Initiative v. Mass. Bay Transp. Auth. & Beverly Scott

989 F.Supp.2d 182

AMERICAN FREEDOM DEFENSE INITIATIVE, Pamela Geller and Robert Spencer, Plaintiffs,

v.MASSACHUSETTS BAY TRANSPORTATION AUTHORITY and Beverly Scott, Defendants.

Civil Action No. 13–12803–NMG.

United States District Court, D. Massachusetts.

Dec. 20, 2013.

David Yerushalmi, The Law Offices of David Yerushalmi, P.C., Washington, DC, Robert J. Muise, Ann Arbor, MI, Robert Snider, Robert Snider, Framingham, MA, for Plaintiffs.

Joseph D. Steinfield, Jeffrey Jackson Pyle, Prince, Lobel, Glovsky & Tye LLP, Boston, MA, for Defendants.

MEMORANDUM & ORDER

GORTON, District Judge.

This case involves a First Amendment challenge to the rejection of an advertisement by the Massachusetts Bay Transportation Authority (“MBTA”), an independent authority that provides mass public transit in the Boston metropolitan area.

The dispute arose after the American Freedom Defense Initiative (“AFDI”), a non-profit advocacy organization known for its provocative public transit advertising campaigns, submitted an advertisement (“the AFDI Pro–Israel Advertisement”) to the MBTA that read: “In any war between the civilized man and the savage, support the civilized man. Support Israel. Defeat Jihad.” The MBTA rejected the advertisement on the grounds that it would demean and disparage Muslims and/or Palestinians in violation of its advertising program guidelines.

Plaintiffs now seek an order requiring the MBTA to accept and display their advertisement. For the reasons that follow, that motion will be denied.

I. BackgroundA. The parties

AFDI is an advocacy organization that seeks to educate the public about the purported threats posed by Islam and jihad. AFDI promotes its viewpoint on those issues by, inter alia, purchasing advertising space on public transit vehicles and facilities. Plaintiffs Pamela Geller (“Geller”) and Robert Spencer are, respectively, the organization's president and vice president.

Defendant MBTA is an independent authority established under Massachusetts law. Defendant Beverly Scott (“Scott”) is the General Manager of the MBTA.

B. The MBTA Advertising Guidelines

The MBTA, through its advertising agent, Titan Outdoor LLC (“Titan”), leases space on its facilities and equipment to commercial advertisers and nonprofits. Its Advertising Program Guidelines (“the Guidelines”) describe five program objectives:

(a) maximizing revenue generated by advertising;

(b) maximizing revenue generated by attracting, maintaining and increasing ridership;

(c) maintaining safe and orderly operation;

(d) maintaining a safe and welcoming environment for all MBTA passengers; and

(e) avoiding the identification of the MBTA or the Commonwealth with ads or advertisers' viewpoints.

The Guidelines state that the MBTA will not accept advertisements that, among other things, demean or disparage an individual or group, promote the use of alcohol or tobacco products, include a depiction of graphic violence, contain profanities or obscene material or promote unlawful conduct. They also prohibit political campaign speech and any false, misleading or deceptive commercial speech. They do not, however, prohibit political speech unrelated to a political campaign, religious messages or speech that expresses controversial views.

The Guidelines include a procedure for reviewing advertisements that might contain unacceptable content. If the initial reviewer at Titan believes that an advertisementdoes not comply with the Guidelines, he or she refers it to the MBTA contract administrator. If the contract administrator agrees that the advertisement is unacceptable, he or she documents the reason the advertisement should be rejected and refers it to MBTA general counsel. If he or she also agrees, the advertisement is referred to the MBTA general manager for a final determination.

The MBTA's current contract administrator, Barbara Moulton, asserts that the MBTA has rejected 13 ads since 2004. Most of those rejections were due to “prurient sexually suggestive” content or the use of profanities. The MBTA also found at least one advertisement “demeaning or disparaging” during that period.

The Guidelines provide a process for rehabilitating noncompliant advertisements. Specifically, once the MBTA determines that an advertisement is unacceptable, Titan

may ... discuss with the advertiser one or more revisions to the advertisement which, if undertaken, would bring the advertisement into conformity with the MBTA's Advertising Guidelines. The advertiser shall then have the option of submitting a revised advertisement for review by the MBTA.

If the advertiser does not agree to a mutually acceptable revision, it may request a final written notice of the MBTA's decision.

C. The subject advertisements

1. The Palestinian Refugee Advertisement

In October, 2013, the MBTA accepted an advertisement (“the Palestinian Refugee Advertisement”) that depicts four maps of the Near East that purport to show how Palestinian territory was chronologically reduced within Israeli-controlled territory between 1946 and 2010. The maps are accompanied by the following statement: “4.7 million Palestinians are classified by the U.N. as refugees”. That advertisement appeared on 80 posters throughout the MBTA system. The campaign was funded by a group called the Committee for Peace in Israel and Palestine which has sponsored similar transit system campaigns in New York City and Washington, D.C.

Titan employees were initially unsure if the Palestinian Refugee Advertisement complied with the Guidelines so they submitted it to the MBTA for further review but the MBTA eventually determined that it did comply. The record before the Court does not explain Titan's concerns or whether the MBTA reviewed the advertisement for compliance with any particular provision of the Guidelines. Nor does it reveal how many people at the MBTA reviewed the advertisement before it was deemed acceptable.

The Palestinian Refugee Advertisement was removed from MBTA advertising spaces at one point but then reposted after a short hiatus. It appears that Titan took the posters down after receiving complaints from the public and the Anti–Defamation League about their content. The MBTA did not offer a clear public explanation for why the posters had been temporarily removed and reported only that there was a “miscommunication” between the MBTA and Titan.

2. The AFDI Pro–Israel Advertisement

On the day after the MBTA announced that it would re-post the Palestinian Refugee Advertisement, plaintiff Geller contacted Scott Goldsmith (“Goldsmith”), the executive vice president and chief commercial officer of Titan, and requested it to run the AFDI Pro–Israel Advertisement in ten of the Boston MBTA stations where the Palestinian Refugee Advertisement had been posted. The proposed advertisement included the slogan “In any war between the civilized man and the savage, support the civilized man”, which was adapted from (but not attributed to) a 1974 speech by the author Ayn Rand, followed by the message “Support Israel. Defeat Jihad.”

The MBTA followed the multi-tiered review process described above and Scott ultimately determined that the advertisement was “disparaging or demeaning” under the MBTA Guidelines. The rule against demeaning or disparaging advertisements is more particularly described as follows:

Demeaning or disparaging. The advertisement contains material that demeans or disparages an individual or group of individuals. For the purposes of determining whether an advertisement contains such material, the MBTA will determine whether a reasonably prudent person, knowledgeable of the MBTA's ridership and using prevailing community standards, would believe that the advertisement contains material that ridicules or mocks, is abusive or hostile to, or debases the dignity and stature of, an individual or group of individuals.

Defendant Scott avers that she rejected the AFDI Pro–Israel Advertisement because she believed that it demeans or disparages Muslims and/or Palestinians and not because she disagrees with the ideology or perspective expressed by the advertisement.

On November 4, 2013, Goldsmith emailed Geller to tell her that the MBTA had rejected the AFDI Pro–Israel Advertisement. The body of the email states:

The MBTA has rejected your ad because it falls within the category (b)(i) “Demeaning or disparaging”. I have attached the ad policy for your review. Thank you.

There is no evidence in the record that defendants described to anyone how the advertisement violated that standard or offered plaintiffs an opportunity to bring their advertisement into compliance.

3. “Pro–Israel” advertisements accepted by the MBTA

The MBTA did, however, accept four advertisements that express a “pro-Israel” message that were submitted by an organization called Stand With Us on November 8, 2013. One states that “Jews are Indigenous to Israel” and depicts a series of maps that indicate that Israel is geographically smaller than the “ancient Jewish Kingdom” or the “internationally recognized Jewish homeland” as of 1920. Another allows viewers to link to a website that lists “The Top 10 Things Palestinian Leaders Don't Want You to Know” and states, inter alia, that Palestinian leaders regularly promote hatred, incitement and terrorism against Israel and the Jewish people.

D. Procedural history

Plaintiffs filed the instant lawsuit on November 6, 2013, two days after Goldsmith informed Geller that the AFDI Pro–Israel Advertisement was unacceptable. They filed an amended complaint two days later and shortly thereafter moved for a temporary restraining order or preliminary injunction. The Court held a hearing on December 4, 2013, and requested additional briefing on the question of whether the MBTA had applied its Guidelines correctly to plaintiffs' advertisement. It received memoranda from both sides on December 6, 2013.

II. Plaintiff's Motion for a TRO/Preliminary Injunction

Plaintiffs seek an order that would require the defendants...