VICTORY! D.C. Circuit Rules in Our Favor: WMATA Free Speech Ban on AFDI Ads Faces Renewed Challenge

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“The decision was basically, ‘If we don’t want Ms. Geller’s ad to be put up next week, this is the way to do it,’ ” Mortimer Downey, former Metro board chairman said regarding the ‘Geller Ban’ on DC transit ads. (Washington Post)

The DC Circuit court issued their opinion on our free speech lawsuit against the Washington Metropolitan Transit Authority (WMATA) yesterday. Unlike other the failure of other legal challenges to the “Geller ban,” the D.C. Circuit sided 2-1 was us on Friday. A majority held that the case was not mooted by the adoption of the new guidelines (note that we sued when they instituted the moratorium, but before they finalized the guidelines). The forum was held to be a nonpublic forum (a case decided by this Court at the end of July—Archdiocese of Washington case—the Archdiocese lost its challenge to WMATA’s rejection of their Christmas ads—held that post new guidelines the forum was nonpublic). Our panel held that the restriction on our ads was not viewpoint based. However, the panel held that in light of recent Supreme Court precedent, the restriction might be “unreasonable” (in a nonpublic forum, restrictions must be viewpoint neutral and reasonable). The court reversed the district court’s grant of summary judgment in favor of WMATA and remanded back down to the district court for additional discovery and argument. . . The fight continues thanks to our peerless legal team , David Yerushalmi and Robert Muise of the American Freedom Law Center.

DC Moratorium on Issue Ads Faces Renewed Challenge

By Britain Eakin, Courthouse News, August 17, 2018:

WASHINGTON (CN) – Beltway-area transit officials will have to show that they had a legitimate basis to ban issue-based advertising after the D.C. Circuit sided 2-1 Friday with a group whose rejected ad depicted a sword-wielding cartoon of a Muslim with a “You Can’t Draw Me” speech bubble.

Seemingly a reference to the Islamic prophet Muhammad, the ad came from the American Freedom Defense Initiative, a group whose co-founder, Pamela Geller, has called it a “badge of honor” that the Southern Poverty Law Center lists the AFDI as an anti-Muslim hate group.

Depictions of the prophet Muhammad are forbidden in Islam, and the AFDI brought a July 2015 complaint against the Washington Metropolitan Area Transit Authority for refusing to run its ad.

Months earlier, Geller’s group drew criticism after sponsoring a “Draw Muhammad Cartoon Contest” in Garland, Texas, that ended in bloodshed.

The AFDI noted in its 10-page action that it opposes “the suppression of free speech by Sharia-adherent Islamists and complicit government officials.”

Though a federal judge had ruled in favor of the WMATA back in March 2017, the D.C. Circuit revived the case Friday for further consideration of whether the advertising restrictions are reasonable.

As a nonpublic forum, the WMATA must show that any restrictions it places on speech are reasonable and not targeted against any particular viewpoint.

Writing for the majority Friday, U.S. Circuit Judge Douglas Ginsburg called it clear that the AFDI failed on the viewpoint prong.

“There is no question the moratorium and the guidelines sweep out far more than just AFDI’s advertisements,” Ginsburg wrote. “If WMATA wished to keep out these particular advertisements, then it could have banned, as one example, advertisements ‘with a demonstrated link to violence,’ which would have sufficed given the events in Garland, Texas. That WMATA put in place a much broader ban, even though it resulted in a larger potential loss of revenue, strongly suggests it was not discriminating against the views of AFDI.”

In reviving the case, Ginsburg pointed to the 2017 Supreme Court ruling in Minnesota Voters Alliance v. Mansky, where the court held that the state’s ban on political garb at polling stations is unconstitutional.

“We must determine whether Guideline 9 is so broad as to provide WMATA with no meaningful constraint upon its exercise of the power to squelch,” the 30-page opinion states.

U.S. Circuit Judge Sri Srinivasan concurred in the ruling, but U.S. Circuit Judge Karen Henderson wrote in dissent that the AFDI’s claim is moot.

“I prefer to let WMATA first determine what guideline justifies restricting AFDI’s speech and assess the constitutionality of that determination once it is made,” Henderson wrote in a footnote.

An attorney for AFDI, Robert Muise of the American Freedom Law Center, called the ruling a victory.

“Despite the court’s obvious animosity toward us and our clients, the court was correct to conclude that WMATA’s speech restriction is in peril in light of the Supreme Court’s recent decision in Mansky,” Muise said in an email. “The court should have struck it down as a result, but instead, it remanded to the district court.  We believe we will ultimately prevail on this issue.  At the end of the day, whenever you can get an appellate court to reverse an adverse decision, as we did in this case, it is a victory.”

An attorney for WMATA, Donald Verrilli with the firm Munger Tolles, did not return an email seeking comment on the opinion.

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