Unbanned in Boston
Yesterday the U.S. Court of Appeals for the 1st Circuit told the Massachusetts Bay Transportation Authority the First Amendment prohibits it from rejecting ads based on their political content. This is at least the third time the MBTA has been chastised for screening out messages it doesn't like. Other cases involved abortion and animal rights; this one involves ads critical of the war on drugs.
The ads' sponsor, Change the Climate, was also behind the Washington, D.C., anti-drug-war messages that provoked a congressional ban on such speech in mass transit systems that receive federal funds. A federal judge overturned that ban in June.
The message from the courts is pretty clear: A government-operated transit system may steer clear of controversy by rejecting all political ads (a course the MBTA is now considering), but it may not pick and choose among ads based on the position they take. While the MBTA's ad guidelines were not unconstitutional on their face, the 1st Circuit said, they were applied in a way that discriminated against a particular point of view.
The federal ban, by contrast, explicitly singled out the opinions it was aimed at squelching. Unlike local bureaucrats, congressional censors don't even pretend to respect the Constitution.