Can the MBTA pull an advertisement because it criticized Boston Public Schools?

The Boston Globe reported today that the MBTA pulled an advertisement criticizing Boston Public Schools (BPS). See John Hilliard, A new campaign on the T criticized BPS. Then the ads were pulled down., The Boston Globe, October 2, 2026. “The ads, which carry the slogan ‘BPS IS FAILING HER’ superimposed on an image of a child’s eyes, cites state data that reports most of Boston’s third graders are below grade level in math and reading.” Id. The ads were pulled the day after they went up. See id. The non-profit group behind the ads “calls itself Next Chapter Boston[,]” and is “led by local education advocates Tamer and Vernee Wilkinson.” Id. Next Chapter Boston says that their ads were approved by the T. See id. The T says they were pulled for violating T policies. See id. But it is hard to believe that the ads were frantically removed within a day of going up merely because they were later found to fall within one of the T’s prohibited categories of advertisements. If the ads were instead cancelled by people or organizations who disagree with the messages behind the ads and used their influence to have them removed, that sounds like a viable First Amendment claim.

The MBTA's advertising program was deemed in 2015 to be “a nonpublic forum[,]” meaning that “[t]he MBTA may . . . restrict the content of the advertisements it accepts for display so long as such restrictions are not viewpoint-based and are reasonable in light of the purposes for which the forum was established.” Am. Freedom Def. Initiative v. Mass. Bay Transp. Auth., 781 F. 3d 571, 581 (1st Cir. 2015) (AFDI v. MBTA) (MBTA restriction on advertisements that "demean or disparage" individuals or groups is constitutional if applied neutrally). If the T pulled the ads because of who or what they criticized, that would be viewpoint discrimination, and the T may soon be facing a more difficult challenge than they did back in 2015. See id. at 582-84. Further, since AFDI v. MBTA, the Supreme Court has held that restrictions that are incapable of discernible application may be unreasonable, and as such, unconstitutional. See Minnesota Voters Alliance v. Mansky, 585 U.S. 1 (2018) (“Minnesota law prohibit[ing] individuals . . . from wearing a ‘political badge, political button, or other political insignia’ inside a polling place” violates the First Amendment.) The First Circuit could rely on Mansky to come to a different conclusion that that in AFDI v. MBTA.