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.