Antitrust Law Daily Wrap Up, ADVERTISING—D. Mass.: Rejection of ad on government property withstood First Amendment challenge, (Mar 19, 2014)

By Linda O’Brien, J.D., LL.M.

The American Freedom Defense Initiative (AFDI) was denied a preliminary injunction—seeking to overturn the rejection of an advertisement on government property on First Amendment grounds—against a local transportation authority, the federal district court in Boston has decided (American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority, March 17, 2014, Gorton, N.).

The Massachusetts Bay Transportation Authority (MBTA) promulgated advertising program guidelines regarding advertising spaces owned by the MBTA. An advertisement that the AFDI sought to display on MBTA advertising spaces was rejected on the grounds that the ad would demean and disparage a certain group of individuals in violation of the guidelines. The AFDI filed suit against the MBTA, contending that the restriction violates their right to free speech and seeking a preliminary injunction to require the MBTA to display their advertisement.

In declining to grant the preliminary injunction, the court determined that the AFDI did not establish that they were likely to succeed on their claim that the MBTA’s decision was unreasonable or discriminatory on the basis of viewpoint. The AFDI submitted a second advertisement with modified language. The MBTA determined that the second ad satisfied the guidelines and requested its specifications. Instead of providing the specifications, the AFDI submitted a third advertisement with language similar to the first advertisement, which had been previously rejected. The MBTA rejected the third advertisement on the same grounds but offered to display the second advertisement. The AFDI filed the instant suit against the MBTA, seeking a preliminary injunction to require the MBTA to display their third advertisement.

The court determined that the AFDI failed to establish that they would likely succeed on the merits of their claim that the restrictions in the guidelines violated the First Amendment. To obtain a preliminary injunction, the moving party must show a “strong likelihood” that they will ultimately succeed on the merits of their claims. The AFDI failed to make the requisite strong showing that the MBTA acted unreasonably in rejecting the third advertisement that was very similar to the first advertisement which was previously found to be demeaning and disparaging in violation of the advertising guidelines.

Additionally, the court had discretion to deny equitable relief under the doctrine of unclean hands. The AFDI acted in bad faith in its submission of a second advertisement to the MBTA, waiting for the advertisement to be accepted, and filing suit against the MBTA instead of accepting its compromise offer to display the second advertisement. Their conduct did not warrant the extraordinary remedy of a preliminary injunction, the court concluded.

The case is No. 14-10292-NMG.

Attorneys: David Yerushalmi (American Freedom Law Center) for American Freedom Defense Initiative. Joseph D. Steinfield (Prince, Lobel, Glovsky & Tye LLP) for Massachusetts Bay Transportation Authority.

Companies: American Freedom Defense Initiative

Cases: Advertising MassachusettsNews