American Freedom Defense Initiative et al v. Massachusetts Bay Transportation Authority et al

Filing 20

Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM AND ORDER: " Accordingly, plaintiffs' motion for a preliminary injunction (Docket No. 8 ) is DENIED. So ordered."(Moore, Kellyann)

United States District Court
District of Massachusetts
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Plaintiffs,
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v.
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MASSACHUSETTS BAY TRANSPORTATION )
AUTHORITY and BEVERLY SCOTT,
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Defendants.
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AMERICAN FREEDOM DEFENSE
INITIATIVE, PAMELA GELLER and
ROBERT SPENCER,

Civil Action No.
14-10292-NMG

MEMORANDUM & ORDER
GORTON, J.
This case involves an as-applied First Amendment challenge
to advertising program guidelines promulgated by defendant
Massachusetts Bay Transportation Authority (“MBTA”).

Plaintiffs

American Freedom Defense Initiative (“AFDI”), Pamela Geller and
Robert Spencer (collectively “plaintiffs”) seek to display the
following advertisement in advertising spaces owned by the MBTA:
IN ANY WAR BETWEEN THE CIVILIZED MAN AND THE SAVAGE,
SUPPORT THE CIVILIZED MAN
DEFEAT VIOLENT JIHAD
SUPPORT ISRAEL
(hereinafter “the Third Advertisement”).

The MBTA rejected the

Third Advertisement in January, 2014, finding that an average
rider of the MBTA would perceive it as demeaning or disparaging
to an individual or group in violation of the MBTA’s advertising
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guidelines.

Plaintiffs have filed suit against the MBTA and its

General Manager, Beverly Scott (“Scott”) (collectively “MBTA” or
“defendants”), and seek a preliminary injunction requiring the
MBTA to display their advertisement immediately.
I.

Background
This case is the sequel to an earlier case pending before

this Session, American Freedom Defense Initiative v.
Massachusetts Bay Transportation Authority, No. 13-12803, 2013
WL 6814793 (D. Mass. Dec. 20, 2013), appeal docketed, No. 141018 (1st Cir. Jan. 6, 2014) (“AFDI I”), which arose after the
MBTA rejected a somewhat different advertisement (“the First
Advertisement”) submitted by these same plaintiffs.

The First

Advertisement states
IN ANY WAR
BETWEEN THE
CIVILIZED MAN
AND THE SAVAGE,
SUPPORT THE
CIVILIZED MAN
SUPPORT ISRAEL
DEFEAT JIHAD
According to plaintiffs, the slogan “In any war between the
civilized man and the savage, support the civilized man” is a
paraphrase of a famous quotation by the author Ayn Rand.
The MBTA rejected the First Advertisement on the grounds
that it would demean and disparage a group of individuals,
namely Muslims or Palestinians, and therefore would violate the

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MBTA’s Advertising Program Guidelines (“the Guidelines”).

The

provision at issue, section b(i) of the Guidelines, states
Demeaning or disparaging. The advertisement contains
material that demeans or disparages an individual or
group of individuals. For the purposes of determining
whether an advertisement contains such material, the
MBTA will determine whether a reasonably prudent
person, knowledgeable of the MBTA’s ridership and
using prevailing community standards, would believe
that the advertisement contains material that
ridicules or mocks, is abusive or hostile to, or
debases the dignity and stature of, an individual or
group of individuals.
In December, 2013, this Court declined to enter a
preliminary injunction to require the MBTA to display the First
Advertisement, applying the standard for restrictions on speech
in non-public fora articulated in Ridley v. Massachusetts Bay
Transportation Authority, 390 F.3d 65 (1st Cir. 2004).

It

concluded that plaintiffs had not established that they were
likely to succeed on their claim that the MBTA’s decision was
unreasonable or that it discriminated on the basis of viewpoint.
Plaintiffs’ appeal of that decision is pending before the United
States Court of Appeals for the First Circuit.
In January, 2014, plaintiffs submitted a modified version
of the advertisement (“the Second Advertisement”) which states
IN ANY WAR BETWEEN THE CIVILIZED MAN AND THOSE ENGAGED IN SAVAGE ACTS,

SUPPORT THE CIVILIZED MAN
DEFEAT VIOLENT JIHAD
SUPPORT ISRAEL

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The MBTA reviewed the Second Advertisement and determined that
it satisfied the Guidelines and the ruling in AFDI I.

Scott

Goldsmith (“Goldsmith”), a representative of the MBTA’s
advertising contractor, Titan Outdoor LLC (“Titan”), notified
plaintiffs on January 7, 2014 that their advertisement had been
accepted and asked them to provide specifications.
Instead of providing specifications, plaintiff Pamela
Geller (“Geller”) sent Goldsmith an email the following day
proposing a “tweak” of the Second Advertisement.

She attached

the Third Advertisement as quoted and displayed on page 1 above.
The MBTA reviewed the Third Advertisement and determined that,
like the First Advertisement, it was “demeaning or disparaging”
in violation of section b(i) of the Guidelines.

On January 17,

2014, Goldsmith emailed plaintiffs’ attorney to inform him that
the advertisement had been rejected.

Plaintiffs’ attorney

requested that the MBTA issue a “formal determination” that the
Third Advertisement violated the Guidelines.
The formal determination was conveyed in a letter from the
MBTA’s General Counsel Paige Scott Reed (“Reed”) dated January
29, 2014.

In her letter, Reed explained that

The third ad is very similar to the rejected ad that
was the subject of the preliminary injunction hearing.
The third ad reverses the order of the two lines below
“civilized man” and adds the word “violent” between
“Defeat” and “Jihad.” The MBTA undertook a review of
the third ad and concluded it was not in compliance
with section (b)(i) of the MBTA’s Advertising
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Standards. The MBTA’s conclusion was based on the
same considerations as its rejection of the first ad.
On January 17, 2014, Mr. Goldsmith so informed you by
email. You responded by requesting this Formal
Determination.
The MBTA remains willing to display the second ad if
AFDI so requests.
Plaintiffs filed the instant lawsuit on February 7, 2014, and
moved for a preliminary injunction shortly thereafter that would
require the MBTA to display the Third Advertisement.
II.

Plaintiffs’ motion for a preliminary injunction
A.

Legal standard

In order to obtain a preliminary injunction, the moving
party must establish
that [it] is likely to succeed on the merits, that
[it] is likely to suffer irreparable harm in the
absence of preliminary relief, that the balance of
equities tips in [its] favor, and that an injunction
is in the public interest.
Voices of the Arab World, Inc. v. MDTV Med. News Now, Inc., 645
F.3d 26, 32 (1st Cir. 2011) (quoting Winter v. Natural Res. Def.
Council, Inc., 555 U.S. 7, 129 (2008)).
Where, as here, a party contends that a restriction on
speech violates the First Amendment, “the likelihood of success
on the merits is the linchpin of the preliminary injunction
analysis.” Sindicato Puertorriqueño de Trabajadores v. Fortuño,
699 F.3d 1, 10 (1st Cir. 2012).

To that end, plaintiffs must

establish a “strong likelihood” that they will ultimately

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prevail to be entitled to injunctive relief. Id.

The likelihood

of success is also crucial because irreparable harm is presumed
if the court finds it likely that the moving party’s First
Amendment rights were violated. Id. at 10-11 (explaining that
the “loss of First Amendment freedoms, for even minimal periods
of time, unquestionably constitutes irreparable injury” (quoting
Elrod v. Burns, 427 U.S. 327, 373 (1976)).
The Court has discretion, however, to deny equitable relief
to a party that has acted in bad faith or with unclean hands.
See Texaco P.R., Inc. v. Dep’t of Consumer Affairs, 60 F.3d 867,
880 (1st Cir. 1995).

The doctrine of unclean hands applies only

when the plaintiff’s misconduct is “directly related to the
merits of the controversy between the parties.” Id.

Moreover,

the misconduct need not be punishable as a crime or give rise to
a civil claim so long as it can be said to “transgress equitable
standards of conduct”. Precision Instrument Mfg. Co. v. Auto.
Maint. Mach. Co., 324 U.S. 806, 815 (1945).
B.

Application

The Court will deny the motion for a preliminary
injunction, without a hearing, on the grounds previously set out
in its opinion in AFDI I.

Plaintiffs have not made the

requisite “strong showing” that the MBTA acted unreasonably in
rejecting an advertisement that was very similar to an
advertisement it had previously found to be demeaning and
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disparaging in violation of its advertising Guidelines. See
Sindicato Puertorriqueño, 699 F.3d at 10.
Furthermore, the Court declines to enter injunctive relief
in any event.

Plaintiffs acted in bad faith in submitting the

Second Advertisement to the MBTA, waiting for that advertisement
to be accepted and then using that acceptance as an excuse to
file a second lawsuit against the MBTA rather than accepting its
compromise offer to display the Second Advertisement.

Such

blatant gamesmanship and deliberate confrontation does not
warrant the “extraordinary and drastic remedy” of ordering the
MBTA to display the Third Advertisement. See Voices of the Arab
World, 645 F.3d at 32; Texaco P.R., Inc., 60 F.3d at 880.
Plaintiffs are entitled to display the Second Advertisement
which the MBTA has already found to comply with its Guidelines.

ORDER
Accordingly, plaintiffs’ motion for a preliminary
injunction (Docket No. 8) is DENIED.
So ordered.
/s/ Nathaniel M. Gorton
Nathaniel M. Gorton
United States District Judge
Dated March 17, 2014

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