MBTA bans all ads on political and social issues

An ad funded by American Freedom Defense Initiative, based in New York, was the focus of a previous dispute with MBTA.

The Massachusetts Bay Transportation Authority on Monday decided it will no longer accept advertisements about political or social issues, following public outcry over an ad on the Israeli-Palestinian conflict and litigation over another set of advertisements on the same controversial subject.

In a unanimous vote during a contentious and emotionally charged meeting, the fiscal and management control board that oversees the MBTA agreed to reject ads that refer to political issues or those that express opinions on "economic, political, moral, religious, or social issues," beginning Dec. 1.

Free-speech advocates expressed concern that the ban — which goes further than the MBTA's existing restrictions on political ads — will stifle public debate.

Sarah Wunsch, deputy legal director of the American Civil Liberties Union of Massachusetts, said the ban is the "wrong direction for a free society."

"This is a public space," she said of public transit facilities. "If you don't like it, look away."

MBTA officials said they don't believe the moratorium violates the First Amendment. They say the move could help the agency avoid litigation from those whose advertisements are rejected.

"We've had a number of lawsuits about these issues in the past, and in making this change, those losses will be minimized, if not eliminated," said John Englander, general counsel of the Massachusetts Department of Transportation and the MBTA.

Protesters flooded Monday's meeting to denounce an ad in Davis Station on the Red Line, calling it "hate speech" against Jewish people.

The ad, by the Palestine Advocacy Project, appeared in November and claims that the Israeli military has killed one Palestinian child every three days since September 2000. It also criticizes the United States for financially supporting Israel.

A nearly identical ad from the same group prompted complaints last year, and the MBTA removed it. The ACLU successfully persuaded the MBTA to reinstate the ad this month.

Critics of the ad hissed and booed when the group that paid for the advertisement testified in front of the board. State Representative Lori A. Ehrlich, Democrat of Marblehead, told the board the MBTA was inappropriately using public space to promote a political issue, and others said the advertisements could incite hatred and violence against Jewish people.

"We're here because you posted on public transit a message that can incite Bostonians to hate Boston's Jews," said Charles Jacobs of the group Americans for Peace and Tolerance. "You're putting the community in danger."

Free-speech advocates and members of the Palestine Advocacy Project said the MBTA made a mistake in issuing a blanket ban.

"We have a right to criticize the government," said Richard Colbath-Hess, a member of the organization's board, who added that they were supporting human rights.

The fiscal and management control board allowed testimony from the public but did not publicly discuss the issue before it voted. Joseph Aiello, the board's chairman, declined to comment after the meeting.

Englander, the general counsel, said the policy change had been in the works for weeks and was not made solely in response to the recent condemnations of the Davis Square advertisement.

The MBTA already bans political campaign speech — including ads that promote candidates or ballot questions — but the policy change approved Monday goes further and follows similar actions by other large transit systems, including the Metropolitan Transportation Authority in New York.

MBTA officials are confident the ban is legally sound because the Supreme Court has ruled that a similar ban on public transit in Ohio does not violate the US Constitution, according to Joe Pesaturo, MBTA spokesman.

Other rejections of ads by the MBTA have led to lawsuits.

After the MBTA ran pro-Palestinian ads in 2013, a pro-Israel group called the American Freedom Defense Initiative sought to run its own advertisements. Theirs read:

"In any war between the civilized man and the savage, support the civilized man. Support Israel; defeat Jihad."

The MBTA rejected the message, arguing that it violated policies banning ads that "demean or disparage" a group. The American Freedom Defense Initiative, which has been designated as anti-Islam by the Southern Poverty Law Center, then filed a lawsuit to challenge the rejection.

The MBTA won the case and subsequent appeals over that ad, but the American Freedom Defense Initiative has appealed the case to the Supreme Court.

The MBTA has spent $182,392 on litigation in the case, Pesaturo said.

Also on Monday, the MBTA said the control board planned to discuss proposed fare hikes on Jan. 6. The authority would then hold public hearings on the fare changes, which could include a discount for riders with low incomes.

The control board is scheduled to vote on fare changes in February.