Change the Climate v. Massachusetts Bay Transp.
| Decision Date | 31 July 2002 |
| Docket Number | No. Civ.A. 00-10973-REK.,Civ.A. 00-10973-REK. |
| Citation | 214 F.Supp.2d 125 |
| Parties | CHANGE THE CLIMATE, INC., Plaintiff, v. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY, and Michael H. Mulhern, Acting General Manager of the MBTA, in his official capacity, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Sarah Wunsch, Mass. Civil Liberties Union Fdn., Kimberly H. Scheckner, Harvey A. Schwartz, Rodgers, Powers & Schwartz, Boston, MA, for Plaintiff.
Joseph D. Steinfield, Julie E. Green, Brian S. Kaplan, Matthew S. Axelrod, Rebecca Hulse, Hill & Barlow, Boston, MA, for Defendants.
Robert H. Prince, Jr., General Manager of the MBTA in his official capacity, defendant.
TABLE OF CONTENTS
I. Introduction ............................................................ 129
II. Background Facts and Circumstances ...................................... 130
III. Is "Public Forum" Law Applicable to the Distinctive Circumstances of
this Case? ............................................................ 131
A. The State of Public Forum Law in the First Circuit ................... 131
B. Inapplicability of Forum Law to this Dispute ......................... 132
IV. Findings of Fact About the Sequence of Events Leading to Proposals for
Advertisements ........................................................ 134
A. Joseph White's Initial Contacts With Park Transit Displays ........... 134
B. Change the Climate is Incorporated and Receives 501(c)(3) Status ..... 134
C. Change the Climate Submits Proposed Advertisements ................... 134
V. Some Key Characteristics of the Proposed Advertisements ................. 139
A. In General ........................................................... 139
B. Findings that the Proposed Ads Target Minors and Promote
Marijuana Use ...................................................... 143
C. More on "Mixed Messages" ............................................. 145
VI. Key Findings about MBTA Guidelines ...................................... 146
A. MBTA Guidelines Applicable in January of 2000 ........................ 146
B. Lucy Shorter's Lack of Authority to Apply Guidelines ................. 152
C. Insufficiency of Proof Regarding Viewpoint Discrimination by
MBTA ............................................................... 153
D. More on the Excessive Discretion Given to Advertising Contractor ..... 153
E. More on the Interim Guidelines and Defendants' Motion to Dismiss
the Lawsuit ........................................................ 153
F. Defendants' Motion to Limit the Scope of Judgment .................... 155
G. Application of Guidelines to Other Advertisements .................... 155
H. More on the Relationship Between the MBTA and the Boston
Public Schools ..................................................... 155
VII. Some Conclusions of Law ................................................. 158
A. Government as Proprietor ............................................. 158
B. Role of Courts in Weighing Competing Claims of Right ................. 158
C. Madisonian Principles Require the Court to Consider the Public
Interest ........................................................... 159
D. Public Interest is Distinct from Political Backdrop .................. 159
E. Taking Into Account the Public Interest .............................. 162
F. Envisioning a Spectrum from Beautiful through Middling to Ugly ....... 162
G. A Reasonableness Test for Advertising Guidelines ..................... 163
H. Guidelines Must be as Concise as is Consistent with Clarity, and
Free of Calculated Ambiguity ....................................... 164
VIII. Enforcement of Guidelines and Transactions Beyond Law ................... 164
IX. Provisional Remedies .................................................... 166
INTERLOCUTORY ORDER ........................................................... 166
The Massachusetts Bay Transportation Authority ("MBTA" or "the T") is a sprawling transportation network of buses, subway lines, ferries, and commuter trains. It serves approximately 2.5 million people in Eastern Massachusetts. Its diverse ridership includes commuters who work in and around Boston, school children making the daily trip to and from the schoolhouse, and tourists enjoying the history, beauty, and distinctive attractions of the city. Many others use the T as a primary or secondary form of transportation.
Change the Climate, Inc., is a Massachusetts non-profit corporation that has, as a part of its formally declared objectives, a mission to reform the marijuana laws.
In this civil action, Change the Climate seeks recognition as a representative of the public interest as well as the interests formally declared as its objectives in its founding documents of incorporation. It asks the court to order the MBTA to publish three documents in the MBTA's advertising spaces, exactly as plaintiff says it proposed them.
The MBTA asks the court to rule that the proposed advertisements violate the guidelines governing use of its advertising spaces. The MBTA, also, claims to be the champion of the public interest, and asks the court to dismiss plaintiff's lawsuit with prejudice, forthwith.
For the reasons explained in this Opinion I find that the positions of both parties are too partisan to be in the public interest. So, too, are the positions of their attorneys.
On the record before me, I find it appropriate to declare that the MBTA's guidelines are constitutionally flawed but that Change the Climate has failed to meet its burden of showing a basis for an appropriate final resolution of this dispute. In these circumstances, I will require additional submissions by the parties and will hold additional hearings before ordering any final judgment in this case.
The issues I must resolve go well beyond those briefed by the parties. To resolve this case, I must decide questions that test the mettle of the American legal system to confront and resolve issues about authority and power in urban centers. These issues arise from the deeply conflicting influences of the evolving economic, political, social, and cultural forces that come to bear upon the authority and power exercised by entities, governmental and private, as well as natural persons living in or near the core urban areas of the United States.
Transportation in urban areas became increasingly expensive over the decades of the Twentieth Century, and the pace of increased expense quickened in the last two decades of the century. By the opening years of the Twenty-first Century, the economic and other costs, tangible and intangible, has become a major problem for all industries operating in the major urban areas of the United States. The problem has significant consequences also for their employees, for their customers, and for the governmental and private entities who have tried against the odds to save urban America from a fate even worse than envisioned by David Riesman in The Lonely Crowd. This reasonable effort, and the efforts of those associated with Riesman, were focused on understanding the evolving urban America of the late Eighteenth and Nineteenth Centuries. Urban area problems of the opening years of the Twenty-first Century are even more intractable.
Society has a vital interest in preserving urban America and protecting the rights of its members to rebuild and enjoy homes and communities within America's cities.
These circumstances remind one of the words of the revered English poet, John Donne:
Who casts not up his eye to the sun when it rises? But who takes off his eye from a comet when that breaks out? Who bends not his ear to any bell which upon any occasion rings? But who can remove it from that bell which is passing a piece of himself out of this world? No man is an island, entire of itself; every man is a piece of the continent, a part of the main.
John Donne, Meditation XVII, Devotions Upon Emergent Occasions (1624).
No man's claim of right can be plucked from its context and adjudged in the abstract. Rights as well as human beings come into conflict. It is the court's duty, as adjudicator of this case, to consider the rights of all of those who will be affected by the outcome of this case.
Massachusetts law authorizes the MBTA "[t]o sell, lease or otherwise contract for advertising in or on [its] facilities." MASS. GEN.LAWS ch. 161A § 3(n) (2000). The MBTA displays commercial and public service advertisements on a variety of topics. When using one of the many forms of transportation provided by the T, a rider is exposed to these advertisements. These advertisements are a relatively important source of funding for the MBTA. Depending on the location of the ads, such as in transit cars or buses, riders may be exposed to them for long periods of time. If a transit car or bus is particularly crowded, the rider may not even be able to move away from a particular advertisement. Of course, one of the incentives for an advertiser to purchase space from the T is the opportunity to expose a "captive audience" to its advertisements.
At issue in this case is the extent to which the T, or some other entity hired by the T, can control the manner of presenting ads in these advertising spaces and even the content of the ads.
The T has formulated guidelines that regulate its advertising spaces. The T permits both commercial and public service advertisements that satisfy these guidelines.
It has been the T's practice to hire a contractor to administer the use of the T's advertising spaces. The contractor's duties and practices have included receiving submissions of advertisements from customers...
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