Pursuant to Fed. R. Civ. P. 56 and Local Rule 56.1, the plaintiff Change the Climate, Inc. submits this response to the defendants' statement of uncontested facts ("Def. SOF") filed by the defendants in support of their motion for summary judgment. The plaintiff, too, has moved for summary judgment on all counts of its complaint. The plaintiff relies on its statement of uncontested facts ("Pl. SOF") in support of both that motion as well as this response to show that there are no material facts in dispute.¹ Although the plaintiff is confident that there are no genuine issues to be tried, the plaintiff is compelled to respond to each of the defendants' statements of facts because "material facts of record set forth in the statement required to be served by the moving party will be deemed for purposes of the motion to be admitted by opposing parties unless controverted by the statement required to be served by opposing parties." Local R. 56(1) (emphasis added). The plaintiff submits this response not only to set the record straight, but also, in some instances, to correct misrepresentations of the record evidence so as to redirect the Court to the actual undisputed evidence in this case.

To aid the Court in separating truth from fiction, each of the defendants' enumerated paragraphs from Defendants' SOF is reproduced below, followed by the Plaintiff's Response. The response sets forth the reasons the plaintiff disputes each paragraph, whether in whole or in part. Key admissions are identified, as are omissions of material facts and other material misrepresentations of evidence. References to Plaintiff's SOF are made, where possible, to avoid needless repetition. Finally, those statements that should be stricken from the record as inadmissible are identified, and references are provided to the Plaintiff's Motion to Strike Portions of the Defendants' Statement of Uncontested Facts ("Pl. Motion to Strike"), which the plaintiff has filed as a separate motion in accordance with the rules of civil procedure.

1. Defendants' SOF:
   Plaintiff Change the Climate, Inc., is a non-profit corporation. Its president is Joe White
   of Greenfield, Mass., a telemarketing consultant. (Amended Complaint, 1, 6.)
   
   Plaintiff's Response:
   The defendants rely solely on the Amended Complaint in support of this paragraph. Nowhere in the Amended Complaint is White identified as a "telemarketing consultant." (See Pl. Motion to Strike, 5(g).) Joe White is the founder and Executive Director of Change the Climate. His full-time occupation, separate and apart from Change the Climate, is to serve as the Vice President of The Share Group, Inc., a company that offers consulting, fund-raising and marketing services to nonprofit organizations and socially responsible businesses. (White Aff., 1, White Dep., p. 19-20.)
   
   
2. Defendants' SOF:
   At the heart of this case are three advertisements created on a home computer by White. All three advertisements have a large picture, minimal text, and nothing to identify the nature of the organization sponsoring them other than a Web site: "www.changetheclimate.org."
   
   Plaintiff's Response:
   Copies of the advertisements, attached to Pl. SOF as Exhibit B, are evidence in this case and speak for themselves. The defendants' characterization of that evidence is not itself evidence and should be disregarded. (See Pl. Motion to Strike, 5(g).) The defendants' assertion that there is "nothing to identify the nature of the organization sponsoring them other than a Web site: "www.changetheclimate.org" supplies its own response: the web site is the identifying information. The raison d'etre of Change the Climate has always been, and continues to be, quite literally, to "change the climate" around the discussion of marijuana policies in this country by broadening the terms of the debate. (White Aff., 2, White Dep., p. 26. ) Furthermore, the plaintiff points out that the MBTA is currently displaying at least one advertisement regarding drug-related content for which the only identifying information as to the sponsor of the advertisements are two web addresses and a phone number that direct readers to learn more, if they so choose. (See Aunkst Aff., 7(b).) The defendants have not pointed to any guideline that requires any more identifying information than that, nor can they, because none exists. Such a policy, without a compelling interest, would be highly suspect under the First Amendment.
   
   
3. Defendants' SOF:
   The first advertisement (the "Teen Ad") features a photograph of a teen-aged girl wearing a baseball cap worn fashionably backwards. The text says, "Smoking pot is not cool, but we're not stupid, ya know. Marijuana is NOT cocaine or heroine. Tell us the truth..."
   
   Plaintiff's Response:
   The advertisement, a copy of which is attached to Pl. SOF as Ex. B, is evidence in this case and speaks for itself. The defendants' characterization of that evidence is not itself evidence and should be disregarded. (See Pl. Motion to Strike, 5(g).)
   
   
4. Defendants' SOF:
   The second advertisement (the "Mother Ad") depicts an adult woman apparently both a mother and a teacher writing on a chalkboard. The text 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."
   
   Plaintiff's Response:
   Again, the advertisement speaks for itself. (See Pl. SOF, Ex. B; Pl. Motion to Strike,
   5(g).)
   
   
5. Defendants' SOF:
   The third advertisement (the "Police Ad") depicts two police officers standing in front of
   an oversized American flag. The caption reads, "Police are too important ... too valuable ... too good ... to waste on arresting people for marijuana when real criminals are on the loose."
   
   Plaintiff's Response:
   Again, the advertisement speaks for itself. (See Pl. SOF at Ex. B; Pl. Motion to Strike,
   5(g).)
   
   
6. Defendants' SOF:
   White conceived of and designed these Ads by himself. He wrote the text, created the
   layout, and downloaded the photographs from the Internet. At his deposition, he
   described the process of creating the Ads as follows:
   
   I had a bunch of scrambled thoughts, and I would write them into my computer and change the words and, you know, press the delete key. And then I tried to create pictures in my mind about what the advertisements would look like. (White Depo. at 44.)
   
   Plaintiff's Response:
   To quote this excerpt of White's deposition is an attempt to bias the Court against White by implying that he is unable to think and communicate carefully and clearly.² Contrary to the defendants' insinuation, White's creation of the advertisements was an ongoing and thoughtful one, and not something he cobbled together haphazardly, as excerpts of White's deposition the defendants omit demonstrate:
   
   I don't think I made it clear earlier about the creative process. It's not like you think of something, and it's done or a fait accompli. It goes through iteration after iteration after iteration as you reflect on things and as you ponder the issues large and small; the type size, the colors, the right photograph. All of that information is a process, and it takes a year, six months, three months, you know, from start to finish. So that's my answer to your question. That process takes a long time. And so when you're saying were you thinking of Change the Climate ads during that period of time, the short simple answer might just be yes. But it's a long process, and I can't be entirely certain at what point I was thinking about it or if it had come to a beginning or end.
   
   (White Dep., p. 68.) While White's creative process is, of course, immaterial to the issues in this case, for additional excerpts in his seven and a half hour deposition, in which he answered several irrelevant questions on the creative process through production of the advertisements, see White Dep., pp. 43-44, 68, 78-79. For further evidence of the seriousness with which White has undertaken founding and maintaining the plaintiff organization, in addition to working his full time job, see White Aff. at Tabs 1, 3, 5 and 6, attached to Pl. SOF at Exhibit 1.
   
   
7. Defendants' SOF:
   It is undisputed that White, a telemarketing consultant, has no experience or training in media or advertising. (White Depo. at 7-17, 20-21, 78.) He has never worked with an advertising consultant or advertising professional of any type, nor with a media consultant or media professional. (White Depo. at 43-44, 71-73.) He created the Ads alone; other than White, "nobody had anything to do with the ads." (White Depo. at 21-22, 43-44, 71-73.)
   
   Plaintiff's Response:
   Again, White is the Vice President of the Share Group, not a mere "telemarketing consultant." (See 1, supra.; Pl. Motion to Strike, 5(g).) Unless the defendants are suggesting that White is too inexperienced and lacking in training to speak, this paragraph is utterly immaterial to the issues in this case.
   
   
8. Defendants' SOF:
   White testified at his deposition that he decided to create the Ads because he felt there needed to be more public debate about marijuana policy. (White Depo. at 23.) Although he says the purpose of the Ads is to "stimulate public debate on this issue" (White Depo. at 24), at his deposition he could not articulate any particular message he believed the Ads convey. Indeed, he testified that the Advertisements have no intended message. When questioned about what aspect of marijuana policy the Ads sought to address, he could not identify any. He testified, "We don't have any specific policy or issue that we're trying to address in our efforts."' (White Depo. at 28-29.) [Footnote 3: Mr. White thereby disavowed the language of the Amended Complaint, which sought to characterize the Ads as a campaign "to change attitudes and promote public discussion about marijuana policy reform." (Amended Cmplt., 16.)]
   
   Plaintiff's Response:
   The plaintiff agrees that White intended the ads to stimulate public debate on marijuana policies. (See also White Aff., 2, 3.) The defendants' make one of several key admissions in the second sentence of their rendition of the facts, stating that "although he says the purpose of the Ads is to 'stimulate public debate on this issue,' at his deposition he could not articulate any particular message he believed the Ads convey." Even taking as true the statement that the ads offer no particular message other than to get people to think about and debate marijuana policy in the abstract, that message - i.e., one that advocates for public debate on drug policy - is protected core political speech in and of itself. (See Pl. SOF at 4-6.) The defendants' assertion that in order for the advertisements to stimulate debate they must have a particular message thus completely misses the mark - both of the media campaign and the First Amendment. White testified repeatedly that the message that each reader takes from each advertisement is, inevitably, an individualized, personal response, unique to different individuals. (Id. at 30-31, 149, 164, 168-70.) The defendants fail to acknowledge White's testimony in this regard in their rendition of facts. Furthermore, the plaintiff is compelled to point out that, notwithstanding the select excerpts of White's deposition cited by the defendants, White gave various examples of broad public perceptions that Change the Climate seeks to address and questions it seeks to raise, such as:
   
   that people believe "that marijuana, otherwise known as hemp, can't be used in any industrial or manufacturing capacity" and "that marijuana does not have any medicinal value, and yet the government has shown that there likely is medicinal value" (White Dep., p. 38.)
   
   that reform organizations such as Change the Climate, and White as a parent, believe that "marijuana is not okay for kids" (Id. at 39.)
   
   how marijuana issues "affect families, how they affect kids, how they affect our society," and that "jail is a potential result of smoking pot, and that's a scary thought for many parents" (Id. at 148-49.)
   
   that "smoking pot is not a cool thing for kids to do" and "that there is a huge difference between marijuana and cocaine and heroin." (Id. at 157-58.)
   
   how police resources are allocated in this society, and "whether or not choices, correct choices, are being made about the distribution and use of those police officer resources." (Id. at 168-70.)
   
   For additional evidence concerning Change the Climate's organizational purpose and media campaign, see copies of pages printed from Change the Climate's website at "www.changetheclimate.org", attached to White Aff. at Tabs 1, 3, 5 and 6, attached to Pl. SOF at Exhibit 1. (See also White Affidavit, 2-4.)
   
   Finally, the defendants' assertion that "Mr. White thereby disavowed the language of the Amended Complaint, which sought to characterize the Ads as a campaign to change attitudes and promote public discussion about marijuana policy reform" is not only erroneous, but also inappropriately relies on the Amended Complaint as evidence in this case and should be stricken. (See Pl. Motion to Strike, 5(g).)
   
   
9. Defendants' SOF:
   Nor could he identify any message that he believed the Advertisements succeeded in conveying. For example, when asked about the message of the Police Ad, White conceded, "I don't know what message it sends to people." (White Depo. at 170.) Asked whether he was trying to advocate a particular position in the Teen Ad, he testified, "Change the Climate does not have a particular position." (White Depo. at 158-159.) Asked what message Change the Climate wanted its audience to take away from the Mother Ad, White testified, "Change the Climate does not have necessarily [sic] any specific positions on issues. . . ." (White Depo. at 148-149.) Asked why he chose a mother figure for the Mother Ad, White said, "Because everyone has a mother, and mothers are really special." (White Depo. at 149.) Asked why he used the word "pot" instead of "marijuana" in the Teen Ad, White said, "I don't know." (White Depo. at 156-157.)
   
   Plaintiff's Response:
   Again, this paragraph misses the point of the media campaign, which is to raise questions in peoples' minds about marijuana issues. It also selectively omits the portions of White's deposition in which he identifies some of the broader issues and types of questions that CTC's media campaign could conjure up in the minds of individuals in the general public, as related above in Plaintiff's Response to Defendants' SOF ("Pl. Resp. Def. SOF"), 8, supra.
   
   
10. Defendants' SOF:
    In September, 1998, Joe White began to explore whether his Ads might be displayed on the subways and buses, and in stations, of the Massachusetts Bay Transportation Authority. (White Depo. at 64-67, 83, 102.) After obtaining the MBTA's "media kit" on September 15, 1998 (White Depo. at 65-67, 108-111), White decided to try to raise money to have the Ads displayed on the T. To that end, on April 15, 1999, he formed the plaintiff corporation. (White Depo. at 105.)
    
    Plaintiff's Response:
    The defendants' suggestion that White founded Change the Climate as a means to raise money to display the plaintiff's advertisements on the MBTA is beyond the pale. White founded Change the Climate because he felt there needed to be more public debate on the issues surrounding marijuana policies, and to educate the public on these issues. (White Dep, p. 23; White Aff., 2; see also Change the Climate's Mission Statement and Articles of Incorporation, attached to Pl. SOF as Exhibit 1.) In addition to being immaterial to the issues in this case, the defendants' assertion also ignores the record evidence of the plaintiff organization on the whole, which consists of more than its media campaign, and, most notably, includes the organization's web site, "www.changtheclimage.org" (See White Aff. 2-4, Tabs 1, 3, 5, 6.) White founded the plaintiff organization, initiated the media campaign, and created the web site all towards executing Change the Climate's long term strategy to "change the climate" around marijuana. (See Pl. SOF, Ex. 1; White Aff., 2-5, 8.)
    
    
11. Defendants' SOF:
    The MBTA is the principal commuter transportation service in the Boston metropolitan area. Its subways and buses accommodate more than one million passenger trips a day. (Affidavit of Barbara Moulton ("Moulton Aff.") at 2.) Many of those passengers are juveniles, between the ages of 9 through [sic] 18. According to the MBTA's most detailed survey of its ridership, 9.9% of the passengers on its bus system in the spring of 1996 either paid a child fare or used a student pass. (Moulton Aff. at 3.) Moreover, the MBTA system ' is an integral part of the Boston Public Schools' system of providing transportation to school children. For the month of March 2001, the MBTA sold 14,876 student passes to students of the Boston Public Schools, including 2,102 to students of Boston Latin School, 1,173 to students of the West Roxbury High School, 1,033 to students of Madison Park High School, and 909 to students of Charlestown High School. (Moulton Aff. at 14 and Exh. A; Affidavit of Cornelia A. Kelley ("Kelley Aff."), 4.)
    
    Plaintiff's Response:
    Taking as true the defendants' assertion that "many" of its passengers are between the ages of 9 and 18 - the ages of "juveniles" the MBTA purportedly wishes to protect - the plaintiff points out that 18 year-olds are old enough to vote and need to be well-informed in order to participate in the political process. Many juveniles younger than 18 are politically active, participating in anti-sweatshop and environmental movements, for example. In May, the city council of Cambridge considered a proposal to permit 16 and 17-year-olds to vote in Cambridge municipal elections, a proposal promoted to the council by a concerned group of high school students. (See Mary Hurley, "Council Rejects Lower Voting Age," Boston Globe, June 5, 2001, at B2.) Furthermore, by the defendants' own statistics, which the plaintiff does not dispute for the purposes of summary judgment, if children or students make up 9.9% of the MBTA's ridership on buses and trains, then adults comprise the remaining 90.1% of ridership, whom the MBTA is also shielding from the plaintiff's political speech. This constitutes a key admission in this case.
    
    With regard to the statement that the MBTA system "is an integral part of the Boston Public School system" because many of its riders are members of that school system, the plaintiff observes that, according to the defendants' logic, the MBTA system then is also an integral part of Gillette Corp., Brigham and Women's Hospital, and FleetBoston because - no doubt - a large number of people who work in those institutions commute by way of public transit.
    
    
12. Defendants' SOF:
    The T's passengers are the audience for a significant number of commercial and public service advertisements. The MBTA system contains more than 40,000 advertising displays: approximately 20,000 on and inside buses, 20,000 on and inside trains, and more than 1,000 in T stations. (Moulton Aff. at 5.)
    
    Plaintiff's Response:
    This paragraph contains another key admission in this case. The plaintiff agrees that the MBTA displays both commercial and public service advertisements, including advertisements expressing social, political and religious messages. For a discussion of this undisputed material fact, in which the relevant deposition testimony of Robert Prince, Lucy Shorter, and Elissa Albertelli is quoted at length, see Pl. SOF, pp. 3, 6-9.
    
    
13. Defendants' SOF:
    The MBTA does not display every advertisement submitted to it. That is because, even though a primary purpose of the MBTA's advertising program is to make money, other purposes are to generate customer goodwill and to preserve the advertising environment for its riders who, more often than not, cannot escape viewing these ads when riding the T. (Moulton Aff. 13-17.)
    
    Plaintiff's Response:
    According to the Moulton Affidavit, "[t]he MBTA system contains more than 40,000 advertising displays, approximately 20,000 on and inside buses, 20,000 on and inside trains, and more than 1,000 in T stations." Moulton Aff., 5. By their own key admission, among the tens of thousands of advertisements submitted annually, the MBTA has rejected a sum total of seventeen advertisements over the span of a decade. (Defendants' Answers to Interrogatories No. 5, attached to Pl. SOF as Exhibit S.) For a discussion of this record evidence, indicating that even that number is inflated, see Pl. SOF, pp. 22-24.
    
    Furthermore, the defendants' assertion that a "primary purpose" of the MBTA's advertising space is proprietary is unsupported by the record evidence. Rather, the actual evidence in this case indicates that the primary purpose of the MBTA's advertising space is to post advertisements on a variety of topics, expressing all sorts of messages, for anyone willing to pay the fee - whether commercial or noncommercial, public-interest or not. (See Pl. SOF at 3, 6-9.)
    
    Article X of "the Bid Specs," to which Moulton refers in paragraph 14 of her affidavit and upon which defendants rely as support for their assertion is entitled "Use of Unsold Advertising Space." It cannot be disputed - from the face of these specifications - that this Article has absolutely no application to the plaintiff's advertisements whatsoever; but, rather, govern the MBTA's practices concerning a small fraction of the MBTA's use of unsold space. Indeed, the Article begins with the sentence:
    
    With respect to all (i) inside or outside display devices or vehicles or (ii) display devices in stations, which are not contracted for use by paid advertisers, the Authority shall have the right to display advertisements or announcements calculated (1) to increase its revenue, public travel, or goodwill or (ii) as compensation to companies which provide beneficial services to the Authority or (iii) to be otherwise in the public interest.
    
    (See Moulton Aff., at Exhibit B.) To the extent that the defendants now rely on the Affidavit of Moulton in support of its statements regarding the purposes of the MBTA's advertising space more broadly, those statements should be stricken as contrary to the actual record evidence in this case.³ The offending statements in this paragraph and the Moulton affidavit should therefore be stricken.⁴ (See Pl. Motion to Strike, 5(g).)
    
    
14. Defendants' SOF:
    Thus, the T regularly rejects ads the contents of which would drive away the T's ridership or jeopardize its particular obligations to the large school population it transports. From 1992 to November 1, 2000, the MBTA refused to display advertisements on at least 16 instances. (Shorter Aff. 5.) In March 1996, for example, the T rejected an advertisement concerning experiments on animals because the advertisement's violent content would disturb and frighten children. (Shorter Aff. at 5(c).) In November 1998, the MBTA rejected an advertisement for the film Psycho because the advertisement contained indecent and violent content. (Shorter Aff. at 5(k).) In the summer of 1999, the MBTA rejected an advertisement concerning under-age drinking because the ad contained graphic, violent, and disturbing content. (Shorter Aff. at 15(n) .) [Footnote 4: Other examples of advertisements that the T has rejected in the past several years are described in the Shorter Affidavit at 15]. The MBTA accepts only those advertisements that comply with the Guidelines and reject all advertisements that fail to comply. (Shorter Aff. 4; Moulton Aff. at 2.)
    
    Plaintiff's Response:
    The first sentence of the above paragraph should be stricken as unsupported by the record evidence. By their own admission made in the very next sentence, the T does not "regularly reject" ads. By their own calculations, of the tens of thousands of ads submitted each year over the span of a decade, they rejected fewer than two ads per year, and even those calculations are misleading. (See Pl. Resp. Def. SOF, 13, supra; Pl. Motion to Strike, 5(g).)
    
    The plaintiff agrees that the defendant rejected an advertisement in March 1996, but disputes the defendants' characterization that the advertisement contained "violent content" that "would disturb and frighten children." (See Pl. SOF at 24.) While the defendants did not attach the advertisement to their statement of facts, it is evidence in this case, attached to the Pl. SOF as Exhibit T. The plaintiff submits that the political advertisement, concerning the prevention of animal cruelty, speaks for itself. The offending paragraph of the Shorter affidavit should be stricken. (See Pl. Motion to Strike, 5(g).)
    
    The MBTA did not reject an advertisement for the film Psycho in November 1998. Rather, the undisputed evidence is that the MBTA actually posted the advertisement for the film in the fall of 1998 and ultimately removed the advertisement in November after receiving complaints. Attached hereto as Exhibit A are copies of news articles, produced by the defendants in discovery, reporting on this undisputed fact, quoting MBTA officials. To suggest that the MBTA simply rejected the advertisement in November 1998 as an initial matter is misleading and should be stricken.⁵ The actual posting of the Psycho ad, like the MBTA's actual posting of the Fatal Instinct ad that was key to the First Circuit's finding of viewpoint discrimination in the AIDS Action case, and the MBTA's actual posting of the BASEketball and Surf detergent ads, are undisputed evidence of the defendants' inconsistent application of standards. This constitutes a key admission that the defendants have, in fact, posted advertisements not in compliance with their purported standards. (See also Pl. SOF at 21-24.) The offending statements, as well as the offending portion of the Shorter and Moulton affidavits, should be stricken. (See Pl. Motion to Strike, 5(e),(f).)
    
    The plaintiff agrees that the defendant rejected an advertisement in the summer of 1999, but disputes the defendants' characterization that "the ad contained graphic, violent, and disturbing content." While the defendants also did not attach this advertisement to its statement of facts, it is evidence in this case, attached to the Pl. SOF as Exhibit T. The plaintiff submits that this political advertisement, concerning the serious consequences of binge drinking, speaks for itself. (See Pl. SOF at 24 and Exhibits T and U.) The offending paragraphs of the Shorter affidavit should be stricken. (See Pl. Motion to Strike, 5(e), (f).)
    
    For the above reasons, and the additional examples of the MBTA's inconsistent application of standards included in Pl. SOF at 21-24, the final sentence of this paragraph, that "the MBTA accepts only those advertisements that comply with the Guidelines and reject all advertisements that fail to comply" should be stricken as utterly unsupported by the record evidence in this case. The offending paragraphs of the Shorter and Moulton affidavits should likewise be stricken. (See Pl. Motion to Strike, 5(e), (f).)
    
    
15. Defendants' SOF:
    The MBTA administers and sells its advertising space through an independent contractor that serves as the T's advertising agent. From 1993 through June 2000, that agent was Park Transit Displays, Inc. ("Park Transit"). [Footnote 5: Currently, and since July 2000, the MBTA's advertising agent is Transit Displays Incorporated]. As of January 2000, when Park Transit was operating under an extension to its original contract with the MBTA, the T's guidelines for advertising acceptability were contained in the "Appearance and Character of Advertisements" section (the "Appearance and Character Guidelines" or the "Guidelines") of its "Specifications for Transit Advertising" dated October 15, 1999 (the "1999 Bid Specs"), which formed part of the bid specifications for the renewal contract. (Shorter Depo. at 21, 23-24, 26; Shorter Aff. 6.)
    
    Plaintiff's Response:
    It is undisputed that PTD was the MBTA's exclusive advertising agent at all times relevant to this action, and that PTD derived its authority from the MBTA to post commercial and noncommercial advertisements, including advertisements expressing social, political and religious messages, in MBTA facilities and on MBTA buses and trains. (Shorter Dep., pp. 20, 80.)⁶
    
    The defendants' representation that as of January 2000, "Park Transit was operating under an extension to its original contract with the MBTA" and that "the T's guidelines for advertising acceptability were contained in the'Appearance and Character of Advertisements' section of the 'MBTA's Specifications for Transit Advertising' dated October 15, 1999, which formed part of the bid specifications for the renewal contract," at best, glosses over very telling record evidence in this case,⁷ and at worst, is a deliberate attempt to mislead the Court. While the plaintiff agrees with the statement that PTD was operating as the MBTA's exclusive advertising agent as of January 2000, the undisputed record evidence in this case is that the "1999 Bid Specs" to which the defendants refer in their papers are actually specifications that the MBTA entered into with another contractor, TDI, which did not go into effect until July 2000 - six months after the plaintiff submitted its advertisements.⁸
    In her deposition, Shorter at first testified that there was an "extension contract":
    
    Question: Now, you refer to a new bid spec. What was it that happened in regard to the contract with Park Transit. Was it renewed or extended?
    
    Answer: It was extended.
    Question: Was there some sort of a contract or document signed to record this extension?
    
    Answer: By another department.
    Question: But it's your understanding that some new document was signed between the MBTA and Park Transit.
    
    (Objection.)
    Question: In addition to the 1992 contract?
    (Objection.)
    Answer: Yes.
    Plaintiff's Counsel: That hasn't been produced.
    Witness: Well, it was an extension.
    Plaintiff's Counsel: This is between the attorneys.
    Defense Counsel: If you like, I can tell you what I think she's talking about. I think it has been. Those are the 1999 bid specs. Those are what you
    attach to your claim, not the 1992 bid specs. They have been produced.
    
    (Shorter Dep., pp. 21-22.). In the ensuing questions, Shorter ultimately admitted that there was no such extension contract between Park Transit and the MBTA, and that the 1999 bid specifications to which defense counsel referred at deposition, and to which the defendants repeatedly refer in their summary judgment papers, were, in fact, for the contract with Park Transit's successor, Transport Displays, Inc., effective July 2000:
    Question: Do you know whether or not a contract with these specifications was ever entered into between the MBTA and Park Transit?
    (Objection.)
    Answer: This was put out to bid, and advertisers bid on it. And the highest bidder
    was awarded the contract. Unfortunately, it was not Park Transit.
    
    Question: It was Transport Displays, Incorporated?
    Answer: Yes.
    (Shorter Dep., p. 23.) (emphasis added.) While Shorter then testified that at the time the bid specifications were developed, Park Transit "were given the updated guidelines for any work that was coming in," id. at 23-24, she admitted just a few answers later that this, too, was untrue:
    Question: So it's your testimony that the MBTA's advertising appearance guidelines were updated during the course of Park Transit's contract?
    
    Answer: Yes.
    Question: Was there anything in writing notifying Park Transit that your guidelines
    had changed?
    
    Answer: No.
    Question: How was Park Transit informed that the guidelines had changed?
    (Objection.)
    Witness: I still have to answer?
    Answer: They were informed, because I sent it to one of their representatives.
    Question: Who did you send it to?
    Answer: Elissa Albertelli.
    Question: Do you know when you did that?
    Answer: I don't know the exact date.
    Question: Was there some letter that you sent telling Elissa Albertelli that the advertising guidelines had changed?
    
    Answer: Well, it wasn't a letter per se. I sent her a fax, which this was attached, the particular guidelines was attached.
    
    Question: I haven't seen that fax. Do you recall what it said.
    Answer: Well, it was concerning Change the Climate.
    Question: So when you sent Elissa Albertelli a fax concerning Change the Climate and attached a copy of the guidelines to it, was that the first you had informed her that the guidelines had changed?
    
    Answer: I don't recall.
    (Shorter Dep., pp. 24-24) (emphasis added.). Thus, contrary to the defendants' representation - by Shorter's' own testimony - there is no credible evidence that any "extension contract" between PTD and the MBTA ever existed. The actual record evidence in this case is that there was no "extension contract" between PTD and the MBTA. Indeed, the first and only time Shorter can recall notifying PTD of the "updated guidelines" was in her January 20, 2000 fax in which she rejected the plaintiff's advertisements. (Shorter Dep., pp. 24-25. See Pl. SOF at 17-18.) For the defendants' to assert otherwise is a material misrepresentation of evidence and the offending statements and offending portion of the Shorter affidavit should be stricken. (See Pl. Motion to Strike, 5(a)(2); Pl. SOF at 16-17.)
    
    
16. Defendants' SOF:
    The 1999 Bid Specs govern the sale and administration of the MBTA's advertising displays. They give the MBTA's advertising agent the exclusive right to sell and post advertisements for nearly all of the displays on the T's vehicles and stations. (Moulton Aff. at 8 and Exh. B; 1999 Bid Specs, Article 1).)
    
    Plaintiff's Response:
    For the reasons stated in Pl. Resp. Def. SOF, 15, supra., this paragraph is misleading. The plaintiff agrees that the 1999 bid specifications govern the sale and administration of the MBTA's advertising displays currently. To the extent this paragraph implies these guidelines governed the relationship between the MBTA and PTD at the time the plaintiff's proposed advertisements were rejected, it should be stricken. (See Pl. Motion to Strike, 5(e), (f).)
    
    
17. Defendants' SOF:
    The MBTA reserves some displays for advertisements of its own choosing, for a variety of purposes: to increase revenue, public travel and goodwill to compensate companies that provide beneficial services to the T; and to otherwise further the public interest. (Moulton Aff. at 8 and Exh. B; 1999 Bid Specs, Article IX).) The MBTA also reserves the right to use unsold advertising space for these same purposes. (Moulton Aff. at 8 and Exh. B (1999 Bid Specs, Article X).)
    
    Plaintiff's Response:
    The plaintiff again points out (see Pl. Resp. Def. SOF, 13, supra) that the provisions defendants cite to in this paragraph have absolutely no application to the plaintiff's advertisements whatsoever. The MBTA's right to "reserve some displays for advertisements of its own choosing" (Article IX) and regarding "unsold advertising space" (Article X) are indisputably irrelevant to the issues in this case, i.e., involving advertising space available for sale to the public at large.
    
    
18. Defendants' SOF:
    Advertising displays that are not sold by Park Transit and not used by the T are available
    at a reduced rate to government agencies and to nonprofit, tax-exempt charities. (Moulton Aff. at 9 and Exh. B; 1999 Bid Specs, Article XI).) A number of restrictions apply to these public service advertisements, however. Among other things, only interior, 11 x 28-inch displays are available at the reduced rate, and public service advertising may not be designed to influence legislation. (Moulton Aff. at 10.)
    
    Plaintiff's Response:
    Again, this paragraph constitutes an irrelevant distraction. It cites to policies concerning "advertising displays not sold by Park Transit and not used by the T" (Article XI). Although non-profit organizations seeking advertising space on the MBTA system could go through the process described in Article XI, they were not required to do so. The record evidence clearly shows that not all public service announcements displayed on the MBTA system follow the Article XI route and that some are designed to influence legislation. (See Aunkst Aff., 6, 7, and 9, attached to Pl. SOF at Exhibit 6; Pl. SOF, Exhibit E.) Like Articles IX and X, Article XI has absolutely no application to the plaintiff's advertisements whatsoever. (See Pl. Resp. Def. SOF, 13, 17, supra.)
    
    
19. Defendants' SOF:
    The MBTA's Appearance and Character Guidelines provide that the MBTA will not display advertisements that contain firearms or tobacco products. It will not allow ads containing profanity, "libelous, slanderous, or obscene" matter, "violent" or "criminal" content, or "advertisements that denigrate groups based on gender, religion, race, ethnic or political affiliation." The Guidelines also warn that the MBTA - the primary school transportation for thousands of schoolchildren each day - will not display advertisements for materials that promote activities "harmful to juveniles." (Moulton Aff. at 1 and Exh. B (1999 Bid Specs, Article VII).) (A copy of the Guidelines is attached to the Moulton Affidavit at Exh. B.)
    
    Plaintiff's Response:
    This paragraph constitutes the most egregious misrepresentation of the record evidence in the defendants' summary judgment papers. The Appearance and Character Guidelines to which the defendants refer provide, as follows:
    
    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 and upon the Authority's transit facilities.
    
    (emphasis added.) The unambiguous language of this policy cannot be mistaken. Although the defendants tell the Court that the policy prohibits the display of "'violent' or 'criminal' content," the prohibition against those advertisements "containing violent criminal content" is clearly conjunctive. The defendants' characterization of the purported standard as disjunctive materially alters the plain meaning of the policy language and deliberately attempts to mislead the Court. All references to this material misrepresentation should be stricken from the summary judgment record. (See Pl. Motion to Strike, 5(a)(1).)
    
    Additionally, the actual policy prohibits "promotional materials that is harmful to juveniles." The defendants' paraphrasing - which butchers the language of the policy - is deliberately misleading, in an attempt to expand the restriction beyond its obvious commercial limitation. Furthermore, whatever the policy may "warn," the undisputed record evidence is that the MBTA heeds no such warning. It posts advertisements for "promotional materials" that are indisputably "harmful to juveniles" - alcohol advertisements being the most clear example. Tellingly, nowhere in their summary judgment papers do the defendants own up to this undisputed violation of the purported standard.⁹
    
    
20. Defendants' SOF:
    Former General Manager Robert Mabardy's 1995 letter to Park Transit supplements the Guidelines, and specifically focuses on advertising's effect on children by making clear that the MBTA will not display material that is indecent as to child viewers or frightening to children in a manner that causes them to suffer physical or emotional distress. (Moulton Aff. 5 and Exh. C.)
    
    Plaintiff's Response:
    Regardless of whether the Mabardy letter "supplements the Guidelines," or not, it has absolutely no application to the plaintiff's advertisements at issue in this case. This is obvious from the plain language of the policy, despite Prince's testimony that this was the only document he could be sure did apply to the plaintiff's advertisements. For a discussion of the Mabardy letter, including quotation of Robert Prince's incredible testimony on the subject, see Pl. SOF at 25-27, and Exhibit W.
    
    
21. Defendants' SOF:
    Advertising helps create and shape peoples' perceptions. (Affidavit of Marvin E. Goldberg, Ph.D. ("Goldberg Aff.") 15.) Joe White agrees that advertising is "powerful." (White Depo. at 163.) Juveniles (persons between the ages of 9 and 18) are particularly susceptible to the effects and influence of advertising. (Goldberg Aff. 4.) Susceptibility to peer influence peaks in middle adolescence, when juveniles typically search for cues from their peers and advertising for the right way to behave. (Goldberg Aff. 4.)
    
    Plaintiff's Response:
    The plaintiff agrees that "advertising helps create and shape people's perceptions," but disputes the admissibility of the Goldberg Affidavit as support for this contention. Because the affidavit violates the "helpfulness" requirement for expert opinion testimony under Fed. R. Civ. P. 702, explained fully in Pl. Motion to Strike, it should be stricken from the record. (See Pl. Motion to Strike, 5(c)(1).)
    
    
22. Defendants' SOF:
    To submit an ad for consideration by the MBTA, a prospective advertiser in early 2000 was required to contact Park Transit. (Shorter Aff. 8.) Park Transit negotiated and contracted with the advertiser, determined where and when the advertisements would be posted, and arranged for the display and removal of advertisements. (Shorter Aff. 8.)
    
    Plaintiff's Response:
    The plaintiff agrees that a prospective advertiser was required to go through PTD and not to the MBTA directly. (Shorter Dep., pp. 19-20; White Dep., p. 92.)
    
    
23. Defendants' SOF:
    Due to the high volume of advertising submissions, the MBTA relied on Park Transit to make the initial determination whether a submitted ad complied with the Appearance and Character Guidelines. (Shorter Aff. 9.) Elissa Albertelli, National Sales Manager for Park Transit from March 1997 until June 2000, testified at her deposition that if a submission clearly complied with the Appearance and Character Guidelines (as most submissions did), Park Transit did not forward it to the MBTA. It simply posted the advertisement. (Deposition of Elissa Albertelli ("Albertelli Depo.") at 13-14; Shorter Aff. 10.)
    
    Plaintiff's Response:
    The plaintiff agrees that the MBTA relied on Park Transit and its employee Elissa Albertelli to make an initial determination about the acceptability of the advertisements, but disagrees that the initial determination concerned "whether a submitted ad complied with the Appearance and Character Guidelines." Albertelli testified that her decision to forward the ads to Shorter was based on whether the advertisements struck her as "provocative" as opposed to any studied application of advertising guidelines. (Albertelli Dep., pp. 37, 50-51.) Furthermore, the defendants omit from their rendition of the facts that Albertelli later admitted in her deposition that she would never actually look at the guidelines in making her decision to forward the advertisements to Shorter for approval. Indeed, when asked whether she looked at the guidelines when she received the plaintiff's ads, she testified "No, no, no. I always sent them to Lucy and let her make that judgment call . . . ." (Albertelli Dep., p. 42.)¹⁰ For a discussion of this evidence, including quotation of Albertelli's deposition testimony on this precise point, see Pl. SOF at 30 n. 25-26. To the extent the defendants rely on an incomplete and misleading rendition of the record evidence, the statements should be stricken. (See Pl. Motion to Strike, 5(g).)
    
    
24. Defendants' SOF:
    Park Transit sent advertising copy to the MBTA for review only when Park Transit was concerned that the advertisement did not comply with the Appearance and Character Guidelines. (Albertelli Depo. at 12, 14; Shorter Aff. 10.) In such cases, Park Transit forwarded the advertisement to Lucy Shorter, the MBTA's Director of Marketing Communications, together with a full-size color copy of the proposed advertisements and information indicating the number of posters to be displayed, the date the campaign was to begin, the duration of the campaign, and the total volume of the campaign. (Albertelli Depo. 61-62; Shorter Depo. at 14, 37; Shorter Aff. 1.)
    
    
    Plaintiff's Response:
    For the reasons stated in paragraph 23, this paragraph is misleading. Moreover, there is record evidence that the process of forwarding an advertisement to Shorter did not always include full-size color copies of the proposed advertisements. See Pl. SOF at Exhibit E.
    
    
25. Defendants' SOF:
    From approximately 1994 or 1995 until her retirement in November 2000 (Shorter Depo. at 8), Shorter acted as Park Transit's liaison with the MBTA. Although she was not herself responsible for approving or disapproving proposed advertisements (Shorter Depo. at 1), Shorter circulated application packages to the MBTA's general manager and others for a determination as to whether the ads complied with the Appearance and Character Guidelines and could be accepted. (Shorter Aff. 11-12.)
    
    Plaintiff's Response:
    Regardless of whether Shorter was officially responsible for approving or disapproving proposed advertisements, it is undisputed that Shorter is the MBTA official who short-circuited the application process, at whatever stage of the process it was, upon her review of the plaintiff's advertisements because of her hostility to Change the Climate. This undisputed fact is evidenced by Shorter's January 20, 2000 fax to Albertelli, attached to Pl. SOF as Exhibits D and L, in which she stated her reasons for doing so:
    
    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.
    
    That this response short-circuited the application process is further evidenced by Albertelli's own cover letter to White, dated January 24, 2000, in which, attaching Shorter's fax and attachments, she informed him that the MBTA had rejected Change the Climate's proposed advertisements. Consistent with the Shorter fax, the cover letter Albertelli faxed to White stated:
    
    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 to Pl. SOF. For a complete discussion of this undisputed evidence, see Pl. SOF at 15-20 and Exhibits L-P.
    
    
26. Defendants' SOF:
    Since July 1997, the ultimate decision-maker on questionable advertisements has been the MBTA's General Manager, Robert H. Prince, (Deposition of Robert H. Prince, Jr. ("Prince Depo.") at 4-5; Shorter Aff. 2.)
    
    Plaintiff's Response:
    In light of the record evidence stated in the Pl. Resp. Def. SOF, 25, supra, this paragraph is immaterial to the issues in this case. More important, it is misleading, as the undisputed record evidence is that in the first instance, it is Albertelli who screens for questionable, or, in her own words "provocative" advertisements to forward to Shorter's review for the next level of screening. (See Pl. Resp. Def. SOF, 22, supra.) It is thus undisputed that advertisements that are screened out (i.e., rejected) may well never reach Prince, as was the case with the plaintiff's proposed advertisements in this case. In other words, while Mr. Prince may be the "ultimate decisionmaker" as a matter of policy, the record evidence tells an entirely different story as to what happens in practice.
    
    
27. Defendants' SOF:
    Robert Prince never saw Joe White's Ads until well after this lawsuit was commenced. (Prince Depo. at 26.) That is because Change the Climate never made a formal advertising application to the MBTA. (Shorter Aff. 16, 20.)
    
    
    Plaintiff's Response:
    For the reasons stated in the Pl. Resp. Def. SOF, 26, supra, this paragraph is immaterial. It is undisputed that Prince never saw the ads until after the lawsuit commenced because Shorter short-circuited the process. (See Pl. Resp. Def. SOF, 16, supra.) Furthermore, it is undisputed that White diligently followed every step of the process as was described to him by Albertelli and per her instructions along the way. To the extent there was any "formal" application process, after White expressed his frustration to Albertelli regarding Shorter's lack of response on the materials he submitted in May 1999, Albertelli made an application on his behalf in January 2000. (White Dep., p. 122; see also Pl. SOF at 14). Shorter acknowledges receiving both the May 1999 and January 2000 sets of materials and finally responded to them with her fax of January 20, 2000. (See Pl. SOF at 14 n. 11; see also Shorter Aff., 17 (referring to receiving materials from Albertelli "that second time".) While the defendants now disavow the language of that fax, the words speak for themselves. (See Pl. SOF at Exhibit L.) In addition, in the words of Albertelli's own fax to White on January 24, 2000 - one the defendants fail to acknowledge even exists anywhere in their summary judgment papers - it was Shorter's "response" to those materials in which she "clearly stated" the MBTA's "reasons for not accepting" Change the Climate's media campaign. (See Pl. SOF at Exhibit K.)
    
    Furthermore, the defendants' statement in footnote 6 of their statement of facts that "there is no question, however, that had the Ads been formally resubmitted without change, the MBTA would have rejected them" constitutes a key admission. By this statement, the defendants admit that in order for the MBTA to deem the plaintiff's advertisements acceptable, the plaintiff would have to change the content of the advertisements.¹¹ For a discussion of this undisputed evidence, see Pl. SOF at 30-31. Consequently, whether or not the plaintiff completed a formal application process is immaterial.
    
    
28. Defendants' SOF:
    White did have several preliminary conversations with Park Transit's Albertelli about his proposed advertising campaign, which he twice described to her as "provocative." (White Depo. at 67, 85.) He first met Albertelli in person in May, 1999, when he asked her about the process for placing ads on the T. (White Depo. at 84-85.) He submitted the three proposed Ads to her around January 4, 2000. (White Depo. at 123-124.) When Albertelli reviewed the Ads, she questioned whether they complied with the MBTA's Appearance and Character Guidelines. (Albertelli Depo. at 26, 42.) She therefore sent them to Lucy Shorter for her informal review and comment. (Shorter Depo.: at 35-36, 39, 41; Albertelli Depo. at 23.)
    
    Plaintiff's Response:
    Plaintiff agrees that White had several conversations as well as a meeting with Albertelli at the Charles Hotel and agrees that the plaintiff may have described the campaign as provocative. The defendants fails to acknowledge the record evidence that, as a result of these conversations and the face to face meeting, in which White shared with Albertelli materials on the plaintiff organization and media campaign, Albertelli understood that the campaign was politically provocative. Albertelli recalls that White told her that Change the Climate was "definitely looking to educate, as he put it, the public"on marijuana issues. (Albertelli Dep., pp. 17, 40; see also Pl. SOF at 12-13.) The plaintiff also notes that White submitted materials to Albertelli and Shorter prior to January 4, 2000, by both officials' own testimony. (Shorter Dep., pp. 32-35; Albertelli Dep., pp.17-20.)
    
    
29. Defendants' SOF:
    What Ms. Shorter received from Park Transit and Joe White was not a formal advertising application. (Shorter Depo. at 35; Albertelli Depo. at 62.) It included black-and-white miniature copies of the Advertisements (not color, full-sized ones), and it did not indicate the date the campaign was to begin, the duration of the campaign, or the total value of the campaign. (Albertelli Depo. at 62.)
    
    Plaintiff's Response:
    For the reasons stated the Pl. Resp. Def. SOF, 26-27, supra, this paragraph is wholly immaterial to the issues in this case.
    
    
30. Defendants' SOF:
    It is undisputed that unprescribed marijuana use is unlawful, and therefore harmful to juveniles. Mass. Gen. Laws ch. 94C, § §31 and 34. At his deposition, Joe White admitted that marijuana is unhealthy and harmful to juveniles. "As a parent, I just wouldn't want my kid smoking marijuana ... [because I would want them focusing on healthy activities academics, school, sports - and not doing things that may be unhealthy for them." (White Depo. at 4O-41.) White testified that" it's a fact that marijuana is illegal. You can go to jail. There are other potential harms that might come to kids or other people who smoke pot." (White Depo. at 152.) He further testified, "Change the Climate's position is that smoking pot is not appropriate for kids, and that says it all. We, Change the Climate, would not have and would not propose an advertisement that said smoking pot is okay in any fashion." (White Depo. at 155-156.)
    
    Plaintiff's Response:
    The plaintiff disagrees with the defendants' bald assertion in the first sentence of this paragraph that because something is unlawful, it is therefore harmful. Indeed, to accept the defendants' flawed logical premise is to agree that law reform efforts aimed at, for example, putting an end to the Jim Crow laws or ending Prohibition, or allowing women the right to vote, or decriminalizing abortion, were all "harmful" to society because they advocated the changing of existing laws. The defendants' assertion should be stricken from the record as an unreasonable inference unsupported in the record evidence. (See Pl. Motion to Strike, 5(g).)
    
    The plaintiff agrees that Change the Climate's position is that smoking marijuana is not appropriate for kids, and that it would not propose any advertisement that said otherwise.
    
    
31. Defendants' SOF:
    It was evident to Lucy Shorter that the Advertisements, which appeared to be directed at juveniles, promoted marijuana use. In her view, they violated the Appearance and Character Guidelines' prohibition of advertising that is harmful to juveniles and that encourages criminal conduct. (Shorter Depo. at 36-37, 39, 41-43, 52, 71-72, 77-78.) She also believed that by promoting drug use, the Advertisements appeared to conflict with the MBTA's Drug-Free Workplace policy. (Shorter Depo. at 71-72.)
    
    Plaintiff's Response:
    Again, this paragraph contains the material misrepresentation of evidence discussed in the Pl. Resp. Def. SOF, 19, supra. The Appearance and Character Guidelines' do not prohibit advertising encouraging "criminal conduct" but rather purport to prohibit "violent criminal content." (See Pl. Motion to Strike, 5(a),(g).)
    
    Additionally, the paragraph contains another telling misrepresentation of record evidence. While the defendants include pages 39 and 41-43 of Shorter's deposition, they omit reference to page 40, where Shorter is asked about her fax to Albertelli. This document, one which the defendants do not include as an exhibit to their statement of facts, evidences that Shorter's view of what violated the guidelines at that time was Change the Climate's mission. The plaintiff directs the Court to the fax itself, attached as Exhibits D and L to the plaintiff's SOF, for the actual record evidence in this case.¹²
    
    
32. Defendants' SOF:
    Shorter's view is one that is shared by others. The principal of Boston Latin High School (thousands of whose students take the T to school each day) believes that the Ads encourage the use of marijuana. She states in her affidavit that she would not display the Ads on Boston Latin school property, and would not want the Ads displayed on the MBTA transit system that carries Latin students to school. (See Kelley Aff. 16.)
    
    Plaintiff's Response:
    This paragraph and the offending portions of the supporting Affidavit of Kelley should be stricken as impermissible lay opinion. (See Pl. Motion to Strike, 5(e),(g); see also Pl. Resp. Def. SOF, 33, infra.)
    
    
33. Defendants' SOF:
    Newspaper headline and editorial writers describing this lawsuit have referred to the Ads as "pro-pot." Attached to the Green Affidavit at Exhs. F through I are certified copies of articles headlined, "Gov sticks by pot ad fight," "MBTA sued for nixing pro-marijuana ads," and "Cellucci urges MBTA to fight suit over pro-marijuana ads." An editorial refers to the ads as "pro-pot advertising."
    
    Plaintiff's Response:
    While the opinions of newspaper columnists and editors concerning the plaintiff's advertising campaign are not material to the issues in this case, the plaintiff points out that in The Boston Herald articles to which the defendants refer the plaintiff's organization is mischaracterized, the advertisements at issue are misquoted, and the myth of marijuana as a gateway to other drugs is asserted as a "well known" fact without basis.¹³ The plaintiff is also compelled to point out that The Boston Herald stands alone in its irrational, fear-monger interpretation of the plaintiff's ads and mission and its award of kudos to Governor Cellucci's support of the MBTA's conduct. Various publications across the nation have weighed in with different interpretations of the plaintiff organization and its media campaign; all are uniformly critical of the MBTA's decision. Indeed, most recently, The Boston Phoenix awarded Cellucci a "Muzzle Award" for his "latest transgression against free speech," quoting Cellucci's highly politicized press release to The Boston Herald upon learning of the law suit. A copy of The Boston Phoenix article is attached hereto as Exhibit B, as are articles by The New York Daily News ("The ads don't encourage people to smoke, but rather encourage decriminalization of marijuana and its use as a medicine."), The Washington Post ("The ad campaign, rejected by Boston's subway system and the subject of a pending lawsuit there, was funded by Change the Climate, Inc., a nonprofit organization that believes punishment for marijuana use is too harsh."), The San Francisco Chronicle ("Advocates of reducing U.S. penalties for marijuana use unveiled a nationwide advertising campaign yesterday criticizing illegal drug use laws"), and Reason Magazine ("Change the Climate is challenging the Boston decision as a violation of the First Amendment, and it has a good shot at winning . . . . Even if the MBTA convinces the courts that it does not operate a public forum . . . it may not discriminate based on viewpoint. That is exactly what the MBTA appears to be doing, since it gladly runs ads from the Office of National Drug Control Policy and the Partnership for a Drug-Free America. As MBTA spokesman Brian Pedro told National Public Radio, 'You have to draw the line somewhere.'").
    
    
34. Defendants' SOF:
    In addition, the MBTA has submitted with this motion the expert testimony of Pennsylvania State University Prof. Marvin E. Goldberg, Ph.D., who has extensive experience, training and research in the fields of advertising and marketing. According to Prof. Goldberg, the Ads send juveniles the messages that "using marijuana is okay" or "it is not a big deal." (Affidavit of Marvin E. Goldberg, Ph.D. ("Goldberg Aff.") 4.) Specifically, juveniles are likely to take from the Teen Ad the messages that attractive and "cool" peers and role models have used marijuana, "many other juveniles are thinking about using marijuana," only "stupid" people would take seriously the fact that the drug is illegal, and "marijuana isn't so bad." (Goldberg Aff. 17-21.) Juveniles are likely to take from the Police Ad the message that marijuana users are not real criminals, that using marijuana won't get you in trouble, and that police will not enforce anti-marijuana laws. (Goldberg Aff. 18 and 22.) Juveniles are likely to take from the Mother Ad the messages that "many juveniles use marijuana...... using marijuana is hardly dangerous at all," even mothers are resigned to the prospect of their children smoking marijuana and parents do not seriously oppose its use. (Goldberg Aff. 19 and 23.)
    
    Plaintiff's Response:
    As explained fully in Pl. Motion to Strike, because the Goldberg affidavit does not meet the helpfulness requirement under Rule Fed. R. Evid. 702, on the ground that the Court can read the advertisements itself, and on the ground that the testimony in the affidavit alters the advertisements' plain language, the affidavit should be stricken from the summary judgment record as inadmissible. Defendants' reliance on this affidavit should be disregarded. (See Pl. Motion to Strike, 5(c)(1),(g).)
    
    
35. Defendants' SOF:
    Similarly, Herbert D. Kleber, M.D., a professor of psychiatry and the director of the Division on Substance Abuse at the College of Physicians and Surgeons of Columbia University and the New York State Psychiatric Institute, has offered expert testimony that the Ads promote marijuana use among juveniles. (Affidavit of Herbert D. Kleber, M.D. ("Kleber Aff.") 4.) Specifically, the Police Ad suggests that using marijuana is not a "real" crime, and implies that using marijuana will not result in criminal penalties, thus lessening perceived risk and subtly promoting marijuana use. (Kleber Aff. 8.) The Teen Ad subtly promotes marijuana use by suggesting that juveniles are knowledgeable about and comfortable with marijuana use. (Kleber Aff. 5.) The Mother Ad subtly promotes marijuana use by sending the message to juveniles that many of their peers are using marijuana, and that even mothers are resigned to the prospect of their children smoking marijuana. (Kleber Aff. 6.)
    
    Plaintiff's Response:
    Because the Kleber affidavit likewise fails to meet the helpfulness requirement under Fed. R. Evid. 702, the affidavit should be stricken from the summary judgment record as inadmissible. Defendants' reliance on this affidavit should be disregarded. (See Pl. Motion to Strike, 5(c)(2),(g).)
    
    
36. Defendants' SOF:
    Adolescence is a critical age for making decisions about marijuana use. Juveniles are particularly susceptible to messages promoting marijuana use because juveniles, more than other age groups, are searching for cues regarding marijuana use. (Kleber Aff. 2.) As compared to other age groups, juveniles are particularly at risk for initiation of marijuana use. (Kleber Aff. 2.) Research shows that the risk that a person will begin using marijuana rises throughout that person's adolescence up until age 18. After age 18, the risk that a person will start using marijuana steadily declines. If a person does not begin using marijuana by the time he or she has turned 21, it is unlikely that person will do so. (Kleber Aff. 2.)
    
    Plaintiff's Response:
    This paragraph should be stricken. (See Pl. Resp. Def. SOF at 35, supra; see Pl. Motion to Strike, 5(c)(2),(g).)
    
    
37. Defendants' SOF:
    Marijuana usage by one's peers and, even more so, the perception of marijuana use by peers, are strong predictors of initiation of marijuana use. (Goldberg Aff. 5.) Research shows that the perception of marijuana use by one's peers is a strong predictor of whether one will begin using marijuana. Juveniles who have the perception - accurately or inaccurately - that their peers use marijuana are more likely to do so themselves.
    (Kleber Aff. 3.) The perceived level of risk associated with using marijuana is also a lead indicator predictive of actual level of use among high school students. (Goldberg Aff. 6.) Juveniles are sensitive to messages about the harms associated with marijuana use. Trend analyses of drug use beliefs and behaviors over the past two decades indicate that increases in drug use rates are associated with a decline in the perception that drugs are harmful, and vice versa. (Kleber Aff. 7.)
    
    Plaintiff's Response:
    This paragraph should be stricken. (See Pl. Resp. Def. SOF, 34-35, supra; see Pl. Motion to Strike, 5(c),(g).)
    
    
38. Defendants' SOF:
    Prof Goldberg testified in his affidavit that the Teen Ad conveys the messages that "many other juveniles are actively deliberating the merits of marijuana" and that "marijuana isn't so bad." (Goldberg Aff. 7.) For several reasons, it is particularly likely to command the attention of adolescents and to be persuasive to adolescents. Portraying an adolescent wearing a baseball cap worn backwards is a highly effective way of quickly telegraphing a message to other adolescents, and generates a sense of similarity between the spokesperson and the audience, which is a very powerful device in gaining the attention of, and persuading, a target audience. (Goldberg Aff. 7(a).) The easily recognizable colloquial language used by the adolescent spokesperson, which mimics adolescent speech ("we're not stupid, ya know"), is also likely to attract the attention of adolescents. (Goldberg Aff. 7(b).)
    
    Plaintiff's Response:
    This paragraph should be stricken. (See Pl. Resp. Def. SOF at 34, supra; see Pl. Motion to Strike, 5(c)(1),(g).)
    
    
39. Defendants' SOF:
    According to Prof Goldberg, the phrase, "We're not stupid, ya know," invokes the power of the peer group, suggesting there is a broad set of the teen spokesperson's cohort that is knowledgeable about marijuana usage and/or agree with and support the advertisement's message. (Goldberg Aff. 7(c).) The underlined and capitalized word "NOT" in the second line of text makes the second line of text more likely to be noticed and remembered than the first line, which contains the cautionary statement that "marijuana is not cool." (Goldberg Aff. 7(d).) Words in larger print, and sentences that are shorter, will be noticed more quickly and are more likely to be remembered. (Goldberg Aff. 7(d).) Finally, juveniles are likely to process this ad using a simplifying heuristic that there is one positive and one negative statement regarding marijuana, and conclude that, on balance, "marijuana isn't so bad." (Goldberg Aff. 7(e).)
    
    Plaintiff's Response:
    This paragraph should be stricken. (See Pl. Resp. Def. SOF, 34, supra; see Pl. Motion to Strike, 5(c)(1),(g).)
    
    
40. Defendants' SOF:
    Prof Goldberg testifies in his affidavit that the structure of the Mother Ad is effective in communicating the messages that "many juveniles use marijuana," and "using marijuana is not that dangerous." (Goldberg Aff. 9.) The figure is identified in the text of the advertisement as a mother, and also appears at a glance to be a teacher standing at a chalkboard. (Goldberg Aff. 9(a).) The mother's statement in the advertisement, "I don't want them to smoke pot. But. . . " conveys a message to juveniles that even mothers are resigned to the fact that their children will smoke marijuana. (Goldberg Aff. 9(a).) This conveys the impression to juveniles that many of their peers are using marijuana, and that use of marijuana is not particularly serious. (Goldberg Aff. 9(a).) Juveniles are adept at picking up verbal or nonverbal qualifiers. (Goldberg Aff. 9(b).) The final statement is just such a qualifier, suggesting that marijuana use, though perhaps not desirable, is more or less inevitable. (Goldberg Aff. 9(b).)
    
    Plaintiff's Response:
    This paragraph should be stricken. (See Pl. Resp. Def. SOF, 34, supra; see Pl. Motion to Strike, 5(c)(1),(g).)
    
    
41. Defendants' SOF:
    According to Prof. Goldberg, the statement in the advertisement that "jail is a lot more dangerous than smoking pot" is not likely to be fully understood by juveniles, particularly juveniles who process it only partially. (Goldberg Aff. 5(c).) The likely take-away from this advertisement is not that smoking "pot" - the vernacular term that is more accessible to juveniles than "marijuana" - is less dangerous than jail, but the simpler message that smoking pot is hardly dangerous at all. (Goldberg Aff. 9(c).) That message is at odds with the elemental truth that smoking marijuana is against the law, and carries the danger of arrest, fines, incarceration, and other ill effects. (Goldberg Aff. 9(c).)
    
    Plaintiff's Response:
    This paragraph should be stricken. (See Pl. Resp. Def. SOF, 34, supra; see Pl. Motion to Strike, 5(c)(1),(g).)
    
    
42. Defendants' SOF:
    Prof. Goldberg also states in his affidavit that the structure of the Police Ad is particularly effective in encouraging the reader to draw the inference that marijuana users are not real criminals and thus would not be sought after by police. (Goldberg Aff. 8.) Using the eye catching background of an oversized American flag, this advertisement will be understood by many juveniles to be endorsed by the police (including perhaps the MBTA police). (Goldberg Aff. 8(a).) It draws upon two powerful symbols of authority, police officers and the American flag. (Goldberg Aff. 8(a).) This advertisement downplays the penalties associated with marijuana by suggesting that police do not consider marijuana to be a "real" crime and that police consider prosecution of offenders on marijuana charges to be a "waste" of "valuable" police resources. (Goldberg Aff.118(b).) It thereby encourages juveniles to engage in behaviors that will cause them harm - to wit, arrest, fines, criminal record, and/or incarceration, among other harms. (Goldberg Aff. 8(b).)
    
    Plaintiff's Response:
    This paragraph should be stricken. (See Pl. Resp. Def. SOF, 35, supra; see Pl. Motion to Strike, 5(c)(1),(g).)
    
    
43. Defendants' SOF:
    On or about January 20, 2000, Ms. Shorter communicated her assessment of the Ads to Park Transit's Albertelli in a hastily written fax, to which she attached a copy of the Appearance and Character Guidelines and the Drug-Free Workplace policy. The Change the Climate ad campaign, she wrote, "promotes the use of marijuana in a subtle way." (Shorter Depo. at 38-40, 42, 44.)
    
    Plaintiff's Response:
    Here, the defendants omit reference to material record evidence, Shorter's January 20, 2000 fax, and then paraphrase that evidence to mean something other than what is plain from the language of the fax in blatant violation of the best evidence rule. While Shorter testified at her deposition in April 2001 that she believed the advertisements were in conflict with the guidelines, Shorter's damning fax - written at the time of her decision in January 2000 without the benefit of defense counsel - stated her then-view that the MBTA's policies were in conflict with Change the Climate's mission. Once again, the fax, in its entirety, states:
    
    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.
    
    (See Pl. SOF at 15-16 and Exhibit L.) Thus, contrary to the defendants' representation, the fax does not state that the ad campaign promotes the use of marijuana; it states that Shorter's opinion that the plaintiff organization, which Shorter even labeled a "reform effort," promotes marijuana use. Furthermore, the defendants omit material portions of the fax that evidence Shorter's hostility to the plaintiff's organization and reform effort, namely the portion of the fax that states that Change the Climate's mission is in conflict with the MBTA guidelines and policies she attached to the fax. For the defendants to make reference to the Shorter fax without actually attaching it to their statement of facts when it is available offends basic evidentiary principles and summary judgment practice; to further misrepresent its contents through incomplete and misleading paraphrasing is egregious. The paragraph should be stricken. (See Pl. Motion to Strike, 5(b),(g).) The plaintiff directs the Court to the fax itself, attached as Exhibits D and L to the plaintiff's SOF, for the actual record evidence in this case.
    
    Nor is there any record evidence supporting the defendants' tacit suggestion that had Shorter not acted "hastily" and given the application more thought, she would have accepted the plaintiff's advertisements. In fact, defendants' statement in footnote 6 of their statement of facts that "there is no question, however, that had the Ads been formally resubmitted without change, the MBTA would have rejected them" directly contradicts that suggestion.
    
    
44. Defendants' SOF:
    Shorter did not circulate the Advertisements to higher-ups at the MBTA because she did not understand them to have been formally submitted to her for display on MBTA facilities. (Shorter Aff. 6.) General Manager Prince played no role in Shorter's review of the Advertisements or her response to Albertelli. (Prince Depo. at 52.)
    
    Plaintiff's Response:
    Shorter short-circuited the application process for the reasons she stated in her fax of January 20, 2000. (See Exhibits K and L attached to Pl. SOF.) Prince's role in Shorter's review of the plaintiff's advertisements is immaterial. (See Pl. Resp. Def. SOF, 25-27, supra.) What is material and undisputed, however, is that (1) the MBTA officials' conduct at issue in this case was under Prince's watch as General Manager; and (2) Prince could not be sure what advertising policies were in place and in effect at the time the plaintiff submitted its advertisements, or at any other time for that matter. For highlights of Prince's broken-field testimony regarding the various policies, see Pl. SOF at 17 n. 13, 22 n. 17, and 26 n. 21.
    
    
45. Defendants' SOF:
    Shorter testified at deposition that when she scrawled her assessment of the Ads in the fax to Albertelli, she was simply "trying to move the document off [her] desk." (Shorter Depo. at 40.) At deposition, she also clarified that when she wrote that "their mission" violated T policies, she was referring to the mission of the Advertisements - promoting the unlawful use of marijuana - not the mission of Change the Climate. (Shorter Depo. at 59-62.)
    
    Plaintiff's Response:
    The first sentence of this paragraph is immaterial. See 43, supra. There is no record evidence supporting the defendants' tacit suggestion that had Shorter not acted "hastily" and given the application more thought, she would have accepted the plaintiff's advertisements. In fact, defendants' statement in footnote 6 of their statement of facts that "there is no question, however, that had the Ads been formally resubmitted without change, the MBTA would have rejected them" directly contradicts that suggestion.
    
    The second sentence of this paragraph should be stricken. Shorter's deposition testimony (acknowledging the "their" pronoun in her fax referred to Change the Climate) and not defense counsel's inappropriate counseling ("She answered it, their campaign mission") is the record evidence in this case. (Shorter Dep., pp. 61.) No contrivance can alter the meaning of her words. Advertisements do not have missions. Organizations do. For a discussion of this record evidence, see Pl. SOF at 33.
    
    
46. Defendants' SOF:
    Both Albertelli and Shorter testified unequivocally that Shorter's fax did not formally reject the Advertisements (Shorter Depo. at 56; Albertelli Depo. at 30-3 1), and plaintiff can offer no evidence to the contrary. [Footnote 6: There is no question, however, that had the Ads been formally resubmitted without change, the MBTA would have rejected them. Because the Ads promote marijuana use to juveniles - and thereby encourage unlawful conduct that will harm those juveniles - they violate the MBTA's Appearance and Character Guidelines.] (Prince Depo. at 27-32.) The fax from Shorter to Albertelli was not in the form in which Park Transit typically received a formal rejection of an advertising submission; it was not "by any means a final reply or decision about Change the Climate's advertising executions." (Albertelli Depo. at 57, 59.) Shorter testified at deposition that when she sent her note, she expected that Albertelli would advise Joe White to design an ad that conformed to the MBTA Appearance and Character Guidelines, and that the Advertisements would be resubmitted, at which point Ms. Shorter would circulate them for a final decision. (Shorter Depo. at 38-40, 42, 44.) Such a give-and-take process had occurred on other occasions, and typically resulted in a dialogue between Park Transit and the MBTA, resulting in the creation of ads that fall within the Guidelines. (Albertelli Depo. at 37.)
    
    Plaintiff's Response:
    This paragraph is immaterial for the reasons stated in the Pl. Resp. Def. SOF, 25, 27 and 45, supra. The defendants' assertion that the plaintiff "can offer no evidence" to contradict the self-serving testimony of Albertelli and Shorter denies the existence of the two pieces of documentary evidence that do precisely that. (See Pl. Resp. Def. SOF, 25 and 31, supra.) Again, the defendants' omission of the faxes of Shorter and Albertelli in their rendition of facts constitutes a material misrepresentation of evidence on the part of the defendants.
    
    It bears repeating that the defendants' statement in footnote 6, that "there is no question, however, that had the Ads been formally resubmitted without change, the MBTA would have rejected them," constitutes a key admission by the defendants that in order for the MBTA to deem the plaintiff's advertisements acceptable, the plaintiff would have to change the content of the advertisements.
    
    
47. Defendants' SOF:
    This was Ms. Albertelli's understanding as well; she thought Change the Climate would revise the Advertisements and submit new versions, "like any other client would have." (Albertelli Depo. at 31.)
    
    Plaintiff's Response:
    Again, Albertelli's understanding of the fax at the time she received it is evidenced by the material piece of evidence that the defendants' omitted from their rendition of facts - the January 24, 2000 cover letter from Albertelli to White, in which Albertelli 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). (See Pl. SOF, Exhibit K; Pl. Resp. Def. SOF, 25, 27 and 46, supra.) Again, the defendants' failure to include Albertelli's fax to White in their rendition of facts constitutes a misleading and most telling omission: Albertelli's "understanding," as the fax plainly reads, was that the MBTA's "reasons for not accepting this campaign" were "clearly stated in the info provided" (the "info" referring to the polices that Shorter had faxed to Albertelli, which Albertelli, in turn, forwarded to White with this cover letter). The defendants can produce no evidence - because no such evidence exists - showing that anyone at PTD or the MBTA informed White that further avenues of review were available. In addition, there is no record evidence that there was any formal rejection procedure between the MBTA and PTD. For evidence to the contrary, see Pl. SOF at 29 n.24.
    
    
48. Defendants' SOF:
    But Joe White responded differently. He did not ask for clarification from Park Transit or the MBTA. He did not submit a formal application. He did not insist that the MBTA formally consider his submission. Instead, Joe White's entity, Change the Climate, filed this federal lawsuit. (Shorter Aff. 21.)
    
    Plaintiff's Response:
    For the reasons stated in Pl. Resp. Def. SOF, 25, supra., this paragraph is immaterial. Again, it is undisputed that there was no appeal process in place by which White could appeal Shorter's decision, and the reasons for her rejection were crystal clear.
    (See Pl. Resp. Def. SOF, 47, supra.)
    
    
49. Defendants' SOF:
    In the Amended Complaint, plaintiff has waived any claim for damages, but asks this Court for a mandatory affirmative injunction, ordering the MBTA to display the plaintiffs Ads on MBTA facilities - notwithstanding the MBTA's belief that the Ads violate its Appearance and Character Guidelines.
    
    Plaintiff's Response:
    This paragraph is not a statement of facts to which any response is warranted.
    
    
    

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. The plaintiff hereby incorporates by reference Plaintiff's Statement of Uncontested Facts and supporting affidavits.
   
   
2. For the Court's information, White received both his bachelor and master's degree in Philosophy from Boston College. (White Dep., p. 19-20.)
   
   
3. Other than those clearly inapplicable uses for unsold advertising space in Article X, the only evidence in this case as to the purpose of the MBTA's advertising space is the MBTA's actual practice, which once again, has been to allow for both commercial and noncommercial messages to be displayed.
   
   
4. It is noteworthy that the attachments to the Moulton Affidavit do not contain the complete set of documents Shorter actually attached to her January 20, 2001 fax to Albertelli (see Moulton Aff., Exhibit B) nor, rather incredibly, do the attachments to the Shorter affidavit (see Shorter Aff., Exhibit A). The complete set of documents is, however, attached to Pl. SOF as Exhibit L. As the cover sheet to the Shorter fax clearly indicates, the fax contained five pages, including the cover sheet. Exhibit A of Shorter's affidavit omits two of the four policies she attached to her January 20, 2000 fax to Albertelli - specifically, the sections of the bid specifications that indisputably apply to bidders, not advertisers. (See Pl. SOF at 15-20 and Exhibits L, N and P.) These material omissions are themselves evidence of what the plaintiff has maintained in Pl. SOF, i.e., neither of these bid specifications could possibly have applied to the plaintiff's advertisements. (Id.) This omission is another key admission of the defendants.
   
   
5. The defendants similarly misrepresent the MBTA's record of rejections when they state in their answers to interrogatories "the MBTA has rejected a number of advertisements on and in its facilities; in other instances, ads have been withdrawn by advertisers after the MBTA raised initial objections," see Defendants' Answers to Interrogatories No. 5, attached to Pl. SOF as Exhibit S (emphasis added). As the articles attached at Exhibit A show, the Psycho ads that were removed were not removed "after the MBTA raised initial objections," but rather, after they received complaints about the advertisement. The same is true of the advertisements for the movie BASEketball and for Surf detergent, both of which the defendants list among the seventeen advertisements that the MBTA purportedly "rejected" or "raised initial objections." The reasonable inference from this course of conduct is that the MBTA would have left the advertisements in question on display had none of its riders complained.
   
   
6. It is a matter of public record that the relationship between PTD and the MBTA satisfies the state action requirement. See AIDS Action Comm. of Massachusetts, Inc. v. Massachusetts Bay Transp. Auth., 42 F.3d 1, 2
   (1st Cir. 1994).
   
   
7. For a discussion of the convoluted testimony of Shorter and Prince on various purported MBTA policies that neither could be sure were in effect at the time the plaintiff submitted its proposed advertisements, or at any other time for that matter, see Pl. SOF at 15-22 and pp. 24-28, and Exhibits S and W-Z. The defendants' simply fail to acknowledge, much less attempt to reconcile, the conflicting testimony of the top MBTA's officials responsible for advertising decisions.
   
   
8. While the 1992 bid specifications entered into between the MBTA and PTD are in evidence, (see Pl. SOF, Exhibit Z) and Article VII of the 1999 bid specifications ultimately entered into between the MBTA and TDI (provisions that Shorter attached to her January 20, 2000 fax) are in evidence (see Pl. SOF, Exhibits L-M), notably absent from the record is any documentation to prove that any "extension contract" ever existed other than in the minds of the defendants.
   
   
9. When asked at her deposition whether the MBTA's display of alcohol advertisements promoted under-age drinking - activities that are both illegal and harmful to juveniles - Shorter answered "no comment." (Shorter Dep., pp. 68-69.)
   
   
10. Shorter admitted in her deposition testimony that the first time she forwarded Albertelli the 1999 bid specifications was in her fax of January 20, 2000, in which she rejected the plaintiff's advertisements, so it is undisputed that Albertelli couldn't have applied those specifications even if she were so inclined. (Shorter Dep., pp. 24-25; see also Pl. SOF at 18.) To the extent that Albertelli asserted that she had at some point during her tenure at PTD read MBTA advertising guidelines, by her own testimony, those referred to "the guidelines that we were given as a vendor." (Albertelli Dep., p. 26.) It is undisputed that the only guidelines Albertelli had ever been given as a vendor were the 1992 specifications, attached to Pl. SOF at Exhibit Z. For the Court's reference, Article VII of these specifications is attached hereto as Exhibit M. Notably absent from this Article is any reference to the purported "criminal content" or "promotional materials. . .harmful to juveniles standards."
    
    
11. The defendants do not deny that the reason that the advertisements would not be accepted to date has nothing to do with the purported additional "formal application" materials, but rather, because of the creative content of the advertisements themselves. (See Defendants Answers to Interrogatories No. 5, attached to Plaintiff's SOF as Exhibit S.) For discussion of this undisputed evidence, see Pl. SOF at 30-35.
    
    
12. For a discussion of the MBTA Drug & Alcohol Free Workplace policy that the defendants reference in this paragraph and that Shorter attached to her fax, a policy that on its face indisputably applies to bidders and not prospective advertisers, see Pl. SOF at 18 and Exhibit N.
    
    
13. For a discussion of this myth, see Zimmer, L. and Morgan, John P., Marijuana Myths, Marijuana Facts: A Review of the Scientific Evidence, pp. 32-37 (New York, 1997) ("[T]he gateway theory is not a theory at all. It is a description of the typical sequence in which multiple-drug users initiate the use of high-prevalence and low-prevalence drugs. A similar statistical relationship exists between other kinds of common and uncommon related activities. For example, most people who ride a motorcycle (a fairly rare activity) have ridden a bicycle (a fairly common activity). Indeed, the prevalence of motorcycle riding among people who have never ridden a bicycle is probably extremely low. However, bicycle riding does not cause motorcycle riding, and increases in the former will not lead automatically to increases in the latter. Nor will increases in marijuana use lead automatically to increases in the use of cocaine