I. INTRODUCTION.

Our nation has been engaged in a"war on drugs" since at least the mid-1970's. As with other wars, there is confusion over the purpose as well as disagreement over tactics. In war we tend, in the heat of battle, to lose sight of rationality and the continued need to search for the truth. So the time has come when we must step back from the trenches to determine where we are, what we have accomplished, and where we want to go.

Are these the words of a crazed subversive? A direct incitement to imminent lawless action? An exhortation to our youth to smoke marijuana? Hardly.¹

These words, by then Chief Judge of the First Circuit Court of Appeals, provide the political backdrop to this case. These words echo the message of Change the Climate, Inc, the plaintiff in this case, and the cries of countless distinguished jurists, health care professionals, economists, scientists, governors, mayors, prosecutors, former secretaries of state, former U.S. Presidents, political commentators, journalists, police officers, and "average Joes" like Joe White, the founder and Executive Director of plaintiff Change the Climate, who want to see the terms of the debate on our nation's drug policies change, who are frustrated by the hysteria that has so dominated the public domain over the past thirty years, and who have spoken provocatively in an attempt to foster rational, informed public debate on the issues.² Joe White, like Judge Torruella and countless others, recognizes the vastness of the topic, the complexity of the issues. He does not profess to have all the answers, but believes passionately that questions need to be asked and debated.

Try as the defendants might, this case is not about promoting the legalization of marijuana. Nor is it about promoting marijuana use by children, a ludicrous interpretation of Change the Climate's express mission and its advertisements. This case is about the right of Change the Climate to advertise its political message on space the MBTA makes available to everybody willing to pay for it, where it is undisputed that other advertisements advocating viewpoints about social, political, religious, and other public interest issues - including advertisements advocating messages that parents talk with their kids about drugs - have been and continue to be on display in MBTA facilities and on MBTA buses and trains.

The MBTA's treatment of Change the Climate is but one chapter in a long history of the MBTA's viewpoint-based, unconstitutional censorship of protected speech on matters of important public concern. See, e.g., AIDS Action Committee of Massachusetts v. MBTA, 42 F.3d 1, 38-40 (1st Cir. 1994) (enjoining unconstitutionally vague advertising policy and viewpoint discrimination in MBTA's rejection of ads urging use of condoms to prevents AIDS), affirming and modifying 849 F. Supp. 79 (D. Mass. 1993) (attached as Exhibit 1a); Citizens to End Animal Suffering and Exploitation v. MBTA, C.A. No. 92-11118-MA (D. Mass. June 5, 1992) (ordering MBTA to post animal rights advertising placard) (attached as Exhibit 1b); Preterm, Inc. v. MBTA, C.A. No. 74-159-M,1974 U.S. Dist. LEXIS 8555, at * 6 (D. Mass. May 13, 1974) (granting preliminary injunction ordering display of ads concerning abortion services available at clinic) (attached as Exhibit 1c).

As in cases past, MBTA officials here profess reliance on vague and standardless standards for their discretionary, viewpoint-based decision to reject the plaintiff's ad campaign in the name of protecting children. The plaintiff urges this Court to right the MBTA's pernicious wrongs once and for all by: (1) declaring the MBTA's advertising space a designated public forum in which the defendants are barred from discriminating based on the content or viewpoint of ads; (2) declaring that the MBTA's rejection of plaintiff's ads was viewpoint-based, in violation of the First Amendment and Fourteenth Amendments to the United States Constitution; (3) declaring the defendants' advertising policy unconstitutionally vague and lacking in adequate standards; (4) ordering the defendants to display Change the Climate's advertisements without discrimination on MBTA buses, subway trains, and subway stations; (5) permanently enjoining the defendants, their officers, agents, employees, and those persons acting in concert or participation with them, from refusing to sell advertising space on MBTA vehicles and facilities based on the viewpoint of any proposed advertising campaign; (6) permanently enjoining the defendants, their officers, agents, employees, and those persons acting in concert or participation with them from using any advertising policy which permits impermissible content-based or viewpoint-based restrictions on speech; and (7) ordering the defendants to promulgate a viewpoint-neutral policy, subject to the supervision of the Court, that (a) contains well-defined, unambiguous standards for rejecting proposed advertisements; (b) requires policy administrators to articulate specific policy-based reasons for rejection; and (c) provides for a reasonable appeal process.

II. CHANGE THE CLIMATE'S ADVERTISING CAMPAIGN CONSTITUTES CORE POLITICAL SPEECH ABOUT A MATTER OF IMPORTANT PUBLIC CONCERN, ENTITLED TO THE UTMOST PROTECTION.

If there is one underlying truth in First Amendment jurisprudence it is that "[t]he freedom of speech and of the press guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment." Thornhill v. Alabama, 310 U.S. 88, 95 (1940). It is beyond debate that the First Amendment "was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people." Roth v. United States, 354 U.S. 476, 484 (1957). Speech concerning public affairs is more than self-expression; it is the essence of self government. Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964).

Change the Climate seeks to engage the public about an important matter of public concern: the political, economic, health, and social issues surrounding our nation's drug policies. Even if Change the Climate were an organization whose purpose were to advocate for the legalization of marijuana - which it is not - the Supreme Court has made clear that such efforts would not only be protected, but constitute the most important speech we must protect in our democracy. Just as "[l]egislative restrictions on advocacy of the election or defeat of political candidates are wholly at odds with the guarantees of the First Amendment . . . that principle applies equally to the discussion of political policy generally or advocacy of the passage or defeat of legislation." Meyer v. Grant, 486 U.S. 414, 428 (1988)(Discussion of initiative petition to change laws regulating trucking industry is core political speech) (internal citations and quotations omitted).

In founding Change the Climate, Joe White understood what the Meyer Court recognized - that in order to achieve political change down the road, he would "at least have to persuade [the public] that the matter is one deserving of the public scrutiny and debate that would attend its consideration by the whole electorate." Id. Change the Climate's advertising campaign, advocating that the facts about marijuana be discussed and debated in the public domain, is precisely the "interactive communication concerning political change" that the Court extolled as "core political speech" entitled to the utmost protection. Id. at 421.

Boiled to its essentials, this case is about a prior restraint on core political speech, speech intended to induce citizens to influence their government, because, to quote from the MBTA decision maker's written statement of why she rejected the advertisements, Change the Climate's "mission" conflicted with the MBTA's policies.³ See Exhibit D. Such prior restraints on speech are permitted under only the most dire of circumstances, none of which are present here.

III. THE MBTA'S VIEWPOINT-BASED REJECTION OF CHANGE THE CLIMATE'S ADS VIOLATES THE FIRST AMENDMENT UNDER ANY STANDARD OF ANALYSIS FOR SPEECH ON GOVERNMENT PROPERTY.

The Supreme Court has established three categories of analysis for government restrictions on speech depending on the nature of the forum. In none of them may the government discriminate based on the viewpoint of the expression. "Above all else, the First Amendment means that government has no power to restrict expression because of its message [or] its ideas." Police Dep't of Chicago v. Mosely, 408 U.S. 92, 95 (1972).

First, in traditional public fora - "places which by long tradition or by government fiat have been devoted to assembly and debate" - the government may not implement content-based restrictions on speech unless they are narrowly-tailored and necessary to serve a compelling state interest. Perry Education Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983); see also Arkansas Educational Television Ass'n v. Forbes, 523 U.S. 666, 677 (1998); Cornelius v. NAACP Legal Defense & Educational Fund, Inc., 473 U.S. 788, 800 (1985). In addition, the government may employ content-neutral, narrowly-tailored restrictions on time, place, and manner, but only if they serve a significant government interest and leave alternative means of communication available. Id.

Second, designated public fora are created when "the state has opened [its property] for use by the public as a place for expressive activity." Perry, 460 U.S. at 45. In such fora, the First Amendment "forbids a state to enforce certain exclusions from a forum generally open to the public even if it was not required to create the forum in the first place." Id. As with a traditional public forum, "[r]easonable time, place and manner regulations are permissible, [but] a content-based prohibition must be narrowly drawn to effectuate a compelling state interest." Id. at 46.

Third, nonpublic fora - public property which is not by tradition or designation a forum for public communication - may be subject to reasonable, content-based restrictions, but the government still may not impose restrictions based on viewpoint. Id.

The doctrine against viewpoint discrimination transcends these formal categories of forum analysis. The government may not, in any forum, regulate speech or restrict access to a forum based on the viewpoint of the speaker. See Good News Club v. Milford Cent. Sch., No. 99-2036, 2001 WL 636202, at *5 (U.S. June 11, 2001) (reiterating that "[t]he State's power to restrict speech . . . is not without limits. The restriction must not discriminate against speech on the basis of viewpoint") (citing Rosenberger v. Rector and Visitors of University of Virginia, 515 U.S. 819, 829 (1995)) ("The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction."); see also Lamb's Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 394 (1993) ("[T]he First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others.").

Whether the advertising space on MBTA property constitutes a designated public forum or not, the defendants' viewpoint-based rejection of the plaintiff's ads urging debate on marijuana policy violates one of the most fundamental premises of the First Amendment:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion . . . .

West Virginia State Bd. Of Educ. v. Barnette, 319 U.S. 624, 642 (1943).

IV. BY ACCEPTING A BROAD RANGE OF ADVERTISEMENTS FOR DISPLAY, THE MBTA HAS INTENTIONALLY CREATED A DESIGNATED PUBLIC FORUM FOR ITS ADVERTISING SPACE.

Following the reasoning of a clear majority of circuits, as well as district courts, that have decided factually analogous cases since the First Circuit declined to reach the issue in AIDS Action, this Court should declare the MBTA's advertising space a designated public forum.⁵ See New York Magazine v. Metropolitan Transport. Auth., 136 F.3d 123, 130 (2d Cir. 1998); Christ's Bride Ministries, Inc. v. Southeastern Pa. Transp. Auth., 148 F.3d 242, 252-55 (3d Cir. 1998), cert. denied, 525 U.S. 1068 (1999); United Food & Commercial Workers Union Local 1099 v. Southwest Ohio Reg'l Transit Auth., 163 F.3d 341, 353 (6th Cir. 1998); Air Line Pilots Ass'n Int'l v. Dept. of Aviation, 45 F. 3d 1144, 1153 (7th Cir. 1995); Planned Parenthood Ass'n v. Chicago Transit Auth., 767 F.2d 1225, 1232 (7th Cir. 1985); Children of the Rosary v. City of Phoenix, 154 F.3d 972, 978 (9th Cir. 1998) (citing leading cases with approval); Hawkins v. City and County of Denver, 170 F.3d 1281, 1287 (10th Cir. 1999) (citing Christ's Bride as instructive); Lebron v. Washington Metro. Transit Auth.,749 F.2d 893, 896 (D.C. Cir. 1984); cf. Hopper v. City of Pasco, 241 F.3d 1067, 1078 (9th Cir. 2001); East Timor Action Network, Inc. v. City of New York, 71 F. Supp. 334, 345-46 (S.D.N.Y. 1999); National Abortion Federation v. Metropolitan Atlanta Rapid Transit Auth., 112 F. Supp.2d 1320, 1327 (N.D. Ga. 2000).

The "forum" at issue in the present case is the MBTA's advertising space. See, e.g., United Food, 163 F.3d at 349 ("Because UFCW seeks access to the advertising space encompassing the outside of SORTA's Queen City Metro buses, this advertising space constitutes the relevant forum"); Air Line Pilots, 45 F.3d at 1149 ("The limited nature of the ALPA's desired access renders the display case the relevant forum for the purpose of constitutional inquiry"); Lehman v. City of Shaker Heights, 418 U.S. 298, 301-02 (1974) (analyzing "car card space" and not public transportation system as a whole); Planned Parenthood, 767 F.2d at 1232 (analyzing Chicago Transit Authority advertising system and not greater transportation system); National Abortion Federation, 112 F.Supp.2d at 1327 (N.D. Ga. 2000) (concluding that because MARTA maintained control over the content of the advertising displayed in all its advertising space, "all advertising space controlled by MARTA on its buses and trains, in its stations and surrounding areas" was the relevant forum for purposes of forum analysis).

In order for the Court to determine whether the MBTA's advertising space is a public forum or simply non-public governmental property, the Court must examine both the MBTA's intent in establishing and maintaining the advertising space and the actual practice in making that space available to the public. See Cornelius, 473 U.S. at 802; Stewart v. District of Columbia Armory Bd., 863 F.2d 1013, 1016 (D.C. Cir. 1988). "Inquiry into intent, however, is not merely a matter of deference to a stated purpose." Air Line Pilots, 45 F.3d at 1152. Instead, intent is a fact-specific inquiry that is driven by an examination of two factors, the policy and practice of the government with respect to the underlying property and the nature of the property and its compatibility with expressive activity of the kind at issue. See Cornelius, 473 U.S. at 802-03; see also United Food, 163 F.3d at 353 (6th Cir. 1998) (following Christ's Bride and noting that "we ... must closely examine whether in practice [the transit authority] has consistently enforced its written policy in order to satisfy ourselves that [its ] stated policy represents its actual policy") (citing cases).

A. The MBTA's stated advertising policies made its advertising space widely available for all forms of speech, political and commercial, with only the barest of restrictions. These policies created a public forum.

The MBTA has had several different written policies concerning access to its advertising space. The record is unclear, at best, as to what policies were in effect at the time Change the Climate's advertisements were rejected.⁶ For purposes of summary judgment, however, none of these policies was so limiting of public access as to reduce the MBTA's advertising space from a public forum to a non-public one. See, e.g. New York Magazine, 136 F.3d at 126, n.1 (declining to decide similar issue); cf. Hopper, 241 F.3d at 1079, n. 10 ("Having created the designated public forum, no trial is needed to determine what might have been when we have before us undisputed facts as to what actually occurred.") Indeed, the plaintiff encourages the Court to review the1999 bid specifications, Exhibit O, as well as any other purported policies that the defendants now maintain could have applied to Shorter's decision, as one factor in determining whether the MBTA's advertising space was intended to be a designated public forum.⁷ In the final analysis, whichever policy or policies the MBTA now assert may have guided the MBTA's conduct in rejecting the plaintiff's ads - whether it be the 1999 bid specifications (that were not yet in effect), the 1992 bid specifications (that neither Shorter nor Prince were certain were still in effect), the 1995 Mabardy letter (the only document Prince was sure was in effect but that has absolutely no application to CTC's ads), or the 1993 Commercial and Public Service Advertising Policy (that the First Circuit rejected in AIDS Action) - none of the policies purport to restrict any one category of speech, or speaker, within the meaning of the public forum doctrine. See Exhibits M-P, W, X, Z and Plaintiff's Statement of Uncontested Facts ("SOF"), pp. 6-9, 15-20, 24-29).

As argued below, the undisputed record evidence demonstrates that whatever the MBTA now argues concerning its purported policies, in practice it has accepted the broadest range of advertisements. Furthermore, the evidence shows that the MBTA's application of policies to its advertising decisions has been haphazard, and based on subjective and generalized criteria leading to decisions that continue to give rise to inferences of viewpoint discrimination.

B. The MBTA displays advertisements on a broad range of topics, including messages concerning drugs, advocating viewpoints with which MBTA officials agree.

There can be no doubt that for at least the past decade the MBTA has displayed and continues to display advertisements on a broad range of topics, both commercial and noncommercial, including political and social public interest messages. The MBTA has opened its advertising space to all comers (except tobacco companies) See SOF, pp. 6-9.⁸ For example, Prince testified at his deposition as follows:

QUESTION: Are you aware of any time the T has rejected a proposed ad even though the ad met its advertising guidelines?

ANSWER: Not to my knowledge, no.

QUESTION: Is there any group or organization that the T will not accept advertising from if the advertising meets the guidelines.

(Objection to form.)

ANSWER: I don't know.

QUESTION: Are you aware of any time that the T rejected an ad because it objected to the proposed advertising?

ANSWER: No, I don't know.

(Objection.)

QUESTION: Does the T make 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.

Moreover, it is undisputed that the MBTA has displayed, and continues to display advertisements on the same subject as Change the Climate's proposed ads - advertisements advocating the message that parents talk with their kids about the "truth" about drugs, and specifically "pot." See Exhibits Q and R. Several courts have found such evidence that a transit authority allowed public interest or political advertisements compelling proof that transit advertising space was intended as a designated public forum. See, e.g., National Abortion Federation v. Metropolitan Atlanta Rapid Transit Auth., 112 F.Supp.2d 1320, 1327 (N.D. Ga. 2000) (holding that by permitting "various forms of public interest speech and speech by non-profit entities, MARTA has opened its advertising forum to such speech.") (citing Forbes, 523 U.S. at 679); United Food, 163 F.3d at 355 ("Acceptance of political and public-issue advertisements, which by their nature generate conflict, signals a willingness on the part of the government to open the property to controversial speech."); cf. East Timor, 71 F.Supp.2d at 345 (holding that in light of the transportation department's inconsistency in practice regarding municipal approval of applications for temporary street name signs of a political nature, and the fact that the city's policy did not by its own terms prohibit signs of a political nature, the forum had not been limited to signs of a non-political nature).⁹

C. The MBTA advertising policies are based on subjective criteria and are haphazardly enforced, creating an inference of viewpoint discrimination.

As the Ninth Circuit recently observed, "consistency in application is the hallmark of any policy designed to preserve the non-public status of a forum." Hopper, 241 F3d at 1078.

Neither Prince as CEO of the MBTA, nor Shorter as Director of Marketing of the MBTA - the two MBTA officials who had the sole authority to make decisions on advertising at all times relevant to this action - could say which policies governed the MBTA's advertising decisions or showed any understanding of what First Amendment protections were afforded to political advertisers at the time the plaintiff submitted its ads.¹⁰

The MBTA has come forward with a grand total of seventeen advertisements that it has rejected over the last decade,¹¹ less than two rejections per year. See United Food, 163 F.3d at 353 (suggesting that the rejection of a small number of proposed advertisements under a policy is strong evidence that the transit authority has permitted "virtually unlimited access to its advertising space or grants permission as a matter of course"); Christ's Bride, 148 F.3d at 252 (concluding that transit authority did not maintain "tight control" over the forum where "at least 99% of all ads are posted without objection").

Moreover, at least one of the purported standards by which the MBTA rejected the plaintiff's ads, i.e., the "promotional materials harmful to children" standard, has been inconsistently applied. For example, the MBTA accepts advertisements for alcohol products, clearly promoting the consumption of alcohol. It cannot be disputed that such advertising represents "promotional materials harmful to juveniles."¹² In addition, an advertisement currently displayed on the outside of MBTA buses shows an attractive woman sitting on a motor scooter holding what appears to be cigarette (or possibly a marijuana joint) in her hand, with text that reads: "Al Italia. Let's Create A Buzz." See Aunkst Aff., 9. This ad glamorizes the smoking of some substance - a substance that provides a "buzz" - whether it be a cigarette or perhaps even marijuana. Regardless, the ad promotes something harmful to children and is in violation of the MBTA's tobacco policy, as well as the double entendre standard that Shorter suggested applied to Change the Climate's ads in her deposition. Unlike alcohol and cigarettes, both commercial products which undisputedly cause harm to children, there is no evidence that the political ads at issue in this case would cause any actual harm to anyone.¹³

Several courts have determined that transit authorities had designated their advertising space a public forum on the basis of such inconsistencies. For example, in one of the seminal transit advertising cases, Planned Parenthood Ass'n v. Chicago Transit Auth., 767 F.2d 1225 (7th Cir. 1985), the Seventh Circuit held that the Chicago Transit Authority (CTA) bus advertising system was a designated public forum because the record revealed a "laissez-faire policy" of allocating advertising space, notwithstanding purported policies contrived during the course of litigation. Id. at 1232-33. In that case, the transit authority refused to lease ad space to Planned Parenthood for abortion-related displays on the basis of its standard to refuse "immoral, vulgar, or disreputable advertisements." Id. at 1227. Finding that the purported policy amounted to nothing more than a "general contractual directive" and not a "system of control," and that "[a]ccess to CTA's advertising system was virtually guaranteed to anyone willing to pay the fee," the Court held that the CTA had designated its advertising space a public forum. Id. at 1233.

Like the CTA in Planned Parenthood, the MBTA has been willing to accommodate advertisers of all types, commercial and noncommercial, accepting both political and public interest advertising for years. The MBTA simply cannot make any credible argument that it attempted to limit the forum to some categories of speakers and not others. Compare Lehman, 418 U.S. at 301-02 (finding no public forum where Shaker Heights had a consistently-enforced written policy of rejecting all political and public-issue advertising, and in its twenty-six years of operation, the transit system had not permitted any political or public-issue advertising on its vehicles) and Children of the Rosary,154 F.3d at 976 (holding that the city had not opened up its bus panels as a designated public forum based on its past policy and practice of consistently prohibiting political and religious advertising on its buses) with Lebron,749 F.2d at 896 (holding that the transit authority's metro space was a designated public forum, distinguishing Lehman because transit authority had, in fact, accepted political advertising in the past) and Ysleta Federation of Teachers v. Ysleta School District, 720 F.2d 1429, 1433 (5th Cir. 1983) (holding that a school's internal mail system, unlike the internal mail system which the Supreme Court determined was not a public forum in Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, was a public forum because the state had "opened the mail system to all employee organizations without distinction.").

Similarly, in a more recent case, Christ's Bride Ministries, Inc. v. Southeastern Pa. Transp. Auth., 148 F.3d 242 (3d Cir. 1998), the Third Circuit rejected the transit authority's argument that by retaining "sole discretion" to reject or to remove any advertisement that it deemed "objectionable," it did not create a designated public forum. Id. at 244. In that case, transit authority officials removed a poster ad that read "Women Who Choose Abortion Suffer More & Deadlier Breast Cancer," based on their determination that the ad was "misleading" and therefore "objectionable" under the policy. Id. The transit authority accepted "a broad range of advertisements for display," including ads addressing "sex, family planning and related topics" - including two ads favoring abortion rights. Id. at 252. In light of this record, and the authority's actual practice of "permitting virtually unlimited access to the forum," the court held that the ad space was a designated public forum. Id. Significantly, the court held that the transit authority's longstanding practice of allowing ads on controversial subjects "as a matter of course" trumped any argument that no public forum is created when the government requires speakers to obtain permission before engaging in expressive activity in the forum. Id. at 252-55. This case is right on point. Just as the transit authority had accepted advertisements advocating other messages on the same topic as the topic at issue, i.e., abortion, so too has the MBTA accepted advertisements advocating messages about drugs - and talking to kids about marijuana specifically. (See Aunkst Aff., 7). Just as "the topic of abortion and its health effects" were "encompassed within the purpose of the forum," so too is the topic of drugs and its effects on society encompassed within the purpose of the MBTA's advertising space.

Another recent advertising case, United Food & Commercial Workers Union Local 1099 v. Southwest Ohio Reg'l Transit Auth.,163 F.3d 341, 353 (6th Cir. 1998), is also instructive. At issue in this case was a political pro-union advertisement that the regional transit authority rejected on the basis of a policy that purported to restrict advertising on "controversial public issues" that could "adversely affect [the authority's] ability to attract and maintain ridership," and that also required that all ads "be aesthetically pleasing and enhance the environment for riders and customers and the authority's standing in the community." 163 F.3d at 346. In this case, as in so many others, the actual practice of the transit authority was to accept a wide variety of advertisements for its bus exteriors, from commercial advertisements to public service, public issue, and political advertisements. Id. at 355. Rejecting arguments by the authority that this standard differed in any material way from those at issue in Christ's Bride, the court concluded "we believe the lack of definitive standards guiding the application of [the transit authority's] policy permits [it] to reject a proposed advertisement deemed objectionable for any reason." Id. at 354. (citing Planned Parenthood, 767 F.2d at 1230).

Like the "disreputableness" standard at issue in Planned Parenthood, the "objectionable" standard in Christ's Bride, and the "controversial" standard in United Food, the MBTA's policy that vested Shorter with the discretion to reject any advertisement she deemed "harmful to juveniles" or not of sufficiently "reputable character"did not convert the MBTA's advertising space from a designated public forum to a non-public location. See also Hopper, 241 F3d at 1077-78 ("[S]tandards for inclusion or exclusion must be unambiguous and definite if the concept of designated public forum is to retain any vitality whatsoever.") (quoting Christ's Bride and collecting numerous illustrative cases in which courts have taken defendants to task for their use of overly subjective criteria). Subjective and generalized standards cannot create "categories" of speech for the purposes of public forum analysis.

On the contrary, such standards often translate into officials' unfettered, impermissible discretion.¹⁴ The deposition testimony of Albertelli and Shorter shows that Change the Climate's ad campaign was first screened for its "provocative" nature, see Albertelli Dep., pp.36, 37, 50-51, and ultimately rejected because it is "really a reform legalization" organization whose "mission" is "in conflict with the [MBTA] guidelines." Shorter Dep., pp.56-61; see also Exhibit L. The plaintiff suggests, as do each of these cases, that government officials have no business making these kinds of judgment calls - especially when the speech at issue is of a political nature. As the Planned Parenthood Court cautioned, "[w]e question whether a regulation of speech that has as its touchstone a government official's subjective view that the speech is "controversial" could ever pass constitutional muster." Id. at 1229 (citing cases); cf. New York Magazine, 136 F.3d at 131 ("Where there are both commercial and political elements present in speech, even the determination whether speech is commercial or not may be fraught with ambiguity and should not be vested in an agency such as [a transit authority].)"

Ultimately, and rather transparently, the defendant transit authorities in each of the above cases sought to limit political speech precisely because of the very political nature of the speech. As the United Food Court rightly warned: "Just as a governmental entity may not avoid First Amendment scrutiny simply by declaring that it is not creating a public forum, it may not demonstrate intent to keep the forum nonpublic simply by declaring a purpose that involves excluding protected speech based on its content." Id. at 355 (citing New York Magazine, 136 F.3d at 129-30). This is exactly what the MBTA has done.¹⁵

V. THE MBTA'S RESTRICTION ON CHANGE THE CLIMATE'S PROTECTED POLITICAL SPEECH WAS NOT NARROWLY TAILORED TO SERVE A COMPELLING STATE INTEREST.

A. This Court Must Apply Strict Scrutiny to the Defendants' Prior Restraint on Core Political Speech in a Public Forum.

"If the government excludes a speaker who falls within the class to which a designated public forum is made generally available, its action is subject to strict scrutiny." Forbes, 523 U.S. 666, 667 (1998); see also First National Bank of Boston v. Bellotti, 435 U.S. 765, 786 (1978) (reiterating that when a law burdens core political speech, the Court applies "exacting scrutiny"and will uphold the restriction only if it is narrowly tailored to serve an overriding state interest.) This strict scrutiny means that "[f]or the state to enforce a content-based exclusion, it must show that its regulation is necessary to serve a compelling state interest, and that it is narrowly drawn to achieve that end." Perry, 460 U.S. at 45; see also Forsyth County v. Nationalist Movement, 505 U.S. 123, 130-31 (1992) ("[A] law subjecting the exercise of First Amendment freedoms to the prior restraint of a license must contain narrow, objective, and definite standards to guide the licensing authority . . . . The reasoning is simple: If the permit scheme involves appraisal of facts, the exercise of judgment, and the formation of an opinion, by the licensing authority, the danger of censorship and of abridgment of our precious First Amendment freedoms is too great to be permitted.") (internal citations omitted).
Change the Climate's proposed advertisements "fall within the same class" as other public service and political ads the MBTA runs, such as those in Exhibits Q and R. See also Aunkst Aff., 5-9. The MBTA's decision to exclude these advertisements thus is subject to strict scrutiny and, in order for its conduct to be approved by this Court, the MBTA must prove that the restriction was "narrowly tailored to serve an overriding state interest" and that the MBTA employed "narrow, objective, and definite standards" to exclude Change the Climate from this public forum. The MBTA fails to come anywhere close to this almost impossible burden.
The MBTA's reasons for declining Change the Climate's advertisements are elusive. Shorter, who made the decision, simply stated in her fax to Albertelli that Change the Climate's "mission" was to legalize marijuana and this "mission" conflicted with the MBTA drug policy. See Exhibit D. Prince's reasons for the MBTA's refusal to run Change the Climate's campaign are even more obtuse. He testified as follows:

QUESTION: Is there anything in that 1995 guideline that's violated by these three specific ads?

ANSWER: I believe that it tells children to break the law.

QUESTION: Can you read me the part of the guideline that's violated by those ads, please?

ANSWER: The terms, "frightening or of a nature to frighten children, either emotionally or physically, showing them language or pictures that describe or depict violent criminal or brutal activities or the end result of violent or brutal activities that were intended - whether such violence or brutality was intended or not in a manner which causes a child in physical or emotional distress." This could put a child in jail. That's emotional distress.

(Prince Dep., p. 32-33.) Prince further testified that the ads violated the MBTA's guidelines prohibiting ads depicting "violent criminal content" (Id. at 37), as well as those prohibiting ads that denigrate "groups based by gender, religion, race or ethnic affiliation." (Id. at 38.) The Court should keep in mind that these silly statements were made under oath by the MBTA's top official.

These justifications for the government's conduct in stifling speech promoting peaceful change in the law are absurd. They are the result of such vague "guidelines" as to provide no guidance at all, leaving open the possibility that an advertisement that says "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" (Exhibit J) is going to cause "emotional distress" to children because it will cause them to go to jail. By this standard, the song "I Saw Mommy Kissing Santa Claus" could be banned because it promotes infidelity.

Not only do these subjective standards fail strict scrutiny, but the plaintiff suggests that the MBTA's outright prohibition on Change the Climate's ad campaign constitutes a prior restraint on speech under the seminal transit advertising case. See Lebron v. Washington Metro. Transit Auth.,749 F.2d 893, 896 (D.C. Cir. 1984); see also New York Magazine v. Metropolitan Transport. Auth., 136 F.3d 123, 131-32 (2d Cir. 1998) (expanding upon Lebron); East Timor Action Network, Inc. v. City of New York, 71 Supp.2d 334, 347-48 (S.D.N.Y. 1999) (collecting Supreme Court and circuit precedent). Accord Jews for Jesus, Inc., 984 F.2d 1319, 1327 (1st Cir. 1993) (reiterating that a prior restraint is only permissible "if it contains certain procedural safeguards designed to protect against censorship" and where it is "content neutral" limiting "the time for issuing authorization" and permitting "prompt judicial review.").

"Subject to a limited number of exceptions - most notably, reasonable time, place and manner regulations - political speech may not constitutionally be restricted in a public forum.¹⁶ Lebron, 749 F.2d. at 896. In Lebron, the D.C. transit authority prohibited the plaintiff from displaying his political advertisement critical of the Reagan administration on the basis of its self-proclaimed "responsibility to the public in preventing purposeful deceptions" and its "proprietary interest in raising advertising revenues from its advertising space." Id. at 896-97. Judge Bork, writing for the panel that included Judge Starr and then-Judge Scalia, saw the transit authority's refusal to accept the plaintiff's political poster for display because of its content "in advance of actual expression" for what it was: "a clear-cut prior restraint" that prevented him "from saying what he wanted to say" in the designated public forum the transit authority had created, by accepting political advertisements. Id. (citing cases). Soundly rejecting the transit authority's argument that the restriction was a reasonable time, place and manner restriction, the Court warned that any "assessment of the deceptiveness of a message necessarily involves a judgment about the substance and content of that message." Id. at 896-99.

The Lebron case is exactly on point. Despite AIDS Action and cases prior, MBTA agents continue to believe that it is their job to decide what advertisements are and are not in the public interest, First Amendment protections to political speakers be damned. Whether it is by Elissa Albertelli's judgment that an ad is "provocative" or by Lucy Shorter's personal belief that the "mission" of an organization "conflicts with MBTA guidelines," or by Robert Prince's opinion that certain words have a "double entendre meaning,"or by Lydia Rivera's belief that a certain segment of the MBTA's riders are going to be "more susceptible" to a particular message or speaker - applying these amorphous, inconsistently applied standards, "involves an exercise of discretion and subjective judgment on the part of [MBTA] officials," that, "even if applied pursuant to procedural safeguards," would be "unconstitutionally overbroad as applied to political speech." Lebron, 749 F.2d at 899; see also New York Magazine, 135 F.3d at 131-32 (taking the reasoning of Lebron one step further, suggesting that the strict rules of prior restraint should extend to purely commercial speech, seeing "no reason why the requirement of procedural safeguards should be relaxed whether speech is commercial or not.").

Because it is undisputed that Change the Climate's ads intend to convey a political message, that the MBTA's restrictions cannot be construed as reasonable time, place and manner restrictions, and that the MBTA prevented Change the Climate from displaying its advertising "in advance of actual expression," the Plaintiff urges this Court to follow Lebron and its progeny and hold as a matter of law that the MBTA's decision to prevent Change the Climate from posting its political advertisements was an impermissible prior restraint - unconstitutionally lacking in procedural safeguards - on its right to engage in core political speech.

A. The MBTA's Other Purported Interests Do Not Survive Strict Scrutiny.

1. The purported interest in protecting children from harm is too speculative; furthermore, it is the MBTA that is causing actual harm to society, including children, by its censorship of political messages.

Upon learning of this lawsuit, Governor Paul Cellucci reportedly declared, "Why should a government entity be forced to put up a message that may be harmful to children? That's ridiculous." Boston Herald, "Cellucci Just Says No" September 22, 2000. Whatever political mileage may have been gained by this statement, courts have long recognized that children have First Amendment rights and that messages that "may be harmful to children" in the eyes of government regulators are protected expression that may not be abridged on the basis of mere speculation. See Erznoznik v. City of Jacksonville, 422 U.S. 205, 212-14 (1975); Tinker v. Des Moines Independent School District, 393 U.S. 503, 511-14, (1969). Indeed, "[t]he grounds must be compelling and not merely plausible." American Amusement Machine Association v. Kendrick, 244 F.3d 572, 576 (7th Cir. 2001); see also Hopper at 1081-82 (holding the mere fact that "children may pass through" not compelling justification for censoring non-obscene works of artistic value); United States v. Playboy, 529 U.S. 803, 813 (2000) ("Where designed benefit of a content-based speech restriction is to shield the sensibilities of listeners, the general rule is that the right of expression prevails."); Turner Broadcasting System, Inc. v. Federal Communications Commission et al., 512 U.S. 622, 664 (1994) ("When the Government defends a regulation on speech as a means to redress past harms or prevent anticipated harms, it must do more than simply posit the existence of the disease sought to be cured. . . . It must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.") (internal quotations and citations omitted).

In American Amusement, a case decided just a few months ago, the Seventh Circuit considered the constitutionality of an Indianapolis ordinance that sought to limit access of minors to video games depicting violence based on a similar "harmful to minors" standard. 244 F.3d at 573. Reversing the lower court and enjoining the ordinance in favor of the manufacturers and their trade association, the court held that the city did not show a compelling basis for believing that violent video games caused actual harm either to children or to the public at large, and that plaintiffs demonstrated a strong likelihood of success in proving the city's regulation was a pretext for regulation in violation of minors' First Amendment rights. Id. at 579.¹⁷

In a powerful opinion, Judge Posner, writing for the panel, warned against "the danger of allowing government to control the access of children to information and opinion" that goes to the heart of the political speech at issue in the instant case:

Now that eighteen-year-olds have the right to vote, it is obvious that they must be allowed the freedom to form their political views on the basis of uncensored speech before they turn eighteen, so that their minds are not a blank when they first exercise the franchise. And since an eighteen-year-old's right to vote is a right personal to him rather than a right to be exercised on his behalf by his parents, the right of parents to enlist the aid of the state to shield their children from ideas of which the parents disapprove cannot be plenary either. People are unlikely to become well-functioning, independent-minded adults and responsible citizens if they are raised in an intellectual bubble.

To shield children right up to the age of 18 from exposure to violent descriptions and images would not only be quixotic, but deforming; it would leave them unequipped to cope with the world as we know it.

Id. at 577. For the MBTA to bar children from the plaintiff's messages in the instant case - political messages intended to benefit society - is all the more egregious.
2. The MBTA's purported interest in encouraging compliance with the present drug laws is not harmed by posting Change the Climate's advertisements proposing changes in those laws.

Shorter testified that the "content" of Change the Climate's advertisements was not acceptable because "it was looked upon as something that was promoting an illegal substance." Shorter Dep., p. 39. She acknowledged that the ads were intended to convey a message and that in her mind that message "contained criminal content" that was "promoting something that was illegal and could be harmful." Shorter Dep, pp. 36, 41-43, 46, 51-52; see also Def. Ans. to Ints. No. 2. The MBTA's conduct in prohibiting the plaintiff's right to engage in political speech under the guise of promoting compliance with existing laws - with absolutely no basis for believing imminent lawlessness will actually occur - has particularly offended the sensibilities of the United States Supreme Court.

In Cohen v. California, 403 U.S. 15 (1971), the Court underscored the distinction between asserting a position on an issue, as did plaintiff Cohen by waltzing into a courthouse wearing a jacket with the words "fuck the draft" inscribed on it, and an intent to incite imminent lawlessness on the other: "[A]t least so long as there is no showing of an intent to incite disobedience to or disruption of the draft, Cohen could not, consistently with the First and Fourteenth Amendments, be punished for asserting the evident position on the inutility or immorality of the draft his jacket reflected." Id. at 18 (citing cases).

Almost twenty years later, in Texas v. Johnson, 491 U.S. 397, 408-09 (1989), the Supreme Court again rejected similarly clothed government arguments outright. In this highly controversial flag burning case, the State of Texas argued that its interest in preventing breaches of the peace justified convicting the plaintiff in that case for flag desecration, a position the Court said "amounts to a claim that an audience that takes serious offense at particular expression is necessarily likely to disturb the peace and that the expression may be prohibited on this basis." Id. at 407-08. Pointing out that no disturbance of the peace actually occurred or threatened to occur because of the plaintiff's burning of the flag, the Court stated "[o]ur precedents do not countenance such a presumption." Id. at 408. Indeed, the Court corrected the backwardness of that presumption:

On the contrary, they recognize that a principal function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Terminiello v. Chicago, 337 U.S. 1, 4 (1949). See also Cox v. Louisiana, 379 U.S. 536, 551 (1965); Tinker v. Des Moines Independent Community School Dist. 393 U.S., at 508-509; Coates v. Cincinnati, 402 U.S. 611, 615 (1971); Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 55-56 (1988). It would be odd indeed to conclude both that if it is the speaker's opinion that gives offense, that consequence is a reason for according it constitutional protection, FCC v. Pacifica Foundation, 438 U.S. 726, 745 (1978) (opinion of Stevens, J.), and that the government may ban the expression of certain disagreeable ideas on the unsupported presumption that their very disagreeableness will provoke violence.

Thus, we have not permitted the government to assume that every expression of a provocative idea will incite a riot, but have instead required careful consideration of the actual circumstances surrounding such expression, asking whether the expression "is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (reviewing circumstances surrounding rally and speeches by Ku Klux Klan). To accept Texas' arguments that it need only demonstrate the potential for a breach of the peace, . . . and that every flag burning necessarily possesses that potential, would be to eviscerate our holding in Brandenburg. This we decline to do.

Id. at 408-09 (emphasis added, internal quotations omitted). Shorter's speculation that Change the Climate's advertisements would induce children to smoke marijuana is an equally unacceptable justification for imposing prior restraints on core political speech.

VI. REGARDLESS OF THE FORUM, THE MBTA'S STANDARDS AS APPLIED TO CHANGE THE CLIMATE'S CORE POLITICAL SPEECH CONSTITUTE VIEWPOINT DISCRIMINATION PER SE.

Regardless of the forum at issue - whether it is a traditional public forum, a designated public forum or a limited public forum - "[i]t is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys." Rosenberger, 515 U.S. at 827-29; see also Metro Display Advertising, Inc. v. City of Victorville, 143 F.3d 1191, 1195 (9th Cir. 1998) ("The government cannot regulate a private individual's speech in order to promote or restrain promotion of that individual's viewpoint . . . . [n]o matter whether the bus shelter ad spaces were private property, a traditional public forum, a dedicated public forum, or a non-public forum . . . .); American Council of the Blind v. Boorstin, 644 F. Supp. 811, 816 (D.D.C. 1986) ("the existence of reasonable grounds for limiting access to a nonpublic forum, however, will not save a regulation that is in reality a façade for viewpoint-based discrimination."(quoting Cornelius, 473 U.S. at 811). The Court's decision this term in Good News Club reaffirmed the prior holdings in Rosenberger and other forum cases, confirming that government restrictions on private speech even in a limited public or nonpublic forum may not discriminate based on viewpoint.¹⁸ See Good News Club, No. 99-2036, 2001 WL 636202, at * 5.

As the First Circuit made clear in AIDS Action, in order for the MBTA's restrictions on speech to pass constitutional muster, MBTA officials would "at the least, need to act according to neutral standards" and "to apply these standards in such a way that there is no appearance that 'the [government] is seeking to handicap the expression of particular ideas.'" Id. at 39 (quoting R.A.V. v. City of St. Paul, Minnesota, 112 S. Ct. 2538, 2549 (1992)). The court recognized that "this requires the government to apply its standards quite precisely" because this is the burden the government assumes . . . when it undertakes to proscribe speech on the basis of its content." Id. at 39-40. Here, as in AIDS Action,"there can be no doubt that the MBTA's Policy on its face and as applied to [Change the Climate's] proposed ads, is not content-neutral," id. at 24, and that once again, the MBTA has not come close to satisfying its heavy burden.

The record evidence in this case is overwhelming. No matter which of its potpourri of policies the MBTA points to as justification for rejecting the plaintiff's ads, all of the purported standards are impermissibly content-based, inviting the rejection of Change the Climate's proposed advertisements because of a viewpoint to which MBTA officials have expressed hostility, while allowing the posting of advertisements by groups such as the Partnership for Drug-Free America expressing messages on the same topic that MBTA officials, in their estimation, view as beneficial to juveniles.

As in AIDS Action, the MBTA's advertising decisions continue to be based on policies that are applied inconsistently at best and in a discriminatory manner at worst. See SOF, pp. 21-24. As in AIDS Action, the "MBTA engaged in content discrimination which gave rise to an appearance of viewpoint discrimination, and [] it has failed to explain that appearance away." 42 F.3d at 19.

VII. ASSUMING ARGUENDO THAT THE MBTA'S ADVERTISING SPACE WAS A NON-PUBLIC FORUM, THE DEFENDANTS' DECISION TO REJECT CHANGE THE CLIMATE'S ADVERTISEMENTS FAILS EVEN THE REASONABLENESS TEST.

The MBTA's decision to reject the plaintiff's ads was unreasonable as a matter of law. See, e.g. East Timor, 71 F. Supp. 2d at 347 (holding the proposed political signs at issue were not "inconsistent with the intended use of the forum, and thus, the City's denials were not reasonable."); Christ's Bride, 148 F.3d at 256-57 ("[t]he government has offered no basis on which to conclude that the speech in question would interfere with the accepted purposes of the advertising space. . . .[it] acted as a censor, limiting speech because it found it to be 'misleading' and these actions were unreasonable) (distinguishing Lehman and its progeny).

And again, more importantly, "[e]ven in a nonpublic forum, the category that the [MBTA] officials contend the [MBTA's advertising space] should be classified in, the government violates the First Amendment when it denies access to a speaker solely to suppress the point of view he espouses on an otherwise includible subject." Metro Display Advertising, Inc.,v. City of Victorville, 143 F.3d at 1195. In short, as the Supreme Court reiterated just days ago, "[b]ecause the restriction is viewpoint discriminatory," this Court "need not decide whether it is unreasonable in light of the purposes served by the forum." Good News Club v. Milford Central School, 2001 WL 636202 at p. 5 (June 11, 2001).

VII. THE MORE THINGS CHANGE THE MORE THEY STAY THE SAME: AS IN AIDS ACTION, THE MBTA'S PURPORTED STANDARDS CONTINUE TO BE UNCONSTITUTIONALLY VAGUE AND OVERBROAD.

The MBTA's purported standards - whichever ones the defendants then or now argue applied to Shorter's rejection of the plaintiff's ad campaign - are woefully inadequate. See, e.g., National Abortion Federation v. Metropolitan Atlanta Rapid Transit Auth., 112 F.Supp.2d 1320, 1327 (N.D. GA 2000) ("While different applications by different officials may not always mean that the policy or statue is vague, in the instant matter it illustrates the subjective and arbitrary nature of the policy and suggests that there is a potential for abuse.").

However the MBTA's policies may have changed in the years since AIDS Action, whether "updated" or "revised" or whatever the case may be, one thing is abundantly clear:

these policies remain unconstitutional on their face and in their application for their vagueness and overbreadth. As in AIDS Action, there continues to be an absence of clear standards, an absence that forces decisions to be made on an ad hoc and subjective basis.¹⁹ Just as the MBTA's purported exclusion of messages "pertaining to sexual conduct" was "so vague and broad" as to exclude AIDS Action's protected speech and arguably "much of the clothing and movie advertising commonly seen on billboards and in magazines," so too is the MBTA's purported exclusion of all messages regarding "promotional materials harmful to juveniles" or those containing "graphic, violent and disturbing content" so utterly discretionary and overbroad as to allow for the exclusion of the plaintiff's political ads and the Menino-sponsored anti-binge drinking ad, yet simultaneously allow for the regular posting of alcohol products as well as any of the more innocuous food products, detergents, or other commercial products regularly displayed by the MBTA which could conceivably be harmful to juveniles. AIDS Action, 42 F.3d at 36; see also United Food, 163 F.3d at 359-60 (holding transit authority advertising policy facially unconstitutional on vagueness grounds because it was "not susceptible to objective definition" and vested in decision-makers "an impermissible degree of discretion" and on overbreadth grounds because "any prohibition against 'controversial advertisements' unquestionably allows for viewpoint discrimination.").

And that is but the tip of the iceberg. The MBTA standards not only give rise to the "appearance" of viewpoint discrimination that was present in AIDS Action, but as applied constitute viewpoint discrimination in practice, discrimination applied in the present case to core political speech. The MBTA policies could be declared null and void on that basis alone.

CONCLUSION

For all of the above reasons, this Court should enter summary judgment for the plaintiff and order the equitable relief requested in the amended complaint.

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

1. Hon. Juan R. Torruella, The "War On Drugs": One Judge's Attempt At A Rational Discussion, 14 Yale J. on Reg. 235 (1997).
   
   
2. See, e.g., Hon. James P. Gray, Why Our Drug Laws Have Failed and What We Can Do About It: A Judicial Indictment of the War on Drugs, 4 et seq. (Temple University Press 2001) (discussing public figures who have made "passionate plea for public debate on our failed drug policies," including numerous district and appellate court judges, Nobel laureate Milton Friedman, former secretary of state George Shultz, syndicated columnists William F. Buckley, Jr. and Arianna Huffington, broadcaster Walter Cronkite, Baltimore mayor Kurt Schmoke, former Kansas City and San Jose chief of police Joseph D. McNamara, New Mexico governor Gary Johnson, Harry Belafonte, honorary chair of the Citizen's Commission on U.S. Drug Policy, Carroll O'Connor, who lost a son to addiction, and many, many others, noting "this is a nonpartisan issue that crosses all political boundaries.").
   
   
3. There is no question that the MBTA actually rejected Change the Climate's proposed advertisements. Lucy Shorter's memorandum to Elissa Albertelli refusing to run the ads says, "The Change the Climate promotes the use of marijuana in a suttle (sic) way and is really a reform marijuana in a effort to legalize? The T's appearance and character & drug-alcohol policy is in conflict with their mission." See Exhibit D. Based on this memo, Albertelli wrote to Joe White, "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. Please call me when you get a chance." See Exhibit K (emphasis added). Directly to this point, the MBTA answered an interrogatory asking whether it would accept the three ads proposed by Change the Climate by stating, "For the reasons set forth in Answer No. 2, the MBTA will not accept any of the advertisements attached to the complaint as Exhibit A for placement on MBTA facilities and vehicles." See Exhibit S (emphasis added). Lest there be any doubt, Prince was asked point blank the following at his deposition (Prince Dep., p. 27):
   QUESTION: Would you run these three ads? (Objection)
   ANSWER: No.
   
   
5. The First Circuit did not reach the issue of whether the MBTA's advertising space is a designated public forum in the AIDS Action case. The court felt that it should not reach such an important issue without the benefit of a well-developed record (the record before the court was a preliminary injunction record it viewed as "sparse") and, secondarily, the court hesitated because of the "murky" state of the law on public fora at the time. AIDS Action, 42 F.3d at 33-35. Taking its cue from the that decision, the plaintiff has attempted to present a fully developed record for this court that includes (1) "precious evidence" concerning the MBTA's practice of accepting and rejecting advertisements over the last decade to the present and (2) evidence that belies the anticipated post-hoc argument by the defendants that the MBTA is now, and has always been, a "vigilant gatekeeper" with regard to advertising. Id.at 35. In consideration of the record now before this court, and in light of the developments in the law on public fora - particularly with respect to transit advertising in recent cases - the plaintiff suggests that now is the time to decide this important issue. While the plaintiff is confident the more narrowly drawn holding of AIDS Action has equal application in this case (see pp. 31-35, infra.), it is the broader designated public forum holding, and its implication of strict scrutiny, that will serve the plaintiff, and future political speakers who seek to advertise their messages on MBTA property without fear of discrimination, with the greatest measure of justice. See, e.g., United Food,163 F.3d at 349 (6th Cir. 1998) (affirming preliminary injunction, finding for the plaintiff union advertiser against the defendant transit authority on all alternative grounds argued).
   
   
6. Shorter relied on a policy, see Exhibit M, which was taken from a 1999 bid proposal for the contract that was to replace the one in effect at the time. There is no evidence that policy was in effect when she rejected Change the Climate's advertisements. Prince acknowledged that this policy went into effect later, when the new contract began. See Prince Dep., pp. 12-13. Exhibit N is the MBTA's drug and alcohol free workplace policy, which Shorter also says she relied on in rejecting the Change the Climate campaign. This document, too, is from the 1999 bid proposal. In addition, Prince referred to a policy he called "the Mabardy letter," see Exhibit W, which prohibits advertising that is "indecent as to child viewers" or "of a nature to frighten children." Finally, a Commercial and Public Service Advertising Policy, adopted in February 1993, see Exhibit X, might have been in effect at the relevant time. Shorter testified, however, that she did not know if that policy had ever been in effect, and if it were, it was not in effect after 1995. See Shorter Dep., pp. 29, l. 21-24; p. 30, l., 1-8. 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 37-38, 40. Finally, Exhibit Z contains the bid specifications for the contract between PTD and the MBTA. See 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. See 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 the successor contract. See Exhibits L-M.
   
   
7. To the extent that the AIDS Action case suggests that the mere existence of an express policy may be enough to demonstrate an intent not to create a public forum, the great weight of authority indicates that the analysis is not so broad as the First Circuit suggested. Indeed, the Seventh Circuit observed that the First Circuit seems to stand alone in its reasoning on this point. See Air Line Pilots, 45 F.3d at 1153-54 and n. 4 (""[T]he government's stated policy, without more, is not dispositive with respect to the government's intent in a given forum.") Accord East Timor, 71 F. Supp. at 345 ("This makes sense: if the government's stated policy that it did not intend a policy of open access was controlling, the government could circumvent what in practice amounts to open access simply by declaring its 'intent' to designate its property a nonpublic forum in order to enable itself to suppress disfavored speech.") (quoting United Food, 163 F.3d at 353 and citing Gregoire v. Centennial Sch. Dist., 907 F.3d 1366, 1374 (3d Cir. 1990) ("focusing solely on the government's stated policy would effectively eviscerate the public forum doctrine; the scope of First Amendment rights would be determined by the government rather than by the Constitution.")). These cases are consistent with the First Circuit's simple, but oft-cited rule from an earlier public forum case, Grace Bible Fellowship, Inc. v. Maine Sch. Admin. Dist. No. 5, 941 F.2d 45 (1st Cir. 1991), that in determining whether the government has designated public property a public forum "actual practice speaks louder than words." Id. at 47. It is that principle that should guide this Court's public forum analysis.
   
   
8. Although the First Circuit declined to rule on this basis alone in AIDS Action, this undisputed fact is a matter of public record. See 42 F.3d at 2 ("[T]he MBTA regularly authorizes the posting of commercial and public service advertisements in the spaces above its car windows and doors. The MBTA, in conjunction with PTD, has accepted and continues to accept public service advertisements on a wide variety of topics."). Id.
   
   
9. In the interest of completeness, the plaintiff points out - but with a note of caution to the Court - that the East Timor Court and a few others have classified and analyzed as a subcategory of the designated public forum doctrine a "limited public forum." 71 Supp.2d at 344, 347. While the plaintiff is confident it would prevail as soundly under this analysis, just as the plaintiff in East Timor prevailed, the First Circuit has not yet adopted the limited public forum analysis, and the plaintiff urges that this Court stay that course. The plaintiff suggests that the limited public forum analysis has the potential to eviscerate the designated public forum doctrine, namely, the fundamental rule that in regulating public access to a designated public forum the government is bound by the same First Amendment standards as bind the government's ability to regulate access to the traditional public forum. See Perry 460 U.S. at 46. If anything, courts should be reevaluating the traditional public forum doctrine to include transit authorities and other contemporary media. See generally Cass R. Sunstein, Free Speech Now, 59 U. Chi. L. Rev. 255, 295 (1992); Owen M. Fiss, Silence On The Street Corner, 26 Suffolk U.L. Rev. 1 (1992) Paul G. Stern, "A Pluralistic Reading Of The First Amendment And Its Relation To Public Discourse," 99 Yale L.J. 925 (1990). Many have criticized the advent of the "limited" public forum analysis, and rightly so. See, e.g., Robert C. Post, Between Governance and Management: The History And Theory Of The Public Forum, 34 UCLA L. Rev. 1713, 1757 (1987) ("If the reach of the forum is determined by the intent of the government, and if the exclusion of the plaintiff is the best evidence of that intent, then the plaintiff loses in every case. There is only one way out of this vicious circle, and it is not very satisfactory. It would require the Court to distinguish between the intent to include the class of speakers or subjects of which the plaintiff is the representative, and the intent to exclude the plaintiff. One problem with this distinction is that it is precious and in practice unworkable."); Note, A Nonpublic Forum or A Brutal Bureaucracy? Advocates' Claims of Access to Welfare Center Waiting Rooms, 75 N.Y.U. L. Rev. 1004, 1031, n. 151 (2000) ("While the [United States Supreme] Court seems to use the terms 'designated public forum' and 'limited public forum' interchangeably, lower courts and commentators distinguish these concepts."); Hopper, 241 F.3d at 1075, n. 8 (observing "this categorization admittedly leads to the strange semantic result that a limited public forum is not actually a public forum.").
   
   
10. Shorter even testified that she thought Change the Climate's ad campaign was objectionable because it used double entendre: "This campaign appeared to promote drugs. So it's a double meaning." Shorter Dep., p. 72. This preposterous interpretation of both the meaning of the guidelines and Change the Climate's campaign is evidence of MBTA officials' impermissible discretion.
    
    
11. See Defendants Answers to Interrogatories No. 5 at Exhibit S.
    
    
12. Though when asked at her deposition whether the MBTA's display of alcohol advertisements promoted under-age drinking, defendant Shorter first answered "no comment." Shorter Dep., pp. 68-69. When asked a second time, she answered "no," because "drinking alcohol does not - drinking alcohol is not a criminal act," testimony that frankly defies common sense. In any event, she agreed that by allowing an ad to be run, the MBTA wasn't necessarily endorsing the message of the advertiser, whether it be alcohol or abortion services. (Id. at 69-71)
    
    
13. For additional examples of the MBTA's inconsistent application of its standards as applied to political advertising, including the rejection of an anti-binge drinking ad campaign sponsored by Mayor Menino and a NEAVS campaign rallying against the testing of drugs on animals, see SOF, pp. 23-24 and Exhibits S-V.
    
    
14. See Lewis v. Wilson, ___ F.3d ___, 2001 WL 641561, 4 (8th Cir. 2001) (holding State violated driver's First Amendment rights by refusing to issue vanity license plate reading "ARYAN-1" based on vague regulation prohibiting plates that are "inflammatory or contrary to public policy " because "[a] public official with even marginal creative ability could frequently invent a 'public policy' basis for rejecting a plate containing a message with which he or she disagrees.")
    
    
15. In light of the record evidence in this case, it cannot be disputed that nature of the MBTA's advertising space is compatible with expressive activity and that the MBTA has promulgated policies without reference to the purpose of the forum, thereby satisfying the second element of the public forum analysis required under Cornelius. 473 U.S. at 802-03. Any post-hoc reasons for the defendants' restriction of the plaintiff's access to the forum should be disregarded as a matter of law. See, e.g., Planned Parenthood, 767 F.2d at 1233 (holding transit authority estopped from arguing that public-issue advertising was incompatible with the primary use of the advertising space in light of demonstrated practice to allow public-issue and political advertising.).
    
    
16. The First Circuit's reasoning in AIDS Action rejecting a suggestion that the restrictions are a "reasonable manner" restriction applies with equal force here. See AIDS Action, 42 F.3d at 26 ("Although it might be reasonable, in an analytical vacuum, to characterize a prohibition on the use of sexually explicit or patently offensive language to communicate an idea as a limitation on the "manner" in which a speaker may speak, such a characterization flies in the face of how the Supreme Court has construed the concept of manner through case-by-case adjudication.") (citations omitted). To reiterate the obvious, the restrictions at issue here do not meet the "overarching requirement" of content-neutrality. Id. Furthermore, standards purporting to restrict that which is "disreputable" or "harmful to juveniles" are not only content-based, but as applied to political speech, viewpoint-based per se. (See pp. 30-32 infra.). The First Circuit's decision in Jews for Jesus, 984 F.2d at 1327, is instructive on that point as well. In that case, the First Circuit found MBTA Guidelines governing the authorization of noncommercial expressive activity to incorporate adequate procedural safeguards, including, among other things, a regulatory appeal process. It was in light of these procedural safeguards that the court analyzed the restrictions as a time, place and manner regulation, taking pains to emphasize that the guidelines are enforced "without regard to the messages presented," indeed, [t]he Authority does not even inquire about the content of the message." Id. In the present case, by polar contrast, it is undisputed that Albertelli screened Change the Climate's advertising campaign for review precisely because of her perception of its provocative nature, and defendant Shorter likewise rejected the campaign without any consideration of the plaintiff's First Amendment rights because she disagreed with the organization's "mission." The MBTA's purported policies are just what the First Circuit warned against in Jews for Jesus: policies "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. (citations and internal quotations omitted).
    
    
17. Significantly, in finding for the plaintiffs, the court was unpersuaded by the pair of empirical studies by psychologists that found that playing violent video games tend to make children more aggressive. Id. at 579. The court recognized that whatever the studies tended to show, they certainly did not prove that video games have ever actually caused anyone to commit a violent act. Id. The plaintiff suggests that whatever opinion the defendants' experts may offer in this case (and neither expert has conducted any studies of his own), this Court should likewise recognize that anything short of evidence proving that childrens' exposure to Change the Climate's advertisements will cause them to smoke marijuana (indeed, to immediately smoke marijuana) to be insufficient to show actual harm as a matter of law. The plaintiff suggests that here, even more so than in American Amusement, "common sense" dictates that the government's claim of potential harm to children "is implausible, at best wildly speculative." Id.; see also Eclipse Enterprises, Inc., 134 F.3d at 68 (criticizing conclusory expert testimony concerning the alleged harmful effects of crime trading cards on children, noting that none of the experts knew of any studies or actual occurrences where crime trading cards were determined to be a factor in juvenile violence or otherwise linked to juvenile crimes).
    
    
18. The Court held in Rosenberger that the University of Virginia could not withhold funding for the printing costs of a student publication, deemed a limited public forum, based solely on its religious perspective. Rosenberger 515 U.S. at 830-31. It reasoned that the University had not attempted to exclude religion as a general subject matter (content discrimination), but rather had excluded all publications with a religious viewpoint (viewpoint discrimination). Id. at 831. Similarly, in Lamb's Chapel the Court struck down a school policy allowing after-hours use of school property for social, civic, or recreational uses or use by political organizations, but barring use by any group for religious purposes. 508 U.S.at 387. The plaintiff was denied permission to use the school in order to show a six-part film series on child rearing and family values, presented from a Christian perspective. Id. at 388-89. The Court found that the subject matter of the film was otherwise permissible under the school's policy, and held that exclusion of the group was therefore based solely on the religious perspective of the film, constituting viewpoint discrimination. Id. at 393-94.
    
    
19. To the extent the defendants assert that the February 1993 policy applied to restrict Change the Climate's speech, the First Circuit declared this policy "impossible to understand" and one that invited the very discrimination that occurred in that case. AIDS Action, 42 F.3d at 36-38 ("We think that the opportunities for discrimination created by this Policy have been borne out in practice, and that this case presents an unrebutted claim of discrimination in the application of supposedly neutral standards.")