Boston Transit’s “rejection of [AFDI’s] advertisement is not only viewpoint based, but it also fails to pass muster under the ‘reasonableness’ analysis”

Indeed, without actual evidence that the display of Plaintiffs’ advertisement would cause a similar response (even though such a response was evidently acceptable to Defendants for the anti-Israel advertisement), Defendants rejected Plaintiffs’ advertisement (i.e., imposed a prior restraint on their speech). Consequently, for Plaintiffs’ advertisement, the “demeaning or disparaging” threshold/standard was significantly lower, demonstrating the arbitrary and thus unreasonable nature in which the MBTA regulations were enforced in this case.3 Thus, these facts alone demonstrate that Defendants have applied their regulations in an unconstitutional manner. See Aids Action Comm. of Mass. v. Mass. Bay Transp. Auth., 42 F.3d 1 (1st Cir. 1994) (“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.”). Here, once again, Ridley v. Mass. Bay Transp. Auth., 390 F.3d 65 (1st Cir. 2004), is instructive.

In its decision to uphold the restrictions on Ridley’s advertisements under the MBTA’s “demeaning or disparaging” guideline, the court specifically noted that “there is no evidence in the record that other advertisements, religious or otherwise, were accepted despite containing demeaning or disparaging content.” Id. at 92 (emphasis added). Here, we have indisputable evidence that another advertisement, namely, the anti-Israel advertisement, which addresses the same subject matter as Plaintiffs’ advertisement, but from a different viewpoint, was “accepted despite containing demeaning or disparaging content.” In short, Ridley compels this court to grant the requested injunction. See id. at 87 (“[W]here the government states that it rejects something because of a certain characteristic, but other things possessing the same characteristic are accepted, this sort of underinclusiveness raises a suspicion that the stated neutral ground for action is meant to shield an impermissible motive.”); see also Aids Action Comm. of Mass., 42 F.3d at 10-12 (finding an “unrebutted appearance of viewpoint discrimination” where the MBTA claimed to be excluding condom-promotion advertisements because they were sexually explicit and patently offensive, but yet allowed other sorts of sexually explicit advertisements, such as movie advertisements).

• 3 The arbitrary, and thus unreasonable, application of the MBTA’s regulations here is further highlighted by the way in which Defendants ignore the plain meaning of the anti-Israel advertisement despite being informed that its message was demeaning and disparaging to Israelis (and Jews), but then purposefully misrepresent Plaintiffs’ advertisement to conclude that it is disparaging to Palestinians and Muslims. As noted in prior filings and argued during the hearing, the only reasonable way to read Plaintiffs’ advertisement based on its plain text and the common understanding of “jihad” in the context of “war” (and the community’s understanding of “jihad” in light of the very recent Boston Marathon bombing—an understanding shared by the media and expressed in federal court decisions) is that “jihad” refers to terrorist acts directed toward innocent civilians, and it is Plaintiffs’ view that those who engage in “jihad” against Israel in the context of the Israeli/Palestinian conflict are “savage.” Would it be demeaning or disparaging to describe the Boston Marathon bombers as “savages”? Plaintiffs doubt that anyone in this community would consider such a description “demeaning or disparaging” to any group or individual. Indeed, quite the opposite would likely be true: it would be “demeaning or disparaging” to the victims of this heinous crime to describe the bombers as “freedom fighters” (or anything less than “savage”) or to excuse their terrorists acts as an “exercise of religion.”