The Washington Metropolitan Authority banned all political and religious ads after my organization AFDI submitted a free speech campaign for DC buses. New York, Boston, Chicago, San Francisco instituted Geller bans as well. It is an outrageous violation of our First Amendment rights. That said, there is a silver lining. The antisemites, “Palestinian” terror supporters, et al can’t run ads either. 😉
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Rules Barring Religious Ads On Metro Buses Upheld In Appeals Court
A panel of federal appeals court judges has sided with Metro over the Catholic Archdiocese in a lawsuit that centered on the transit agency’s advertising guidelines.
Last fall, Metro rejected a Christmas advertisement submitted by the Archdiocese for the outside of buses that had the silhouettes of three shepherds on a hill with the words “Find the Perfect Gift” in the Catholic church, citing its ad policies. A decision on Tuesday from the U.S. Court of Appeals for the D.C. Circuit upholds those policies, rejecting the church’s argument that the guideline violated the First Amendment and the Religious Freedom Restoration Act.
The rule in question is the twelfth of 14 guidelines Metro implemented in November 2015 in order to close “WMATA’s commercial advertising space to any and all issue-oriented advertisements, including, but not limited to, political, religious, and advocacy advertising.” Guideline 12 specifically bars ads that “promote or oppose any religion, religious practice, or belief.”
The policies were implemented after Islamophobic activist Pamela Geller submitted an ad that showed an image of the prophet Muhammad. Geller is suing Metro over their rejection of that ad in a case that has yet to be decided by the U.S. Court of Appeals for the D.C. Circuit.
She had previously been awarded $35,000 in legal fees from WMATA, when a federal judge ordered that they could not refuse posting advertisements that equated Muslims with savages, many of which were vandalized.
Judge Judith Rogers wrote in today’s decision that “WMATA’s advertising space is a non-public forum,” and therefore the First Amendment argument does not apply. Unlike “parks and sidewalks that have historically been used for congregation and discussion [and] have a utilitarian purpose that governments are entitled to maintain … City buses, by contrast, enjoy no historical tradition like parks and sidewalks.”
The opinion confirms a lower court’s decision on the case. “We are pleased with the court’s decision,” says Dan Stessel, a spokesperson for Metro.
It isn’t the only lawsuit against these guidelines. In August 2017, the American Civil Liberties Union of D.C. sued Metro with plaintiffs ranging from a women’s clinic to an alt-right provocateur, all of whom (including the ACLU itself) have had ads rejected by the transit agency. That suit has been on hold pending the outcome of the case involving the Archdiocese.
Metro maintains that the guidelines are “viewpoint neutral.” That means that as long as Metro rejects ads from or against all religions (and groups espousing secularism), it’s not a violation of the First Amendment. The court agrees. Judge Brett Kavanaugh, President Donald Trump’s Supreme Court nominee, participated in arguments in the case but did not participate in the opinion.
The Archdiocese has not responded to a request for comment.
The transit agency has also faced backlash from the application of some of its other guidelines, like the ninth one, which prohibits “advertisements intended to influence members of the public regarding an issue on which there are varying opinions.” While it outright rejected ads for a clinic offering the abortion pill, ads for a faith-based adoption service made it onto buses before WMATA acknowledged it had erred and removed them.
Similarly, Metro took down ads of controversial media personality Milo Yiannopoulos’s book after receiving a barrage of complaints. The agency cited guidelines 9 and 14, which says “advertisements that are intended to influence public policy are prohibited.”
Yiannopoulos and Carafem, the health clinic, are among the plaintiffs in the ACLU of D.C.’s suit against Metro over their ad guidelines. Arthur Spitzer, the legal director of the ACLU of D.C. and the lead counsel on the case, says that Tuesday’s opinion “surely has some effect on our case—it says Metro regulations in general are okay excluding certain categories of speech.”
But the church’s case focuses on Guideline 12, which is all about religion, and the ACLU’s suit, like Geller’s looks at ads “intended to influence members of the public regarding an issue on which there are varying opinions.”
Spitzer says that the ACLU’s case centers on one aspect that neither the Archdiocese’s nor Geller’s cases do: “A big part of our argument is that the definition and application of those definitions with respect to opinions on which people disagree is pretty vague and we’ve given lots of examples where we think Metro has exercised its veto in inconsistent and unreasonable ways.”
For instance, the lawsuit outlines how Metro has accepted advertising for books from authors other than Yiannapoulos and ads for medical services aside from the abortion pill.
Metro makes about $20 million each year through ad revenue.
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