
USCA1 Opinion

	




          February 5, 1993                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1277                    JEWS FOR JESUS, INC., and STEVEN SILVERSTEIN,                                Plaintiffs, Appellees,                                          v.                     MASSACHUSETTS BAY TRANSPORTATION AUTHORITY,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Rya W. Zobel, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                            Coffin, Senior Circuit Judge,                                    ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            Walter  B. Prince with whom Deborah A. Tootalian  was on brief for            _________________           ____________________        appellant.            James M. Henderson with  whom Thomas Patrick  Monaghan, Walter  M.            __________________            ________________________  __________        Weber, John G. Stepanovich,  Mark N. Troobnick, Jay Alan  Sekulow, and        _____  ___________________   _________________  _________________        Keith A. Fournier were on brief for appellees.        _________________                                 ____________________                                   February 5, 1993                                 ____________________               COFFIN,  Senior Circuit  Judge.  This  appeal arises  from a               ______________________________          challenge to the Massachusetts Bay Transit Authority's ("MBTA" or          "Authority") Guidelines for  Noncommercial Expressive Activity on          MBTA  Property.   Plaintiffs  Jews  for Jesus  and  an individual          member of the organization contend that the Guidelines improperly          restrict  their First  Amendment  right  of  free  speech.    The          district court agreed and invalidated the offending provisions of          the  Guidelines.    The  MBTA  then  appealed.    We  affirm  the          invalidation  of  the  complete  ban on  expressive  activity  in          designated  areas  but  reverse  the invalidation  of  the  prior          authorization requirement.                                          I.               The defendant MBTA is  a municipal corporation that operates          the  subway system serving  the metropolitan Boston  region.  The          subway  system  contains  80 train  stations.    Each  station is          divided into two sections, the "free" area outside the turnstiles          and the "paid" area inside the turnstiles, leading to the trains.               The  Authority promulgated  a  set of  Guidelines to  govern          noncommercial  expressive activity  in  the subway  system.   The          Guidelines define such activity as:               [c]onducting  any  of   the  following  activities  for               political or non-profit purposes  as defined by G.L. c.               180,     4  and G.L.  c.  55,     1:   solicitation  of               signatures;   distribution    of   printed   materials;               handshaking  or greeting individual  transit patrons or               members of the  public; or publicly  addressing transit               patrons at a noise level greater than 85 decibels.          The Guidelines  ban  noncommercial expressive  activity from  the          paid areas  of all  the subway  stations  and the  free areas  of          twelve  stations.1    Within  the  free  areas  of  the remaining          stations, the Guidelines require prior authorization to engage in          noncommercial expressive activity.               Plaintiff Jews  for  Jesus is  a not-for-profit  corporation          that conducts  religious activity.   Plaintiff Steven Silverstein          is the  branch leader of  the Boston  office of  Jews for  Jesus.          Plaintiffs'   evangelistic   activity   consists   primarily   of          distributing  free religious  literature in  public places.   For          many  years  prior  to  the   commencement  of  this  suit,  they          distributed materials  throughout the  paid areas of  the transit          system.2                 When  the MBTA  began  to prohibit  leafletting in  the paid          areas, plaintiffs  mounted a facial challenge  to the Guidelines.          Their primary contention is  that the Guidelines impose a  ban on          leafletting, a  form of protected speech,  without justification.          The  Authority counters  that  the regulations  are a  reasonable          infringement  of  First Amendment  rights  and  are necessary  to          preserve  the system's transportation  function.   In particular,                                        ____________________               1    The  twelve stations  are Science Park,  North Station,          Government  Center,  Park  Street,  Boylston,  Copley  (Inbound),          Prudential,  State  Street  (Northbound), Charles  Street,  Savin          Hill, Symphony, and  Kenmore.  The MBTA considers  these stations          to lack  sufficient space to permit  any noncommercial expressive          activity.               2    The  previous  Guidelines for  Political,  Religious or          Educational Activity prohibited  leafletting on  only the  subway          trains.    By   the  commencement  of  this   lawsuit,  the  MBTA          interpreted these guidelines as banning leafletting from the paid          areas  as well and sought  to eject plaintiffs  from its stations          for violating the ban.  The current Guidelines were adopted after          this suit began.                                         -3-          the  MBTA points to  a concern for  public safety to  justify the          restriction on leafletting.                  Plaintiffs do not contest the legitimacy of public safety as          a government concern.  Instead, the parties dispute the extent to          which plaintiffs'  activities may  threaten public safety.   Jews                                                                       ____          for  Jesus, Inc. v. Massachusetts Bay Transp. Auth., 783 F. Supp.          ________________    _______________________________          1500, 1503 n.3 (D. Mass. 1991).                 Following a consolidated preliminary injunction  hearing and          trial on  the merits, the  district court concluded  that neither          handshaking and greeting nor  leafletting in fact threaten public          safety  in  the Boston  subway  system.   Id. at  1503.   Without                                                    __          investigating solicitation  of signatures or  public address, the          court nevertheless  invalidated  the  ban  on  all  noncommercial          expressive  activities  because  of  the   regulation's  sweeping          restriction  of protected speech.  In so doing, the court applied          a tenet of overbreadth  doctrine that permits facial invalidation          of  a regulation whose reach beyond properly prohibited speech is          "substantial."  Broadrick v. Oklahoma,  413 U.S. 601, 615 (1973).                          _________    ________          The court  also invalidated  the authorization requirement  as an          impermissible prior restraint that  did not promote public safety          concerns.                 The court  left intact the Guidelines'  provisions regarding          expressive activity in areas where such activity  was not banned.          These  regulations  protect  public  safety by  establishing  the          standards of conduct for the performance of permitted activity as          well as the penalty for violation of the restrictions.                                           -4-                                         -5-                                         II.               On appeal, the MBTA contends that the district court applied          an  erroneous  standard to  invalidate the  Guideline provisions.          Our review, therefore, necessarily is, in many respects, de novo.                                                                   __ ____          Senter v. General Motors Corp., 532 F.2d 511 (6th Cir. 1976); see          ______    ____________________                                ___          Sweeney  v. Bd.  of  Trustees, 604  F.2d 106,  109 n.2  (1st Cir.          _______     _________________          1979).   The  district  court's factual  findings concerning  the          operation  of  and  the  activities  within  the  subway  system,          however, are reviewed only  for clear error.  Holmes  v. Bateson,                                                        ______     _______          583 F.2d 542, 552 (1st Cir. 1978).  Our examination of the record          demonstrates that the court's  findings are amply supported, and,          accordingly, we adopt them for our analysis.                 A.  Ban on Noncommercial Expressive Activities                   __________________________________________               The  district  court  struck  down the  Authority's  ban  on          noncommercial expressive activities for  sweeping too broadly and          being, in fact, unrelated to the  MBTA's legitimate public safety          concerns.   In reviewing  the court's decision,  we are concerned          not so much with  the technical use of the  overbreadth doctrine,          which often  is confined to  the ability  of a party  engaging in          unprotected  activity  to  raise   the  rights  of  others  whose          activities are protected, City  Council v. Taxpayers for Vincent,                                    _____________    _____________________          466 U.S. 789, 798 (1984), as with  the underlying analysis of the          court that the MBTA did not justify the imposition of an absolute          ban.                The MBTA recommends that  we analyze the Guidelines pursuant          to the public forum doctrine.  Forum analysis strikes the balance                                         -6-          between  the  public's right  of  access to  public  property for          expressive activity and the government's interest in limiting the          property's use based on  the character of the property  at issue.          Perry Educ. Ass'n v.  Perry Local Educators' Ass'n, 460  U.S. 37,          _________________     ____________________________          44 (1983).  Fewer content-based restrictions are permissible in a          public forum,  a location either traditionally  or by designation          open to public discourse,  than in a nonpublic forum,  a location          traditionally  closed to  such discourse.   Id.  at 45.   As  the                                                      __          Supreme Court has explained:                [D]istinctions in access on the basis of subject matter               and  speaker identity . .  . may be  impermissible in a               public forum  but are  inherent and inescapable  in the               process  of limiting  a nonpublic  forum to  activities               compatible with  the intended purpose  of the property.               The touchstone  for  evaluating these  distinctions  is               whether  they are  reasonable in  light of  the purpose               which the forum at issue serves.          Id. at 49.   Applying this  framework, the MBTA asserts  that the          __          alleged  historical unavailability  of  the subway  stations  for          public  discourse  renders  them  nonpublic  fora  and  that  the          Guidelines are a reasonable regulation within this context.               The  nature of  the forum,  however, traditionally  has been          important  only  when the  government  tries  to restrict  access          according  to the content of the message.   In any kind of forum,          the  government may impose  certain restrictions so  long as they          are not based on the content of the speech.  Id. at 45.                                                         __               We find  it unnecessary to decide whether  the Boston subway          stations  are  public  or   nonpublic  fora  because  the  MBTA's          Guidelines are  content neutral.   First, they restrict  only the          mode of expression, not the message.   Second, they are aimed  at                                         -7-          legitimate  government  concerns.    "A  regulation  that  serves          purposes  unrelated  to  the  content  of  expression  is  deemed          neutral, even if it has an incidental effect  on some speakers or          messages  but not others."  Ward v. Rock Against Racism, 491 U.S.                                      ____    ___________________          781, 109  S. Ct. 2746, 2754  (1989).  Accordingly, we  assess the          activities  ban as  a  content neutral  regulation.   See  United                                                                ___  ______          States v.  Kokinda, 497 U.S. 720, 110 S. Ct. 3118, 3125-26 (1990)          ______     _______          (Kennedy, J., concurring) (rejecting  use of forum analysis where          content neutral, reasonable time, place, and manner evaluation is          available).               A  content  neutral  restriction  may  limit  speech  if  it          reasonably regulates  the time,  place, and manner  of expression          and  is  tailored  narrowly  to serve  a  substantial  government          interest.  Perry Educ. Ass'n, 460 U.S. at 45-46.  Our review thus                     _________________          focuses on  two critical  inquiries:  "whether  [the Authority's]          interest is sufficiently substantial to justify the effect of the          ordinance on [plaintiffs'] expression, and whether that effect is          no  greater  than  necessary  to  accomplish   the  [Authority's]          purpose."  City Council, 466 U.S.  at 805; Shad v. Mount Ephraim,                     ____________                    ____    _____________          452 U.S. 61, 71 (1981).                 We  realize that in recent decisions,  the Supreme Court has          applied the nonpublic forum standard of reasonableness to content          neutral  restrictions on free  speech.  See,  e.g., Int'l Society                                                  ___   ____  _____________          for  Krishna Consciousness,  Inc. ("ISKCON")  v. Lee, 112  S. Ct.          _________________________________                ___          2701, 2708 (1992); Kokinda,  110 S. Ct. at 3121.   Traditionally,                             _______          however,  the Court has employed the reasonableness test only for                                         -8-          content-based  restrictions  in  nonpublic   fora.    See,  e.g.,                                                                ___   ____          Cornelius v. NAACP  Legal Defense  & Educ. Fund,  Inc., 473  U.S.          _________    _________________________________________          788,  809 (1985)  (applying reasonableness  test to  exclusion of          political advocacy  organizations  from charity  drive  aimed  at          federal employees); Perry Educ. Ass'n,  460 U.S. at 49  (applying                              _________________          same test to exclusion from school mail network based on identity          of proposed  speaker); and Greer v. Spock, 424 U.S. 828, 831, 839                                     _____    _____          (1976)  (applying same  test to  exclusion of  partisan political          speech  from  military  base).   Regardless,  because  that  test          requires the challenged regulations to be reasonable in light  of          the forum's purpose and the surrounding circumstances, see, e.g.,                                                                 ___  ____          ISKCON, 112 S. Ct. at 2705,  the two tests merge or collapse into          ______          one another in cases where, as here, the government has failed to          present a credible reason why the regulations further the forum's          purpose.  We now consider each form of activity in turn.3           1.  Leafletting              ___________               The Authority contends that its concern for passenger safety          justifies the  ban on  leafletting.   It argues  that leafletting          threatens  public  safety by  disrupting  passenger  flow and  by          creating  litter.   In  particular,  it  claims that  leafletting          causes obstacles  that, inter  alia, encourage pickpocketing  and                                  _____  ____          more  adversely  affect handicapped  patrons  who  are slower  to          adjust to  obstacles.   It  further contends  that litter  causes          accidents and  fires or other  disruptions in service  when paper                                        ____________________               3    On  appeal, the  Authority  concedes  that the  blanket          restriction against greeting and handshaking is unreasonable.  We          therefore consider only the remaining restricted activities.                                         -9-          clogs switching devices on the tracks.  Public safety, of course,          is  a  substantial  government  concern  that  can  justify  some          incidental infringement of protected speech.  ISKCON, 112  S. Ct.                                                        ______          at 2708-09.               We   are  mindful  that  "[a]  ban  on  handbilling  .  .  .          suppress[es] a great quantity  of speech that does not  cause the          evils that it seeks to eliminate."  Ward, 109 S. Ct. at  2758 n.7                                              ____          (citing Martin  v.  City  of  Struthers,  319  U.S.  141,  147-49                  ______      ___________________          (1943)).  The Authority  thus bears a heavy burden  in justifying          its  absolute ban  on  leafletting,  an  activity that  long  has          enjoyed  the full protection of  the First Amendment.   Lovell v.                                                                  ______          City  of Griffin,  303  U.S. 444,  450-52  (1938).   Indeed,  the          ________________          religious  nature of plaintiffs' leafletting increases the MBTA's          burden;  leafletting  is a  "form  of  religious activity  [that]          occupies the same  high estate  under the First  Amendment as  do          worship  in churches and preaching from the pulpits."  Murdock v.                                                                 _______          Pennsylvania,  319 U.S. 105, 108-09  (1943).  The  record in this          ____________          case amply  supports the district court's  determination that the          perceived threat to public safety does not justify a complete ban          on leafletting in the designated areas.               The  Supreme  Court  has  dismissed the  danger  to  traffic          congestion  as a justification to ban leafletting.  The Court has          explained  that  "`[t]he  distribution  of  literature  does  not          require that the recipient  stop in order to receive  the message          the  speaker wishes to  convey.'"  ISKCON, 112  S. Ct. at 2713-14                                             ______          (O'Connor, J., concurring) (quoting Kokinda, 110 S. Ct. at 3123).                                              _______                                         -10-          Bottlenecks,  therefore,  are  unlikely   to  develop.    Because          leafletting is a particularly unobtrusive form of expression, the          Court recently  invalidated a ban  on leafletting, even  within a          nonpublic forum.   Lee v.  ISKCON, 112 S.  Ct. 2709, 2709  (1992)                             ___     ______          (per curiam); see ISKCON, 112 S.  Ct. at 2708 (finding airport to           ___ ______   ___ ______          be nonpublic forum).               The Authority  next contends that leafletting causes litter-          related hazards.  The Supreme Court, however, long has recognized          that littering is the fault of the litterbug, not the leafletter.          Schneider  v.  State, 308  U.S. 147,  162  (1939).   The normally          _________      _____          appropriate response to problems  caused by litter, therefore, is          to punish the litterbug.                 The record,  moreover,  does  not  support  the  Authority's          fears.  Over a period of 18 months,  the Authority's accident and          incident  report listed more than  250 accidents, but  it did not          indicate  the  type  or cause  of  any  of  the reported  events.          Defendant's  Trial  Exhibit 23A.    These  numbers  alone do  not          support  generalizations  that  noncommercial leafletting  causes          accidents.     Besides,  in  accordance   with  the   Guidelines,          plaintiffs regularly  pick up  leaflets that have  been discarded          improperly by  transit patrons.   Indeed, the MBTA  employees who          testified  at trial  did not  know of  any accidents,  crimes, or          other  incidents  in  which   plaintiffs  were  implicated.    We          therefore  affirm  the district  court's  determination  that the          evidence   did  not  demonstrate   a  causal  connection  between          leafletting and litter-related safety problems.                                           -11-               The record reveals a myriad of other nontransit activity  in          the  stations  that further  weakens  the  justification for  the          leafletting  ban.   See Grayned  v. Rockford,  408 U.S.  104, 116                              ___ _______     ________          (1972)  (holding that crux of time, place, and manner analysis is          "whether  the   manner  of  [banned]   expression  is   basically          incompatible  with the normal activity of a particular place at a          particular  time").  Passengers bring in paper and food items for          immediate  consumption.   Vendors, including  wandering newspaper          hawkers, sell  newspapers, magazines, food, and  drink within the          stations.     Businesses  leave  promotional  flyers  unattended.          Musicians set  up portable stations  to perform, sell  tapes, and          solicit contributions.   The  MBTA deliberately has  invited into          the  subway  system a  range  of expressive  activities  that can          produce problems similar to  those it attributes to leafletting.4          The  condoned presence  of  these activities  indicates that  the          subway system can accommodate  peaceful leafletting.  See ISKCON,                                                                ___ ______          112 S. Ct.  at 2713-14 (O'Connor, J., concurring)  (striking down          ban on  leafletting where activity reasonably  is compatible with          "shopping mall"  environment of  airport).   We  thus affirm  the          district  court's conclusion  that  litter does  not justify  the          complete ban on leafletting.            2.  Solicitation of Signatures              __________________________                                        ____________________               4    As Edward Manning, the Superintendent of the Light Rail          Department, testified, passengers  "can slip  easily on  anything                                                                   ________          that  would be  discarded on  the platform."  Tr. Vol.  I at  64.          (emphasis added).  Indeed,  Daniel Breen, the Building Structures          Division Engineer, stated his  opinion that concession stands and          newspaper  vendors also should be banned because of the "mess and          the safety problems" they cause.  Tr. Vol. I at 43, 49.                                         -12-               Although  the   parties  did   not  discuss  this   form  of          expression, we  realize that the  Supreme Court has  accorded the          solicitation  of  signatures  for   petitions  a  high  level  of          protection  because it "involves both  the expression of a desire          for  political change  and  a discussion  of  the merits  of  the          proposed change."  Meyer v. Grant, 486 U.S. 414, 421, 425 (1988).                             _____    _____          It  therefore  "involves  the type  of  interactive communication          concerning political  change that  is appropriately  described as          `core  political speech.'"  Id. at 421-22.  When restricting this                                      __          kind  of speech, the government bears a greater burden to justify          its ban.   Id. at  425; see also  Burson v.  Freeman, 112 S.  Ct.                     __           ___ ____  ______     _______          1846, 1857  (1992) (warning  that ban against  electioneering can          become "an impermissible  burden" the farther  from the polls  it          extends).                 Yet  the  MBTA  has  offered  no  support  for  its  ban  on          solicitation  of  signatures.    The argument  and  the  evidence          presented focus solely on  the dangers to public safety  posed by          leafletting.   Because we do not see how peaceful solicitation of          signatures  clashes  with  the  multipurpose  environment  of the          subway  system,  we  "cannot accept  that  a  total  ban on  that          activity  is reasonable without an  explanation as to  why such a          restriction `preserve[s]  the property'  for the several  uses to          which it  has been put."   ISKCON, 112 S. Ct.  at 2714 (O'Connor,                                     ______          J., concurring) (quoting Perry Educ. Ass'n, 460 U.S. at 50-51).                                     _________________               Even extending the Authority's  concern for public safety to          solicitation,  we are not persuaded that the inferred risks would                                         -13-          justify  the   ban  on   solicitation  of  signatures.     First,          solicitation  of  signatures  does   not  produce  litter.    The          solicitor does not give the  petition to a passenger to keep  but          is careful to  hold on to  every page of  the petition.   Second,          because  no money  changes  hands, the  risk  of fraud,  a  major          concern justifying  bans on solicitation of funds, ISKCON, 112 S.                                                             ______          Ct. at 2708,  is absent.   Third, although  solicitation is  more          disruptive  of passenger flow  because it invites  a passenger to          stop  to read  the petition  before deciding  whether to  add her          name, it is no  more disruptive of traffic than  other activities          in the transit  system.  Both the  hawking of newspapers and  the          playing  of  music  create  crowds  as  passengers  stop  to  buy          newspapers,  listen  to a  performance,  or make  donations  to a          musician.  In the absence of contrary evidence from the MBTA, the          peaceful solicitation  of signatures appears compatible  with the          environment of the Boston subway system.          3.  Public Address              ______________               Finally, we  turn our  attention to  the ban  against public          address.   As  with solicitation, we  conclude that  the complete          lack of an explanation and evidence to support the ban  on public          address compels its invalidation.   The Authority confines public          address  in  the free  areas  to  decibel levels  below  95.   It          evidently has  determined  that 95  decibels is  the level  above          which public safety is  endangered.  In any  event, the MBTA  has          not explained why,  in light  of this  available and  uncontested          restriction, the absolute ban is necessary.                                         -14-          4.  Other Guideline Provisions              __________________________               The Authority, of course, may tailor the Guidelines narrowly          to  achieve  its  interest  in  public  safety.     For  example,          plaintiffs concede that the  MBTA legitimately may ban expressive          activity during especially crowded peak hours when the dangers to          the public are greater.                 Ironically,  the Guidelines  already contain  narrowly drawn          time,  place, and  manner  restrictions that  satisfy the  MBTA's          specific  concerns.   The  Guidelines  forbid littering,  leaving          literature  unattended, and  interfering with  the safety  of the          passengers or the operation  of the subway trains.   In addition,          to minimize the risk  of accidents, the MBTA maintains  a 15-foot          safety zone around elevators, stairwells, kiosks, turnstiles, the          edge of any train platform,  and other high risk structures.   It          also  bans expressive activity from areas less than 15 feet wide.          The Guidelines authorize the ejectment of any person who violates          these prohibitions.   Finally, the MBTA  may cancel authorization          of noncommercial  expressive activity for a  reasonable time when          public  safety or the operation of the transit system so require.          Particularly   with   unchallenged   time,   place,   and  manner          regulations  in place  to protect  the Authority's  interest, the          complete  ban on  noncommercial expressive  activity in  the paid          areas and free areas of earmarked stations cannot stand.               We add that we are not unaware of the special conditions and          dangers of subway  operation.   We are, however,  dealing with  a          continuing  injunction.    Thus,  to  the  extent  that  existing                                         -15-          regulations  prove  inadequate,  the   Authority  may  adopt,  if          justified, appropriately tailored regulations going  beyond those          we have  sustained, if and  when the evidence,  including changed          conditions, warrants such restrictions.               B.  Prior Authorization Requirement                   _______________________________               The  Guidelines  require a  person  to obtain  authorization          before engaging in noncommercial  expressive activity.  To obtain          authorization, a person must telephone the Authority and indicate          for  whom   the  authorization   is  requested,  the   number  of          individuals  involved,  and  the  proposed  location,  time,  and          activity.    When  a  person receives  permission  to  engage  in          noncommercial expressive  activity, she also  receives a  control          number.    The Authority  charts  the number  on  the appropriate          station diagram and transmits the  information to the station  so          that the personnel there  can oversee the activity.   The request          line is available 15 and 1/2 hours each day, seven days a week.                 The district court  voided the authorization requirement  as          an unconstitutional prior restraint.   It explained that the MBTA          could not require  a license  to engage in  ordinary speech  like          handshaking  or greeting  and that the  authorization requirement          did not promote the Authority's avowed interests in public safety          and evenhanded access  to the subway stations for First Amendment          activities.    We  disagree  with the  court's  conclusions  and,          therefore,   reverse  the   invalidation  of   the  authorization          requirement.                                           -16-               Although  it   is  true  that  a   regulation  allowing  the          government  to deny  use of  its property  "in advance  of actual          expression" is a  prior restraint, Southeastern Promotions,  Ltd.                                             ______________________________          v. Conrad, 420  U.S. 546,  553 (1975), not  all prior  restraints             ______          transgress the First  Amendment.  Id. at 558.   A prior restraint                                            __          system is permissible if  it contains certain safeguards designed          to protect against  censorship.  Freedman  v. Maryland, 380  U.S.                                           ________     ________          51,  58-60 (1965).  Where the prior restraint is content neutral,          the regulations must limit the time for issuing authorization and          must permit prompt  judicial review.   Id., construed in  FW/PBS,                                                 __   ____________  _______          Inc. v. City of Dallas, 110 S. Ct. 596, 606-07 (1990).          ____    ______________               The Guidelines satisfactorily incorporate  these safeguards.          The Authority responds to  each request at the  time it is  made.          The  Guidelines  further  delineate   the  situations  in   which          authorization  may  be  denied:   when  the  desired  location is          unavailable; when  the planned activity endangers  public safety;          and when the  planned activity  constitutes prohibited  conduct.5          The  applicant may  appeal  a denial  of  authorization, and  the          filing  of  an  appeal entitles  the  claimant  to  a hearing  in          accordance with Mass. Regs. Code tit. 801,   1.02.               Given these safeguards, it is more appropriate to scrutinize          the permit  system  as  a time,  place,  and  manner  regulation.                                        ____________________               5    Prohibited   conduct  includes   unlicensed  commercial          activity,  distribution  of  food  and drink,  posting  bills  or          otherwise  affixing materials  to an  MBTA structure,  setting up          tables or  portable equipment,  carrying large placards  or signs          affixed  to a pole, discarding or  leaving unattended any printed          material,  and producing or  amplifying sound to  a level greater          than 95 decibels.                                         -17-          Heffron,  452  U.S.  at  647  n.10,  649.      The  authorization          _______          requirement is  "not open  to the  kind of  arbitrary application          that [the Supreme Court] has condemned as inherently inconsistent          with  a valid  time, place,  and manner  regulation  because such          discretion has the potential for becoming a  means of suppressing          a particular point  of view."  Id. at 649.   Like the regulations                                         __          upheld  in Heffron, id., the Guidelines allocate space on a first                     _______  __          come,  first  served  basis,   without  regard  to  the  messages          presented.    The  Authority  does not  even  inquire  about  the          contents of the message.               As we noted above, a content neutral time, place, and manner          regulation  passes  constitutional  muster  if  it  is   tailored          narrowly  to serve a significant government interest.  As part of          this inquiry, we also  consider whether the regulation forecloses          alternative channels  of communication.   Perry Educ.  Ass'n, 460                                                    __________________          U.S.  at 45-46.   The  authorization requirement  satisfies these          strictures.               The   Guidelines   leave   available   ample   channels   of          communication   for  plaintiffs'   message.      Plaintiffs   may          disseminate their  leaflets in the streets,  parks, and sidewalks          adjacent  to the train stations.   Within the  transit system, if          plaintiffs  are denied  authorization in  one location,  they may          seek to use a different one or to reserve a different time.                 The   Authority  asserts   that  the   government  interests          protected  through the authorization requirement include ensuring          public  safety and  equal access  for all who  wish to  engage in                                         -18-          noncommercial  expressive activity.    In  particular, the  prior          authorization enables  the Authority to arrange  necessary police          coverage, an undeniably substantial  government interest.  Cox v.                                                                     ___          New Hampshire, 312 U.S. 569, 576 (1941).          _____________               The question remains whether the prior authorization  scheme          is  tailored  narrowly  to  advance  the  Authority's  legitimate          interests.  The district court answered this question negatively.          It  reasoned  that  advance  warning  for  police  deployment  is          unnecessary  for  a  lone  leafletter  and  that,  for  a  larger          gathering, the Guidelines do not provide sufficient lead time  to          redeploy  the  Authority's  security  forces.     This  reasoning          overlooks  the fact that "the requirement  of narrow tailoring is          satisfied `so long as the . . . regulation promotes a substantial          government  interest that  would  be  achieved  less  effectively          absent  the  regulation.'"   Ward, 109  S.  Ct. at  2758 (quoting                                       ____          United  States  v.  Albertini, 472  U.S.  675,  689 (1985));  see          ______________      _________                                 ___          Cornelius, 473 U.S. at 808.          _________               The  authorization scheme  effectively  promotes the  MBTA's          interests.   With  respect to the  lone leafletter,  the district          court  did not  take into  account the  cumulative effect  that a          number of  lone leafletters converging  on the  same station  can          have  on public  safety.   The authorization  scheme  enables the          Authority  to   avoid   scheduling  conflicts   among   different          applicants and to contain  the amount of activity at a level that          does not interfere with public safety.                                           -19-               The requirement  also copes with the  problems attending the          staging  of a large  rally or gathering.   In such  an event, the          Authority  reasonably could deny permission because  of a risk to          public  safety, if it does  not have adequate  time to deploy its          personnel.    The  Authority,  moreover, boasts  the  ability  to          redeploy its personnel quickly  because it maintains a number  of          police officers throughout the  system, who can be diverted  to a          station on  short radio  notice.  The  authorization scheme  thus          enables the MBTA  to monitor the  activity in the  system at  any          time so that it can prevent and respond to problems affecting the          public.     These   benefits   are  sufficient   to  uphold   the          authorization requirement.  See Cox, 312 U.S. at 576.                                      ___ ___                                         III.               To summarize,  we  affirm the  invalidation  of the  ban  on          noncommercial  expressive  activity  from  designated  areas  and          reverse the invalidation of  the prior authorization requirement.          Solicitation of signatures, leafletting, handshaking or greeting,          and public address all may  occur within the paid and  free areas          of  the transit  stations in accordance  with the  existing time,          place,  and manner  restrictions (e.g., requiring  leafletters to                                            ____          stay 15 feet away from the platform's edge) and the authorization          requirement.  These  provisions now  apply to the  paid areas  as          well as to the free areas.  If the distance restrictions preclude          activity in any of the free or paid areas, a complete ban on  all          noncommercial expressive activity may apply to the affected area.                                         -20-               Affirmed in part and reversed in part.  No costs.                _____________________________________   ________                                         -21-
