MBTA undeterred in ad discrimination

3 December 2004

Both the American Civil Liberties Union and the MBTA claim victory after this week's First Amendment decision by the U.S. Court of Appeals. On its face, it seems as though the ACLU is right: The court demanded that the T run three ads it had banned. In fact, however - and regrettably - the transit system got almost everything it wanted.

Advertising is big business for the T, fetching $25 million annually. Without it, says General Manager Michael Mulhern, fares would rise.

Nevertheless, the T has its standards. Sure, it has no problem with ads that promote liquor consumption or with salacious ads for smarmy new movies. What it will not run, however, is an ad questioning whether people should be jailed for smoking pot or another ad that urges people to convert to a new religion. Quasi- porn ads hawking products are fine (one ad for Doc Otis Hard Lemonade, the court wrote, "depicts a woman's mouth eating an ice cube, and states `Do it on the rocks.' "). But politics and religion? Mulhern and the T won't tolerate it.

And despite the ACLU's apparent "win," the T still won't have to tolerate it.

Here's why. The court agreed with the T that it's not a "public forum," meaning it can impose what judges call "content restrictions." Thus, for example, the T can nix ads for guns or cigarettes, or any with nudity.

That's probably OK. Yet the T's ad limits go further. One rule bans an ad that "ridicules or mocks, is abusive or hostile to, or debases the dignity or stature of, an individual or group." Another bans ads promoting "use of illegal goods or services or unlawful conduct."

Those are broad restrictions. They would ban, for example, an ad saying "Jesus Saves" (since non-Christians might feel bad about not being saved). If this were the 1950s, the rules would even have banned the NAACP from urging people to refuse to sit in the back of the bus.

They are also vague. Words like "debase" or "hostile" are extraordinarily slippery. As the one dissenting judge wrote, the guidelines permit the T "to make subjective, ad hoc determinations about speech that appears controversial because it endorses a minority viewpoint."

Yet the T's guidelines, vague and broad as they are, passed muster unscathed.

So why did the ACLU claim victory? While the court said it was OK for the T to ban the religiously oriented ad, it doubted the reasoning for banning the marijuana ads. The T had argued the three ads, created by a group called Change the Climate, encouraged kids to use pot. That, the court said, "strikes us as thin to the point of implausibility." In fact, the court figured, the T was just banning the ads because Mulhern disagreed with what they said - and that kind of discrimination, called "viewpoint" discrimination, isn't allowed.

As a result, after having spent $800,000, the T will have to run the three ads in question. Still, Mulhern thinks it's been worth it. "Overall, this was a tremendous victory for the T," he says.

He's right. The T still has largely unfettered discretion. All it will have to do is be a bit more clever in the rationale it gives. Indeed, notes a delighted T spokesman Joe Pesaturo, "If Change the Climate comes back to us with a new ad, we'll simply ban it." The court may have ruled against the T this one time, but its decision is so narrow it truly changes nothing.