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I. INTRODUCTION. The defendants' linchpin argument - that the plaintiff's proposed advertisements violate explicit MBTA guidelines that prohibit advertisements containing "criminal content"- rests on a on a false and misleading factual premise. The MBTA has no such written policy. The actual record evidence is that the guidelines prohibit only advertisements containing "violent criminal content."1 Once this linchpin is removed, the defendants' argument unhinges. No one contends - not Lucy Shorter, not Robert Prince, not the defendants' purported experts - that the advertisements contain content that could be interpreted as violent and criminal. Moreover, even under their own misrepresentation of the guidelines as proscribing advertising containing "criminal content," the defendants' argument still fails. To speak about marijuana issues is, of course, not "criminal." And were the plaintiff's advertisements to actually advocate the breaking of existing laws (a patently unreasonable interpretation of the advertisements), such advocacy still could not be punished as "criminal." Under longstanding Supreme Court precedent, before speech can be abridged in the name of preserving law and order, the government must bear the heavy burden of proving the speech at issue was intentionally directed towards inciting imminent lawlessness.2 For the defendants to attempt to circumvent the rule of Brandenburg by way of their purported guidelines and reliance on their peculiar reading of a lone District Court of Utah case - without so much as even mentioning Supreme Court precedent - is disingenuous to say the least. The defendants' fall-back argument, that the plaintiff's advertisements contain "promotional materials" that are "harmful to juveniles" likewise fails. The advertisements cannot reasonably be understood as "promotional" in the ordinary, commercial sense of the word. Moreover, a standard that purports to prohibit messages that are "harmful to juveniles" constitutes viewpoint discrimination per se as applied to political speech, and is unconstitutionally vague and overbroad on its face. This has been borne out in practice, as evidenced by the defendants' rejection of the plaintiff's proposed media campaign on one hand, and their unapologetic posting of advertisements for alcohol and other promotional materials that are harmful to children, on the other. The MBTA has designated its advertising space a public forum in which Change the Climate, Inc., like any other advertiser willing to pay the fee, has the right to have its proposed advertisements processed without discrimination in order to be displayed on MBTA property. By the defendants' own key admissions and the overwhelming record evidence reflecting the MBTA's actual practices over the last decade to date, the government's intent to create a designated public forum is undeniable, and the defendants' protests to the contrary in the stance of litigation do not alter that evidence. The conceded interest the government has in protecting children is not served by squelching debate on marijuana issues. By denying the plaintiff its right to promote debate on controversial social and political issues, the defendants have turned up their noses at the tradition of deliberative democracy. Before discussing each of the defendants' legal arguments more extensively, the plaintiff addresses two preliminary matters: (1) the factual red herring that the defendants did not "officially" reject the plaintiff's proposed advertisements; and (2) the defendants' purported expert testimony that should be stricken from the record as inadmissible. II. DEFENDANTS' CLAIM THAT THE PLAINTIFF'S ADVERTISEMENTS WERE NEVER "OFFICIALLY" REJECTED IS A RED HERRING. At several points throughout their brief, the defendants claim that the plaintiff never made a "formal advertising application" and that the advertisements at issue were never "formally" rejected. (See Memorandum in Support Defendants' Motion for Summary Judgment ("Def. Mem.") at 6, 8-9, and 22 n.9.) Although the defendants never fully articulate what they believe to be the legal significance of the absence of a "formal" rejection, their repeated incantation of this claim compels the plaintiff to respond. If nothing else, the defendants' repeated and strongly worded insistence that they would reject the advertisements even if they had been submitted by way of a "formal" application reveals their argument to be a red herring and the Court should disregard it as immaterial to the analysis of the plaintiff's claims. The evidence of the handling of Change the Climate's application is largely undisputed. At the direction of Elissa Albertelli of Park Transit Display, White submitted Change the Climate materials in May of 1999 and again in January of 2000. Shorter acknowledges she received and reviewed these materials, which included information on the plaintiff organization as well as proposed advertisements. See Plaintiff's Response to Defendants' Statement of Facts, ("Pl. Resp. Def. SOF"), 27. In response, White received a fax from Albertelli which read: "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." Plaintiff's Statement of Undisputed Facts ("Pl. SOF"), at Ex. K. Attached to the cover sheet was a fax from Shorter stating: See attached. The Change the Climate promotes the use of marijuana is a suttle [sic] way and also is really a reform marijuana [sic] in a [sic] effort to legalize? The T's appearance & character, Policy & Drug - Alcohol policy conflict with their mission." Pl. SOF at Ex. L (emphasis added). The defendants do not dispute White received these two documents.3 Following his receipt of this response, White spoke with Albertelli, who made no mention of any appeal process White could pursue. See Pl. Resp. Def. SOF, 47. The defendants make much out of the fact that Prince, the supposed final decision-maker, never viewed the advertisements, but the sole reason for this was Shorter's failure to forward them to him. White followed Albertelli's instructions to the letter and that it was Shorter who short-circuited the process. The defendants also fault White for failing to submit to a "give-and-take process" with MBTA administrators after receiving the faxes from Albertelli and Shorter, in which he could have changed the content of the advertisements until the MBTA was satisfied that they "fall within the Guidelines."4 White was never informed that such a process was available to him. Indeed, no formal appeal process was available to anyone. The faxes of Shorter and Albertelli are plainly evidence that the MBTA rejected Change the Climate's proposed advertisements.5 Albertelli, an agent authorized to speak for the MBTA with respect to the advertising, stated unambiguously that the defendants were "not accepting" the proposed ads. Albertelli's later self-serving testimony does not alter the plain meaning of her words. The undisputed evidence
is that it was the defendants' own actions - not those of Joe White - that made
what occurred between them a parody of the application process. White dutifully
followed the steps that Albertelli laid out for him. He contacted, met, followed-up
with, and forwarded materials to Albertelli upon her requests to do so. He called
her to express his frustration at Shorter's delay in responding to the materials
she had received about Change the Climate months prior. White cannot be responsible
for ensuring that Shorter delivered the proposed advertisements to Prince. Nor
can he be responsible for failing to discover application appeals that did not
exist or were never disclosed to him. The MBTA told White to go home; he cannot
be condemned for then failing to beat down their door. Ultimately, a footnote in the defendants' brief makes clear the true purpose of the defendants' gambit. The defendants state: "In support of its claim of viewpoint discrimination, Change the Climate may seek to rely on Lucy Shorter's fax to Albertelli. However, there is no evidence that Shorter's response was a final decision on the part of the MBTA." (Def. Mem. at 22, n.9.) The smoke and mirrors concerning "formal" application processes and mere dry-runs thus amounts to an elaborate effort by the defendants to distance themselves from Shorter's patently viewpoint-hostile rejection of the advertisements, and from Albertelli's cover letter that communicated her understanding of Shorter's fax as exactly that. The reality is that Shorter rejected Change the Climate's ads, Albertelli told White the ads had been rejected, and the MBTA admits that if these same advertisements were resubmitted today they would be rejected again. That continuing refusal to run Change the Climate's advertisements is what this case is all about. If the MBTA were to now say it would run the ads, this case would screech to a halt. III. THE DEFENDANTS' EXPERT TESTIMONY IS NOT ADMISSIBLE, AND EVEN IF IT WERE, THEIR OPINIONS ARE OF NO LEGAL CONSEQUENCE. A. The experts' testimony violates the helpfulness requirement and should be stricken in their entirety as inadmissible. As argued in Plaintiff's Motion to Strike, the proposed affidavits of Drs. Goldberg and Kleber violate the fundamental requirement of Fed. R. Evid. 702 that expert testimony must be helpful in order to be admissible. Fed. R. Evidence 702. See Pl. Motion to Strike, 5(c). First, the Court is fully competent to read simple political advertisements,6 and no amount of expert testimony will assist in this relatively mundane task. See 4 J. Weinstein & M. Berger, Weinstein's Federal Evidence § 702.03[2][a], at 702-33 (2nd ed. 2001) ("Expert testimony is generally not permitted concerning factual issues that are within the knowledge and the experience of ordinary lay people . . . ."). The advertisements are not a secret code, and the defendants' paid cryptographers are therefore unnecessary. Second, the affiants' attempts to alter the unambiguous text of the plaintiff's advertisements (e.g., "smoking pot is not cool") to suggest an entirely different message (e.g., "marijuana isn't so bad") also violate Rule 702's helpfulness standard.7 See United States v. Dicker, 853 F.2d 1103, 1109 (3rd Cir.1988) ("the interpretation of clear statements is not permissible, and is barred by the helpfulness requirement of both Fed. R. Evid. 701 and Fed. R. Evid. 702.") (emphasis in original). Just as parol evidence is inadmissible to alter the plain meaning of an unambiguous contract in the commercial context, so too are the defendants' attempts to adulterate the plain language of the plaintiff's advertisements to suit the defendants' purposes in this case.8 B. The experts' attempt to impute secret meaning to the plain text of the advertisements is utterly at odds with First Amendment analysis. The defendants' experts' reinterpretations of the words of the plaintiff's advertisements subverts the purpose of the First Amendment. This can never be more true than when core political speech is at issue. A recent Ninth Circuit decision speaks directly to this point: If political discourse
is to rally public opinion and challenge conventional thinking, it cannot be
subdued. Nor may we saddle political speakers with implications their words
do not literally convey but are later "discovered" by judges and juries
with the benefit of hindsight and by reference to facts over which the speaker
has no control. It cannot be disputed that the advertisements at issue do not literally convey a message that anyone smoke marijuana. In fact, one of the advertisements at issue explicitly states "smoking marijuana is not cool" ("Teen Ad"); another says "I don't want my kids smoking marijuana," ("Mother Ad"); and all three of the advertisements direct the reader to the plaintiff's web site, www.changetheclimate.org, which repeatedly and unambiguously conveys the explicit message that "marijuana is NOT for kids." (emphasis on Home page, attached to Pl. SOF, White Aff. at Tab 1.)9 Notwithstanding the plain text of the advertisements, Dr. Goldberg, in eerily Orwellian fashion, states that the plaintiff's use of such "devices" as colloquial language, plural pronouns, capitalization, and the image of a backwards baseball cap serve to transform the unambiguous text of the "Teenager Ad" ("Smoking pot is not cool, but we're not stupid, ya know. Marijuana is NOT cocaine or heroin") into an entirely contrary message, namely that "many other juveniles are thinking about using marijuana" and "marijuana isn't so bad." Id. at 17(a)-(f). He makes similar claims with regard to the remaining CTC advertisements: the plain language of the "Police Ad" ("Police are too important … too valuable … too good … to waste on arresting people for marijuana when real criminals are on the loose") becomes "marijuana users … will not be sought after by the police," id. at 18(a)-(b); and the plain language of the "Mother Ad" ("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") becomes "many juveniles use marijuana" and "using marijuana is not that dangerous," id. at 19(a)-(c). Dr. Goldberg surmises that the overall message of the CTC advertisements is "using marijuana is okay" and "it is not a big deal". Id. at 20. Not surprisingly, Dr. Kleber reaches similar conclusions. According to him, the "Teenage Ad" really says "juveniles are knowledgeable about and comfortable with marijuana use." Id. 5. The "Mother Ad" really says "many of [juveniles'] peers are using marijuana." Id. 6.10 The Court must recognize the supposed expert opinions of Drs. Goldberg and Kleber for what they are: outright attempts to ascribe to the plaintiffs' advertisements "implications their words do not literally convey." Planned Parenthood, 244 F.3d at 1018-19 (noting "important theoretical objections" to "stretching context" to supply a message "that language alone leaves out").11 C. Even if the experts' testimony were admissible, their opinion that children might misperceive the plaintiff's advertisements is of no legal consequence. The affidavit of Dr. Goldberg describes at length how those "who are unlikely to be motivated to pay full attention to the transit advertising" Goldberg Aff., 8, will misinterpret the three advertisements at issue, as not sending a "clear law reform message." Id. at 4. Likewise, Dr. Kleber opines that the advertisements are "misleading" in the impressions they convey. Kleber Aff, 8.12 Assuming arguendo the admissibility of expert testimony in this case, Drs. Goldberg and Kleber's opinions that children and people who do not pay attention might misperceive the text of the plaintiff's advertisements - regardless of the content of the message - is of no legal significance. The First Amendment does not require messages to be "clear" or that their appeal be understood by everyone, including children, the inattentive, and the misinformed. Indeed, courts recognize that "we must defer to the well-recognized principle that political statements are inherently prone to exaggeration and hyperbole." Planned Parenthood, 244 F.3d at 1019 (citing Watts v. United States, 394 U.S. 705, 707 (1969) (per curiam)) ("The language of the political arena . . . is often . . . inexact."). In Lebron v. Washington Metro. Transit Auth.,749 F.2d 893 (D.C. Cir. 1984), the court addressed the very situation presented here: the display of provocative political advertisement to the broad and diverse ridership of a metropolitan mass transit system.13 The panel of judges (Bork, Scalia and Starr, JJ.) took the D.C. Metro to task for attempting to censor the plaintiff's political posters on the grounds that they were "misleading": That some small number of careless readers might be misled by this poster changes neither our inquiry nor our conclusion. Speakers are not required to indulge the lowest common denominator of the populace; First Amendment protection is not limited only to messages which every reader, no matter how ill-informed or inattentive, can comprehend. Id. at 896 (emphasis added) (citations omitted); see also id. at 898 ("In light of the 'profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open' . . . courts ought not to restrain speech where the message sought to be communicated is political and is 'sufficiently ambiguous to allow a discerning viewer' (or reader) to recognize it as something other than a reproduction of an actual event.") (quoting New York Times v. Sullivan, 376 U.S. 254, 270 (1964)). Just recently, in Good News Club v. Milford Cent. Sch., 121 S.Ct. 2093, 2106 (2001), the Court spoke directly to this issue in the context of the First Amendment's Establishment Clause: We cannot operate, as [the defendants] would have us do, under the assumption that any risk that small children would perceive endorsement should counsel in favor of excluding the Club's religious activity. We decline to employ Establishment Clause jurisprudence using a modified heckler's veto, in which a group's religious activity can be proscribed on the basis of what the youngest members of the audience might misperceive. Id. at 2106 (emphasis added). Lebron and Good News are but two cases in the long and undisturbed line of cases that renders the defendants' purported expert testimony in this case meaningless. Indeed, just weeks ago, the Supreme Court reiterated, emphatically, that "the governmental interest in protecting children from harmful materials . . . does not justify an unnecessarily broad suppression of speech addressed to adults." Lorillard Tobacco Co. v. Reilly,121 S.Ct. 2404, 2426 (2001) (quoting Reno v. American Civil Liberties Union, 521 U.S. 844, 875 (1997) (citations omitted)); see also Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 74-75 ("The level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox."); Butler v. Michigan, 352 U.S. 380, 383, 77 S.Ct. 524, 525, 1 L.Ed.2d 412 (1957) (declaring unconstitutional a statute "quarantining the general reading public against books not too rugged for grown men and women in order to shield juvenile innocence" because its effect was "to reduce the adult population ... to reading only what is fit for children"). Accord Denver Area Ed. Telecommunications Consortium, Inc. v. F.C.C., 518 U.S. (1996); Sable Communs. of Calif. v. F.C.C., 492 U.S. 115, 127 (1989). Boiled to their essentials, the defendants' experts' opinions are that, at worst, the advertisements may subtly condition juveniles to view marijuana more favorably. Judge Easterbrook of the Seventh Circuit disposes of the defendants' reliance upon such opinions most efficiently: But almost all cultural stimuli provoke unconscious responses. Religious ceremonies condition their participants. Teachers convey messages by selecting what not to cover; the implicit message about what is off limits or unthinkable may be more powerful than the messages for which they present rational argument. Television scripts contain unarticulated assumptions. People may be conditioned in subtle ways. If the fact that speech plays a role in a process of conditioning were enough to permit governmental regulation, that would be the end of freedom of speech. American Booksellers Ass'n, Inc. v. Hudnut, 771 F.2d 323, 330 (7th Cir. 1985) (Easterbrook, J.) (emphasis added.), aff'd without opinion, 475 U.S. 1001 (1986). IV. THE PLAINTIFF'S PROPOSED ADVERTISEMENTS DO NOT VIOLATE THE MBTA'S ADVERTISING GUIDELINES. A. The defendants' primary legal argument is based upon a false factual premise and therefore should be disregarded. The defendants' begin their legal argument section as follows: By promoting the illegal use of marijuana in a manner harmful to juveniles, the plaintiff's three proposed Advertisements violate two provisions of the MBTA's haracter and Appearance Guidelines: the prohibition on 'criminal' content and the prohibition on advertisements promoting material that is 'harmful to juveniles'. Def. Mem. at 11. (emphasis added.) As an initial matter, the evidence is undisputed that the guidelines to which the defendants refer are bid specifications that govern the relationship between the MBTA and the successor contractor to Park Transit Display as of July 2000, six months after the plaintiff submitted its advertisements for approval in January 2000. See Pl. Resp. Def. SOF, 15; Pl. Motion to Strike, 5(a)(2). But far more importantly, even assuming, for the purpose of summary judgment, that the bid specifications were in effect at the time the plaintiff's advertisements were submitted, the defendants' legal argument is still premised on their utterly untruthful contention that the "established guidelines" prohibit advertisements containing "'violent' or 'criminal' content." It is undisputed that the actual language of the policy reads as follows: The MBTA will not accept
advertisements containing violent criminal content, firearms, profane content,
promotional materials that is [sic] harmful to juveniles, and The plain language of the policy applies to content that is both violent and criminal. The standard is not disjunctive (i.e. violent or criminal), and to assert otherwise is beyond reason.14 As argued in Plaintiff's Motion to Strike and discussed in Plaintiff's Response to Defendants' Statement of Facts, the defendants' premise is a false and misleading one, and all references to it should be stricken from the record. See Pl. Motion to Strike, 5(a)(1); Pl. Resp. Def. SOF, 19. Because the defendants cannot dispute that the plaintiffs' advertisements do not fall within the rubric of the actual standard, one that unambiguously purports to prohibit violent and criminal content, the Court should disregard the defendants' primary legal argument.15 B. Even by the defendants' own misrepresentation of the MBTA guidelines, the advertisements cannot be construed as "containing criminal content"or be punished as such. The defendants' bold assertion that because marijuana use is currently unlawful, they have no obligation to post the plaintiff's political advertisements as "containing criminal content" is untenable. This very argument was rejected by the Preterm Court almost thirty years ago when the MBTA relied upon it as justification for rejecting advertisements concerning abortion clinic services prior to Supreme Court's landmark Roe v. Wade decision. See Preterm, Inc. v. MBTA, C.A. No. 74-159-M,1974 U.S. Dist. LEXIS 8555, at * 6 (D. Mass. May 13, 1974). The court recognized the argument for the tautology it was: "It is apparent to the court that almost any 'public interest' advertisement could be perceived to disseminate information about activities which might violate criminal laws." Id. Indeed, by a definition that prohibits advertisements "containing criminal content" most of the public service advertisements currently on display on MBTA buses, trains, and stations can only be understood as in violation the guidelines; for example, advertisements concerning alcohol products (criminal for underage children), domestic violence (both violent and criminal), gay domestic violence (violent and criminal16), gambling (criminal), euthanasia and suicide prevention (violent and criminal17), anti-drug (criminal), and anti-drug help lines for pregnant woman (criminal). See Aunkst Aff., attached to Pl. SOF as Exhibit 6. Furthermore, the defendants' fear-mongering interpretation of the plaintiff's proposed advertisements is an unreasonable one. Worse, it plays into the current climate of hysteria that continues to silence debate and foreclose discussion of alternatives.18 Such tactics have been criticized by several distinguished members of the bench. See 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) ("The only real enemy to change is the decades of rhetoric that prohibit an open and honest discussion of our options and equate these discussions with the condoning of drug use."); Hon. Juan R. Torruella, The "War On Drugs": One Judge's Attempt At A Rational Discussion, 14 Yale J. on Reg. 235, 267 n.2 (1997) (issuing "One last caveat. Do not in any way misinterpret anything that I write in this essay as an endorsement of any type of drug use, legal or illegal. Nothing could be further from my personal beliefs. Mine is but an attempt at rational discussion of what I understand to be essentially a health and social problem, rather than a criminal one."); Hon. Nancy Gertner, Is the Drug War Forever?, Remarks at Voluntary Committee of Lawyers, Inc. forum, Boston (Jan. 29, 1998) ("Not criminalizing drugs doesn't mean we approve of it, anymore that not criminalizing tobacco means that we approve of cigarette smoking or not criminalizing alcohol means we approve of it. Just because something isn't criminal doesn't mean it is right. And yet that's the way the debate has been cast. If you are against criminalization, you are encouraging use."); Hon. J. T. Curtin,"Drug Policy Alternatives - A Response From The Bench," 28 Fordham Urb. L.J. 263, 272 (2000) (deriding the "popular tendency to equate advocacy of drug legalization or softening of drug laws with advocacy of drug use" as "an absurd notion"); Hon. Martin L. Haines, Drug War: America's War of Self-Deception, N.J.L.J., June 21, 1993, at n. 20 ("The decades-long indoctrination of the public in the need for a drug war as the only solution to the very serious problem of drugs . . . . has prevented the consideration of any clearly necessary, intelligent alternatives . . . . Few public officials dare to advance alternatives. Doing so risks the loss of the next election, or the next appointment."). By equating political speech that questions our current drug policies with advocacy of drug use, the defendants feed the paranoia that demonizes the mere consideration of alternatives to a "war" on drugs. It has no place in a court of law.19 Finally, as argued in a later section of this brief, see pp. 21-28, infra., even if plaintiff's advertisements actually advocated breaking laws against marijuana use, this too, would be protected speech under Brandenburg and its progeny. C. The defendants' fall-back legal argument fails as a matter of law. The defendants argue that the "promotional materials that is [sic] harmful to juveniles" standard in its guidelines also applies to prohibit the plaintiff's advertisements. The argument, however, is relegated to secondary status, no doubt, because the defendants recognize that the term "harmful to juveniles" is so amorphous as to do nothing to curb the unbridled discretion of MBTA administrators in accepting or rejecting advertisements. Once again, to accept
the defendants' rendition of their guidelines requires a tweaking of the actual
language to suit their arguments. This time, they paraphrase the guideline as
"the prohibition on advertisements promoting material that is 'harmful
to juveniles'", Def. Mem. at 11, when the policy actually states, "The
MBTA will not accept advertisements containing . . . promotional materials that
is [sic] harmful to juveniles. To make an obvious point, the language in the
policy only targets "promotional materials." On its face, the term
"promotional materials" refers to commercial advertisements and not
political advertisements such as Change the Climate's advertisements, which
are in no sense promotional as the term is ordinarily understood.20
Nonetheless, absent any definition section to the guidelines, or any other guidance
whatsoever, the defendants have construed the term so broadly as to apply to
the plaintiff's political advertisements. Cf. Reno v. American Civil Liberties
Union, 521 U.S. 844, 894 (1997) (discussing importance of defining "harmful
to minors" standard narrowly so as not to restrict protected speech). First, the MBTA gladly runs advertisements for producers of alcoholic beverages, even though alcohol is the third largest cause of preventable deaths in the United States. See Lorillard,121 S.Ct. at 2439. (Thomas, J., concurring). All states prohibit the sale of alcohol to those under age 21, yet a great deal of alcohol advertising (such as the type displayed by the MBTA) is viewed by children. Id. It should come as no surprise that a considerable body of evidence shows that exposure to alcohol advertising is associated with underage drinking. Id. at 2439-40. Those who begin drinking early are much more likely to become dependent on alcohol and suffer its consequences.22 Id. at 2440. Mayor Menino considered the problem of binge drinking among minors so serious in this Commonwealth that he appointed a commission to initiate a media campaign to address the issue. See Plaintiff's SOF, Exhibit U. Yet, mysteriously, the defendants' "harmful to juveniles" guidelines have never been used to categorically ban advertisements promoting the consumption of alcohol. Likewise, there is no evidence the defendants have ever rejected an advertisement promoting the consumption of fast-food, despite the obvious harm fast-food poses to juveniles' health and welfare. Obesity is second largest contributor to mortality rates in the United States.23 See Lorillard, 121 S. Ct. at 2439. This poses a serious public health concern because childhood obesity is a major health problem in its own right and, more importantly, because eating preferences formed in childhood tend to persist in adulthood. Id. Yet, as with alcohol advertising, the defendants have never categorically rejected fast-food advertisements under the "harmful to juveniles" standard. There is "no principle of law or logic that would preclude the imposition of restrictions on fast food and alcohol advertising" under the MBTA's harmful to juveniles standard, id. at 2440, yet the MBTA has never placed restrictions on such advertising. The simple reason for the MBTA's inconsistent application of standards is that it relies on neither law nor logic, but on the snap judgments of its policy administrators. This is repugnant to the First Amendment. The undisputed evidence that the MBTA accepts advertisements that have a demonstrably harmful effect on juveniles yet claims it rejected the plaintiff's advertisements based on a crass speculation that they might promote harmful activities gives rise to a strong - and in this case unrebutted - inference of viewpoint discrimination.24 See AIDS Action Committee of Massachusetts v. MBTA, 42 F.3d 1, 12-13 (1st Cir. 1994) (holding MBTA liable for violation of First Amendment rights based on unrebutted inference of viewpoint discrimination), affirming and modifying 849 F. Supp. 79 (D. Mass. 1993) V. THE MBTA HAS NO COMPELLING INTEREST IN SUPPRESSING POLITICAL SPEECH ABOUT MARIJUANA. The government's conceded interest in protecting juveniles from harm "does not justify an unnecessarily broad suppression of speech addressed to adults." Reno v. American Civil Liberties Union, 521 U.S. 844, 875 (1997) (distinguishing Ginsberg v. New York, 390 U.S. 629 (1968) and FCC v. Pacifica Foundation, 438 U.S. 726 (1968)).25 Furthermore, juveniles have First Amendment rights and are entitled to protection. See Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 76 (1976) ("Constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority. Minors, as well as adults, are protected by the Constitution and possess constitutional rights."); see also Pl. Mem. at 26-28. Nor do states' interests in protecting children or enforcing its criminal laws trump the right of individuals to advocate changes to existing laws or, in most circumstances, advocate violation of those laws. See Brandenburg v. Ohio, 395 U.S. 444, 448-49 (1969) (holding that government may only proscribe speech that is "directed to inciting or producing imminent lawless action"); Erznoznik v. Jacksonville, 422 U.S. 205, 213-14 (1975) ("Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them."). Were it otherwise, the government could censor any controversial speech or the teaching of the moral propriety or necessity of defying the law since, as a general matter, violations of the law may tend to harm children. The justification for the longstanding Brandenburg rule is simple: The constitutional protection accorded to the freedom of speech . . . is not based on the naVve belief that speech can do no harm but on the confidence that the benefits society reaps from the free flow and exchange of ideas outweighs the costs society endures by receiving reprehensible or dangerous ideas. Herceg v. Hustler Magazine, Inc., 814 F.2d 1017, 1019 (5th Cir. 1987). Brandenburg and its progeny stand as a strong barrier to the government's ability to interfere with the open and robust workings of the public's deliberative process. Yet the defendants turn a blind eye to the rule of Brandenburg, thus setting the stage for their nearly exclusive reliance on a lone district court decision, Mood for a Day, Inc. v. Salt Lake County, 953 F. Supp. 1252 (D. Utah 1995). It is not surprising that "research by the defendants has uncovered only one court decision" that supports their position that the government can restrict speech that might be misinterpreted to subtly suggest the promotion of unlawful activity. Def. Mem. at 16. In spite of adverse precedent from the United States Supreme Court, circuit courts of appeal, and a landslide of district courts, defendants would have this Court adopt their peculiar reading of this lone district court case. The plaintiff respectfully submits that, according to well-established Supreme Court authority, Mood for a Day was wrongly decided. In Mood for a Day, the court reached the unprecedented conclusion that the Brandenburg rule was strictly limited to speech on private property, see id. at 1259,26 and that the government may suppress any speech advocating illegal activity - no matter how remote - where the forum at issue, which was open to "all comers", was "an area to which the public generally had access to disseminate and receive a wide variety of information" and for which "[n]o meaningful criteria existed for allowing certain types of groups and disallowing others . . . ." Id. at 1261. Whatever political allure such a ruling may have, this Court is constrained to follow the holdings of the United States Supreme Court and the First Circuit Court of Appeals, which have never so limited Brandenburg and have never so denigrated an individual's right to engage in robust political discussion.27 The defendants' reliance on Mood for a Day is entirely misplaced, not only because the case has no controlling or persuasive authority, but also because Change the Climate's advertisements - even adopting the defendants' patently unreasonable interpretations of them - at the very most, "subtly" promote the use of marijuana to those who may be "vulnerable" or "susceptible" to "messages that convey the impression that other juveniles use marijuana." Def. Mem. at 18; Pl. SOF, Exhibit D (Shorter fax). The speech at issue in Mood for a Day was far more direct. For example, one bumper sticker read "Thank You for Pot Smoking," while another read "If You Don't Smoke Pot You Have Shit for Brains." Id. at 1256. Crucially, the Mood for a Day court admitted that even this speech could not be proscribed under Brandenburg because it plainly did not incite imminent lawless conduct.28 Id. at 1258. This makes even more tenuous the MBTA's far-fetched claim that it may ban Change the Climate's comparatively innocuous advertisements, which cannot be construed as a direct exhortation to do anything except, perhaps, log on to the Internet and visit the plaintiff's web site to learn more about the organization. See High Ol' Times, Inc. v. Busbee, 456 F. Supp. 1035, 1040 (N.D. Ga. 1978) ("Reasonable minds could not differ, the requisite seriousness of threat and imminence of action are not presented in any of the sample material presented entered into evidence."), aff'd without opinion, 621 F.2d 141 (5th Cir. 1980). Although the defendants claim that Mood for a Day is the lone case "on point," the plaintiff suggests that High Ol' Times is much more so. This is because High Ol' Times, affirmed without opinion by the Fifth Circuit Court of Appeals, faithfully applies the teachings of the Supreme Court in reaching its legal conclusion that the government may not censor marijuana-related speech that does not incite imminent lawlessness. In High Ol' Times, the court addressed the constitutionality of the Georgia "Head Shop" law, which restricted the sale of "drug-related printed material" to minors. Id. at 1037. The court noted that several of the "books and magazines generally exalt drugs and hawk the appurtenances of drug use." Id. at 1038. Nevertheless, the court rightly held that since the materials did not incite imminent lawlessness, they were entitled to full First Amendment protection. See id. at 1040 ("[P]rinted matter either assailing the state's controlled substances laws or extolling the attractions of certain unlawful substances and glorifying the drug culture may not be generally restricted."). Furthermore, the court held that minors had a protected interest in accessing such materials and that the Head Shop law "must therefore be struck down as it would be struck down if it infringed the freedom of expression of adults as well." Id. at 1042. High Ol' Times fits comfortably within a long and venerable line of cases that follow Brandenburg in holding that speech can only be proscribed when the speaker intends to incite lawlessness and when the speech is likely to produce imminent disorder. See Hess v. Indiana, 414 U.S. 105, 108-09 (1973) ("Under our decisions, 'the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.'") (quoting Brandenburg) (emphasis in quotation); see also Herceg, 814 F.2d at 1022-23 (holding that Brandenburg barred claim that magazine caused harm to reader by encouraging auto-erotic asphyxiation); Zamora v. Columbia Broadcasting Sys., 480 F. Supp. 199, 206 (S.D. Fla. 1979) (same with regard to claim that television desensitized convicted murderer to violent behavior); Yakubowicz v. Paramount Pictures Corp., 404 Mass. 624, 631-32 (1989) (same with regard to claim that film The Warriors incited a gang to commit murder). One final point from the plaintiff's memorandum in support of its summary judgment motion bears revisiting here. See Pl. Mem. at 27 n. 17. An important principle that emerges from cases following Brandenburg is that expert testimony which merely posits a tendency for certain speech to predispose individuals to unlawful behavior is, as a matter of law, insufficient to establish the state's purported interest in suppressing the speech. As discussed in the plaintiff's initial memorandum, id. at 27-28, the Seventh Circuit, in American Amusement, addressed a defendant's reliance on psychological studies purporting to show a link between violent video games and violent behavior. See 244 F.3d at 578. The court rejected the speculative nature of the relationship posited by the studies, stating, "[t]he studies do not find that video games have ever caused anyone to commit a violent act . . . ." Id. (emphasis added). Likewise, in Eclipse Enterprises, Inc. v. Gulotta, 134 F.3d 63 (2nd Cir. 1997), the proponents of a law banning the sale of trading cards that contained violent images offered expert testimony which attempted to show a link between the cards and violent behavior. See id. at 65-66. The court, however, rejected the testimony because it could not demonstrate with any degree of certainty a causal link between the trading cards and actual violent behavior. See id. at 68. See also Torres v. Herber, 111 F. Supp. 2d 806, 820 n.5 (W.D. La. 2000) (rejecting as a matter of law expert's speculation that "anti-law" message of rap music caused violent behavior in juveniles); Davidson v. Time Warner, No. Civ. A. V-94-006, 1997 WL 405907, at *21 (S.D. Tex. Mar. 31, 1997) (rejecting as a matter of law the testimony of an expert who claimed that listening to rap music made an individual "more likely to commit violence."). The lesson from these cases, providing an evidentiary perspective on the Brandenburg rule, is that the defendants gain nothing by putting forward expert testimony that posits only a speculative relationship between the advertisements at issue and violation of the law at some remote time in the future.29 Fundamentally, the defendants' cannot silence Change the Climate's protected speech by reciting the state's interest in protecting children or enforcing the criminal laws. See Sund v. City of Wichita Falls, 121 F. Supp. 2d 530, 552 (N.D. Tex. 2000) ("There is simply no interest, let alone a compelling one, in restricting [juveniles'] access to non-obscene, fully-protected [speech] solely on the basis of the majority's disagreement with [its] perceived message.") (emphasis in original). Brandenburg, which protects from government censorship all political speech that does not directly incite imminent lawless action, compels this Court to disregard the defendants' attempts to seek a lower standard of scrutiny for the government's conduct.30 VI. THE MBTA ADMITS IT ENGAGED IN VIEWPOINT DISCRIMINATION. As the Supreme Court stated in Rosenberger v. Rectors & Visitors of Univ. of Va., 515 U.S. 819 (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. These principles provide the framework forbidding the State from exercising viewpoint discrimination, even when the limited public forum is one of its own creation. Id. at 829 (1995) (citations omitted). The defendants admit - as they must - that they cannot discriminate against the plaintiff on the basis of viewpoint, regardless of the type of forum created. Indeed, the defendants devote a long portion of their brief to a vain attempt to dispel the viewpoint-hostile implication of its decision to reject the Change the Climate advertisements while continuing to run advertisements for the Office of National Drug Control Policy. See Def. Mem. at 19-24. The plaintiff's position on the issue of viewpoint discrimination is briefed in plaintiff's memorandum in support of its summary judgment motion, see Pl. Mem.15-21, 30-32, and need not be reproduced here. The plaintiff can also quickly dispense with the defendants' lengthy and tortured analysis because, in a clumsy attempt to dodge the import of the First Circuit's holding in AIDS Action, the defendants admit to the very definition of viewpoint discrimination. The defendants, at the conclusion of their contorted rendition of the AIDS Action holding, state: Thus, AIDS Action does not hold that the government may not differentiate among different speech on the same topic, such as illegal drugs. Rather, it holds that the government may not discriminate among speech that is equivalent for the purposes for which the government seeks to exclude the speech. Otherwise, once the MBTA accepted an ad on a particular subject, it would forever be obligated to accept all other ads on the same subject regardless of the individual characteristics of those ads. Such a reading of AIDS Action defies common sense. The simple distinction Change the Climate misses is that its Ads promote breaking the law, while those of the Office of National Drug Control Policy did not. (Def. Mem. at 26-27.) (emphasis in original.) As the First Circuit well recognizes, such picking and choosing among views expressed on the same topic - a practice to which the MBTA now freely admits - is viewpoint discrimination itself.31 See Berner v. Delahanty, 129 F.3d 20, 23 (1st Cir. 1997) ("The essence of viewpoint-based discrimination is the state's decision to pick and choose among similarly situated speakers in order to advance or suppress a particular ideology or outlook.") (citations omitted). The defendants' overt admission of viewpoint hostility may be best illustrated by a reading of Gay Lesbian Bisexual Alliance v. Pryor, 110 F.3d 1543 (11th Cir. 1997). In Pryor, the Eleventh Circuit addressed a First Amendment challenge by a gay and lesbian group to an Alabama Law that prohibited public universities from providing funds to any organization or group that "fosters or promotes a lifestyle or actions prohibited by the sodomy or sexual misconduct laws." Id. at 1545. In striking down the law, the court stated: [The university's] limited public forum does not prohibit discussion of the sodomy or sexual misconduct laws in general. Rather, . . . [the university] prohibited funding to GLBA based on the . . . unsupported assumption that GLBA promotes a violation of the sodomy and misconduct laws. The statute discriminates against one particular viewpoint because state funding of groups which foster or promote compliance with the sodomy or sexual misconduct laws remains permissible. This is blatant viewpoint discrimination. Pryor, 110 F.3d at 1549 (emphasis in original). A comparison between the statement of the court in Pryor and the justification set forth by the defendants is striking. The MBTA attempts to justify its rejection of the Change the Climate advertisements by asserting that the "Ads promote breaking the law, while those of the Office of National Drug Control Policy did not." Def. Mem. at 27. The very conduct the Pryor Court admonishes as unlawful is the government's effort to silence a group it perceives to "promote[] a violation of the ... laws" while favoring "groups which foster or promote compliance with the . . . laws . . . ." Pryor, 110 F.3d at 1549. This Court must reach the same conclusion drawn by the court in Pryor: this is blatant viewpoint discrimination. VII. THE MBTA'S ADVERTISING SPACE IS INDISPUTABLY A DESIGNATED PUBLIC FORUM. The defendants deny that the MBTA's advertising space is a designated public forum even though by their own key admissions, the advertising space is, in practice, open to all comers who are willing to pay the fee, and even though their written policies have never proscribed, and do not now proscribe, categories of speech in any meaningful way so as to limit the forum.32 Moreover, whatever the defendants argue, they do not dispute that the MBTA has allowed the broadest range of political and public interest advertisements to be displayed.33 In light of all this undisputed record evidence, the Court must conclude that the nature of the forum is compatible with the political expression at issue in this case, and that under all three prongs of intent under Cornelius v. NAACP Legal Defense & Educational Fund, Inc., 473 U.S. 788 (1985), the MBTA has designated its advertising space a public forum. Id. at 802-03. The defendants' assert that for the plaintiff to claim that the MBTA has designated a public forum for its advertising space "defies common sense" and "rests on a strained interpretation of the case law" on public fora doctrine. Def. Mem. at 27. Yet it is the defendants who virtually ignore the entire body of recent transit advertising cases in their brief, not the plaintiff. 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); Children of the Rosary v. City of Phoenix, 154 F.3d 972, 978 (9th Cir. 1998) (citing leading cases with approval); Planned Parenthood Ass'n v. Chicago Transit Auth., 767 F.2d 1225, 1232 (7th Cir. 1985); Lebron v. Washington Metro. Transit Auth.,749 F.2d 893, 896 (D.C. Cir. 1984). Accord Air Line Pilots Ass'n Int'l v. Dept. of Aviation, 45 F. 3d 1144, 1153 (7th Cir. 1995); Hawkins v. City and County of Denver, 170 F.3d 1281, 1287 (10th Cir. 1999) (citing Christ's Bride as instructive);; 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). See Pl. Mem. at pp. 8-14 (discussing both designated public forum and nonpublic forum cases). As these cases make clear, the defendants' denials that the primary purpose of the MBTA's advertising space has been, and continues to be, to communicate information to the public should be disregarded by the Court as contrary to the overwhelming record evidence in this case. See United Food, 163 F.3d at 351 ("A contrary rule that focused solely on whether a speaker must obtain permission to access government property would allow every designated public forum to be converted into a non-public forum the moment the government did what is supposed to be impermissible in a designated public forum, which is to exclude speech based on content.") (internal citations and quotations omitted); New York Magazine,136 F.3d at 130 (noting that the very standard by which the transit authority attempted to justify its restriction on speech, i.e., a general interest in upholding the law, actually supported the conclusion that it was operating in its capacity as a regulator as opposed to proprietor, "unlike the exclusions that contributed to orderly internal business procedures in Perry or Cornelius."); Christ's Bride, 148 F.3d at 251 (holding transit advertising space was designated a public forum where standards for inclusion and exclusion were promulgated "without reference to the purpose of the forum"); 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); cf. East Timor, 71 Supp. 2d at 347 ("[t]he fact that the purpose for creating the forum appears to have been precisely to permit expressive activities (in contrast to, for example, activities which raise funds for the state, facilitate communications within a work environment, help keep highways clean at limited taxpayer expense, and so forth), and the relatively broad access afforded members of the public (anyone, so long as the proposed sign does not fall within one of the excluded categories), support a finding that the DOT's policy has created a limited public forum."); National Abortion Federation, 112 F.Supp.2d at 1236) ("The nature of advertising space is to communicate information to the public. As can be seen by the wide variety of creative advertising today, such space is very compatible with expressive activity."). Because the record evidence shows that the primary purpose of the MBTA's advertising space has been to communicate information to the public, and that it has promulgated its policies without reference to that purpose, any newly discovered reasons for their restriction of Change the Climate's access to the forum should be rejected out of hand as a matter of law. In reality, the MBTA's longstanding practice of allowing political speech "evidences a general intent to open a space for discourse, and a deliberate acceptance of the possibility of clashes of opinion and controversy that the Court in Lehman34 recognized as inconsistent with sound commercial practice." New York Magazine,136 F.3d at 130 at 130."); see also Lebron, 49 F.2d at 896 ("There is no . . . question that WMATA has converted its subway stations into public fora by accepting . . . political advertising."). Lastly, the defendants claim their restriction on speech is also reasonable because Change the Climate has access to "substantial alternative channels that remain open." See Def. Memo. at 33 (quoting Families Achieving Independence & Respect v. Neb. Dep't of Soc. Servs., 111 F.3d 1408, 1422 (8th Cir. 1997). The defendants note that Change the Climate remains free to continue operating its website, that it may continue to advertise in local newspapers such as the Weekly Dig, and that it may advertise on television, radio, and billboards. This only demonstrates that Change the Climate is entitled to judgment because, by the defendants' own admission, the MBTA's restriction of Change the Climate's speech does nothing to advance its purported interest in protecting children. Unless the defendants can demonstrate that juveniles - the class it seeks to protect - never use the Internet, never read local newspapers, never watch television, never listen to the radio, and never go outside in areas where billboards are visible, then it cannot show that the rejection of the advertisements will insulate juveniles from their supposedly dangerous message. Deprived of any possible claim that rejection of the advertisements advances a legitimate purpose, the defendants' position is reduced to little more than a crass "not in my back yard" mentality. More fundamentally, "[t]he First Amendment protects [plaintiff's] right not only to advocate its cause but also to select what [it] believe[s] to be the most effective means for so doing." Meyer v. Grant, 486 U.S. 414, 424 (1988). It is therefore immaterial that Change the Climate has the theoretical ability to spread its political message through other avenues of communication that may be more burdensome, more expensive, or less effective. See id. ("That [the government restriction] leaves open 'more burdensome' avenues of communication, does not relieve its burden on First Amendment expression.") (citing FEC v. Massachusetts Citizens For Life, Inc., 479 U.S. 238 (1986)). In the end, the defendants' arguments concerning the reasonableness of their restriction are self-defeating. They do nothing more than confirm the unconstitutionality of the defendants' conduct. By the defendants' own admission, juveniles have ready access to the plaintiff's advertisements, and the MBTA's rejection of the advertisements does nothing to insulate juveniles from whatever remote, speculative harm viewing them may cause. CONCLUSION For all of the above reasons, this Court should deny the defendants' motion for summary judgment in its entirety. Furthermore, this Court should enter summary judgment for the plaintiff and order the equitable relief requested in the amended complaint.
CHANGE THE CLIMATE, plaintiff __________________________________ Sarah Wunsch BBO # 548767
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