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  &amp; 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-
