[ April 19, 2024 ]
My legal team, the country’s leading First Amendment law firm, the American Freedom Law Center, filed the following reply brief in our case. We will await an oral argument date.
WMATA’s disdain for Plaintiffs and their speech is evident from the record below, and it is on full display in its brief filed in this Court.
WMATA’s lack of regard for Plaintiffs and their message is second only to its lack of regard for the First Amendment and its prohibition on government censorship of speech, particularly when the government is seeking to silence a speaker wishing to express a controversial viewpoint in Washington, D.C.—“the seat of the federal government.” (R-20-3; JA-79[Bowersox Dep. at 30:3-11]). And Plaintiffs are not the only parties recognizing this. See Am. Civil Liberties Union Found. v. Wash. Metro. Area Transit Auth., Case No. 1:17-cv-01598 (D.D.C. filed Aug. 9, 2017) (challenging, inter alia, WMATA’s advertising guidelines under the First and Fourteenth Amendments as “explicitly or implicitly” viewpoint based).
Story continues below advertisementMake no mistake, what WMATA is attempting to do here is to cleanse its advertising space (a forum for speech) from any message that WMATA’s government censors deem offensive. However, “[g]iving offense is a viewpoint.” Matal v. Tam, 137 S. Ct. 1744, 1763 (2017) (plurality opinion).2 And the First
1 WMATA’s disdain for Plaintiffs is evident by its irrelevant reference to Plaintiffs’ prior ads and its citation to a district court’s impertinent and erroneous reference to Plaintiffs’ speech as “hate speech”—a category of speech that any serious student of the First Amendment knows does not exist. (See WMATA Br. at 10 & n.2).
2 WMATA makes the bizarre claim that this Court should simply disregard this recent and exceedingly important First Amendment decision, incorrectly stating, “AFDI’s frolic and detour through Matal v. Tam, 137 S. Ct. 1744 (2017), sheds no Amendment prohibits viewpoint discrimination regardless of the nature of the forum. Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 394 (1993) (“[T]he First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others.”) (internal quotations and citation omitted).
In sum, this Court should reverse the District Court and enter judgment in Plaintiffs’ favor.
SUMMARY OF THE ARGUMENT
WMATA’s restriction on Plaintiffs’ speech is inherently viewpoint based, rendering unnecessary any extended treatment of other questions raised by the parties. Closely related to the viewpoint-based nature of WMATA’s restriction on Plaintiffs’ speech is the fact that its restrictions are unconstitutional due to their lack of objective criteria by which WMATA officials are permitted to censor speech.
Additionally, pursuant to Cornelius v. NAACP Legal Defense and Educational Fund, 473 U.S. 788 (1985), WMATA’s advertising space is a public forum for Plaintiffs’ speech. Consequently, WMATA’s content-based restrictions cannot survive strict scrutiny nor can WMATA meet is heavy burden of justifying its prior restraint on Plaintiffs’ speech.
Assuming, arguendo, that WMATA’s advertising space is a nonpublic forum, in light of the characteristic nature and function of the forum, WMATA’s restriction on “issue-oriented” advertising is nonetheless unreasonable. A public transit system is one of the few government-owned spaces where many persons have extensive contact with other members of the public and thus there is unique suitability for the speech that WMATA seeks to censor here. And this is particularly true because Washington, D.C., as the seat of the federal government, is a market that is distinct in the amount of issue oriented advertising.
Moreover, the government’s ability to “close” a forum for protected speech is not without constitutional limits. Here, there is ample evidence to infer that WMATA sought to close its forum based on its animus toward Plaintiffs’ speech.
Finally, WMATA cannot escape liability in this case based on a claim of immunity. WMATA has waived any such claim. The leasing of its advertising space, and thus WMATA’s refusal to permit Plaintiffs to advertise within this space, is a proprietary (as opposed to governmental) function.
Read the whole thing:
American Freedom Defense Init, et al v. WMATA, et al “Appellant/Petitioner Reply Brief Filed” (1:15-cv-0103… by Pamela Geller on Scribd
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14 Comments
6 years ago
Like politicians , media they have sold themselves to their Left/liberal/saudi Lobbyists paymasters and do not want any expose of the Left/Islamonazi agenda.
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6 years ago
Bleed them dry!
6 years ago
6 years ago
Reply to
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6 years ago
6 years ago
Declare lawfare and never stop fighting.
6 years ago
Reply to
Sunshine Kid
Unfortunately Lawfare is a key component of Islam’s Dawa here in the US and everywhere else, but yeah fight Lawfare with Lawfare.
6 years ago
Reply to
Sunshine Kid
Like politicians , media they have sold themselves to their Left/liberal/saudi Lobbyists paymasters and do not want any expose of the Left/Islamonazi agenda.
Here’s fake news CNN style “Trump steals food from black kid” and some great info too http://bit.ly/2wFirQA
6 years ago
Those in politics and the media who seek to limit the First Amendment freedom of expression of others need to be reminded that the constitutional liberties that allow for freedom of expression by others are the very same liberties that allow political discourse and the media to even exist in the first place.
6 years ago
Go get ’em Ms. Geller!
6 years ago
Sorry, it not having been explained, I have NO idea what WMATA is. I am assuming it is some sort of transit authority? It’s customary to spell out something before using its abbreviation followed by its abbreviation in parentheses, so that your reading audience knows exactly what it means. Then, using the abbreviation in the rest of a written piece is acceptable. There should at least be one way to refer to its meaning in the article, usually at its very first usage.
