Imagine you're sitting on a bus or a train. You look up and, amid the ads for ambulance-chasing attorneys and laser-wielding dermatologists, notice a picture of two police officers. The text reads, "Police are too important" to waste on arresting people for marijuana when real criminals are on the loose."
Boston transit officials are determined to stop that scene from becoming a reality. Change the Climate, a Massachusetts-based drug policy reform group, tried to buy space for the message on buses and trains in Boston, but the Massachusetts Bay Transportation Authority turned it down. The MBTA also rejected two other ads: one featuring a mother who declares that "jail is a lot more dangerous than smoking pot," the other showing a teenager who says, "Smoking pot is not cool, but we're not stupid, ya know. Marijuana is NOT cocaine or heroin."
Now Change the Climate is challenging the Boston decision as a violation of the First Amendment, and it has got a good shot at winning. (The Washington, D.C., transit authority, which initially rejected the same ads, relented in September, convinced that it could not withstand a First Amendment challenge; the ads started appearing in January.) Federal judges have repeatedly rebuked the MBTA for turning down controversial ads, and at least three appeals courts have found that public transit advertising space can qualify as a "designated public forum," triggering "strict scrutiny" of content-based speech restrictions.
Even if the MBTA convinces the courts that it does not operate a public forum, its decisions about which messages to allow must still be "reasonable," and it may not discriminate based on viewpoint. That is exactly what the MBTA appears to be doing, since it gladly runs ads from the Office of National Drug Control Policy and the Partnership for a Drug-Free America. As MBTA spokesman Brian Pedro told National Public Radio, "You have to draw the line somewhere."