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                UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT

                                         

No. 94-1116

        AIDS ACTION COMMITTEE OF MASSACHUSETTS, INC.,

                     Plaintiff, Appellee,

                              v.

     MASSACHUSETTS BAY TRANSPORTATION AUTHORITY, ET AL.,

                   Defendants, Appellants.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

           [Hon. Rya W. Zobel, U.S. District Judge]                                                              

                                         

                            Before

                    Boudin, Circuit Judge,                                                     
                Bownes, Senior Circuit Judge,                                                        
                  and Stahl, Circuit Judge.                                                      

                                         

James  G.  Reardon,  with  whom  Margaret  R.  Suuberg,  Julie  E.                                                                              
Reardon, Francis J. Duggan, and Reardon  &amp; Reardon, were on brief  for                                                          
appellants.
H. Reed  Witherby, with  whom Smith,  Duggan &amp;  Johnson, Sarah  R.                                                                              
Wunsch  and Massachusetts  Civil Liberties  Union Foundation,  were on                                                                    
brief for appellee.

                                         

                       November 9, 1994
                                         

          BOWNES, Senior  Circuit Judge.  In  this appeal, we                      BOWNES, Senior  Circuit Judge.                                                   

must  decide  whether  defendant-appellant Massachusetts  Bay

Transportation  Authority  (MBTA)  acted constitutionally  in

declining  to run in its subway and trolley cars seven public

service  advertisements  composed by  plaintiff-appellee AIDS

Action  Committee  of Massachusetts,  Inc.  (AAC).   The  ads

promote  the use of  condoms to help  stop the spread  of the

virus  which  causes AIDS,  the Human  Immunodeficiency Virus

("HIV").   The district court  ruled that the  MBTA's actions

contravened  the First  Amendment,  and issued  an injunction

which, inter  alia, ordered the MBTA to run the AAC ads.  See                                                                         

AIDS  Action Committee  of Mass.,  Inc. v.  Massachusetts Bay                                                                         

Transp. Auth.,  849 F. Supp. 79 (D. Mass. 1993).  For reasons                         

different than  those relied upon  by the district  court, we

agree that  the MBTA's actions violated  the First Amendment.

We therefore affirm.

                              I.                                          I.                                            

          AAC is a  Massachusetts not-for-profit  corporation

which includes among its main purposes  AIDS education of the

general public,  individuals at  high risk of  HIV infection,

and  health care  professionals.   The  MBTA  is a  political

subdivision  of the  Commonwealth  of Massachusetts.   It  is

explicitly  authorized to "sell,  lease or otherwise contract

for advertising  in or on  the facilities of  the authority."

See Mass. Gen. L. ch. 161A,     2 and 3 (1993).  Through  its               

                             -2-                                          2

advertising agent, Park Transit Displays, Inc. ("PTD"), which

was a  defendant below but is not a party to this appeal, the

MBTA  regularly  authorizes  the  posting  of  commercial and

public  service advertisements  in the  spaces above  its car

windows  and doors.  The  MBTA, in conjunction  with PTD, has

accepted   and    continues   to   accept    public   service

advertisements on a wide variety of topics.

          In July 1992,  AAC submitted seven proposed  public

service advertisements ("the 1992  AAC ads") to the MBTA  and

requested  that they be run  in September 1992.   Each of the

proposed ads had a large color picture of a condom wrapped in

a  package, and a message  stating that latex  condoms are an

effective means  of preventing the transmission of  HIV.  The

ads  also  included  headlines  and copy  which,  to  varying

degrees,  involved  the use  of  sexual  innuendo and  double

entendre.   In  August 1992,  the MBTA  told AAC that  it was

rejecting three of  the seven  ads.  In  September 1992,  the

MBTA changed its mind, and informed AAC that it would run the

three previously-rejected ads in  October 1992 at no  cost to

AAC.   The MBTA had run the other four ads in September 1992.

The seven  1992 AAC ads  are reproduced as  Exhibit A in  the

Appendix.

          The 1992 AAC ad campaign precipitated a significant

number of  telephone calls and letters to the MBTA.  The MBTA

submitted  to  the district  court  thirty-seven letters  and

                             -3-                                          3

summaries of telephone  calls as a  sample of this  reaction.

One of the  MBTA's submissions reflects a rider's  support of

the  ad   campaign;  the  other   thirty-six  exhibit  strong

opposition.   Of the  thirty-six letters and  telephone calls

complaining   about  the  ads,   twelve  (one-third)  contain

explicit  homophobic statements.  There is  nothing in any of

the 1992  AAC ads,  however, that  even indirectly refers  to

gays, lesbians, or gay/lesbian issues. 

          In  February 1993, the  MBTA promulgated a document

entitled "Commercial and  Public Service Advertising  Policy"

("the  Policy").   The Policy  contains a  mission statement,

outlines the  approach that  the MBTA  will take  in deciding

whether  to accept  proposed ads,  and sets  forth a  list of

guidelines for  commercial  and public  service  advertising.

Among other things, the guidelines state:

          All advertising placed  by PTD must  meet
          the  same guidelines  governing broadcast
          and   private  sector   advertising  with
          respect  to  good   taste,  decency   and
          community standards as determined  by the
          Authority.  That  is to say, the  average
          person  applying  contemporary  community
          standards    must     find    that    the
          advertisement,  as  a  whole,   does  not
          appeal  to  a  prurient  interest.    The
          advertisement  must  not  describe, in  a
          patently  offensive  way, sexual  conduct
          specifically  defined  by the  applicable
          state law, as written  or authoritatively
          construed.       Advertising   containing
          messages   or   graphic   representations
          pertaining to sexual  conduct will not be
          accepted.

                             -4-                                          4

The  public  service advertising  guidelines  also  note that

"[t]he purpose of the project being advertised should be such

that  the  advertising  methodology  can  help  achieve   the

objectives and goals  of benefitting and  educating society,"

and that  "[t]he project should be  of sufficient seriousness

and public  importance to warrant  the use of  public service

advertising space."

          In  March  1993,  AAC  submitted  another  proposed

public service ad to the MBTA.   The ad included a picture of

a  condom,  and contained  a  headline stating:    "Read this

before you get off."  Copy  beneath the headline read:  "Just

a reminder to always use a latex condom.  Barring abstinence,

it's the best  way to  prevent AIDS.   For more  information,

call the  AIDS Action  Committee Hotline  at 1-800-235-2331."

The MBTA rejected this ad.  Subsequently, in  September 1993,

AAC submitted six additional  proposed ads to PTD, requesting

that they be displayed in October and November 1993.  The six

ads, each of  which contained a picture of  a condom, read as

follows:

          1.  Headline:  "Haven't you got enough to
              worry about in bed?"  Copy:  "Use a  
              latex condom.  It might not take your
              mind off everything  during sex,  but
          at       least you'll have one less thing
          to        worry about.  AIDS.  For more  
                    information about HIV and AIDS,
          call           the AIDS  Action Committee
          Hotline at       1-800-235-2331."

          2.  Headline:  "Even if you don't have   
              one, carry one."  Copy:  "A latex    

                             -5-                                          5

              condom is the best way to prevent    
              AIDS.  So make sure that you've got  
              one on you when it's time to put one 
              on him.  For more information about  
              HIV and AIDS, call the AIDS Action   
              Committee Hotline at 1-800-235-2331."

          3.  Headline:  "Simply having one on hand
              won't do any good."  Copy:  "For a   
              latex condom to be effective against 
              AIDS, you've got to put it on the    
              correct appendage.  Use a condom.    
              Barring abstinence, it's the best way
              to   prevent   AIDS.       For   more
          information      about HIV and AIDS, call
          the AIDS                Action  Committee
          Hotline at 1-800-235-      2331."

          4.  Headline:  "You've got to be putting 
              me on."  Copy:  "You mean you're not 
              using a latex condom every time?  You
              can't    be    serious.       Barring
          abstinence,        it's the  best way  to
          prevent  AIDS.                  For  more
          information  about HIV and          AIDS,
          call  the AIDS  Action  Committee        
          Hotline at 1-800-235-2331."

          5.  Headline:  "Tell him you don't know  
              how it will ever fit."  Copy:        
              "Nothing will give him a swelled head
              faster than flattery.  So compliment 
              him  on his  good  sense in  using  a
          latex       condom.   Barring abstinence,
          it's the       best  way to prevent AIDS.
          For more        information about HIV and
          AIDS,  call             the  AIDS  Action
          Committee Hotline           at 1-800-235-
          2331."

          6.   Headline:   "One of these  will make
          you        1/1000th of  an inch  larger."
          Copy:          "Of course,  everyone says
          size doesn't        matter.   But a  thin
          layer of latex         could make all the
          difference in the          world.  Use  a
          condom.  Barring              abstinence,
          it's the best way  to             prevent
          AIDS.  For more information         about
          HIV and AIDS,  call the  AIDS            

                             -6-                                          6

          Action Committee Hotline at 1-800-235-   
           2331."

These  six ads, together with the ad proposed and rejected in

March  1993 (collectively "the  1993 AAC ads"),  are the only

ones at issue in  this litigation.  All seven  are reproduced

as Exhibit B in the Appendix.

          The  MBTA  and  PTD  reached  four  different   and

contradictory conclusions regarding  the acceptability of the

six ads presented in  September 1993.  On or  about September

30, 1993, PTD  accepted ads 1-4,  but rejected ads  5 and  6.

Two days later, however, PTD told  AAC that it could run ad 1

only if it deleted the phrase "in bed," and that it could run

ad 3 only if  it deleted the phrase "the  correct appendage."

Later, in the  first week  of October 1993,  the MBTA  itself

weighed  in, informing AAC that it could  run ad 2 only if it

omitted the word "him," and that it could run ad 4 only if it

rewrote the headline to read "You've  got to be kidding."  At

this same time, the MBTA and PTD informed AAC that  ads 5 and

6, which had been previously rejected in toto, could run with                                                         

substantial  editorial  changes.     In  the  end,  the  MBTA

completely rejected  all except  ads 3  and 4, and  indicated

that it would run  ad 3 only if AAC edited  it.  AAC declined

to engage in any editing, and none of the ads were run.  

          Although  the  MBTA  contends on  appeal  that  its

decisions regarding  the six ads submitted  in September 1993

were  guided  by  its  written advertising  Policy  (a  claim

                             -7-                                          7

vigorously  disputed  by AAC),  it made  no reference  to the

Policy in its discussions with  AAC.  In fact, in  the course

of this  litigation, the  MBTA did not  specifically identify

the portions  of the Policy on which  it was relying until it

filed  its  Reply Brief,  wherein it  states:   "As  AAC well

knows, the advertisements were  rejected because they violate

the MBTA's Policy.  Specifically, the advertisements describe

sexual  conduct  in  a  patently offensive  way  and  contain

graphic representations pertaining to sexual conduct."   This

assertion is called into  question, however, by the affidavit

of   the   MBTA's   General   Manager   for   Marketing   and

Communication, Loring Barnes.  In explaining why the ads were

rejected,  Barnes makes  no mention  of the  Policy; instead,

while characterizing  the ads as "lewd,  vulgar, indecent and

us[ing]  sexually explicit  metaphors"  (standards which  are

similar to those set forth in the Policy), Barnes states that

"the fact that the ads are unsuitable for viewing by children

was the  primary factor  in the MBTA's  [decision] .  . .  ."

Moreover,  Barnes  avers that  the  passengers  on MBTA  cars

constitute  a captive  audience, and  implies that  this fact

requires  the  MBTA  to  take  passenger  sensibilities  into

account  in  deciding whether  to run  a  submitted ad.   The

Policy does not explicitly  note that suitability for viewing

by  children or  a  captive audience  will  guide the  MBTA's

decisions on whether to accept proposed ads. In October 1993,

                             -8-                                          8

at roughly the same  time it was rejecting the  ads submitted

by AAC in September 1993,  the MBTA accepted and ran  two ads

for  the  movie   "Fatal  Instinct."    Both   of  these  ads

prominently feature the bare, crossed legs of a seated  woman

whose cleavage is visible but whose face is largely obscured.

In one of  the ads, the  woman is  suggestively eating a  hot

dog,  and the  headline "Come  here often?"  is  displayed at

crotch  level.  In the second ad, the headline "Opening Soon"

is displayed at crotch level across the woman's bare, crossed

legs.  The Barnes affidavit states that "the ad [sic] for the

movie "Fatal Instinct" was vulgar and inappropriate.  That ad

[sic] never would have been run if it had been brought to the

MBTA's attention  in advance."  The "Fatal  Instinct" ads are

reproduced as Exhibit C in the Appendix. 

          Eventually, AAC brought  suit against the MBTA  and

PTD  under 42 U.S.C.   1983 and similar state law provisions,

seeking  declaratory and  injunctive  relief.   The complaint

alleged, inter alia, violations of the First Amendment's Free                               

Speech Clause and the Fourteenth Amendment's Equal Protection

Clause, and included a facial and as-applied challenge to the

constitutionality  of  the  MBTA's  Policy.    AAC  initially

requested  a  preliminary  injunction,  but  at  the  hearing

thereon all parties stipulated  that the district court could

decide  the matter  on  the merits  based  upon the  existing

documentary record.  

                             -9-                                          9

          As one might expect, the record at that early stage

in the  proceedings was sparse.  In addition to copies of all

the  ads discussed above and a copy of the MBTA's advertising

Policy, AAC submitted a verified complaint, which states that

AAC's  use of  sexual  innuendo and  double  entendre in  the

proposed ads was not gratuitous, but instead was  directed at

"achiev[ing]  a crucial  goal of  convincing sexually  active

individuals,  particularly adolescents  and young  adults, to

use condoms to prevent the spread of HIV."   As the complaint

explains:

          The ads are based upon recognition of the
          principle that appeals  to fear are  less
          effective  in motivating  behavior change
          and that humor is more likely  to achieve
          the   intended   effect  on   the  target
          audience.    The  ads  were  specifically
          aimed  at,  and  designed   to  overcome,
          barriers  to  condom use  that  have been
          identified    by    experts,    including
          adolescents' sense of immortality and the
          male  ego.    Using  humor,  the ads  are
          designed to take some  of the edge off of
          the  otherwise sober message  in order to
          make the intended audience more receptive
          to it.  In the judgment and experience of
          AIDS Action Committee's staff and  of the
          advertising  professionals  who  designed
          the  ads,  this   approach  is  the  most
          effective way to reach and  persuade this
          audience.

AAC  also  presented  a   sworn  declaration  from  David  H.

Mulligan, Commissioner of the Department of Public Health for

the Commonwealth of Massachusetts,  attesting to the severity

of  the  AIDS  crisis  among  Massachusetts  adolescents  and

expressing  his view  that the  ads at  issue "are  likely to

                             -10-                                          10

reach  their target  audience  and therefore  will perform  a

public service."  Finally,  AAC introduced letters of support

from  Massachusetts Governor  William Weld  and Dr.  James W.

Curran, Assistant U.S. Surgeon General.

          The  MBTA's  submissions  also  were  meager.    In

addition to  the affidavit of  Loring Barnes,  copies of  the

1992  AAC ads,  and the  letters and  summaries  of telephone

calls we  have discussed above, the  MBTA introduced examples

of less sexually suggestive  ads, previously run by the  MBTA

and other transportation authorities, which advocate the  use

of condoms  to prevent  the spread  of AIDS.   The  MBTA also

presented  a copy  of  a breast  cancer ad  to which  AAC had

referred in its complaint without attaching it as an exhibit.

Finally,  the  MBTA  presented  an  ad  inquiry  featuring  a

photograph of an aborted  fetus.  The MBTA submitted  this to

underscore its need to "place limits on the ads placed in its

trains."

          On   December  29,   1993,   after  reviewing   the

documentary   evidence,   the  district   court   issued  its

Memorandum of Decision.  See  849 F. Supp. at 79.   The court                                        

first found that the  MBTA, by posting ads on  a wide variety

of  topics  over the  years, by  hiring  PTD to  promote MBTA

facilities  as  advertising  venues,  and  by publishing  its

advertising Policy, had designated  the interiors of its cars

as public  fora.  Id. at  83; see also Perry  Educ. Ass'n. v.                                                                      

                             -11-                                          11

Perry  Local Educators'  Ass'n.,  460 U.S.  37, 45-47  (1983)                                           

(establishing  three categories of  public property  for free

speech purposes:  traditional public fora,  designated public

fora, and nonpublic fora).  

          Relying on  this conclusion,  and on the  fact that

First Amendment standards apply  in a designated public forum

to the same extent as in a traditional public forum (i.e.,  a

forum [such as a  street or park] "which by long tradition or

government fiat  ha[s] been devoted to  assembly and debate,"

Perry, 460 U.S. at  45), see, e.g., Board of  Airport Comm'rs                                                                         

v. Jews for Jesus, Inc., 482  U.S. 569, 573 (1987), the court                                   

next  considered whether  the ads  could  be constitutionally

excluded.    849  F.  Supp.  at  83-84.    In  so  doing,  it

scrutinized  whether  the  standard  by which  the  ads  were

rejected  was either  (1) a  content-neutral time,  place, or

manner restriction, narrowly tailored to serve  a significant

state interest  and leaving open  ample, alternative channels

of  communication;   or  (2)  a   content-based  restriction,

necessary to  serve a compelling state  interest and narrowly

drawn to  achieve that end.  Id.; see also Perry, 460 U.S. at                                                            

45-46  (reciting  the   permissible  speech  restrictions  in

traditional and  designated public  fora).  After  noting the

ambiguity as to whether the MBTA excluded the ads pursuant to

its written advertising Policy or under some unwritten policy

alluded to in  the Barnes affidavit, 849 F. Supp.  at 83 n.6,

                             -12-                                          12

the  district  court  determined  that  the  exclusions  were

content-based, and that whatever  standard guided them had to

be both  necessary to serve  a compelling state  interest and

narrowly drawn to achieve that end, id. at 84.                                                     

          Finally, the court decided that the state interests

allegedly   dictating  the   challenged  exclusions   --  the

protection  of  both  children  and the  sensibilities  of  a

captive  audience -- were not,  in the context  of this case,

compelling.   Id.   Accordingly, it permanently  enjoined the                             

MBTA from refusing to  accept and display in its  cars and on

its   train  platforms  the   six  advertisements  originally

submitted in September 1993.  Id.  at 85.  In what appears to                                             

have been an oversight, the judgment failed to mention the ad

submitted in March 1993.  See id.  The court also permanently                                             

enjoined the  MBTA from using  its advertising  Policy "as  a

basis  for  rejecting non-obscene  and  non-defamatory public

service advertisements on the basis  of their content."   Id.                                                                         

This appeal followed.

                             II.                                         II.                                            

          When faced  with a  party's appeal from  an adverse

ruling  after a  bench trial  on the merits,  our role  as an

appellate tribunal ordinarily is quite  circumscribed.  While

we review de novo  the district court's legal determinations,                             

we accord  a significant amount  of deference to  the court's

factual  determinations and  to  most of  its resolutions  of

                             -13-                                          13

mixed  fact/law issues,  letting them  stand unless  they are

clearly  erroneous.  See,  e.g., Williams v.  Poulos, 11 F.3d                                                                

271, 278 and n.11 (1st Cir. 1993).  

          In cases  like this  one, however, where  the trial

court  is called upon to  resolve a number  of mixed fact/law

matters which  implicate core  First Amendment  concerns, our

review, at least on these matters, is plenary so that we  may

reduce the likelihood of "`a forbidden intrusion on the field

of  free expression.'"  See  Bose Corp. v.  Consumer Union of                                                                         

United States, Inc.,  466 U.S. 485,  499 (1984) (quoting  New                                                                         

York Times Co.  v. Sullivan, 376 U.S. 254, 286  (1964)).  The                                       

Bose rule recognizes  that the meaning of  a particular legal                

standard -- e.g., the meaning of "actual malice" in a product

disparagement action -- often "cannot be adequately expressed

in  a simple statement," and must  be developed through case-

by-case  adjudication.   Id. at  503.   It also  recognizes a                                        

heightened  need  for  vigilance  and  consistency  when that

standard is supplied by the Constitution, particularly by the

First  Amendment.  See id. at 503-04.   De novo review of the                                                           

trial court's  application of  a First Amendment  standard to

the facts before  it "ensures that the  federal courts remain

zealous  protectors of  First  Amendment rights."   Duffy  v.                                                                     

Sarault, 892 F.2d 139, 142-46 (1st Cir. 1989).                   

          These principles provide  a self-evident  corollary

to  the oft-cited maxim that  we, as an  appellate court, are

                             -14-                                          14

"free  to  affirm the  judgment  below  on any  independently

sufficient ground made  manifest by the record."   See, e.g.,                                                                        

Ticketmaster-New York, Inc. v. Alioto,  26 F.3d 201, 204 (1st                                                 

Cir. 1994).  The corollary is that, so long as  the record is

adequately developed, we will not hesitate to resolve a mixed

fact/law issue involving a  core First Amendment concern even

though the district  court did  not address it  in the  first

instance.    This  rule  furthers the  interest  of  judicial

economy  by avoiding the remand  of a question  over which we

eventually  will exercise  full  review; it  also serves  the

interest  of expediency on questions -- e.g., the legality of

a prior restraint of speech -- where a timely ruling is often

crucial.

                             III.                                         III.                                             

          On appeal, the MBTA makes  several arguments, which

we  rearrange for ease of  analysis.  First,  the MBTA argues

that the district court  erred in finding that the  denial of

the proposed  ads was not effectuated pursuant to a narrowly-

tailored, content-neutral  manner regulation.  Next, the MBTA

contends  that the district  court erred in  finding that the

interiors of  its cars are  designated public fora,  and that

this erroneous conclusion led the court to apply too strict a

level of scrutiny to the exclusion of the ads.   Finally, the

MBTA asserts  that even  if  the court  did  not err  in  its

designated public  fora finding, it erred  in concluding that

                             -15-                                          15

the  exclusion  did  not  pass  constitutional  muster  under

heightened scrutiny.

          As  we shall  explain, we  think that  the district

court correctly  determined that the MBTA's  rejection of the

ads  was content-based.   Accordingly,  we reject  the MBTA's

first  appellate argument.  We do not reach the MBTA's second

and third appellate arguments, however, because we find that,

in  rejecting  the  1993  AAC ads  while  running  the "Fatal

Instinct" ads,  the  MBTA engaged  in content  discrimination

which gave rise to an appearance of viewpoint discrimination,

and that it has failed to  explain that appearance away.  Cf.                                                                         

Bose, 466 U.S. at 505 ("The principle of viewpoint neutrality                

that underlies the  First Amendment  itself . .  . imposes  a

special responsibility  on [appellate] judges whenever  it is

claimed  that a  particular  communication is  unprotected.")

(citation omitted). 

A.  Content-Based vs. Content-Neutral Restrictions            A.  Content-Based vs. Content-Neutral Restrictions                                                              

          As  we have  noted, the  MBTA renews  its argument,

first  made to the district  court, that the  Policy by which

the 1993  ads were excluded is  a content-neutral restriction

on  the manner in which messages may be conveyed on its cars.

In the MBTA's view, its disallowance of "sexually explicit or

patently  offensive  language to  convey  .  . .  substantive

message[s]" is more akin  to a paradigmatic manner regulation

(e.g., a prohibition of  megaphones) than it is to  a typical

                             -16-                                          16

regulation  which  suppresses  speech  on the  basis  of  its

content  (e.g., a  prohibition  of public  service ads  which

discuss  abortion).  Even if we accept arguendo that the 1993                                                           

AAC ads  are "sexually explicit" or  "patently offensive" and

that the ads  actually were excluded pursuant  to the Policy,

we find the MBTA's argument to be seriously flawed.

          Although it  might be reasonable, in  an analytical

vacuum, to characterize a prohibition on the  use of sexually

explicit or  patently  offensive language  to communicate  an

idea as a limitation  on the "manner" in which  a speaker may

speak, such a characterization  flies in the face of  how the

Supreme  Court has  construed the  concept of  manner through

case-by-case adjudication.  Cf.  Bose, 466 U.S. at 503.   The                                                 

Court has  defined the term  narrowly, making clear  that, in

order  to  be  considered   a  valid  manner  restriction,  a

regulation  cannot be  aimed at  the communicative  impact of

expressive  conduct.     See  Laurence   A.  Tribe,  American                                                                         

Constitutional Law,   12-2, at 791-92 (2d ed. 1988).  This is                              

made  manifest by  the overarching  requirement that  a time,

place, or manner restriction  be content-neutral.  See Perry,                                                                        

460  U.S.  at  45.   Thus,  the  Supreme  Court rejected  the

argument that  the statute under which Paul  Robert Cohen was

convicted for  wearing a jacket  bearing the words  "Fuck the

Draft,"  as  applied  to Cohen  in  that  case,  was a  valid

regulation  of   the  manner   in  which  he   exercised  his

                             -17-                                          17

constitutional  right   to  speak  freely.     See  Cohen  v.                                                                     

California,  403 U.S. 15, 19-26 (1971).  Central to the Cohen                                                                         

Court's  reasoning  was  a  disagreement  with  "the   facile

assumption that one can  forbid particular words without also

running  a  substantial  risk  of suppressing  ideas  in  the

process."   Id. at 26; cf. Hustler Magazine, Inc. v. Falwell,                                                                        

485  U.S.  46,  51  (1988)  (recognizing  the  need  to  keep

"individual   expressions  of   ideas   .  .   .  free   from                                     

governmentally   imposed  sanctions")   (emphasis  supplied).

Clearly  then,  a  regulation which  permits  an  idea to  be

expressed  but   disallows  the  use  of   certain  words  in

expressing that idea is content-based.

          The two cases cited by the MBTA in arguing that its

Policy   is  content-neutral  actually   support  a  contrary

conclusion.   In Bethel School  Dist. No. 403  v. Fraser, 478                                                                    

U.S.  675 (1986),  a case  which upheld  the right  of school

authorities to discipline a  student for "indecently lewd and

offensive speech" at a  school assembly, see id. at  685, the                                                            

Court in no way  indicated that the school  disciplinary rule

forbidding "obscene, profane  language" was  content-neutral.

Rather,  a  fair reading  of  the  opinion in  context  makes

apparent  that the  Court viewed  the rule  as content-based.

See  generally id.  at 681-86.   Indeed,  the Court  is quite                              

clear  that the school's need  to counter the  content of the                                                                  

student's speech, and not the need to regulate the incidental

                             -18-                                          18

and  noncommunicative  impact of  the  speech,  justified the

disciplinary action taken.   Id. at 685 ("[I]t  was perfectly                                            

appropriate for the school to disassociate itself to make the

point  to the pupils that  vulgar speech and  lewd conduct is

wholly inconsistent with the  `fundamental values' of  public

school education.").  

          In FCC v. Pacifica Foundation, 438 U.S. 726 (1978),                                                   

a case in  which the  Court upheld the  right of the  Federal

Communications Commission to regulate the radio  broadcast of

"indecent"  language in  a monologue  by the  comedian George

Carlin, the Court was even more explicit.  It noted:

               The  words  of the  Carlin monologue
          are  unquestionably  "speech" within  the
          meaning of  the First  Amendment.   It is
          equally   clear  that   the  Commission's
          objections to the broadcast were based in
          part  on its content.  The [Commission's]
          order must therefore fall if, as Pacifica
          argues, the First Amendment prohibits all
          governmental  regulation that  depends on
          the content of speech.

Id. at 744.   As it did in Bethel, the Court  went on to hold                                             

that the content-based  regulations at  issue were  justified

under the  facts and  circumstances of that  particular case.

Id. at 748-51.               

          Here, there can be no doubt that the MBTA's Policy,

on its face  and as  applied to  AAC's proposed  ads, is  not

content-neutral.  The Policy  does not allow communication of

the  underlying message  by means  of  any words  which enjoy

First Amendment protection;  instead, it limits the  universe

                             -19-                                          19

of words  the speaker may  select to those which  are not, in

PTD's   and/or  the  MBTA's   view,  "sexually  explicit"  or

"patently offensive."   Hence, the  district court  correctly

declined  the MBTA's invitation to treat it as a time, place,

or manner restriction.  See Perry, 460 U.S. at 45.                                             

B.  Viewpoint Discrimination            B.  Viewpoint Discrimination                                        

          In its complaint, AAC raised the issue of viewpoint

discrimination by noting that the MBTA was  excluding its ads

at the same time it was  running, inter alia, the ads for the                                                        

movie  "Fatal Instinct."   The  district court  never reached

this issue, finding instead  that the MBTA, having designated

the interiors of its cars as public fora, lacked a compelling

basis  for excluding  the 1993 AAC  ads, and  further finding

that the MBTA's Policy was unconstitutional on its face.

          It is exceedingly difficult to say whether the MBTA

has  designated the interiors of  its cars as  public fora on

the record before us.   As we have already noted,  the record

is not particularly well developed.  On the one hand, AAC has

provided  us  with precious  little  evidence  of the  MBTA's

practice  in accepting  or rejecting  ads  over the  past few

years.  On  the other  hand, despite the  MBTA's attempts  to

present itself  as a vigilant gatekeeper, the  only ads other

than the 1993 AAC ads that we know the MBTA recently rejected

are certain  Calvin Klein ads  which somehow might  have been

misconstrued as  endorsing the  Ku Klux  Klan, and an  animal

                             -20-                                          20

rights  ad  featuring  a photograph  of  a  maimed  dog.   We

appreciate that the parties are anxious to have us settle the

public forum question.   Because we do not even  know whether

and  when the  written advertising  Policy went  into effect,

however, and because  we find in the  record an independently

sufficient  ground  for  affirming  the  district  court,  we

decline  to anchor an important  First Amendment ruling on so

fragile a foundation.

          Our decision not to reach the public forum question

is informed  by an additional consideration:   the relatively

murky status of the public forum  doctrine.  On the one hand,

the Supreme Court, in a pre-Perry case, indicated that public                                             

mass transit organizations, acting in proprietary capacities,

may  allow a  significant  amount of  public discourse  while

still constitutionally  excluding broad categories  of speech

based on content.   See Lehman v. City of Shaker Heights, 418                                                                    

U.S. 298 (1974) (upholding  city's right to exclude political

advertising from  its rapid transit system).  And, in several

recent cases, the Court has used language suggesting that, in

determining   whether  the  government   qua  proprietor  has                                                                    

designated  public  property to  be  a  public forum,  courts

should be highly deferential to the government's decisions to

regulate   speech.  See   International  Soc'y   for  Krishna                                                                         

Consciousness,  Inc. v.  Lee,  112 S.  Ct. 2701,  2705 (1992)                                        

(holding the vestibules  of the three  major airports in  the

                             -21-                                          21

New  York  City  area  not  public fora);  United  States  v.                                                                     

Kokinda, 497  U.S. 720, 725 (1990)  (holding sidewalk outside                   

post office not a public forum).  Indeed, these cases suggest

that courts  should hinge  their analyses largely  on whether

the government intended that the property become a designated                                   

public forum.  See Lee, 112 S. Ct. at 2706; Kokinda, 497 U.S.                                                               

at  725; Cornelius v. NAACP Legal Defense &amp; Educ. Fund, Inc.,                                                                        

473  U.S.  788,  802  (1984) (holding  the  Combined  Federal

Campaign for  charitable  fundraising not  a  public  forum).

Broadly read,  Lee, Kokinda,  and Cornelius suggest  that the                                                       

very  existence  of  the  MBTA's  written  Policy  may  be  a

sufficient basis for finding that  the interiors of MBTA cars

are not public fora.  

          On the other  hand, the Court also  has stated that

the  government's intent must be gleaned  from its policy and

practice  with  respect  to  the  property  at  issue.    See                                                                         

Cornelius, 473 U.S. at 802; see also  Grace Bible Fellowship,                                                                         

Inc. v. Maine School Admin. Dist. No. 5, 941 F.2d 45, 47 (1st                                                   

Cir.  1991)   (in  determining  whether  the  government  has

designated  some  property  to  be a  public  forum,  "actual

practice speaks louder  than words").  It  also has indicated

that it  will not infer an  intent not to designate  a public

forum  solely  from the  fact  that  the government  excluded

certain speech or speakers in the case before it.  See Lamb's                                                                         

Chapel v. Center Moriches Union Free School Dist., 113 S. Ct.                                                             

                             -22-                                          22

2141, 2146 (1993)  (evidencing a willingness  to find that  a

public school  district had designated certain  property as a

public  forum, even  in the  face of  contrary protestations,

where  the property  "is heavily  used by  a wide  variety of

private organizations").   These cases indicate that evidence

not currently in this record may well drive the determination

whether the interiors of MBTA cars are public fora.

          At  any  rate,  we  turn  now  to the  question  of

viewpoint  discrimination   --  or  more   specifically,  the

unrebutted appearance of viewpoint discrimination -- which we                                 

think  disposes of  this appeal.    Throughout the  course of

these proceedings,  the MBTA  has asserted  that it  has been

viewpoint  neutral because  it  has  in  no way  opposed  the

message  that wearing a latex condom is an effective means of

preventing  the  transmission  of  HIV.   If  this  assertion

accurately  characterized the level  of specificity  at which

AAC is  making its  viewpoint discrimination claim,  we would

have to agree.  It is  abundantly clear that the MBTA has not

opposed expression of  the view  that the use  of condoms  is

effective in the fight against AIDS.  

          AAC's  two-part viewpoint  discrimination argument,

which we cull from its complaint, is, however, more specific.

First,  AAC points out that  the MBTA has  engaged in content

discrimination by  applying its Policy to  disallow AAC's use                                                                   

of  sexual innuendo  and double  entendre to  communicate its

                             -23-                                          23

messages while simultaneously permitting other advertisers to

communicate their messages through these modes  of expression

and at  levels of  explicitness equalling, if  not exceeding,

that in the AAC ads.  Second, AAC contends that  this content

discrimination is prohibited even in a nonpublic forum (where

the  underlying  speech   might  be  otherwise  proscribable)

because  it   gives  rise  to  an   appearance  of  viewpoint

discrimination  which the MBTA  has failed to  explain away. 

We find this argument persuasive.

          Even if we again assume arguendo  that the MBTA has                                                      

correctly  characterized  the AAC  ads  as sexually  explicit

and/or patently offensive, that it has excluded them pursuant

to  its  written Policy,  and  that  it may  constitutionally

proscribe sexually explicit and/or patently  offensive speech

in   its   cars,  we   must   decide   whether  the   content

discrimination  inherent in  the MBTA's  decision to  run the

"Fatal Instinct"  ads,  while not  running  the AAC  ads,  is

permissible.   After  all, we  think the presence  of content

discrimination in the MBTA's application of its Policy cannot

seriously be disputed.  The "Fatal Instinct" ads are at least

as  sexually explicit  and/or patently  offensive as  the AAC

ads.  Their headlines are as suggestive as the most daring of

the AAC  ads; they contain provocative  photographs not found

in  the AAC  ads; and they  involve a less  protected type of

speech -- commercial speech -- than that in the AAC ads.  See                                                                         

                             -24-                                          24

Virginia State Bd. of  Pharmacy v. Virginia Citizens Consumer                                                                         

Council, Inc.,  425 U.S.  748, 772 n.24  (1976) (noting  that                         

commercial speech has "a different degree of protection").

          The  most recent and authoritative statement on the

permissibility vel non of  content discrimination within  the                                  

context of  proscribable speech is found  in Justice Scalia's

majority opinion in  R.A.V. v. City  of St. Paul,  Minnesota,                                                                        

112 S. Ct. 2538 (1992).  We quote from R.A.V. at some length,                                                         

because we believe it highly relevant to this case:

               Even the prohibition against content
          discrimination that we  assert the  First
          Amendment  requires is not  absolute.  It
          applies  differently  in  the context  of
          proscribable speech  than in the  area of
          fully protected speech.  The rationale of
          the  general  prohibition, after  all, is
          that  content  discrimination raises  the
          specter    that   the    Government   may
          effectively   drive   certain  ideas   or
          viewpoints  from  the  marketplace.   But
          content   discrimination  among   various
          instances  of  a  class  of  proscribable
          speech does not pose this threat.
               When  the  basis  for   the  content
          discrimination  consists entirely  of the
          very reason the entire class of speech at
          issue  is  proscribable,  no  significant
          danger     of    idea     or    viewpoint
          discrimination  exists.   Such  a reason,
          having  been  adjudged neutral  enough to
          support  exclusion of the entire class of
          speech  from First  Amendment protection,
          is  also neutral enough to form the basis
          of  distinction within  the  class.    To
          illustrate:    A  State might  choose  to
          prohibit only that obscenity which is the
          most patently offensive in  its prurience                                                               
          --  i.e., that  which  involves the  most                              
          lascivious  displays of  sexual activity.
          But  it  may not  prohibit,  for example,
          only   that   obscenity  which   includes

                             -25-                                          25

          offensive  political  messages.   And the                                          
          Federal  Government can  criminalize only
          those  threats  of   violence  that   are
          directed against the President, since the
          reasons  why  threats  of   violence  are
          outside  the First  Amendment (protecting
          individuals  from  the fear  of violence,
          from the disruption that  fear engenders,
          and   from   the  possibility   that  the
          threatened  violence   will  occur)  have
          special force when  applied to the person
          of  the  President.    But   the  Federal
          Government may not criminalize only those
          threats   against   the  President   that
          mention  his  policy  on  aid   to  inner
          cities.   And to take a  final example, a
          State  may  choose   to  regulate   price
          advertising  in one  industry but  not in
          others, because the risk of fraud (one of
          the characteristics  of commercial speech
          that justifies depriving it of full First
          Amendment  protection),  is  in its  view
          greater  there.   But  a  State  may  not                                                               
          prohibit only that commercial advertising                                                               
          that depicts men in a demeaning fashion.                                                             

Id.  at  2545-46  (citations  and  internal  quotation  marks               

omitted) (third emphasis supplied).  Largely on the  basis of

these  principles, the  majority went  on to  strike  down as

facially unconstitutional a city ordinance which criminalized

the expression of only those "fighting words" (a proscribable

type of speech,  see Chaplinsky  v. New  Hampshire, 315  U.S.                                                              

568,  572 (1942)) based  on "race, color,  creed, religion or

gender."   Id.  at  2547.   It  did so  because  the  content                          

discrimination countenanced by the  statute was the sort that

gave off  the appearance of hostility  to certain viewpoints,

see R.A.V.,  112 S. Ct. at  2547-48, and because  the City of                      

St.  Paul's comments  and concessions  in the  case  not only

                             -26-                                          26

failed to dispel this appearance but confirmed it as reality,

id. at 2549.               

          The MBTA's  decision not to  run the AAC  ads while

running the "Fatal Instinct" ads, like the City of St. Paul's

decision to criminalize certain types of fighting words while

leaving  others  legal,  constitutes  content  discrimination

which   gives   rise   to    an   appearance   of   viewpoint

discrimination.    And,  the  MBTA  has  not  dispelled  this

appearance.   The  MBTA  has not  attempted  to articulate  a

neutral  justification for  what  happened; instead,  it  has

stated that running  the "Fatal Instinct" ads was  a mistake.

But this statement is unpersuasive,  and by no means counters

the impression of discrimination.

           The record  basis for  the claim  of mistake  is a

single sentence  in a  multi-page affidavit submitted  by the

MBTA  asserting, as  we have  stated, that  "[t]hat  ad [sic]

would  never  have been  run if  it had  been brought  to the

MBTA's  attention  in  advance."   There  is  no  suggestion,

however,  that  the  MBTA  remained  unaware  of  the  "Fatal

Instinct"  ads or made  any effort  to remove  them.   Nor is

there  any explanation  as to  why, under  whatever screening

process  exists,  the MBTA  is  able to  detect  threats from

written   double  entendres  but   unable  to  detect  highly

provocative   pictures   (which   themselves   bear   legends

containing obvious double entendres!).

                             -27-                                          27

          One might easily infer that ads tend to be screened

not because they  threaten to violate the Policy  but because

they  appear likely  to  generate controversy  or, even  more

surely, where controversy actually results.  The 1992 AAC ads

were accepted,  quite consciously  after an initial  dispute,

and  the subsequent ones were rejected only after a number of

public letters of protest.  The "Fatal Instinct" ads are more

overtly  sexual  and more  blatantly  exploitative;  but they

represent the conventional exploitation of women's bodies for                                      

commercial  advertising.    The  condom  ads,  by   contrast,

represent  sexual  humor addressed  to  men's  bodies and  --

because  of the  connection to  AIDS --  are also  capable of

provoking homophobic reactions from the public, and did.

          These  circumstances also lend  themselves at least

to an appearance of  viewpoint discrimination.  Regardless of

actual motivation, grave damage is done if the government, in

regulating  access to  public  property, even  appears to  be

discriminating  in  an unconstitutional  fashion.   And  this

appearance is only  aggravated when the  sources may seem  to

lie in demeaning stereotypes and phobias.  In all events, the

MBTA  has  not  effectively  removed the  taint  of  apparent

discrimination.

          The  MBTA seeks to  explain its original acceptance

of the condom ads,  and their later rejection, as  a response

to  the adoption  of its  Policy in  the meantime.   But  the

                             -28-                                          28

Policy explains almost  nothing:   its language  has at  best

doubtful application  to the  condom ads but  the most  vivid

application to the "Fatal Instinct" ads, which are manifestly

designed  to  appeal to  a  prurient  interest and  certainly

contain "graphic representations pertaining to sexual conduct

. . . ."

          The   Policy   itself  is   almost   impossible  to

understand.    The purported  exclusion  of  all messages  or

representations  "pertaining to sexual  conduct" is  so vague

and  broad that it could cover much of the clothing and movie

advertising commonly  seen on  billboards  and in  magazines.

The   prior   sentence,   relating  to   patently   offensive

descriptions,  is mysteriously connected to unspecified state

laws.  The prurient interest  reference appears to be derived

from one portion of the Supreme Court's obscenity definition,

but  one  never  intended   as  a  stand-alone  criterion  of

obscenity.  And, significantly, the MBTA does  not claim that

the condom ads themselves are constitutionally obscene.

          We  think that the opportunities for discrimination

created by this Policy  have been borne out in  practice, and

that this case presents an unrebutted claim of discrimination

in the application of supposedly neutral standards.  It makes

no  difference  whether  AAC  prefers  a  broader  ruling  or

whether,  as  the  MBTA  claims, AAC  failed  technically  to

preserve  an  equal protection  objection.   First  Amendment

                             -29-                                          29

litigation of this kind  has consequences that go  far beyond

the  individual parties.  We think that the more far-reaching

issue  that both  sides might  prefer to  address (i.e.,  the

public  forum issue)  is not yet  suited for  resolution, and

that, on this record,  the MBTA's action can properly  be set

aside on the narrow basis set forth.

                             IV.                                         IV.                                            

          It  remains  to  consider  the   remedial  judgment

adopted  by the  district court.   In substance,  it declared

that the Policy violates the First and Fourteenth Amendments,

and  that the MBTA's failure  to accept the  AAC ads violates

those constitutional  provisions.  The judgment also enjoined

the Policy's future use as a basis for rejecting  non-obscene

and  non-defamatory  advertisements,  and  directed  that the

specific condom  ads  in  question  be displayed.    Our  own

rationale prompts us to provide a somewhat different gloss on

the relief to be afforded.

          We  think that  the Policy  in its present  form is

scarcely  coherent,  invites  the  very  discrimination  that

occurred in this case, and was properly enjoined.  Similarly,

absent a rational  and neutral policy, implemented  in a non-

discriminatory  fashion, we  see no  basis for  excluding the

present condom ads, nor any that are strictly comparable.  To

this  extent,  we  affirm  the  declarations  and injunctions

ordered by  the district  court.   At this  time and  on this

                             -30-                                          30

record, however, we  are not prepared  to determine that  the

MBTA is a designated public forum.

          Accordingly,  if  the  MBTA  chooses  to  develop a

different  set  of rules  or  criteria, we  are  unwilling to

foreclose the possibility  that they might be  sustained on a

different and better developed record, even if those rules or

criteria   condemn  some   or  all   the  ads   in  question.

Conversely, AAC  would, in  that eventuality, be  entitled to

argue  that the  ads  are protected  simpliciter and  without                                                            

regard to any discrimination.

          Before concluding,  we make one final  point.  Lest

we give the impression that we are endorsing the remedying of

a perceived  wrong (the running of the  "Fatal Instinct" ads)

with a second wrong  (the running of potentially proscribable

AAC ads), we note that the controversial ads that will be run

as a  result of  this litigation,  like the "Fatal  Instinct"

ads, are most certainly not obscene, and fall well within the                                       

heartland of speech that  we, as a secure society,  should be

willing to tolerate in  the marketplace of ideas.   We would,

of  course, look askance on a judicial decree which sought to

rectify  an impermissible  viewpoint-based exclusion  of, for

example,  an obscene ad by ordering the government to run the

ad.  But such is not the case here.

          In the  end,  the  MBTA  may well  be  entitled  to

exclude from the  interiors of its  cars speech containing  a

                             -31-                                          31

certain  level of sexual innuendo and double entendre.  We do

not  reach  that   question  at   this  time.     To  do   so

constitutionally, however, it will, at the least, need to act

according  to neutral  standards, and it  will need  to apply

these standards in  such a  way that there  is no  appearance

that "the [government] is  seeking to handicap the expression

of particular  ideas."   R.A.V.,  112  S. Ct.  at  2549.   We                                           

recognize  that this  requires  the government  to apply  its

standards quite precisely.  This is the burden the government

assumes, however,  when it undertakes to  proscribe speech on

the basis of its content.

          The  judgment of  the district  court  is affirmed,                                                                affirmed                                                                        

with  the modifications  to the injunction  noted above.   No

costs.

                             -32-                                          32
