AIDS Action Committee of Massachusetts, Inc. v. Massachusetts Bay Transp. Authority
| Decision Date | 07 October 1994 |
| Docket Number | No. 94-1116,94-1116 |
| Citation | 42 F.3d 1 |
| Parties | , 22 Media L. Rep. 2449 AIDS ACTION COMMITTEE OF MASSACHUSETTS, INC., Plaintiff, Appellee, v. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY, et al., Defendants, Appellants. First Circuit. Heard |
| Court | U.S. Court of Appeals — First Circuit |
James G. Reardon, with whom Margaret R. Suuberg, Julie E. Reardon, Francis J. Duggan, and Reardon & Reardon, were on brief, for appellants.
H. Reed Witherby, with whom Smith, Duggan & Johnson, Sarah R. Wunsch and Massachusetts Civil Liberties Union Foundation, were on brief, for appellee.
Before BOUDIN, Circuit Judge, BOWNES, Senior Circuit Judge, and STAHL, Circuit Judge.
In this appeal, we must decide whether defendant-appellant Massachusetts Bay Transportation Authority (MBTA) acted constitutionally in declining to run in its subway and trolley cars seven public service advertisements composed by plaintiff-appellee AIDS Action Committee of Massachusetts, Inc. (AAC). The ads promote the use of condoms to help stop the spread of the virus which causes AIDS, the Human Immunodeficiency Virus ("HIV"). The district court ruled that the MBTA's actions contravened the First Amendment, and issued an injunction which, inter alia, ordered the MBTA to run the AAC ads. See AIDS Action Committee of Mass., Inc. v. Massachusetts Bay Transp. Auth., 849 F.Supp. 79 (D.Mass.1993). For reasons different than those relied upon by the district court, we agree that the MBTA's actions violated the First Amendment. We therefore affirm.
AAC is a Massachusetts not-for-profit corporation which includes among its main purposes AIDS education of the general public, individuals at high risk of HIV infection, and health care professionals. The MBTA is a political subdivision of the Commonwealth of Massachusetts. It is explicitly authorized to "sell, lease or otherwise contract for advertising in or on the facilities of the authority." See Mass.Gen.L. ch. 161A, Secs. 2 and 3 (1993). Through its advertising agent, Park Transit Displays, Inc. ("PTD"), which was a defendant below but is not a party to this appeal, the MBTA regularly authorizes the posting of commercial and public service advertisements in the spaces above its car windows and doors. The MBTA, in conjunction with PTD, has accepted and continues to accept public service advertisements on a wide variety of topics.
In July 1992, AAC submitted seven proposed public service advertisements ("the 1992 AAC ads") to the MBTA and requested that they be run in September 1992. Each of the proposed ads had a large color picture of a condom wrapped in a package, and a message stating that latex condoms are an effective means of preventing the transmission of HIV. The ads also included headlines and copy which, to varying degrees, involved the use of sexual innuendo and double entendre. In August 1992, the MBTA told AAC that it was rejecting three of the seven ads. In September 1992, the MBTA changed its mind, and informed AAC that it would run the three previously-rejected ads in October 1992 at no cost to AAC. The MBTA had run the other four ads in September 1992. The seven 1992 AAC ads are reproduced as Exhibit A in the Appendix.
The 1992 AAC ad campaign precipitated a significant number of telephone calls and letters to the MBTA. The MBTA submitted to the district court thirty-seven letters and summaries of telephone calls as a sample of this reaction. One of the MBTA's submissions reflects a rider's support of the ad campaign; the other thirty-six exhibit strong opposition. Of the thirty-six letters and telephone calls complaining about the ads, twelve (one-third) contain explicit homophobic statements. There is nothing in any of the 1992 AAC ads, however, that even indirectly refers to gays, lesbians, or gay/lesbian issues.
In February 1993, the MBTA promulgated a document entitled "Commercial and Public Service Advertising Policy" ("the Policy"). The Policy contains a mission statement, outlines the approach that the MBTA will take in deciding whether to accept proposed ads, and sets forth a list of guidelines for commercial and public service advertising. Among other things, the guidelines state:
All advertising placed by PTD must meet the same guidelines governing broadcast and private sector advertising with respect to good taste, decency and community standards as determined by the Authority. That is to say, the average person applying contemporary community standards must find that the advertisement, as a whole, does not appeal to a prurient interest.
The advertisement must not describe, in a patently offensive way, sexual conduct specifically defined by the applicable state law, as written or authoritatively construed. Advertising containing messages or graphic representations pertaining to sexual conduct will not be accepted.
The public service advertising guidelines also note that "[t]he purpose of the project being advertised should be such that the advertising methodology can help achieve the objectives and goals of benefitting and educating society," and that "[t]he project should be of sufficient seriousness and public importance to warrant the use of public service advertising space."
In March 1993, AAC submitted another proposed public service ad to the MBTA. The ad included a picture of a condom, and contained a headline stating: "Read this before you get off." Copy beneath the headline read: The MBTA rejected this ad. Subsequently, in September 1993, AAC submitted six additional proposed ads to PTD, requesting that they be displayed in October and November 1993. The six ads, each of which contained a picture of a condom, read as follows:
1. Headline: "Haven't you got enough to worry about in bed?" Copy:
2. Headline: "Even if you don't have one, carry one." Copy:
3. Headline: "Simply having one on hand won't do any good." Copy:
4. Headline: "You've got to be putting me on." Copy:
5. Headline: "Tell him you don't know how it will ever fit." Copy:
6. Headline: "One of these will make you 1/1000th of an inch larger." Copy:
These six ads, together with the ad proposed and rejected in March 1993 (collectively "the 1993 AAC ads"), are the only ones at issue in this litigation. All seven are reproduced as Exhibit B in the Appendix.
The MBTA and PTD reached four different and contradictory conclusions regarding the acceptability of the six ads presented in September 1993. On or about September 30, 1993, PTD accepted ads 1-4, but rejected ads 5 and 6. Two days later, however, PTD told AAC that it could run ad 1 only if it deleted the phrase "in bed," and that it could run ad 3 only if it deleted the phrase "the correct appendage." Later, in the first week of October 1993, the MBTA itself weighed in, informing AAC that it could run ad 2 only if it omitted the word "him," and that it could run ad 4 only if it rewrote the headline to read "You've got to be kidding." At this same time, the MBTA and PTD informed AAC that ads 5 and 6, which had been previously rejected in toto, could run with substantial editorial changes. In the end, the MBTA completely rejected all except ads 3 and 4, and indicated that it would run ad 3 only if AAC edited it. AAC declined to engage in any editing, and none of the ads were run.
Although the MBTA contends on appeal that its decisions regarding the six ads submitted in September 1993 were guided by its written advertising Policy (a claim vigorously disputed by AAC), it made no reference to the Policy in its discussions with AAC. In fact, in the course of this litigation, the MBTA did not specifically identify the portions of the Policy on which it was relying until it filed its Reply Brief, wherein it states: This assertion is called into question, however, by the affidavit of the MBTA's General Manager for Marketing and Communication, Loring Barnes. In explaining why the ads were rejected, Barnes makes no mention of the Policy; instead, while characterizing the ads as "lewd, vulgar,...
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