American Freedom Defense Initiative et al. v. Massachusetts Bay Transportation Authority et al.

Public Transit Advertising Held Nonpublic Forum
United States Court of Appeals, First Circuit,Nos. 14-108, 14-1289, 781 F.3d 571
Monday, March 30, 2015

The First Circuit Court of Appeals held that the Massachusetts Bay Transportation Authority (MBTA) did not violate the First Amendment by displaying some messages regarding the Israeli-Palestinian conflict while rejecting others based on the MBTA’s advertising program guidelines.

The MBTA allows private parties to purchase advertising space on MBTA buses, trains, and transit stations. The requested advertising is approved or rejected based on the MBTA Advertising Program Guidelines. The plaintiff, American Freedom Defense Initiative (AFDI), sought the placement of advertisements concerning the Israeli-Palestinian conflict that categorized Palestinians as “the savage” and sought the support of Israel and the defeat of jihad. Just prior to AFDI’s application, the MBTA had run advertisements from another group, the Committee for Peace, containing messages about the conflict, specifically that the U.N. considered many Palestinians “refugees.” The MBTA denied AFDI’s application based on the MBTA’s advertising guidelines, which prohibit an advertisement that “demeans or disparages an individual or group of individuals.” AFDI did thereafter present a modified version of its advertisement, changing the phrase “the savage” to “those engaged in savage acts,” which the MBTA did approve. However, AFDI withdrew that application and again submitted a version almost identical to the first version, which was again rejected.

The Court rejected all three of AFDI’s arguments and held in favor of the MBTA. First, the Court, relying on its prevision decision in Ridley v. Massachusetts Bay Transportation Authority, 390 F.3d 65 (1st Cir. 2004), which also involved the MBTA’s advertising procedure, held that the MBTA had not created a designated public forum by allowing advertising. The MBTA had, in fact, evidenced a clear intent to create a nonpublic forum through various restrictions on advertising content in order to balance its interest in maximizing revenue against its interest in ensuring customer satisfaction and safety. That the MBTA had allowed the display of some controversial messages did not automatically result in the creation of a public forum, nor did the fact that the MBTA had allowed some speech about the Israeli-Palestine conflict mean that it had to allow all speech about it.

Second, the MBTA’s “demeans or disparages” guideline was neither viewpoint discriminatory nor vague. The standard allows speakers to engage in expression on all sides of an issue as long as no particular person or group is demeaned or disparaged. Further, selectivity and discretionary access are defining characteristics of a nonpublic forum.

Finally, the Court did not agree with AFDI that the MBTA applied the guideline in a way that was not “reasonable in light of the purpose served by the forum.” AFDI’s advertisements clearly targeted and categorized a specific group of people as “savages.” That term demeans or disparages, while the term “refugees” used in the Committee for Peace’s advertisement did not tend to demean or disparage. The fact that the MBTA had approved AFDI’s revised advertisement that referred to people committing “savage acts” evidenced compliance with the MBTA’s standards rather than a desire to restrain the expression of a particular viewpoint.