PLAINTIFF CHANGE THE CLIMATE, INC.'S SUBMISSION IN RESPONSE TO THE COURT'S ORDER OF JULY 30, 2001

Pursuant to the July 30, 2001 Opinion and Order of the Court, the plaintiff submits the following statement of A) the legal and factual elements of its claims; B) its contentions on the genuinely disputable factual and evaluative issues; and C) the historical and evaluative fact questions which are supported by admissible evidence.

A. Statement of legal and factual elements of plaintiff's claims.

The plaintiff has three legal claims: 1) The defendants, acting under color of state law, violated plaintiff's rights under the First and 14th Amendments and 42 U.S.C. section 1983 by refusing to sell advertising space to Change the Climate for the display of three advertisements because of the content and viewpoints expressed in the ads and/or because of the goals and mission of Change the Climate. The advertising space is a public forum for expression in which the defendants impermissibly rejected the ads based on their content. Even if the space is not a public forum, the defendants impermissibly rejected the ads based on their viewpoint or based on the mission of Change the Climate. 2) The defendants, acting under color of state law, violated plaintiff's rights under the First and Fourteenth Amendments and 42 U.S.C. §1983 by rejecting plaintiff's ads by using a policy (policies) on the use of MBTA advertising space which is (are) vague, subjective, and lacking in narrowly drawn and specific standards. 3) The defendants, acting under color of state law, violated plaintiff's rights to equal protection of law by refusing to display plaintiff's ads relating to drug policy and the use of illegal drugs while displaying ads from other organizations relating to these subjects.

The factual elements of these claims are as follows:

1. Claim of Content and Viewpoint Discrimination in Violation of the First Amendment and 42 USC § 1983
   
   Defendant MBTA is a political subdivision of the Commonwealth of Massachusetts. At all times relevant to this case, Robert Prince was the general manager of the MBTA and Lucy Shorter was the director of marketing communications of the MBTA. The MBTA sells advertising space for the display of ads on MBTA facilities and vehicles. Park Transit Displays (PTD) was the agent for the MBTA for the purpose of selling such advertising space. Elissa Albertelli was an employee of PTD and her duties involved processing requests by those wishing to display their ads on MBTA advertising space. The MBTA historically and continuing to the present has sold its advertising space for the display of ads on a wide variety of subjects, including the use of illegal drugs by minors.
   In the Spring of 1999, plaintiff Change the Climate (by Joe White, its executive director) submitted three ads to Elissa Albertelli of PTD for display on MBTA advertising space. The text of these ads is set forth in the Complaint and is incorporated herein. The ads concern public policy on marijuana. Shorter received copies of these ads from either Albertelli or White. On January 24, 2000, Albertelli informed White as follows: "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." The information provided included a written statement from Lucy Shorter which stated: "See attached. The Change the Climate promotes the use of marijuana in a suttle [sic] way and also is really a reform marijuana [sic] in a effort to legalize? The T's appearance & character, Policy & Drug - Alcohol policy is in conflict with their mission." Shorter attached the MBTA policies referenced in the memo. These statements constituted a rejection of plaintiff's ads based on their viewpoint and based on the perception by the MBTA of Change the Climate's goals.
   
   The MBTA has accepted ads for display on its subway cars for many years on a wide variety of topics, including issues of ongoing public debate and disagreement. These include ads about AIDS, abortion, gay rights, animal rights, use of illegal drugs by minors, and alcohol. As a result, the advertising space created by the MBTA is a public forum for expression. The MBTA rejected plaintiff's ads because of their content and refused to display them in this public forum.
   
   
2. Facts relating to claim of violation of First Amendment by defendants' use of a vague, standardless policy or policies for display of ads in its advertising space.
   
   The defendants themselves do not agree on or know which policies were applicable to the decision to refuse to allow plaintiff to purchase advertising space to display the ads it submitted. They refer variously to the MBTA's 1992 bid specifications, 1993 Commercial and Public Service Advertising Policy, the 1995 Mabardy letter, and the 1999 bid specifications. All of these purported policies are vague and lack clear standards to guide decisionmakers about what ads are permissible on MBTA advertising space. The MBTA currently lacks a clear policy with content-neutral standards to guide decisionmakers about what advertising is permitted on MBTA space.
   
   
3. Facts relating to claim of denial of right to equal protection.
   
   The defendants have permitted the display of ads on its advertising space which concern the use of illegal drugs (including marijuana) by minors. These ads stress the dangers of the use of drugs by children and encourage parents to talk to their children about drugs. The defendants accepted these ads because they view the message of these ads as acceptable. The defendants rejected plaintiff's ads which relate to the use of drugs by minors because they viewed the message of Change the Climate's ads and goals and mission of the organization as unacceptable.

B. Plaintiff's statement of its contentions on the genuinely disputable factual and evaluative issues that must be resolved to decide the outcome of this case.¹

1. The defendants refused to sell advertising space to the plaintiff for the display of three advertisements that were submitted to the MBTA and to Park Transit Displays.
   
   

2. The defendants rejected the three ads submitted by plaintiff because of the viewpoint and content of these ads.

3. The defendants rejected the three ads because they disagreed with the plaintiff's mission and goals and because they believed MBTA policy conflicted with these goals.

4. The defendants have allowed the display of ads on MBTA advertising space which concern drugs and minors but which have a different viewpoint from the three ads submitted by the plaintiff.

5. The MBTA historically has allowed the display of commercial and noncommercial ads on a wide variety of topics, thereby creating a public forum for expression.

6. The defendants have allowed the display of ads on their advertising space regardless of whether the MBTA agreed with the views expressed in the ads.

7. The defendants have allowed the display of ads on their advertising space regardless of whether some portion of the public viewing the ads might misunderstand the intended message of the ads.

8. The content of the three ads submitted to the defendants for display on MBTA advertising space was lawful political speech protected by the First Amendment.

9. The defendants lacked and still lack a clear objective policy with adequately defined content-neutral standards to guide the defendants in determining what ads may be displayed on MBTA advertising space.

C. Plaintiff's formulation of historical fact and evaluative questions that plaintiff contends are supported by admissible evidence, as required by this Court's order of July 30, 2001:

1. In the spring of 1999, did Joe White, the executive director of plaintiff Change the Climate ("CTC") submit three advertisements to Park Transit Displays ("PTD"), each containing the plaintiff's web address, www.changetheclimate.org, with additional copy as follows:
   
   a photograph depicting two police officers with the text:
   "Police are too important . . . too valuable . . . too good . . . To waste on arresting people for marijuana when real criminals are on the loose."
   
   a picture of a woman with the text:
   "I've got three great kids. I love them more than anything. I don't want them to smoke pot. But I know jail is a lot more dangerous than smoking pot."
   
   a picture of a teenager with the text:
   "Smoking pot is not cool, but we're not stupid, ya know. Marijuana is NOT cocaine or heroin."
   
   
2. Did CTC submit these ads for the purpose of purchasing advertising space on MBTA trains to display these ads?
   
   
3. Was PTD the MBTA's advertising agent at that time, through whom potential advertisers had to process their proposed advertising campaigns?
   
   
4. Was Elissa Albertelli the employee at PTD who worked with the MBTA's marketing department in processing proposed advertisements at the time?
   
   
5. Did Lucy Shorter, director of marketing communications for the MBTA, receive the three proposed advertisements for review from either Albertelli or from Joe White?
   
   
6. Was Shorter acting on behalf of the MBTA when she sent comments to Albertelli in response to the plaintiff's proposed advertisements?
   
   
7. Was Shorter acting within the scope of her authority when she responded to Albertelli by stating the following in her fax of January 20, 2000:
   
   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.
   
   Did Shorter attach the MBTA's policy on the appearance and character of advertisements, on its drug and alcohol-free workplace requirement, and on its policy concerning tobacco products when she responded to Albertelli with her January 20, 2000 fax?
   
   
8. Did Shorter have the authority to respond to proposed advertising copy without first reviewing it with Robert Prince or the MBTA legal department?
   
   
9. In January 2000, did Albertelli of PTD inform Joe White by fax of the response from the MBTA regarding CTC's advertising campaign, stating the following:
   
   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.
   
   
10. Was one reason for not accepting the campaign that Shorter believed CTC promotes the use of marijuana in a subtle way?
    
    
11. Was one reason for not accepting the campaign that Shorter believed CTC is a marijuana legal reform organization?
    
    
12. Was one reason for not accepting the campaign that Shorter believed the MBTA's advertising policies are in conflict with CTC's mission?
    
    
13. Was the MBTA's response to the plaintiff's campaign in January 2000 effectively a rejection of the content of the proposed advertisements?
    
    
14. Does the MBTA sell advertising space on MBTA subway cars, platforms, and buses for the display of commercial and noncommercial messages?
    
    
15. Have the noncommercial advertisements on display included socio-political messages on a wide range of topics?
    
    
16. Has the MBTA displayed messages concerning:
    
    a. abortion services?
    b. religion?
    c. the protection of animals against inhumane treatment?
    d. domestic violence victim services?
    e. child support collection?
    f. AIDS awareness and prevention?
    g. drug awareness and prevention?
    
    
17. Has the MBTA posted advertisements concerning the topic of drugs or drug policy?
    
    
18. Has the MBTA posted advertisements sponsored by the Office of National Drug Control Policy and Partnership for Drug Free America concerning the topic of drugs, including marijuana?
    
    
19. Have the defendants stated that the MBTA will not accept any of the three advertisements for display on MBTA vehicles and facilities as written?
    
    
20. Did the MBTA lack a clear advertising policy with objective standards as of the spring of 1999?
    
    a. Even if it did not, has the policy been inconsistently enforced?
    
    
21. Does the MBTA currently lack a clear advertising policy with objective standards?
    
    a. Even if it does not, is the policy currently inconsistently enforced?
    
    
22. Does the MBTA post advertisements for alcohol products?
    
    
23. Does the MBTA post advertisements depicting the smoking of cigarettes?
    
    
24. Has the MBTA posted advertisements containing messages which it does not
    necessarily endorse or agree with?
    
    a. Has the MBTA posted advertisements concerning religion?
    b. Has the MBTA posted advertisements concerning the use of condoms?
    c. Has the MBTA posted advertisements concerning abortion counseling and services?
    d. Has the MBTA posted advertisements concerning counseling for drug abuse?
    e. Has the MBTA posted advertisements concerning counseling and services for victims of gay domestic violence?
    
    
25. Does the MBTA's posting of an advertisement constitute an endorsement or approval by the MBTA of the ad's message?
    
    
26. Does the MBTA have a policy of only posting advertisements containing a message with which it agrees?
    
    
27. Has the MBTA posted advertisements the content or meaning of which might be misunderstood or misperceived by some members of its ridership?
    
    a. Has the MBTA post advertisements containing double entendre of a sexual nature?
    b. Has the MBTA posted advertisements depicting an attractive woman smoking what appears to be a cigarette?
    c. Has the MBTA posted advertisements encouraging the consumption of alcoholic beverages?
    
    
28. Was Shorter acting under color of state law when she responded to CTC's proposed advertisements in January 2000?
    
    
29. Was Albertelli acting as an agent of the MBTA in forwarding Shorter's response to Joe White?
    
    
30. Has the MBTA designated its advertising space a public forum by its practice of accepting for display both commercial and noncommercial messages on a broad range of topics?
    
    a. If so, did the defendants violate the plaintiff's right to freedom of expression by applying content-based restrictions on the plaintiff's speech that were not narrowly tailored to meet a compelling state interest?
    
    
31. If the MBTA has not allowed its advertising space to be a public forum for expression, did the defendants still violate the plaintiff's right to freedom of expression by applying unreasonable content-based restrictions on the plaintiff's speech?
    
    
32. Regardless of the nature of the forum, have the defendants engaged in viewpoint discrimination in violation of the plaintiff's right to freedom of expression and equal protection by posting for display advertisements on the topic of drugs, including marijuana, but refusing to post the plaintiff's proposed advertisements?
    
    
33. Regardless of the nature of the forum, did the defendants engage in viewpoint discrimination in violation of the plaintiff's right to freedom of expression and equal protection by rejecting plaintiff's ads because of defendants' perception of plaintiff's mission and goals.
    
    
34. Regardless of the nature of the forum, were the MBTA's advertising policies the defendants assert were in effect at the time of Shorter's response to the plaintiff's proposed advertisements vague and lacking in definite standards and objective criteria?
    
    
    a. 1992 bid specifications?
    b. 1993 Commercial and Public Service Advertising Policy?
    c. 1995 Mabardy letter?
    d. 1999 bid specifications?
    
    
35. Regardless of the nature of the forum, were the MBTA's advertising policies which the defendants assert were in effect at the time of Shorter's response to the plaintiff's proposed advertisements overbroad, thereby restricting protected speech?
    
    a. 1992 bid specifications?
    b. 1993 Commercial and Public Service Advertising Policy?
    c. 1995 Mabardy letter?
    d. 1999 bid specifications?
    
    
36. Do the three ads submitted by plaintiff to the defendants contain lawful political speech which is protected by the First Amendment?
    
    
37. If the defendants are found to have violated the plaintiff's rights to freedom of expression and/or equal protection of the law by refusing to post the plaintiff's proposed advertisements for display based on impermissible content-based restrictions, viewpoint discrimination, and/or the use vague or overbroad standards, is the appropriate remedy to order the MBTA to post the advertisements which contain lawful political speech and invalidate the unconstitutional policy or policies?
    
    
    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
    
    
    
    Dated: October 5, 2001
    
    

1. The plaintiff contends that many material facts are not genuinely in dispute.