Aids Action Committee of Massachusetts, Inc. v. Massachusetts Bay Transportation Authority

United States Court of Appeals for the First Circuit · Property

PropertyFirst AmendmentPublic forumViewpoint discriminationMBTA advertisingcondom adspublic transit advertisingcontent discrimination

Facts

The MBTA regularly sold advertising space in its subway and trolley cars and accepted both commercial and public service advertisements on many topics. AAC submitted seven condom-use public service ads in 1993 that used humor, sexual innuendo, and double entendre to promote HIV prevention, but the MBTA repeatedly changed positions on whether the ads were acceptable and ultimately refused to run them. The MBTA relied generally on an advertising policy barring, among other things, ads deemed patently offensive or containing messages or graphic representations pertaining to sexual conduct, although it did not clearly identify the policy basis during its dealings with AAC. At roughly the same time, the MBTA accepted and ran two sexually suggestive commercial ads for the movie "Fatal Instinct," which the court described as at least as sexually explicit and patently offensive as AAC's ads.

Issue

Did the MBTA violate the First Amendment by rejecting AAC's 1993 condom advertisements while simultaneously running the sexually suggestive "Fatal Instinct" advertisements? More specifically, could the MBTA treat its policy as a content-neutral manner restriction, and did its selective enforcement create an impermissible appearance of viewpoint discrimination?

Rule

A government restriction that forbids the use of particular words or sexually explicit or patently offensive expression to convey an idea is content-based, not a content-neutral time, place, or manner regulation. Even where the government may constitutionally proscribe a category of speech, content discrimination within that category is impermissible when it creates an appearance of viewpoint discrimination, unless the government offers a neutral justification that dispels that appearance. When the government regulates speech on the basis of content, it must employ rational and neutral standards and apply them in a non-discriminatory way so there is no appearance that it is handicapping particular ideas.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

The Cleveland Regional Transit Service sells ad space inside its buses. It adopts a rule allowing public-service messages about health and safety but forbidding ads that use "sexually explicit words or suggestive phrasing" to communicate those messages; under the rule, it rejects a nonprofit's STI-prevention ad that says, "Protection is a smart move before things heat up."

How should a court most likely characterize the transit service's rule under the majority opinion's reasoning?

Explanation. The majority held that a rule forbidding particular words or sexually explicit or patently offensive expression to convey an idea is content-based, not a content-neutral time, place, or manner restriction. A policy that allows the health message but bars certain protected wording targets communicative content itself. That is the key defect identified by the court. (Derived from Aids Action Committee of Massachusetts, Inc. v. Massachusetts Bay Transportation Authority (n.d.).)