Ads with pictures of children and the words “BPS IS FAILING THEM” went up across the MBTA last Wednesday. By Thursday the T had ordered them taken down. The group behind them, which spent $1.5 million on the campaign, says the T called the ads political and possibly libelous. The MBTA has not explained itself publicly.
The MBTA is a government agency, so when it pulls an ad because of what the ad says, the First Amendment is in play. The rules for the T’s ad space have been litigated in Boston for more than 20 years. Here is what they say, and why this removal is harder to defend than the T might think.
What happened
According to the State House News Service report carried by WBUR and NBC10 Boston:
- MassPotential, a K-12 education advocacy nonprofit led by former Boston School Committee member Mary Tamer, ran the campaign through a coalition called Next Chapter Boston. It booked ads on the Orange and Red lines, the Needham and Fairmount commuter rail lines, and buses.
- The ads read “BPS IS FAILING HER” or “BPS IS FAILING THEM” and “In Boston Public Schools, 70% of third graders can’t read or do math at grade level. We can fix it, together.”
- On Thursday, OUTFRONT, the T’s exclusive advertising contractor, emailed the group’s ad agency that the ads were “flagged” and had “already begun being removed per MBTA orders, based on the copy itself.”
- OUTFRONT forwarded “the feedback which the transit authority shared with us.” It said the T was “unable to determine whether the ad meets the criteria” for nonprofit public service announcements, and pasted the T’s guidelines with words bolded, including “Demeaning or Disparaging,” “Endorsement,” “False, Misleading, or Deceptive,” and “Libel.”
- Tamer said the T’s objections were that the ads contained “political content” and “could be libelous.”
The MBTA did not respond to requests for comment, the News Service reported. State MCAS results released in late September showed 29 percent of Boston students in grades 3 through 8 met or exceeded expectations in English and math.
The legal framework: the T’s ads are a “nonpublic forum”
When the government opens property for private speech, how much it can restrict that speech depends on what kind of “forum” it created. In Ridley v. Massachusetts Bay Transportation Authority, 390 F.3d 65 (1st Cir. 2004), the federal appeals court in Boston held that MBTA advertising space is a nonpublic forum. That is the most government-friendly category. The T can limit what goes up, but its rules must be reasonable in light of the purpose of the space, and they must be viewpoint neutral.
In American Freedom Defense Initiative v. MBTA, 781 F.3d 571 (1st Cir. 2015), the same court applied Ridley and upheld the T’s guideline against “demeaning or disparaging” ads, and its rejection of an ad about the Israeli-Palestinian conflict that used the word “savage.” Judge Stahl dissented in part, writing that Ridley was wrongly decided and that the T had engaged in viewpoint discrimination.
So the T starts with real latitude. Its own guidelines say it “intends to establish uniform, viewpoint-neutral standards.” The question is whether pulling these ads fits inside that.
Why this removal is harder to defend
1. Viewpoint is the line the T cannot cross. Even in a nonpublic forum, the government may not suppress speech because of the speaker’s opinion. An ad saying Boston schools are succeeding would presumably run. An ad saying they are failing came down. If the reason is the message’s point of view about a government agency, that is the textbook definition of viewpoint discrimination.
2. “Disparaging” has a problem after 2017. In Matal v. Tam, 582 U.S. 218 (2017), the U.S. Supreme Court struck down the federal ban on registering “disparaging” trademarks, and the justices agreed that a rule against giving offense is itself viewpoint based. Tam was a trademark case, and the First Circuit upheld the MBTA’s demeaning-or-disparaging guideline two years before it. But a challenger today would argue that rejecting an ad because it disparages a public school system is exactly what Tam forbids.
3. “Political” has to mean something definite. In Minnesota Voters Alliance v. Mansky, 585 U.S. 1 (2018), the Supreme Court struck down a ban on “political” apparel at polling places, even though a polling place is a nonpublic forum, because the state could not apply the word “political” in a reasoned, consistent way. Whether the T’s political content rule survives depends on how precisely it is written and how consistently it has been enforced.
4. Libel is a weak hook. The ads make a statistical claim tied to state test data and an opinion about a public school system. Libel requires a false statement of fact. The 70 percent figure is tied to state test data, and “failing” is an opinion drawn from it. Statements of opinion based on disclosed facts are generally protected.
The T’s best argument is probably the narrowest one in the email: that the ads did not fit the category of nonprofit public service announcements the T accepts, those relating to “the availability of education or training services,” and that the T applies that category to every advertiser the same way. If the ad was booked under a category it did not fit, the T could argue it rejected the ad for its form, not its viewpoint. That argument works only if the T has turned away comparable advocacy ads from the other side, and that record has not been made public.
What happens next
Tamer said the group is “supposed to be having some conversations” with the T. If those fail, the path is a federal First Amendment suit seeking an order requiring the T to run the ads, the same route AFDI and the Ridley plaintiffs took. The rest of the campaign, on billboards and streaming video, does not involve government property and is unaffected.
Frequently asked questions
Why did the MBTA remove the “BPS is failing them” ads?
The MBTA has not said publicly. An email from its ad contractor said they were removed “per MBTA orders, based on the copy itself” and cited guidelines on demeaning or disparaging content, endorsements, false or misleading content, and libel. The group says the T called them political and possibly libelous.
Can the MBTA reject ads it disagrees with?
It can set reasonable content rules for its ad space, which the First Circuit treats as a nonpublic forum, but it cannot reject ads because of the viewpoint they express.
Who paid for the BPS ads?
MassPotential, a K-12 education advocacy nonprofit, through its Next Chapter Boston coalition, which raised $1.5 million for the campaign.
Sources: State House News Service, as published by WBUR and NBC10 Boston, October 5, 2026. Ridley v. MBTA, 390 F.3d 65 (1st Cir. 2004); American Freedom Defense Initiative v. MBTA, 781 F.3d 571 (1st Cir. 2015); Matal v. Tam, 582 U.S. 218 (2017); and Minnesota Voters Alliance v. Mansky, 585 U.S. 1 (2018), verified on CourtListener. We were unable to retrieve the MBTA’s current advertising guidelines; quotations from them are as reported. General information about the law, not legal advice.