390 F.3d 65 (1st Cir. 2004), 03-1970, Ridley v. Massachusetts Bay Transp. Authority

Docket Nº:03-1970, 03-2285.
Citation:390 F.3d 65
Party Name:Lischen RIDLEY, individually and on behalf of members of the congregation of the Church with the Good News; and Change The Climate, Inc., Plaintiffs, Appellants, v. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY; and Michael H. Mulhern, in his official capacity, Defendants, Appellees.
Case Date:November 29, 2004
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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390 F.3d 65 (1st Cir. 2004)

Lischen RIDLEY, individually and on behalf of members of the congregation of the Church with the Good News; and Change The Climate, Inc., Plaintiffs, Appellants,


MASSACHUSETTS BAY TRANSPORTATION AUTHORITY; and Michael H. Mulhern, in his official capacity, Defendants, Appellees.

Nos. 03-1970, 03-2285.

United States Court of Appeals, First Circuit

November 29, 2004

Heard May 6, 2004

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Harvey A. Schwarz, with whom Laurie A. Frankl, Rodgers, Powers & Schwartz, Sarah Wunsch, and ACLU Fdn. of Massachusetts were on brief, for appellants.

Rudolph F. Pierce, with whom James A. Aliosi, Jr., Peter N. Kochansky, and Goulston & Storrs were on brief, for appellees.

Before TORRUELLA, LYNCH, and LIPEZ, Circuit Judges.

LYNCH, Circuit Judge.

These two appeals, consolidated at the request of all parties, raise First Amendment challenges to the rejection of proposed advertising submitted to a Boston-area public transit system, the Massachusetts Bay Transportation Authority ("MBTA").

In Change the Climate, Inc. v. MBTA, No. 03-2285, the MBTA rejected three advertisements designed to raise questions about marijuana laws on the stated ground that the ads would promote illegal use of marijuana among children. The other case, Ridley v. MBTA, No. 03-1970, involves the rejection of one advertisement from a religious group on the grounds that the ad violated the MBTA's guidelines prohibiting advertisements which demean or disparage an individual or group of individuals. Several First Amendment doctrines are at issue.

Change the Climate brought suit in federal court on May 18, 2000. The lead

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argument is that the MBTA advertising space is a designated public forum and so the rejection of the advertisements is unconstitutional. Change the Climate strongly urges the court to decide the forum issue, arguing:

Determining the nature of the "forum" at issue is a mandatory first step in deciding a First Amendment case such as the present one because "[t]he extent to which the government can control access depends on the nature of the relevant forum." Cornelius v. NAACP Legal Defense and Educ. Fund, 473 U.S. 788, 800 [105 S.Ct. 3439, 87 L.Ed.2d 567] (1985). Both the protection provided for the plaintiff's First Amendment expression and the government's ability to restrict the plaintiff's speech vary according to the forum in which the speech is proposed. Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 44-46 [103 S.Ct. 948, 74 L.Ed.2d 794] (1983). A reviewing court's first action, therefore, must be to conduct a "deliberate analysis, e.g., Chicago Acorn v. Metro. Pier & Expo. Auth., 150 F.3d 695, 702 (7th Cir. 1998)" and determine "the nature of the forum first." New Eng. Reg'l Council of Carpenters v. Kinton, 284 F.3d 9, 20 n. 4 (1st Cir. 2002). In Kinton, this Court specifically rejected as "awkward" skipping this crucial forum analysis as a first step "because it requires a reviewing tribunal to know the results of a test before knowing which test applies." Id.

Because the MBTA has created a designated public forum, it argues, "a content-based prohibition must be narrowly drawn to effectuate a compelling state interest," and the MBTA has violated these standards. In addition, Change the Climate argues, no matter what the nature of the forum, the MBTA's rejection of its ads constitutes viewpoint discrimination. It also argues that the guidelines under which the ads were rejected must be narrow and objective and cannot leave excessive discretion in state officials, and the MBTA guidelines do not comply. Finally, Change the Climate argues the district court erred in not awarding it attorney's fees.

Lischen Ridley filed suit in state court on January 8, 2002, on behalf of herself and other members of the Church with the Good News ("Good News"). The MBTA removed the Ridley action to federal court. The suit alleged that the MBTA lacked compelling reasons to reject the advertisement, that the rejection of the advertisement was the product of viewpoint discrimination, and that the MBTA's guideline involved was not narrowly tailored and was too vague to withstand constitutional scrutiny.

Although Ridley did not discuss the forum issue in her brief, the brief did note that the outcome of the forum issue in Change the Climate would govern the Ridley case. Ridley's reply brief also argued the public forum line of cases and expressly challenged the MBTA's assertion that the restrictions were reasonable, a standard of review which applies if the forum was not a public forum. And at oral argument, in response to multiple questions from the court as to the relationship of Ridley's claims to the forum analysis issue, counsel for Ridley argued that the forum analysis was relevant to Ridley's claims and could be dispositive of those claims. For example, Ridley argued that if the MBTA had created a public forum as argued in Change the Climate, she would be entitled to judgment on that ground. Further, counsel for both Ridley and Change the Climate moved to consolidate the appeals on the grounds that common issues of fact and law were present and the same lawyers represent both plaintiffs.

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The district court denied all forms of relief to Ridley on June 5, 2003. The court assumed that the MBTA advertising program constituted a non-public forum and held that the rejections of Ridley's advertisements were not based on viewpoint discrimination, but rather on a valid "content restriction prohibiting demeaning or disparaging content." The trial court held that the factual record based on the stipulation was insufficiently clear for it to grant the relief Ridley requested on whether the guidelines were viewpoint discriminatory on their face or whether they were too vague and gave MBTA administrators too much discretion. Nonetheless, the court revisited the Ridley guideline question when it issued its Change the Climate opinion.

On August 1, 2003, the district court also found for the MBTA in Change the Climate, again avoiding the forum issue. However, consistent with the law on non-public fora, the court reviewed the MBTA's guidelines and its decision to reject these ads under a reasonableness test. The court found that each of the three advertisements provided misleading messages about the legality of marijuana, and that two of the ads targeted minors. As such, the court held, the MBTA's rejection of the ads was reasonable and not viewpoint discriminatory. The district court also found that the MBTA guideline prohibiting materials which promote illegal activity was not viewpoint discriminatory on its face. Nonetheless, in its Change the Climate opinion, the court also said that the Ridley guideline prohibiting demeaning or disparaging material was "somewhat vague" on its face and "still leaves too much room for arbitrary decisions." As a result, in its judgment, the district court ordered:

The court retains jurisdiction to consider any well supported motion for modification of the MBTA's amended guidelines and for modification of this Final Judgment grounded on some change of law or change of relevant factual circumstances occurring after the date of this judgment. The motion must be accompanied by a precise showing of the change of law or change of relevant factual circumstances.

The court also rejected Change the Climate's motion for attorney's fees.

In this opinion covering both cases, we address the parties' arguments about what type of "forum" the MBTA advertising program constitutes. We hold first that the MBTA did not create a public forum. Second, we address whether the MBTA's pertinent guidelines and its decisions to reject both parties' advertising are unlawful as a form of viewpoint discrimination or as an unreasonable use of the forum. We hold that the guidelines on their face are viewpoint neutral and reasonable, and that the decision to reject the Ridley ad was neither viewpoint discriminatory nor unreasonable. However, we hold that the rejection of the three Change the Climate ads constituted viewpoint discrimination and was unreasonable. Finally, we consider the challenge that the guidelines at issue in both cases are vague and delegate too much discretion to the MBTA's employees. We hold that the pertinent guidelines are not facially unconstitutional.



There are no disputed facts in this case, only disputes as to what conclusions are to be drawn from those facts. Although only the present 2003 MBTA advertising policy is at issue, we recount the history of dealing between the parties, which is pertinent both to the public forum claim and to other claims. Some facts are reserved for discussion as to the particular party.

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A. Facts as to the MBTA

The MBTA is a quasi-governmental organization whose purpose is to provide public transportation in the Commonwealth of Massachusetts. Mass. Gen. Laws ch. 161A, § 5. The MBTA provides transportation to 1.2 million customers daily and to 2.5 million people in the Greater Boston area. For many riders, the MBTA is the only transportation option available. The MBTA operates approximately 170 bus routes, four subway lines, a 13-branch commuter rail network, and six ferry service routes. The MBTA has partnered with the Boston School Department to provide transportation to up to 60,000 Boston public school students annually. The MBTA distributed approximately 15,000 to 20,000 passes to Boston students, the vast majority of whom were in high school.

The principal purpose of the MBTA advertising program is to generate and maximize revenue. The MBTA has statutory directives both to "maximize...

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