Pubdate: Sat, 02 Feb 2002
Source: Boston Globe (MA)
Page: B1
Copyright: 2002 Globe Newspaper Company
Contact:  http://www.boston.com/globe/
Details: http://www.mapinc.org/media/52
Author:  Thanassis Cambanis

MBTA ASKS COURT FOR FREEDOM TO DISAPPROVE ADS

There are lots of great places to debate American drug laws, or promote 
alternative churches, or discourage binge drinking. But the MBTA doesn't 
think its subway cars, trains, or buses are the proper forum for political 
discussion and embarked yesterday on its latest legal fight over 
advertisements it deems offensive.

In the face of numerous legal defeats, the Massachusetts Bay Transit 
Authority is back in federal court, this time defending its right to refuse 
ads questioning marijuana laws.

It's the T's fifth legal battle against a would-be advertiser in three 
decades, but the lawsuit by the drug law reform group Change the Climate is 
the first to go to trial.

For the courts, it's a relatively straightforward question of First 
Amendment Law: Do free speech protections apply to advertisers?

But the subtext involves more than a legal interpretation of free speech, 
some say. "Let's face it, Boston is a different kind of city, for good or 
for bad," said Boston College historian and author Thomas H. O'Connor. 
"After all, it was Puritans that founded Boston."

So, while New York rarely fights risque advertisers on its public transit 
system and Washington, D.C., has virtually halted any attempt to regulate 
political ads on its buses and subways, Boston is still banning ads at the 
rate of about two a year, officials say.

"Other cities can do what they want," MBTA spokeswoman Lydia Rivera said. 
"We have to, at some point, draw a line and say, 'This is unacceptable.' If 
we have to continuously go into court to try and let them know that [some] 
advertisements are unacceptable on our system, we will continue to do that."

Change the Climate, founded by Greenfield resident Joe White, wanted to run 
three ads on the MBTA. One, picturing a woman, read: "I've got three great 
kids. I love them more than anything. I don't want them to smoke pot. But I 
know jail is a lot more dangerous than smoking pot."

Another says, "Police are too important , too valuable, too good, to waste 
on arresting people for marijuana when real criminals are on the loose."

And a third says, "Smoking pot is not cool, but we're not stupid, ya know. 
Marijuana is not cocaine or heroin. Tell us the truth."

The MBTA rejected those ads last year, claiming they encouraged children to 
smoke marijuana.

In his opening statement yesterday, MBTA attorney Robert A. Bertsche said 
the transit authority retained the right to protect its riders from 
offensive or illegal messages.

"The T would not run an ad saying, 'Shoplifting is not cool, you know, but 
grand larceny is a lot worse,"' Bertsche said. "It wouldn't run an ad 
saying, 'Police are too important to waste on arresting people for date 
rape when real criminals are on the loose."'

The ads in question ran twice on the Washington transit system last year, 
displayed on the outside of 50 buses, inside 500 more, and in 10 metro rail 
stations.

"It's very rare that we're in any First Amendment lawsuits," said Lisa 
Farbstein, a spokeswoman for the Washington Metropolitan Area Transit 
Authority.

"We usually tend to run the ads that might be a little questionable because 
the board believes very strongly in First Amendment rights."

Washington's transit authority learned its lesson in 1984, Farbstein said, 
when it went to court to block an ad mocking President Ronald Reagan as 
leader of "The Jelly Bean Republic." The authority lost that case and has 
hesitated to interfere with ads ever since. Currently, Farbstein said, 
she's been fielding angry calls from riders upset about an ad campaign by 
Catholics for a Free Choice bearing messages such as, "Because the bishops 
ban condoms, innocent people die."

Some transit systems have successfully implemented a blanket ban on all 
public service ads. Once a system allows some political or public service 
messages, however, it becomes subject to complaints of viewpoint 
discrimination.

For example, argues Harvey Schwartz, the attorney representing Change the 
Climate, if abortion clinics can advertise in a public space, groups that 
oppose abortion also have the right to post their message.

"They can't pick and choose what viewpoints they'll allow," Schwartz said.

The MBTA currently bans ads that are obscene, violent, harmful to children, 
or denigrate groups based on gender, religion, race, or political affiliation.

The Church with the Good News has also sued the T over an ad that ran in 
December but was later yanked, which said, "Christians in the Bible never 
observed Christmas. Neither did they believe in lies about Santa Claus, 
flying reindeer, elves, and drunken parties."

Since 1974, the T has lost three federal suits brought by advertisers: 
Preterm Inc., an abortion clinic, in 1974; Citizens to End Animal Suffering 
and Exploitation, in 1992; and the AIDS Action Committee of Massachusetts, 
in 1994.

Among recent examples of ads banned by the MBTA was a city-sponsored 
campaign against binge drinking with graphic images of college-age people 
vomiting, and a promotion for the movie "Showgirls."

The MBTA couldn't say how much it has spent defending such lawsuits. 
Schwartz said he filed a Freedom of Information Act request two months ago 
to learn the MBTA's legal fees, but so far has heard nothing.

With 1.5 million passengers a day, Rivera said the MBTA takes seriously its 
responsibility to provide an environment free of degrading, frightening, or 
offensive images.

"Boston is a very old city and there's a lot of culture and respectability 
here," Rivera said.
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