Aids Action v. MBTA ( 1994 )

[APPENDIX NOT ATTACHED. PLEASE CONTACT CLERK'S OFFICE FOR COPY.]
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
No. 94-1116
AIDS ACTION COMMITTEE OF MASSACHUSETTS, INC.,
Plaintiff, Appellee,
v.
MASSACHUSETTS BAY TRANSPORTATION AUTHORITY, ET AL.,
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Boudin, Circuit Judge,
Bownes, Senior Circuit Judge,
and Stahl, Circuit Judge.
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.
November 9, 1994
BOWNES, Senior Circuit Judge. In this appeal, we
BOWNES, Senior Circuit Judge.
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.
I.
I.
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, 2 and 3 (1993). Through its
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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
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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.
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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: "Just
a reminder to always use a latex condom. Barring abstinence,
it's the best way to prevent AIDS. For more information,
call the AIDS Action Committee Hotline at 1-800-235-2331."
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: "Use a
latex condom. It might not take your
mind off everything during sex, but
at least you'll have one less thing
to worry about. AIDS. For more
information about HIV and AIDS,
call the AIDS Action Committee
Hotline at 1-800-235-2331."
2. Headline: "Even if you don't have
one, carry one." Copy: "A latex
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condom is the best way to prevent
AIDS. So make sure that you've got
one on you when it's time to put one
on him. For more information about
HIV and AIDS, call the AIDS Action
Committee Hotline at 1-800-235-2331."
3. Headline: "Simply having one on hand
won't do any good." Copy: "For a
latex condom to be effective against
AIDS, you've got to put it on the
correct appendage. Use a condom.
Barring abstinence, it's the best way
to prevent AIDS. For more
information about HIV and AIDS, call
the AIDS Action Committee
Hotline at 1-800-235- 2331."
4. Headline: "You've got to be putting
me on." Copy: "You mean you're not
using a latex condom every time? You
can't be serious. Barring
abstinence, it's the best way to
prevent AIDS. For more
information about HIV and AIDS,
call the AIDS Action Committee
Hotline at 1-800-235-2331."
5. Headline: "Tell him you don't know
how it will ever fit." Copy:
"Nothing will give him a swelled head
faster than flattery. So compliment
him on his good sense in using a
latex condom. Barring abstinence,
it's the best way to prevent AIDS.
For more information about HIV and
AIDS, call the AIDS Action
Committee Hotline at 1-800-235-
2331."
6. Headline: "One of these will make
you 1/1000th of an inch larger."
Copy: "Of course, everyone says
size doesn't matter. But a thin
layer of latex could make all the
difference in the world. Use a
condom. Barring abstinence,
it's the best way to prevent
AIDS. For more information about
HIV and AIDS, call the AIDS
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Action Committee Hotline at 1-800-235-
2331."
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
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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: "As AAC well
knows, the advertisements were rejected because they violate
the MBTA's Policy. Specifically, the advertisements describe
sexual conduct in a patently offensive way and contain
graphic representations pertaining to sexual conduct." 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, indecent and
us[ing] sexually explicit metaphors" (standards which are
similar to those set forth in the Policy), Barnes states that
"the fact that the ads are unsuitable for viewing by children
was the primary factor in the MBTA's [decision] . . . ."
Moreover, Barnes avers that the passengers on MBTA cars
constitute a captive audience, and implies that this fact
requires the MBTA to take passenger sensibilities into
account in deciding whether to run a submitted ad. The
Policy does not explicitly note that suitability for viewing
by children or a captive audience will guide the MBTA's
decisions on whether to accept proposed ads. In October 1993,
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at roughly the same time it was rejecting the ads submitted
by AAC in September 1993, the MBTA accepted and ran two ads
for the movie "Fatal Instinct." Both of these ads
prominently feature the bare, crossed legs of a seated woman
whose cleavage is visible but whose face is largely obscured.
In one of the ads, the woman is suggestively eating a hot
dog, and the headline "Come here often?" is displayed at
crotch level. In the second ad, the headline "Opening Soon"
is displayed at crotch level across the woman's bare, crossed
legs. The Barnes affidavit states that "the ad [sic] for the
movie "Fatal Instinct" was vulgar and inappropriate. That ad
[sic] never would have been run if it had been brought to the
MBTA's attention in advance." The "Fatal Instinct" ads are
reproduced as Exhibit C in the Appendix.
Eventually, AAC brought suit against the MBTA and
PTD under 42 U.S.C. 1983 and similar state law provisions,
seeking declaratory and injunctive relief. The complaint
alleged, inter alia, violations of the First Amendment's Free
Speech Clause and the Fourteenth Amendment's Equal Protection
Clause, and included a facial and as-applied challenge to the
constitutionality of the MBTA's Policy. AAC initially
requested a preliminary injunction, but at the hearing
thereon all parties stipulated that the district court could
decide the matter on the merits based upon the existing
documentary record.
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As one might expect, the record at that early stage
in the proceedings was sparse. In addition to copies of all
the ads discussed above and a copy of the MBTA's advertising
Policy, AAC submitted a verified complaint, which states that
AAC's use of sexual innuendo and double entendre in the
proposed ads was not gratuitous, but instead was directed at
"achiev[ing] a crucial goal of convincing sexually active
individuals, particularly adolescents and young adults, to
use condoms to prevent the spread of HIV." As the complaint
explains:
The ads are based upon recognition of the
principle that appeals to fear are less
effective in motivating behavior change
and that humor is more likely to achieve
the intended effect on the target
audience. The ads were specifically
aimed at, and designed to overcome,
barriers to condom use that have been
identified by experts, including
adolescents' sense of immortality and the
male ego. Using humor, the ads are
designed to take some of the edge off of
the otherwise sober message in order to
make the intended audience more receptive
to it. In the judgment and experience of
AIDS Action Committee's staff and of the
advertising professionals who designed
the ads, this approach is the most
effective way to reach and persuade this
audience.
AAC also presented a sworn declaration from David H.
Mulligan, Commissioner of the Department of Public Health for
the Commonwealth of Massachusetts, attesting to the severity
of the AIDS crisis among Massachusetts adolescents and
expressing his view that the ads at issue "are likely to
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reach their target audience and therefore will perform a
public service." Finally, AAC introduced letters of support
from Massachusetts Governor William Weld and Dr. James W.
Curran, Assistant U.S. Surgeon General.
The MBTA's submissions also were meager. In
addition to the affidavit of Loring Barnes, copies of the
1992 AAC ads, and the letters and summaries of telephone
calls we have discussed above, the MBTA introduced examples
of less sexually suggestive ads, previously run by the MBTA
and other transportation authorities, which advocate the use
of condoms to prevent the spread of AIDS. The MBTA also
presented a copy of a breast cancer ad to which AAC had
referred in its complaint without attaching it as an exhibit.
Finally, the MBTA presented an ad inquiry featuring a
photograph of an aborted fetus. The MBTA submitted this to
underscore its need to "place limits on the ads placed in its
trains."
On December 29, 1993, after reviewing the
documentary evidence, the district court issued its
Memorandum of Decision. See 849 F. Supp. at 79. The court
first found that the MBTA, by posting ads on a wide variety
of topics over the years, by hiring PTD to promote MBTA
facilities as advertising venues, and by publishing its
advertising Policy, had designated the interiors of its cars
as public fora. Id. at 83; see also Perry Educ. Ass'n. v.
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Perry Local Educators' Ass'n., 460 U.S. 37, 45-47 (1983)
(establishing three categories of public property for free
speech purposes: traditional public fora, designated public
fora, and nonpublic fora).
Relying on this conclusion, and on the fact that
First Amendment standards apply in a designated public forum
to the same extent as in a traditional public forum (i.e., a
forum [such as a street or park] "which by long tradition or
government fiat ha[s] been devoted to assembly and debate,"
Perry, 460 U.S. at 45), see, e.g., Board of Airport Comm'rs
v. Jews for Jesus, Inc., 482 U.S. 569, 573 (1987), the court
next considered whether the ads could be constitutionally
excluded. 849 F. Supp. at 83-84. In so doing, it
scrutinized whether the standard by which the ads were
rejected was either (1) a content-neutral time, place, or
manner restriction, narrowly tailored to serve a significant
state interest and leaving open ample, alternative channels
of communication; or (2) a content-based restriction,
necessary to serve a compelling state interest and narrowly
drawn to achieve that end. Id.; see also Perry, 460 U.S. at
45-46 (reciting the permissible speech restrictions in
traditional and designated public fora). After noting the
ambiguity as to whether the MBTA excluded the ads pursuant to
its written advertising Policy or under some unwritten policy
alluded to in the Barnes affidavit, 849 F. Supp. at 83 n.6,
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the district court determined that the exclusions were
content-based, and that whatever standard guided them had to
be both necessary to serve a compelling state interest and
narrowly drawn to achieve that end, id. at 84.
Finally, the court decided that the state interests
allegedly dictating the challenged exclusions -- the
protection of both children and the sensibilities of a
captive audience -- were not, in the context of this case,
compelling. Id. Accordingly, it permanently enjoined the
MBTA from refusing to accept and display in its cars and on
its train platforms the six advertisements originally
submitted in September 1993. Id. at 85. In what appears to
have been an oversight, the judgment failed to mention the ad
submitted in March 1993. See id. The court also permanently
enjoined the MBTA from using its advertising Policy "as a
basis for rejecting non-obscene and non-defamatory public
service advertisements on the basis of their content." Id.
This appeal followed.
II.
II.
When faced with a party's appeal from an adverse
ruling after a bench trial on the merits, our role as an
appellate tribunal ordinarily is quite circumscribed. While
we review de novo the district court's legal determinations,
we accord a significant amount of deference to the court's
factual determinations and to most of its resolutions of
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mixed fact/law issues, letting them stand unless they are
clearly erroneous. See, e.g., Williams v. Poulos, 11 F.3d
271, 278 and n.11 (1st Cir. 1993).
In cases like this one, however, where the trial
court is called upon to resolve a number of mixed fact/law
matters which implicate core First Amendment concerns, our
review, at least on these matters, is plenary so that we may
reduce the likelihood of "``a forbidden intrusion on the field
of free expression.'" See Bose Corp. v. Consumer Union of
United States, Inc., 466 U.S. 485, 499 (1984) (quoting New
York Times Co. v. Sullivan, 376 U.S. 254, 286 (1964)). The
Bose rule recognizes that the meaning of a particular legal
standard -- e.g., the meaning of "actual malice" in a product
disparagement action -- often "cannot be adequately expressed
in a simple statement," and must be developed through case-
by-case adjudication. Id. at 503. It also recognizes a
heightened need for vigilance and consistency when that
standard is supplied by the Constitution, particularly by the
First Amendment. See id. at 503-04. De novo review of the
trial court's application of a First Amendment standard to
the facts before it "ensures that the federal courts remain
zealous protectors of First Amendment rights." Duffy v.
Sarault, 892 F.2d 139, 142-46 (1st Cir. 1989).
These principles provide a self-evident corollary
to the oft-cited maxim that we, as an appellate court, are
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"free to affirm the judgment below on any independently
sufficient ground made manifest by the record." See, e.g.,
Ticketmaster-New York, Inc. v. Alioto, 26 F.3d 201, 204 (1st
Cir. 1994). The corollary is that, so long as the record is
adequately developed, we will not hesitate to resolve a mixed
fact/law issue involving a core First Amendment concern even
though the district court did not address it in the first
instance. This rule furthers the interest of judicial
economy by avoiding the remand of a question over which we
eventually will exercise full review; it also serves the
interest of expediency on questions -- e.g., the legality of
a prior restraint of speech -- where a timely ruling is often
crucial.
III.
III.
On appeal, the MBTA makes several arguments, which
we rearrange for ease of analysis. First, the MBTA argues
that the district court erred in finding that the denial of
the proposed ads was not effectuated pursuant to a narrowly-
tailored, content-neutral manner regulation. Next, the MBTA
contends that the district court erred in finding that the
interiors of its cars are designated public fora, and that
this erroneous conclusion led the court to apply too strict a
level of scrutiny to the exclusion of the ads. Finally, the
MBTA asserts that even if the court did not err in its
designated public fora finding, it erred in concluding that
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the exclusion did not pass constitutional muster under
heightened scrutiny.
As we shall explain, we think that the district
court correctly determined that the MBTA's rejection of the
ads was content-based. Accordingly, we reject the MBTA's
first appellate argument. We do not reach the MBTA's second
and third appellate arguments, however, because we find that,
in rejecting the 1993 AAC ads while running the "Fatal
Instinct" ads, the MBTA engaged in content discrimination
which gave rise to an appearance of viewpoint discrimination,
and that it has failed to explain that appearance away. Cf.
Bose, 466 U.S. at 505 ("The principle of viewpoint neutrality
that underlies the First Amendment itself . . . imposes a
special responsibility on [appellate] judges whenever it is
claimed that a particular communication is unprotected.")
(citation omitted).
A. Content-Based vs. Content-Neutral Restrictions
A. Content-Based vs. Content-Neutral Restrictions
As we have noted, the MBTA renews its argument,
first made to the district court, that the Policy by which
the 1993 ads were excluded is a content-neutral restriction
on the manner in which messages may be conveyed on its cars.
In the MBTA's view, its disallowance of "sexually explicit or
patently offensive language to convey . . . substantive
message[s]" is more akin to a paradigmatic manner regulation
(e.g., a prohibition of megaphones) than it is to a typical
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regulation which suppresses speech on the basis of its
content (e.g., a prohibition of public service ads which
discuss abortion). Even if we accept arguendo that the 1993
AAC ads are "sexually explicit" or "patently offensive" and
that the ads actually were excluded pursuant to the Policy,
we find the MBTA's argument to be seriously flawed.
Although it might be reasonable, in an analytical
vacuum, to characterize a prohibition on the use of sexually
explicit or patently offensive language to communicate an
idea as a limitation on the "manner" in which a speaker may
speak, such a characterization flies in the face of how the
Supreme Court has construed the concept of manner through
case-by-case adjudication. Cf. Bose, 466 U.S. at 503. The
Court has defined the term narrowly, making clear that, in
order to be considered a valid manner restriction, a
regulation cannot be aimed at the communicative impact of
expressive conduct. See Laurence A. Tribe, American
Constitutional Law, 12-2, at 791-92 (2d ed. 1988). This is
made manifest by the overarching requirement that a time,
place, or manner restriction be content-neutral. See Perry,
460 U.S. at 45. Thus, the Supreme Court rejected the
argument that the statute under which Paul Robert Cohen was
convicted for wearing a jacket bearing the words "Fuck the
Draft," as applied to Cohen in that case, was a valid
regulation of the manner in which he exercised his
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constitutional right to speak freely. See Cohen v.
California, 403 U.S. 15, 19-26 (1971). Central to the Cohen
Court's reasoning was a disagreement with "the facile
assumption that one can forbid particular words without also
running a substantial risk of suppressing ideas in the
process." Id. at 26; cf. Hustler Magazine, Inc. v. Falwell,
485 U.S. 46, 51 (1988) (recognizing the need to keep
"individual expressions of ideas . . . free from
governmentally imposed sanctions") (emphasis supplied).
Clearly then, a regulation which permits an idea to be
expressed but disallows the use of certain words in
expressing that idea is content-based.
The two cases cited by the MBTA in arguing that its
Policy is content-neutral actually support a contrary
conclusion. In Bethel School Dist. No. 403 v. Fraser, 478
U.S. 675 (1986), a case which upheld the right of school
authorities to discipline a student for "indecently lewd and
offensive speech" at a school assembly, see id. at 685, the
Court in no way indicated that the school disciplinary rule
forbidding "obscene, profane language" was content-neutral.
Rather, a fair reading of the opinion in context makes
apparent that the Court viewed the rule as content-based.
See generally id. at 681-86. Indeed, the Court is quite
clear that the school's need to counter the content of the
student's speech, and not the need to regulate the incidental
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and noncommunicative impact of the speech, justified the
disciplinary action taken. Id. at 685 ("[I]t was perfectly
appropriate for the school to disassociate itself to make the
point to the pupils that vulgar speech and lewd conduct is
wholly inconsistent with the ``fundamental values' of public
school education.").
In FCC v. Pacifica Foundation, 438 U.S. 726 (1978),
a case in which the Court upheld the right of the Federal
Communications Commission to regulate the radio broadcast of
"indecent" language in a monologue by the comedian George
Carlin, the Court was even more explicit. It noted:
The words of the Carlin monologue
are unquestionably "speech" within the
meaning of the First Amendment. It is
equally clear that the Commission's
objections to the broadcast were based in
part on its content. The [Commission's]
order must therefore fall if, as Pacifica
argues, the First Amendment prohibits all
governmental regulation that depends on
the content of speech.
Id. at 744. As it did in Bethel, the Court went on to hold
that the content-based regulations at issue were justified
under the facts and circumstances of that particular case.
Id. at 748-51.
Here, there can be no doubt that the MBTA's Policy,
on its face and as applied to AAC's proposed ads, is not
content-neutral. The Policy does not allow communication of
the underlying message by means of any words which enjoy
First Amendment protection; instead, it limits the universe
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of words the speaker may select to those which are not, in
PTD's and/or the MBTA's view, "sexually explicit" or
"patently offensive." Hence, the district court correctly
declined the MBTA's invitation to treat it as a time, place,
or manner restriction. See Perry, 460 U.S. at 45.
B. Viewpoint Discrimination
B. Viewpoint Discrimination
In its complaint, AAC raised the issue of viewpoint
discrimination by noting that the MBTA was excluding its ads
at the same time it was running, inter alia, the ads for the
movie "Fatal Instinct." The district court never reached
this issue, finding instead that the MBTA, having designated
the interiors of its cars as public fora, lacked a compelling
basis for excluding the 1993 AAC ads, and further finding
that the MBTA's Policy was unconstitutional on its face.
It is exceedingly difficult to say whether the MBTA
has designated the interiors of its cars as public fora on
the record before us. As we have already noted, the record
is not particularly well developed. On the one hand, AAC has
provided us with precious little evidence of the MBTA's
practice in accepting or rejecting ads over the past few
years. On the other hand, despite the MBTA's attempts to
present itself as a vigilant gatekeeper, the only ads other
than the 1993 AAC ads that we know the MBTA recently rejected
are certain Calvin Klein ads which somehow might have been
misconstrued as endorsing the Ku Klux Klan, and an animal
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rights ad featuring a photograph of a maimed dog. We
appreciate that the parties are anxious to have us settle the
public forum question. Because we do not even know whether
and when the written advertising Policy went into effect,
however, and because we find in the record an independently
sufficient ground for affirming the district court, we
decline to anchor an important First Amendment ruling on so
fragile a foundation.
Our decision not to reach the public forum question
is informed by an additional consideration: the relatively
murky status of the public forum doctrine. On the one hand,
the Supreme Court, in a pre-Perry case, indicated that public
mass transit organizations, acting in proprietary capacities,
may allow a significant amount of public discourse while
still constitutionally excluding broad categories of speech
based on content. See Lehman v. City of Shaker Heights, 418
U.S. 298 (1974) (upholding city's right to exclude political
advertising from its rapid transit system). And, in several
recent cases, the Court has used language suggesting that, in
determining whether the government qua proprietor has
designated public property to be a public forum, courts
should be highly deferential to the government's decisions to
regulate speech. See International Soc'y for Krishna
Consciousness, Inc. v. Lee, 112 S. Ct. 2701, 2705 (1992)
(holding the vestibules of the three major airports in the
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New York City area not public fora); United States v.
Kokinda, 497 U.S. 720, 725 (1990) (holding sidewalk outside
post office not a public forum). Indeed, these cases suggest
that courts should hinge their analyses largely on whether
the government intended that the property become a designated
public forum. See Lee, 112 S. Ct. at 2706; Kokinda, 497 U.S.
at 725; Cornelius v. NAACP Legal Defense & Educ. Fund, Inc.,
473 U.S. 788, 802 (1984) (holding the Combined Federal
Campaign for charitable fundraising not a public forum).
Broadly read, Lee, Kokinda, and Cornelius suggest that the
very existence of the MBTA's written Policy may be a
sufficient basis for finding that the interiors of MBTA cars
are not public fora.
On the other hand, the Court also has stated that
the government's intent must be gleaned from its policy and
practice with respect to the property at issue. See
Cornelius, 473 U.S. at 802; see also Grace Bible Fellowship,
Inc. v. Maine School Admin. Dist. No. 5, 941 F.2d 45, 47 (1st
Cir. 1991) (in determining whether the government has
designated some property to be a public forum, "actual
practice speaks louder than words"). It also has indicated
that it will not infer an intent not to designate a public
forum solely from the fact that the government excluded
certain speech or speakers in the case before it. See Lamb's
Chapel v. Center Moriches Union Free School Dist., 113 S. Ct.
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2141, 2146 (1993) (evidencing a willingness to find that a
public school district had designated certain property as a
public forum, even in the face of contrary protestations,
where the property "is heavily used by a wide variety of
private organizations"). These cases indicate that evidence
not currently in this record may well drive the determination
whether the interiors of MBTA cars are public fora.
At any rate, we turn now to the question of
viewpoint discrimination -- or more specifically, the
unrebutted appearance of viewpoint discrimination -- which we
think disposes of this appeal. Throughout the course of
these proceedings, the MBTA has asserted that it has been
viewpoint neutral because it has in no way opposed the
message that wearing a latex condom is an effective means of
preventing the transmission of HIV. If this assertion
accurately characterized the level of specificity at which
AAC is making its viewpoint discrimination claim, we would
have to agree. It is abundantly clear that the MBTA has not
opposed expression of the view that the use of condoms is
effective in the fight against AIDS.
AAC's two-part viewpoint discrimination argument,
which we cull from its complaint, is, however, more specific.
First, AAC points out that the MBTA has engaged in content
discrimination by applying its Policy to disallow AAC's use
of sexual innuendo and double entendre to communicate its
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messages while simultaneously permitting other advertisers to
communicate their messages through these modes of expression
and at levels of explicitness equalling, if not exceeding,
that in the AAC ads. Second, AAC contends that this content
discrimination is prohibited even in a nonpublic forum (where
the underlying speech might be otherwise proscribable)
because it gives rise to an appearance of viewpoint
discrimination which the MBTA has failed to explain away.
We find this argument persuasive.
Even if we again assume arguendo that the MBTA has
correctly characterized the AAC ads as sexually explicit
and/or patently offensive, that it has excluded them pursuant
to its written Policy, and that it may constitutionally
proscribe sexually explicit and/or patently offensive speech
in its cars, we must decide whether the content
discrimination inherent in the MBTA's decision to run the
"Fatal Instinct" ads, while not running the AAC ads, is
permissible. After all, we think the presence of content
discrimination in the MBTA's application of its Policy cannot
seriously be disputed. The "Fatal Instinct" ads are at least
as sexually explicit and/or patently offensive as the AAC
ads. Their headlines are as suggestive as the most daring of
the AAC ads; they contain provocative photographs not found
in the AAC ads; and they involve a less protected type of
speech -- commercial speech -- than that in the AAC ads. See
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Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer
Council, Inc., 425 U.S. 748, 772 n.24 (1976) (noting that
commercial speech has "a different degree of protection").
The most recent and authoritative statement on the
permissibility vel non of content discrimination within the
context of proscribable speech is found in Justice Scalia's
majority opinion in R.A.V. v. City of St. Paul, Minnesota,
112 S. Ct. 2538 (1992). We quote from R.A.V. at some length,
because we believe it highly relevant to this case:
Even the prohibition against content
discrimination that we assert the First
Amendment requires is not absolute. It
applies differently in the context of
proscribable speech than in the area of
fully protected speech. The rationale of
the general prohibition, after all, is
that content discrimination raises the
specter that the Government may
effectively drive certain ideas or
viewpoints from the marketplace. But
content discrimination among various
instances of a class of proscribable
speech does not pose this threat.
When the basis for the content
discrimination consists entirely of the
very reason the entire class of speech at
issue is proscribable, no significant
danger of idea or viewpoint
discrimination exists. Such a reason,
having been adjudged neutral enough to
support exclusion of the entire class of
speech from First Amendment protection,
is also neutral enough to form the basis
of distinction within the class. To
illustrate: A State might choose to
prohibit only that obscenity which is the
most patently offensive in its prurience
-- i.e., that which involves the most
lascivious displays of sexual activity.
But it may not prohibit, for example,
only that obscenity which includes
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offensive political messages. And the
Federal Government can criminalize only
those threats of violence that are
directed against the President, since the
reasons why threats of violence are
outside the First Amendment (protecting
individuals from the fear of violence,
from the disruption that fear engenders,
and from the possibility that the
threatened violence will occur) have
special force when applied to the person
of the President. But the Federal
Government may not criminalize only those
threats against the President that
mention his policy on aid to inner
cities. And to take a final example, a
State may choose to regulate price
advertising in one industry but not in
others, because the risk of fraud (one of
the characteristics of commercial speech
that justifies depriving it of full First
Amendment protection), is in its view
greater there. But a State may not
prohibit only that commercial advertising
that depicts men in a demeaning fashion.
Id. at 2545-46 (citations and internal quotation marks
omitted) (third emphasis supplied). Largely on the basis of
these principles, the majority went on to strike down as
facially unconstitutional a city ordinance which criminalized
the expression of only those "fighting words" (a proscribable
type of speech, see Chaplinsky v. New Hampshire, 315 U.S.
568, 572 (1942)) based on "race, color, creed, religion or
gender." Id. at 2547. It did so because the content
discrimination countenanced by the statute was the sort that
gave off the appearance of hostility to certain viewpoints,
see R.A.V., 112 S. Ct. at 2547-48, and because the City of
St. Paul's comments and concessions in the case not only
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failed to dispel this appearance but confirmed it as reality,
id. at 2549.
The MBTA's decision not to run the AAC ads while
running the "Fatal Instinct" ads, like the City of St. Paul's
decision to criminalize certain types of fighting words while
leaving others legal, constitutes content discrimination
which gives rise to an appearance of viewpoint
discrimination. And, the MBTA has not dispelled this
appearance. The MBTA has not attempted to articulate a
neutral justification for what happened; instead, it has
stated that running the "Fatal Instinct" ads was a mistake.
But this statement is unpersuasive, and by no means counters
the impression of discrimination.
The record basis for the claim of mistake is a
single sentence in a multi-page affidavit submitted by the
MBTA asserting, as we have stated, that "[t]hat ad [sic]
would never have been run if it had been brought to the
MBTA's attention in advance." There is no suggestion,
however, that the MBTA remained unaware of the "Fatal
Instinct" ads or made any effort to remove them. Nor is
there any explanation as to why, under whatever screening
process exists, the MBTA is able to detect threats from
written double entendres but unable to detect highly
provocative pictures (which themselves bear legends
containing obvious double entendres!).
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One might easily infer that ads tend to be screened
not because they threaten to violate the Policy but because
they appear likely to generate controversy or, even more
surely, where controversy actually results. The 1992 AAC ads
were accepted, quite consciously after an initial dispute,
and the subsequent ones were rejected only after a number of
public letters of protest. The "Fatal Instinct" ads are more
overtly sexual and more blatantly exploitative; but they
represent the conventional exploitation of women's bodies for
commercial advertising. The condom ads, by contrast,
represent sexual humor addressed to men's bodies and --
because of the connection to AIDS -- are also capable of
provoking homophobic reactions from the public, and did.
These circumstances also lend themselves at least
to an appearance of viewpoint discrimination. Regardless of
actual motivation, grave damage is done if the government, in
regulating access to public property, even appears to be
discriminating in an unconstitutional fashion. And this
appearance is only aggravated when the sources may seem to
lie in demeaning stereotypes and phobias. In all events, the
MBTA has not effectively removed the taint of apparent
discrimination.
The MBTA seeks to explain its original acceptance
of the condom ads, and their later rejection, as a response
to the adoption of its Policy in the meantime. But the
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Policy explains almost nothing: its language has at best
doubtful application to the condom ads but the most vivid
application to the "Fatal Instinct" ads, which are manifestly
designed to appeal to a prurient interest and certainly
contain "graphic representations pertaining to sexual conduct
. . . ."
The Policy itself is almost impossible to
understand. The purported exclusion of all messages or
representations "pertaining to sexual conduct" is so vague
and broad that it could cover much of the clothing and movie
advertising commonly seen on billboards and in magazines.
The prior sentence, relating to patently offensive
descriptions, is mysteriously connected to unspecified state
laws. The prurient interest reference appears to be derived
from one portion of the Supreme Court's obscenity definition,
but one never intended as a stand-alone criterion of
obscenity. And, significantly, the MBTA does not claim that
the condom ads themselves are constitutionally obscene.
We think that the opportunities for discrimination
created by this Policy have been borne out in practice, and
that this case presents an unrebutted claim of discrimination
in the application of supposedly neutral standards. It makes
no difference whether AAC prefers a broader ruling or
whether, as the MBTA claims, AAC failed technically to
preserve an equal protection objection. First Amendment
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litigation of this kind has consequences that go far beyond
the individual parties. We think that the more far-reaching
issue that both sides might prefer to address (i.e., the
public forum issue) is not yet suited for resolution, and
that, on this record, the MBTA's action can properly be set
aside on the narrow basis set forth.
IV.
IV.
It remains to consider the remedial judgment
adopted by the district court. In substance, it declared
that the Policy violates the First and Fourteenth Amendments,
and that the MBTA's failure to accept the AAC ads violates
those constitutional provisions. The judgment also enjoined
the Policy's future use as a basis for rejecting non-obscene
and non-defamatory advertisements, and directed that the
specific condom ads in question be displayed. Our own
rationale prompts us to provide a somewhat different gloss on
the relief to be afforded.
We think that the Policy in its present form is
scarcely coherent, invites the very discrimination that
occurred in this case, and was properly enjoined. Similarly,
absent a rational and neutral policy, implemented in a non-
discriminatory fashion, we see no basis for excluding the
present condom ads, nor any that are strictly comparable. To
this extent, we affirm the declarations and injunctions
ordered by the district court. At this time and on this
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record, however, we are not prepared to determine that the
MBTA is a designated public forum.
Accordingly, if the MBTA chooses to develop a
different set of rules or criteria, we are unwilling to
foreclose the possibility that they might be sustained on a
different and better developed record, even if those rules or
criteria condemn some or all the ads in question.
Conversely, AAC would, in that eventuality, be entitled to
argue that the ads are protected simpliciter and without
regard to any discrimination.
Before concluding, we make one final point. Lest
we give the impression that we are endorsing the remedying of
a perceived wrong (the running of the "Fatal Instinct" ads)
with a second wrong (the running of potentially proscribable
AAC ads), we note that the controversial ads that will be run
as a result of this litigation, like the "Fatal Instinct"
ads, are most certainly not obscene, and fall well within the
heartland of speech that we, as a secure society, should be
willing to tolerate in the marketplace of ideas. We would,
of course, look askance on a judicial decree which sought to
rectify an impermissible viewpoint-based exclusion of, for
example, an obscene ad by ordering the government to run the
ad. But such is not the case here.
In the end, the MBTA may well be entitled to
exclude from the interiors of its cars speech containing a
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certain level of sexual innuendo and double entendre. We do
not reach that question at this time. To do so
constitutionally, however, it will, at the least, need to act
according to neutral standards, and it will need to apply
these standards in such a way that there is no appearance
that "the [government] is seeking to handicap the expression
of particular ideas." R.A.V., 112 S. Ct. at 2549. We
recognize that this requires the government to apply its
standards quite precisely. This is the burden the government
assumes, however, when it undertakes to proscribe speech on
the basis of its content.
The judgment of the district court is affirmed,
affirmed
with the modifications to the injunction noted above. No
costs.
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