The DC Circuit court yesterday ordered the Washington Metropolitan Transit Authority (WMATA) to respond to our petition for a rehearing, which means that our free speech case is still alive. Unlike other the failure of other legal challenges to the “Geller ban,” that is, regulations adopted by transit authorities specifically to prevent me from running my pro-freedom ads on buses and in subway stations, the D.C. Circuit sided 2-1 was us last month. 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 on our ads, 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. . .
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