed up that phone call with a letter to Albertelli, enclosing the materials that she had indicated were the materials necessary for the application.¹¹ These materials included a 501(c)(3) tax-exempt status letter, a copy of CTC's incorporation papers, and the copy for the three proposed ads for display that are the subject of this lawsuit. (Id.; White Dep., pp. 88-89.) Copies of the follow-up letter from White to Albertelli, dated January 4, 2000, with all enclosures except proposed ads at Ex. B, are attached as Exhibit J. The content of the ads submitted is as follows:

• a photograph depicting two police officers with the text: "Police are too important . . . too valuable . . . too good . . .
  To waste on arresting people for marijuana when real criminals are on the loose."
  
  
• a picture of a woman at work with the text: "I've got three great kids. I love them more than anything. I don't want them to smoke pot. But I know jail is a lot more dangerous than smoking pot."
  
  
• a picture of a teenager with the text: "Smoking pot is not cool, but we're not stupid, ya know.
  Marijuana is NOT cocaine or heroin."
  
  
  Each of the ads also contains the "web address" for the plaintiff: www.changetheclimate.org. (See Ex. B.)

G. MBTA's Rejection of Change the Climate's Proposed Ads.

On January 24, 2000, Albertelli informed White that the MBTA had rejected Change the Climate's proposed advertisements. In a cover letter she faxed to White she wrote:

Regretfully, I've attached the response from the Transit Authority regarding "Change the Climate" campaign. Their reasons for not accepting this campaign are clearly stated in the info. provided.

(emphasis added). Copies of the cover letter from Albertelli to White, dated January 24, 2000, and the attachments from Shorter that she forwarded along with that cover letter, are attached as Exhibits K-M (See also Albertelli Dep., p. 29.)

The "attached response" to which Albertelli referred was a copy of a fax cover sheet that Shorter sent to her a few days prior, on January 20, 2000, (Ex. D), in which Shorter stated:

See attached. The Change the Climate promotes the use of marijuana in a suttle [sic] way and also is really a reform marijuana [sic] in a effort to legalize? The T's appearance & character, Policy & Drug - Alcohol policy is in conflict with their mission.¹²

(Id.; see also Exhibit L.) Shorter attached the two MBTA policies, i.e. the "appearance and character, Policy" and the "Drug - Alcohol Policy" she referenced in the memo, indicating with an asterisk in the margins of each paragraph the excerpt that she believed applied to Change the Climate's proposed advertisements.

The first excerpt that Shorter placed as asterisk beside provides:

ARTICLE VII - APPEARANCE AND CHARACTER OF ADVERTISEMENTS
All advertisements at any time inserted or placed by the Contractor in or upon any locations or display devices shall be of a reputable character, and the appearance of all advertisements shall be acceptable to and in accordance with the Massachusetts Bay Transportation Authority's standards for character and appearance of advertisements. No libelous, slanderous, or obscene advertisements may be accepted by the Contractor for display in or upon the Authority's transit facilities. The MBTA will not accept advertisements containing violent criminal content, firearms, profane content, promotional materials that is [sic] harmful to juveniles, and advertisements that denigrate groups based on gender, religion, race, ethnic or political affiliation for display in or upon the Authority's transit facilities. Advertisements shall be submitted in advance to the Authority for review at the Authority's request or whenever the Contractor reasonably believes such advertisements may be objectionable within the meaning of this ARTICLE.

This excerpt is from a section entitled "Section 3- Transit Advertising Contract Terms and Conditions." (See Exhibit M.) While the fact that Shorter attached this document to her January 2000 fax to Albertelli would suggest that it was an excerpt from a section of the existing contract between Park Transit Display and the MBTA, it is not. At their respective depositions, Shorter and Prince each identified this document as an excerpt from the1999 bid specifications for a contract that was ultimately entered into between the MBTA and Transit Display Incorporated ("TDI"), PTD's successor, on May 30, 2000. These specifications were not for any existing contract between the MBTA and PTD, but rather, had an effective date of July 1, 2000 - six months after the plaintiff's ads were rejected. (Shorter Dep., pp. 22-23, 27-28, 39; Prince Dep., pp. 6-7, 9-10, 12-13.)

Shorter testified that while no one told her when the updated version of the guidelines was to go into effect, she decided to apply them anyway to her review of CTC's ads and send them to Albertelli as an explanation for her decision to reject them. (Shorter Dep., p. 27.) To Shorter, the various policies she had accessible to her "were all just one in the same" so she "applied whatever we had." (Id.) As for Albertelli, she testified that she would not think of looking at the guidelines before making a determination as to whether or not to forward them to Shorter for review. Rather, she would use her personal judgment as to whether a particular ad struck her as provocative and forward it to Shorter accordingly, for her "objective" review. (Albertelli Dep., pp. 15, 37, 42.) And as for Prince, while he claimed to be familiar with the specifications, he gave contradictory and unreliable testimony throughout questioning on this document.¹³

In a vain attempt to reconcile these conflicting facts, both Prince and Shorter testified that the MBTA had updated 1992 specifications for the contract between the MBTA and PTD prior to the creation of the 1999 specifications, and that these updated guidelines were simply reflected in Article VII of the 1999 contract between the MBTA and TDI. (Prince Dep., pp. 11; Shorter Dep., p. 24.) Shorter went so far as to say that PTD was always informed of the updated guidelines changes. (Shorter Dep., p. 23.) Yet when pressed with the question of just when and how PTD was informed of these purported updates and revisions, she ultimately admitted that there was nothing in writing notifying PTD of any updated guidelines whatsoever. Indeed, she ultimately admitted that the first time she could recall informing PTD of the updated guidelines just happened to be in her January 2000 fax to Elissa Albertelli rejecting CTC's proposed ads. (Ex. I; Shorter Dep., pp. 24-25.)

In other words, it is undisputed that Article VII of the 1999 bid specifications (and hence the other three policies that Shorter attached to her fax, which are all undisputably part of the same bid specifications), were not even in effect as of January 2000, when Shorter sent them to PTD to explain her rejection of the plaintiff's ads.

The second excerpt that Shorter placed an asterisk beside provided:

Drug and Alcohol Free Workplace Requirement:
All contractors, contractors' employees and vendors are to be free of the effect of drugs, alcohol, controlled substances, or other prohibitive substances, when they are on MBTA property or performing MBTA business. In addition, all referenced parties are prohibited from using, possessing, selling or distributing any drugs, alcohol, controlled substances, or other prohibited substances, when they are on MBTA property or performing MBTA business.

(See Exhibit N.) Unlike the first excerpt from "Section 3," this excerpt was taken from "Section 2 - Instruction to Bidders." Notwithstanding the asterisk placed in the margin by Shorter, it is undisputed that this excerpt is applicable, on its face, to contract bidders only - i.e. those who bid on contracts with the MBTA to sell advertising space. Nothing in this workplace policy has any relevance whatsoever to Change the Climate's proposed ads, or any potential advertisers for that matter.¹⁴

While specifically referring to just the two policies above in her fax to Albertelli, Shorter also attached two additional policies that have no relevance whatsoever to the plaintiff's ads for good measure.

This time bearing a question mark by Shorter in the margin, the first is an excerpt from Section 3 of the 1999 bid specifications that applies, on its face, to tobacco products only. It reads:

Article VIII - ADVERTISEMENTS FOR TOBACCO PRODUCTS
The Contractor shall not display or accept for display advertisements for tobacco products in or upon any locations or display devices within the Authority's transit facilities. This prohibition of advertisements for tobacco products shall be in effect for the entire contract term.

(See Exhibit O.) The final attachment bears no mark by Shorter at all. Like the "Drug and Alcohol Free Workplace Requirement," this page is an excerpt from Section 2 of the 1999 bid specifications which, again, have absolutely no application to Change the Climate's proposed ads or advertisers generally. A plain reading of each of the paragraphs in this document indicates that these provisions, like the "Drug and Alcohol Free Workplace Requirement" provisions above are relevant to bidders only, as the title "INSTRUCTION TO BIDDERS" at the top of the document makes abundantly clear. (See Exhibit P.)

After White received Albertelli's fax, attaching the above documents, he called Albertelli to express his disappointment. He told Albertelli that the MBTA had made inaccurate observations about CTC as an organization, and mischaracterized CTC's advertising campaign. (White Dep., pp. 130, 136.) White recalls that Albertelli seemed surprised herself at the MBTA's response. (Id. at 129.) White told Albertelli he did not know what CTC could do, and Albertelli made no mention of any appeal process. (Id. at 132.)

Other than the four sheets attached to the Shorter fax, the MBTA never claimed any other policies were relevant to Shorter's decision to reject Change the Climate's ads prior to the instant litigation.

As recently as a January 2001 interview on WBOQ radio in Boston, Lydia Rivera, the MBTA Spokesperson in the Press Office of the MBTA at all times relevant to this action,15 freely acknowledged the reasons that the MBTA decided to reject the plaintiff's ads, citing some of the same reasons as Shorter did in her fax, which indisputably amount to the MBTA's hostility toward the plaintiff's viewpoint, as well as offering some other insights into the MBTA's decision-making processes:

• on the reason for the MBTA's rejection of the ads:
  
  "We came to the conclusion that we rejected the ads because, uh, they promote the use of illegal and harmful substances . . . . We believe the ads, you know, read as encouraging juveniles, um, who maybe, you know, particularly susceptible to the ads' message to
  experiment with marijuana."
  
  
• on whether permitting ads for alcoholic beverages to be displayed on MBTA property would be rejected under the same criteria as allegedly applied to Change the Climate's ads, that it promotes substances harmful to juveniles:
  
  "We don't believe so."
  
  
• on the MBTA's reasons for fighting the issue in court, in spite of the fact that the MBTA has already been sued three times for alleged First Amendment violations and lost:
  
  "We stand firm on, basically, what we believe the MBTA should advertise on our system, with regard to our obligation to society."
  
  
• on the approach the MBTA would take to a newly submitted ad campaign:
  
  "We would look at the material and see if it would work in our system with regard to its content."
  
  
• on who is involved in the approval process for proposed ad campaigns:
  
  "Now, it wouldn't just be one person that would review the material and make the decision, I mean we do have our marketing professionals, and then we do have to deal with, let's just say the general manager, and the Secretary of Transportation
  and the board of directors."
  
  
• on whether the MBTA has a specific written policy regarding what kinds of advertisements it will and will not accept or whether everything is handled on a case-by-case basis:
  
  "They are basically handled on a case-by-case basis."¹⁶

H. MBTA Officials' Discretion, Past and Present
While the MBTA rejected Change the Climate's proposed ads for the above reasons, at all times relevant to this action, it has accepted and continues to accept for display ads for the promotion of alcohol products, as well as ads containing messages that promote points of view concerning drugs that MBTA officials consider acceptable. (Prince Dep., pp. 44-45; Shorter Dep., pp. 68-69.) Attached as Exhibits Q and R are copies of advertisements displayed by the MBTA, sponsored by the Office of a National Drug Control Policy, one with the text: "Are You Waiting for Your Kids to Talk to You About Pot?" and the second with the text: "Just because you survived drugs, doesn't mean your children will." For additional advertisements advocating similar messages, i.e. that parents talk with their kids about drugs, from May 2000 to the present date, see Hirales Aff., 2-3 and Aunkst Aff., 7.

In its answers to interrogatories, the MBTA has asserted that it has rejected "a number of advertisements" from January 1990 to May 2000. (Defendants Answers to Interrogatories, No. 5, a copy of which is attached as Exhibit S.) Specifically, the defendants assert that seventeen advertisements were rejected over the course of the ten-year period, though when asked about several of these advertisements in deposition, neither Shorter nor Prince could recall doing so; nor could either state just how many of these ads violated MBTA policies. (Defs. Ans. to Ints. No. 5, at Ex. S; Prince Dep., pp. 17-24.)¹⁷

Among the seventeen ads that the MBTA lists as having been rejected is an advertisement for the film "Fatal Instinct," which the defendants profess was either "rejected" or "withdrawn by advertisers after MBTA raised initial objections" because of "indecent content." (Defs. Ans. to Ints. No. 5, at Ex. S.) It is a matter of public record, however, that the MBTA actually accepted and ran two ads for the movie, both of which were reproduced as an exhibit in the Appendix of the AIDS Action case. See AIDS Action, 43 F.3d at 5, 11 (rejecting the MBTA's argument "that ad [sic] would never have been run if it had been brought to the MBTA's attention in advance" as "unpersuasive" and one that "by no means counter[ed] the impression of discrimination).

Also among the ads that the MBTA lists is a "Party Smart" advertisement that the MBTA purportedly rejected "because it contained graphic, violent and disturbing content, in violation of the MBTA's advertising policy." A copy of this advertisement is attached at Exhibit T, which, the plaintiff submits, is neither graphic nor violent on its face. Rather, it is clearly a political advertisement that depicts the very serious, known consequences of binge drinking: death.18 The rejection of this anti-binge drinking ad was reported in The Boston Globe. Attached as Exhibit U is a copy of The Boston Globe article, dated January 9, 1999. The article notes that the rejected ad was part of a campaign launched by Mayor Menino to depict heavy drinking as unglamorous, in response to the alcohol-related deaths of two students in Massachusetts. Id. An MBTA spokeswoman was quoted as saying "We told the city it was too graphic . . . We told them to tone it down" and the article reported the MBTA standard for refusing ads was that "if they're likely to offend a significant chunk of the T's readership, they're rejected." Id. While the MBTA was aware of this article and received a letter from the American Civil Liberties Union of Massachusetts reminding the MBTA of the Court's order in the AIDS Action case prohibiting the MBTA from engaging in viewpoint discrimination, the General Counsel's office neither responded to the letter nor posted the advertisement 19 Attached as Exhibit V is a copy of the letter dated January 15, 1999 from the ACLU to the General Counsel's office. All the while, the MBTA continued to display advertisements promoting the consumption of alcohol. It is beyond dispute that underage drinking is a serious problem and an important matter of social concern, even though Shorter refused to acknowledge as much in her deposition. (Shorter Dep., pp. 68-69.)

Of the remaining sixteen ads, fifteen are commercial advertisements. According to the MBTA, the only other noncommercial advertisement that it rejected over the ten year period was one submitted by the nonprofit organization, NEAVS. A copy of this advertisement is attached at Exhibit T, which, the plaintiff submits, neither depicts "violent content" nor concerns the advocacy of "animal experimentation," despite the MBTA's characterization of the advertisement. (Defs. Ans. to Ints. No. 5, at Ex. S.) Rather, it is clearly a political advertisement advocating to learn how to help stop the testing of drugs on animals.

I. Post-hoc Justifications for MBTA's Rejection of CTC's ads.

1. After Change the Climate filed suit, several advertising policies other than the one Shorter actually attached to her January 2000 fax suddenly applied to Shorter's decision to reject the proposed ads.

It was not until after Change the Climate filed suit in May 2000 that the MBTA indicated that policies other than the contract specifications that Shorter attached to the January 2000 fax may have applied to Shorter's decision to reject Change the Climate's proposed advertisements. These indications, whether by MBTA counsel in answers to interrogatories or by the individual witnesses in deposition, have been tentative at best and anything but consistent. (Defs. Ans. to Ints. Nos. 4 and 9, at Ex. S.)²⁰

For the first time, in their answers to interrogatories and deposition testimony, the defendants claim that a letter dated April 16, 1995, from Robert Mabardy, then Interim General Manger of the MBTA to Michael Geden, then Vice President/General Manager, set up new guidelines regarding advertising covered by the contract between the MBTA and PTD in effect at the time CTC's ads were rejected. (Defs. Ans. to Ints. No. 9, at Ex. S; Prince Dep., pp. 5-6; Shorter Dep., p. 19.) A copy of the April 16, 1995 "Mabardy letter" is attached as Exhibit W. These "MBTA Advertising Guidelines" in that letter provide:

The MBTA will refuse any advertisement that is indecent as to child viewers, or is of a nature to frighten children, either emotionally or physically.

The following terms, as used in these guidelines shall have the following meanings:

The terms "child" or "children" shall mean any child under the age of seventeen years.

The terms "indecent" shall mean the exposure of children to language or pictures that describe or depict sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community standards for the subway advertising medium.

The terms "frightening" or "of a nature to frighten children, either emotionally or physically" shall mean language or pictures that describe or depict violent or brutal activities, or the end result of violent or brutal activities, whether such violence or brutality was intended or not, in a manner which causes a child physical or emotional distress or causes a child to fear for his personal safety or for the safety or other persons or animals.

At the end of the day, this is the only document that Prince could be certain was in effect at the time Change the Climate's proposed ads were submitted. (Prince Dep., pp. 6, 9-12.) It is undisputed that the plaintiff's proposed advertisements at issue in this case are neither "indecent as to child viewers," nor "of a nature to frighten children, either emotionally or physically" according to the very language of the policy.²¹

Thus, even if it were in effect at the time, the Mabardy letter has no application to CTC's proposed advertisements.

Also in answers to interrogatories, the defendants suggest for the first time that the "Commercial and Public Service Advertising Policy, adopted in or about February 1993," might have been in effect at the time of Shorter's decision. (Def. Ans. to Ints. No. 9, at Ex. S.) A copy of the Commercial and Public Service Advertising Policy is attached as Exhibit X. In deposition, however, Prince could not recall whether he ever applied this policy to decisions on advertising that he made in 1999 and 2000. (Prince Dep., p. 6.) Shorter testified that she couldn't recall whether the policy was ever in effect, and then testified that if it had been, she didn't think it was after 1995. (Shorter Dep., pp. 29-30.) When presented with the Staff Summary Sheet regarding Commercial & Public Advertising Policy²² that had been brought before the Board of Directors one month prior, Shorter claimed she did not know whether the recommendations embodied in that document were ever adopted, notwithstanding the fact that she, as Director of Marketing, in addition to her assistant staff, and the then General Manager all signed the document recommending its adoption and were exclusively responsible for MBTA advertising. (Shorter Dep., pp. 29-30.)

It is a matter of public record, of course, that these recommendations were, in fact, adopted. Indeed, Exhibit X is the very policy that the First Circuit concluded was "almost impossible to understand," and created "opportunities for discrimination . . . [that] have been borne out in practice" in the AIDS Action case. 42 F.3d at 47-48, 50. Also in answers to interrogatories, the defendants suggest for the first time that MBTA Specifications for Transit Advertising, dated August 26, 1992, might have applied to Shorter's decision. (Defs. Ans. to Ints. No. 9, at Ex. S.) This document, a copy of which is attached as Exhibit Z contains the bid specifications for the contract between PTD and the MBTA. (Shorter Dep., p. 17.) At his deposition, however, Prince testified that he could not recall whether or not he applied this document to any of his decisions to reject or accept proposed advertisements one way or the other during the 1999 -2000 time period. (Prince Dep., pp. 7-9.) Indeed, he testified that he could not recall whether he had ever even seen the document prior to the date of his deposition on April 4, 2001. (Id.) Shorter testified that she believed these specifications were in effect at the time of her decision to reject the plaintiff's proposed ads, yet it is undisputed that what she actually attached to her fax of January 20, 2000 were the not as yet in effect 1999 bid specifications for a contract ultimately entered into between the MBTA and TDI, not PTD.²³ (Exs. L-M.)

2. After Change the Climate filed suit, Shorter's "rejection" suddenly became an "initial objection."

Despite the plain language of the Albertelli cover letter and Shorter fax, once litigation was underway, both Albertelli and Shorter suddenly retreated from the notion that the ads were rejected. Rather, "initial objections" were raised by Shorter's "comments."24 (See, e.g., Defs. Ans. to Ints. Nos. 2, 10, 11, at Ex. S.) While stating her then unambiguous interpretation of Shorter's fax in her cover letter to White in January 2000: "Their reasons for not accepting this campaign are clearly stated in the info. provided," (Ex. K), at deposition Albertelli testified that she now believes that Shorter's fax was just her response after "a first review,"and that she sent the response to White because "for me to interpret what this [fax] says may not be exactly what it says. So that's why I sent it to him." (Albertelli Dep., pp. 29-31.). Shorter insisted that her fax was "to remind" Albertelli that "she needed to work with the client," (Shorter Dep., p. 36.), yet even taking that as true, Shorter's motivation is what is material:

Question: At the time that Miss Albertelli sent you these ads, did you form the conclusion that the ads did not comply with the MBTA's advertising guidelines?

Answer: I thought it would be pushing it a little, yes.

(Shorter Dep, pp. 37-38.)

3. Change the Climate's ad campaign was still selected by Albertelli for screening because of its politically provocative content, and still rejected by Shorter because of her hostility to the viewpoint expressed by the campaign and Change the Climate's mission.

Regardless of whether Shorter's actions were a "rejection" or an "initial objection," and regardless of what back and forth Shorter and Albertelli now say could have occurred, what is material is that both reiterated the reasons for their conduct in their depositions. It is undisputed that Change the Climate's re-submission of the ads for approval would have meant changing the content of the ads to express a message and a viewpoint "acceptable" to the MBTA.

As for Albertelli, she testified that her decision to forward the ads to Shorter was based on what amounted to a hunch that they might not be acceptable to the MBTA because of their provocative nature.²⁵ She did not use considered judgment or actually apply any guidelines or policies.26 (Albertelli Dep., pp. 37, 50-51.) With respect to Shorter' fax, she testified that she wanted White to understand that the "creative" (i.e. the copy) he sent was "not acceptable" to the MBTA. (Id. at 31.) She testified that Shorter's response created an opportunity for Change the Climate to "go back to the drawing board and come up with another creative." (Id.) (emphasis added). In other words, to come up with an acceptable message.

As for Shorter, like Albertelli, she freely admitted that she didn't form her views on CTC' campaign by making a careful review of the ads. She didn't "zero in and try to interpret" the ads' meaning (Shorter Dep., pp. 42-43), but rather, formed her opinion "in a general broad sweep." (Id. at 41.) Having no idea what First Amendment rights of advertisers to keep in mind, Shorter testified that she "knew" that the ads did not comply with the MBTA's advertising guidelines and "sent them back" accordingly. (Id. at 46). Why? Because in her view, the ads "would be pushing it a little," and it was Albertelli's responsibility to "work out what would be acceptable to the MBTA" if Change the Climate wanted to get their advertisements posted. (Id. at 37-38.) She reiterated that it was the "content" that was not acceptable: ". . .because of the content and you looked at our guidelines, that she [Albertelli] needed to go back and work with her client." (Id. at 39.) She admitted that the ads were intended to convey a message (Shorter Dep., pp. 41, 45, 47) and that "she [Albertelli] could have gone to Change the Climate and said change the language or whatever they wanted to promote. She could have worked that out with them and resubmitted it." (Id. at p. 47.) Indeed, she admitted that what violated the guidelines was the text of the ads, and more specifically, the message sent by the words:

Question: Let's go back to the appearance and character of the advertisements and the policy. Is there anything about the appearance of these ads that you felt violated any MBTA guidelines?

Answer: Yes.

Question: What is that?

Answer: The text.

Defense Counsel: It was a confusing question.

Question: You believe the contents of the text violated the guidelines; is that correct?

Answer: Yes.

(Objection.)

Question: So what violated the guidelines was the meaning of the words; is that correct?

(Objection.)

Answer: You're getting technical now.

Question: What violated the guidelines was the message sent by the word; is that correct?

(Objection.)

Answer: Yes, because if you took away the words and you just had the pictures, with change with ChangeTheClimate.org.

(Shorter Dep., pp. 48.) Shorter admitted that nothing about the illustrations in the ads violated any of the guidelines:

Question: But there is nothing about the three illustrations in these ads that violated any of the MBTA's advertising guidelines; is that correct?

Answer: Correct.

Question: And the only thing you felt violated the ads was the message sent with the words in the ads; is that correct?

(Objection.)

Answer: Well, when you see the message, with the pictures, it brings it to another level with the words.

Question: Do you feel that, had the pictures been left out, these three ads would have violated the MBTA's guidelines?

Answer: Yes.

Question: So then what you felt violated the guidelines was the words?

(Object to form.)

Question: Correct?

(Objection.)

Answer: The entire campaign.

(Shorter Dep., pp. 49-50). Shorter also reiterated that she perceived Change the Client's mission as legalizing marijuana, (Id. at 52-53, 59, 72-73), and that in her opinion, the ads did not send any message about changing the law, but rather, were promoting marijuana use.27 (Id. at 54.) While Shorter attempted to evade the plain language of her fax, which states "the T's appearance and character, Policy & Drug & Alcohol policy is [sic] in conflict with their mission," the language speaks for itself: Shorter viewed the mission of Change the Climate, in her own words,"to change the laws," to be in conflict with the guidelines.28 (Shorter Dep., p. 60.)

Ultimately, regardless of whether the defendants' actions were then a rejection or an objection, what remains material and undisputed is their assertion - in both interrogatory answers and in deposition testimony - that the MBTA will not accept any of the proposed advertisements for placement on MBTA facilities and vehicles to date, for the same reasons as before. (Def. Ans. to Ints. No. 3, at Ex. S; Prince Dep., p. 27; Shorter Dep., pp. 78-79.). Both defendants Prince and Shorter testified that they would not run the ads because of the viewpoint they perceived the ads expressed:

Question: Now, you were the ultimate decision maker as to whether ads will run or
will not run; is that correct?

Answer: If there is a question, yes.

Question: Would you run the three ads?

Answer: No.

Question: Why not?

Answer: Well, first off, A, I never saw them, but from what I'm looking at right now, I would say that they suggest on most of these young people break the law.

Question: Do you believe these ads are trying to convey a viewpoint?

(Objection to form.)

Answer: What I see here right now is conveying to young people to break the law.

(Prince Dep. pp. 27-28; see also pp. 27-43).
Question: Do you personally disagree with the message that you believe is being sent by the three ads that you have seen?

Answer: I disagree with the fact that it is encouraging children to use an illegal substance.

Question: And that's the message that you got from the ad; is that right?

Answer: Yes.

(Prince Dep., p. 49.)
Question: Did you believe these ads violated the MBTA's guidelines, were not in compliance with the guidelines?

Answer: Not in compliance.

Question: And what you believed was not in compliance was the message sent by the ad?

(Objection.)

Answer: The campaign.

Question: The message sent by this campaign?

Answer: The message, along with the pictures, make the entire campaign.

Question: Which portion of the appearance and character of advertisement guidelines do you feel was violated by the message sent by this campaign?

(Objection to form.)

Question: Help me again. Was it the violent criminal content language that you felt was violated?

Answer: Let me just say that this came in during a very busy time. It's something - the campaign is talking about something that is illegal. It's as simple as that. It's illegal.

(Shorter Dep. p. 51.) (emphasis added).

J. Change The Climate's Other Advertising Campaigns.
Despite the serious setback Change the Climate experienced in launching its first advertising campaign in Boston that prompted the instant law suit, CTC initiated a second campaign in Washington, D.C. Initially the Washington Metro Transit Authority ("the Metro") rejected Change the Climate's proposed advertisements claiming the ads violated a Metro policy that purported to restrict public advertisements to those "not designed to influence legislation or public opinion on a controversial subject." After the American Civil Liberties Union threatened suit on behalf of CTC, however, the Metro relented, and agreed to post 560 ads on marijuana issues. CTC ultimately paid a discounted advertising rate to the Metro in exchange for illuminated signs on 10 subway platforms, large exterior signs for 50 buses and smaller signs for the interiors of an additional 500 buses. The month-long campaign consisted of three ads²⁹ - one of which was the very same ad that is the subject of this lawsuit - that were ultimately displayed by the Metro.³⁰ (White Dep., p. 49; White Aff., 14.)

In light of the positive responses CTC received on the D.C. campaign, it launched a second ad campaign that ran on 36 Metro bus shelters throughout the month of May 2001.³¹ (White Aff., 14) After two successful campaigns in the nation's capital, CTC is currently planning transit advertising campaigns in New York City, Chicago, and San Francisco. CTC has also received requests for assistance with advertising campaigns in Indianapolis, Portland, Oregon, and other locations. With each successful campaign, CTC hopes to gain the momentum necessary to accomplish its goal to generate millions of advertising impressions through advertising in as many cities throughout the nation as possible. (White Aff., 15.)

CHANGE THE CLIMATE, plaintiff
By its attorneys,

Harvey A. Schwartz, BBO. # 448080
Kimberly Scheckner, BBO #638021
RODGERS, POWERS & SCHWARTZ
30 Federal Street
Boston, MA 02110
(617) 482-7771

Sarah Wunsch BBO # 548767
ACLU FDN. OF MASSACHUSETTS
99 Chauncy Street, Suite 310
Boston, MA 02111
(617) 482-3170 ext. 323

Footnotes