The Court posed three questions to the parties at the July 25, 2001 hearing. The plaintiff believes these questions1 reflect a misunderstanding of the factual record and the legal issues in this case, and respectfully responds to the questions as follows:

2(a)(1) Has plaintiff at any time submitted to MBTA or to the court a proposal for the content of a message to be displayed in the space reserved for advertising on MBTA vehicles used for public transportation that is specific enough to enable the court (or a jury if the court determines that jury trial is appropriate) to decide the subquestions identified in some or all of the subparts to this question?

YES. The Court has the three proposed advertisements at issue in this case. They have been submitted and resubmitted to the Court by both parties throughout this litigation: (1) attached as exhibit A to the plaintiff's complaint; (2) attached as exhibit B to the plaintiff's statement of uncontested facts; and (3) attached as exhibits B, C, and D to the witness affidavit of Marvin E. Goldberg, Ph.D., filed in support of the defendants' motion for summary judgment. The content of each of these advertisements speaks for itself and is specific enough to enable the Court to decide the subquestions identified in the subparts to this question. In addition, there is no genuine dispute as to the fact that these advertisements were submitted to MBTA official Lucy Shorter who disapproved of their content.
2(a)(2) Is the proposed content such that it could not be reasonably interpreted by one or more identifiable groups of readers using an MBTA vehicle for public transportation as a statement of position on political issues not only by plaintiff, Change the Climate, Inc., but also as a statement by MBTA of its position regarding the extent in fact of use of marijuana by children and acquiescence in, or support for, allowing that use to continue without enforcement by public officials of laws prohibiting that use?

YES. The proposed content could not be reasonably interpreted as a statement by the MBTA of its position regarding the use of marijuana by children and acquiescence or support for allowing that use to continue without enforcement by public officials of the laws prohibiting that use. Such an interpretation would only follow from the unreasonable assumption that the MBTA espouses the views set forth in all of the advertisements it posts for display. The MBTA's advertising space is open to advertisements on a broad array of topics, both commercial and noncommercial, including advertisements for political and public service messages, as well as religious messages. The MBTA accepts advertising from parties with opposing views on some issues. If acceptance of the advertisements on the MBTA could reasonably be construed as endorsements, that would mean that the MBTA endorses alcohol, condoms, MTV, R-rated movies, and Christianity. The MBTA has never taken the position that it has to agree with the message of an advertisement in order to post it for display. Were it to take such a position, it would plainly violate the First Amendment's Establishment Clause, and the ban on viewpoint discrimination at issue in this case - a legal principle this Court ignored entirely at hearing. The First Amendment strictly forbids the MBTA from rejecting an advertisement because it disagrees with the viewpoint expressed in the advertisement. Nothing is more basic to First Amendment jurisprudence than that principle.

The plaintiff concedes, however, that some portion of the MBTA's ridership, ignorant of the First Amendment, will unreasonably interpret the advertisements to mean that the MBTA condones or espouses the views expressed by the advertisements.

2(a)(3) Is it reasonable for the court to decline to grant plaintiff a remedy that in its nature is a mandatory injunction to the MBTA to publish a message that it considers to be a misrepresentation of its position on political issues of public concern?

NO. It is not reasonable for the court to decline to grant a remedy which orders the MBTA to publish a message that the MBTA considers to be a misrepresentation of its position on a political issue of public concern. The plaintiff's advertisements, as with all other advertising on the MBTA, espouses the advertiser's position, not that of the MBTA. The remedy proposed by the plaintiff for viewpoint discrimination - mandatory placement of the advertisements - is the only appropriate remedy. This has been recognized by numerous federal courts, including the First Circuit and district courts of Massachusetts. See AIDS Action Comm. v. MBTA, 42 F.3d 1, 3 (1st Cir. 1994) (affirmed injunction requiring transit authority to post plaintiff's controversial advertising); New York Magazine v. Metropolitan Transp. Auth., 136 F.3d 123, 125 (2d Cir.1998) (same); United Food & Commer. Workers Union, Local 1099 v. Southwest Ohio Reg. Trans. Auth., 163 F.3d 341, 346 (6th Cir. 1998) (same). See also Citizens to End Animal Suffering and Exploitation v. MBTA, C.A. No. 92-11118-MA (D. Mass. June 5, 1992) (granting preliminary and permanent injunction, ordering MBTA to post animal rights advertising placard); Preterm, Inc. v. MBTA, No. 74-159-M, 1974 U.S. Dist. LEXIS 8555, at *7 (D. Mass. May 13, 1974) (granting plaintiff preliminary injunction requiring transit authority to post advertisements); National Abortion Fed'n v. Metropolitan Atlanta Rapid Trans. Auth., 112 F. Supp. 2d 1320, 1329 (N.D. Ga. 2000) (granting plaintiff permanent injunction requiring transit authority to post advertisements). No court has ruled to the contrary.

This Court suggested that its remedial powers have suddenly and dramatically been limited by the Supreme Court's recent decisions in Lorillard Tobacco Co. v. Reilly, 121 S. Ct. 2404 (2001) and Good News Club v. Milford Cent. Sch., 121 S. Ct. 2093 (2001). After carefully reviewing those opinions, the plaintiff respectfully submits that, although these two decisions bear on First Amendment issues in this case, they support the plaintiff's First Amendment claims and do not suggest any impropriety of affirmative equitable relief at all. There is simply no discussion in any of the majority, concurring, or dissenting opinions that purports to limit a federal court's ability to order appropriate relief for a violation of the First Amendment. In Lorillard, the Court did not so much as pause to analyze the propriety of the remedy it ordered, which was to enjoin Massachusetts from enforcing its tobacco advertising ban. In Good News Club, the Court held that a school violated students' First Amendment rights by excluding a religious group from meeting space available to other groups. Notably, the Court did not state that the school could not be ordered to allow the group access to the meeting space because it might be perceived as endorsing the objectives of the group. Instead, the Court explicitly held that allowing the group to use space would not create an impression of endorsement that would offend the Establishment Clause:

Milford's implication that granting access to the Club would do damage to the neutrality principle defies logic. For the "guarantee of neutrality is respected, not offended, when the government, following neutral criteria and evenhanded policies, extends benefits to recipients whose ideologies and viewpoints, including religious ones, are broad and diverse." Rosenberger, supra, at 839. The Good News Club seeks nothing more than to be treated neutrally and given access to speak about the same topics as are other groups. Because allowing the Club to speak on school grounds would ensure neutrality, not threaten it, Milford faces an uphill battle in arguing that the Establishment Clause compels it to exclude the Good News Club.

Good News Club, 121 S. Ct. at 2104. Thus, to the extent that Good News Club has any relevance to the issue of a remedy, it would suggest that this Court is actually compelled to provide the remedy sought by the plaintiffs because it is unreasonable to infer endorsement of a particular advertisement when the space is open to a broad spectrum of commercial and noncommercial views.

Finally, the plaintiff asserts that questions 2(a)(2) and 2(a)(3) indicate the court's fundamental misunderstanding of the law concerning expression by private parties in designated public fora - in this case, advertising space that the MBTA has indisputably opened up to the public for political expression of views held by the public. See Grace Bible Fellowship, Inc. v. Maine Sch. Admin. Dist. No. 5, 941 F.2d 45, 47 (1st Cir. 1991); Lebron v. Washington Metro. Transit Auth.,749 F.2d 893, 896 (D.C. Cir. 1984); 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); Planned Parenthood Ass'n v. Chicago Transit Auth., 767 F.2d 1225, 1232 (7th Cir. 1985). Accord Air Line Pilots Ass'n Int'l v. Dept. of Aviation, 45 F. 3d 1144, 1153 (7th Cir. 1995);Children of the Rosary v. City of Phoenix, 154 F.3d 972, 978 (9th Cir. 1998) (citing leading cases with approval) Hawkins v. City and County of Denver, 170 F.3d 1281, 1287 (10th Cir. 1999) (citing Christ's Bride as instructive). 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).

There are simply no cases involving political speech in a public forum in which a court refused to order the display of private speech because the message was one with which the government did not agree. Indeed, the very point of the "viewpoint discrimination" cases is that the government may not prohibit speech in any forum, whether a traditional, designated or nonpublic forum, because it disagrees with the message expressed.

The only cases in which any consideration is given to whether private speech in a public forum may be misperceived as the government's endorsement of the message are cases involving religious speech, where the government has a compelling interest in preventing the appearance that it endorses religion, prohibited by the Establishment Clause. See, e.g., Capitol Square Review and Advisory Board v. Pinette, 515 U.S. 753 (1995) (affirming order that Klan be allowed to erect cross where other unattended private displays have been allowed, rejecting government's claim that public would misperceive religious display as having government's approval). This case obviously does not involve the Establishment Clause and there is no basis for the Court's questions 2(a)(2) or 2(a)(3).

The plaintiff urges the Court to reconsider the analysis suggested by the proposed questions.

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