
USCA1 Opinion

	




           [APPENDIX NOT ATTACHED. PLEASE CONTACT CLERK'S OFFICE FOR COPY.]                            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  & Reardon, were on brief  for        _______  _________________      __________________        appellants.            H. Reed  Witherby, with  whom Smith,  Duggan &  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 & 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
