Take Your Damn Free Speech Elsewhere: T Public Property Not a Legal Public Forum

Friday, November 20, 2015

The MBTA, we learned this week, is reworking its already strict guidelines for advertising on T property. 

Metro Boston’s transit system wants to prohibit “ads concerning political issues or matters of public debate,” according to an agency spokesman.

Although that ban has not yet been formally adopted, it is, for all intents and purposes, already in effect.
You may wonder how the T does that.  Isn’t this America? Don’t we have something called a First Amendment with a guaranteed right to free speech? 

And didn’t the Supreme Court rule in the Citizens United case that you can’t put limits on campaign donations because cash is the equivalent of speech and speech cannot be limited?
Yes, but MBTA property is not legally considered a “public forum,” a status that was generically adjudicated and definitively settled years ago.  The Supreme Court has said that the First Amendment does not guarantee access to property “simply because it is owned or controlled by the government.”

As an official non-public forum, the T can make and enforce any reasonable guidelines it wants on advertising content.
There’s nothing stopping the T from opening the floodgates to political and issues advertising.  If it did, however -- as other public transit agencies have done -- it would permanently sacrifice its right to be considered a non-public forum in the eyes of the law.  Once a public entity makes a forum public, it can’t go back to being non-public. 

It would be messy, of course, if the MBTA allowed all comers to buy political ads or to advance their agendas on any issue of the day.  People would be constantly offended and outraged.  Lawsuits would grow.  Vandalism against “offensive” ads on the T would become common.
I’d take all of that in a heartbeat for the shot in the arm that no-holds-barred ads on the T would give to our public discourse, our democracy, and for the political maturity and equanimity it would necessarily foster in the citizenry.  The guy who said “the cure for offensive speech is not less speech but more speech” had it right. 

And the Supreme Court said it neatly in a 1969 case:  “It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas,” emphasis on uninhibited. 
It would be a noble thing for the MBTA to have its essentially prosaic purpose support the exalted purpose of the First Amendment.

Sarah Wunsch of the Massachusetts chapter of the American Civil Liberties Union won my heart when she told the Boston Globe, “I’m sorry they (the MBTA) are going in that direction because I think we need more public spaces where people can share their views, even if people don’t love those views.”
On a practical level, how can the T leave all that money for political and issues advertising on the table when it’s starved for cash and floating trial balloons about the need for yet another fare increase?

Let’s hope Charlie Baker, who stout-heartedly took ownership of the T’s problems during the mass transit melt-down this past winter, will step up again and impose some of that common-sense he’s renowned for on this issue.

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