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1st Circuit sides with pro-marijuana group in transit-ad dispute

By The Associated Press
12.01.04

BOSTON — A federal appeals court has ruled that the Massachusetts Bay Transportation Authority violated free-speech rights by refusing to display ads from a group that wants to legalize marijuana.

The 1st U.S. Circuit Court of Appeals found the MBTA's refusal to display three ads submitted by the nonprofit group Change the Climate violated the First Amendment because it was based on officials' disapproval of the views expressed in the ads.

The MBTA rejected the ads four years ago, claiming they encouraged children to smoke marijuana. The transit authority argued that it had the right to protect riders from offensive or illegal messages.

But the three-judge panel ruled in Ridley v. Massachusetts Bay Transportation Authority that the MBTA, a quasi-government agency, did not have the right to turn down advertisements based on its viewpoint.

"MBTA advertising space is literally a billboard for the expression of opinions to citizens at large. As a government agency, they shouldn't have the right to pick and choose what opinions they allow to be advertised," said Harvey Schwartz, an attorney for Greenfield-based Change the Climate.

The ads question current marijuana laws and penalties for people arrested on minor possession charges.

"I've got three great kids," reads one ad. "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."

MBTA General Manager Michael Mulhern said the agency was encouraged by parts of the ruling, including the court's finding that the MBTA's advertising guidelines are "viewpoint neutral" and constitutional. In a separate case, the court said the MBTA did have the right to reject ads from the Church with the Good News because that group's ads were demeaning or disparaging toward other religions.

In the case of the marijuana ads, however, the 1st Circuit found that the MBTA's rejection of the three Change the Climate ads was unreasonable and amounted to "viewpoint discrimination."

Mulhern disagreed.

"We felt that the ads promoted illegal drug use, and furthermore, we felt that the ads targeted youngsters," Mulhern said. "We felt it was an objective application of our guidelines. The court disagreed, and we have to deal with that."

Joe White, who founded Change the Climate in 1999, said the ads do not promote marijuana use by children, but instead seek to stimulate debate about current marijuana laws.

"Teenagers have easy access to marijuana in just about every community in Massachusetts and they have a much harder time getting alcohol and tobacco because it's regulated by adults," White said. "I think if adults are serious about keeping marijuana away from our kids that we would regulate and control it like we do alcohol and tobacco.

"In particular as parents, we're concerned that we are arresting our children in significant numbers and we're doing a lot more harm in that than probably marijuana does to them," White said.

The MBTA provides public transportation to approximately 1.2 million customers per day on subways, trains, buses and ferries. Up to 60,000 Boston public school students use the MBTA.

The agency uses its 40,000 advertising spaces on buses, trains, trolley and station platforms to generate revenue.

Over the years, the MBTA has received numerous complaints from its riders about advertisements. In the five-year period before the lawsuit was filed by Change the Climate, the MBTA rejected at least 17 advertisements barred by its ad policy, including some depicting violence, profanity and tobacco products.

The 1st Circuit noted that some alcohol ads approved by the MBTA were "clearly more appealing to juveniles" than the marijuana ads submitted by Change the Climate.

Mulhern said he did not know yet whether the MBTA would appeal the ruling to the U.S. Supreme Court. He said he would meet with the MBTA board tomorrow to discuss the case.

White said he planned to begin raising money for the ads immediately. When the group first proposed the ads four years ago, it planned to spend $50,000 on the advertising campaign, he said.


Previous
Pro-marijuana group sues transit agency for refusing ads
Change the Climate claims Massachusetts Bay Transit Authority violated the group's free-speech rights by rejecting ads that raise questions about marijuana laws. 05.22.00

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But dissenting justice says privacy rights guaranteed by state constitution should allow people to smoke marijuana in their homes. 10.01.07

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