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- On Wednesday, the American Civil Liberties Union (ACLU) sued the Washington Metropolitan Area Transit Authority and its general manager Paul Wiedefeld for rejecting advertisements that “might give offense.” The suit argued that the First and Fourteenth Amendments prohibit the DC Metro from discriminating against certain viewpoints when selling advertising space.
- The suit focused specifically on advertisements for an FDA-approved abortion pill and Milo Yiannopoulos’s book Dangerous, as well as an advertisement from People for the Ethical Treatment of Animals (PETA) promoting a vegan diet, and an ACLU ad displaying the text of the First Amendment in English, Arabic, and Spanish.
- On 28 May 2015, as a response to the submission of an advertisement that the Washington DC Metro Authority (WMTA) did not want to accept, the Authority closed its advertising space to “all issue-oriented advertising… until the end of the calendar year.”
- Prior to this, the ACLU suit attests that “Courts had held that WMATA’s advertising space was a designated public forum.”
- On 19 November 2015, the DC Metro Authority amended its guidelines governing commercial advertising. The relevant guidelines state:
- “Advertisements intended to influence members of the public regarding an issue on which there are varying opinions are prohibited.”
- “Advertisements that support or oppose any political party or candidate are prohibited.
- “Advertisements that promote or oppose any religion, religious practice, or belief are prohibited.
- “Advertisements that support or oppose an industry position or industry goal without any direct commercial benefit to the advertiser are prohibited.
- “Advertisements that are intended to influence public policy are prohibited.”
- The DC Metro Authority rejected advertisements from the ACLU in March and on 19 April, stating that they do not accept “any issue oriented advertising.”
- On 14 December 2016, the DC Metro Authority rejected an advertisement from Carafem that featured an image of a large white pill with the text “10-Week-After-Pill,” and “For Abortion Up to 10 Weeks. $450. Fast. Private. Carafem.org.” The Authority said that the advertisement had been rejected on the grounds that the issue of abortion is one in which there are varying opinions. The Authority also rejected the advertisement based on another guideline that prohibits “medical and health-related messages” except those from government health organizations.
- On 6 July, the DC Metro Authority removed advertisements for Milo Yiannopolous’s book Dangerous after it had received complaints from some of its passengers. The Authority stated that the advertisements represented issues where there are varying opinions and were an attempt to influence public policy.
- On 14 June, the Authority signed an advertising contract with Milo Yiannopolous’s publishing company Milo Worldwide to run an advertisement that featured Yiannopolous’s face, along with the title of his book, the text “Pre-Order Now,” and four quotations with sources that read “The most hated man on the Internet” – The Nation, “The ultimate troll” – Fusion, “The Kanye West of Journalism” – Red Alert Politics, and “Internet Supervillain” – Out Magazine.
- On 21 June, Milo Worldwide executed the contract and paid $25,000. The advertisements were posted on 26 June and were to run until 23 July.
- The Authority attempted to refund Milo Worldwide after taking down the advertisements, but Milo Worldwide declined, stating “we consider this to be a violation of our First Amendment rights.”
Supporters of the ACLU Lawsuit
- Lee Rowland, the ACLU’s senior staff attorney wrote on the ACLU’s website Wednesday: “Can the government ban the text of the First Amendment itself on municipal transit ads because free speech is too “political” for public display? If this sounds like some ridiculous brain teaser, it should. But unfortunately it’s not.” He continued:
“Earlier this year, following President Trump’s repeated commentary denigrating journalists and Muslims, the ACLU decided to remind everyone about that very first promise in the Bill of Rights: that Congress shall make no law interfering with our freedoms of speech and religion. As part of a broad advertising campaign, the ACLU erected ads in numerous places, featuring the text of the First Amendment. Not only in English, but in Spanish and Arabic, too — to remind people that the Constitution is for everyone…
WMATA’s view is apparently that the litany of commercial advertisements it routinely displays involve no “issues on which there are varying opinions.” Beyond the obvious Coke-or-Pepsi jokes, there’s a dark assumption in that rule: that we all buy commercial products thoughtlessly. Buy beer! (Don’t think about alcoholism.) Buy a mink coat! (Don’t think about the mink.) That is, WMATA sees “varying opinions” only when they relate to something it recognizes as controversial…
The ideas espoused by each of these four plaintiffs are anathema to someone — as is pretty much every human idea. By rejecting these ads and accepting ads from gambling casinos, military contractors and Internet sex apps, the WMATA showed just how subjective its ban is. At the end of the day, it’s a real shame that the WMATA didn’t accept the ACLU’s advertisement — the agency could really have used that refresher on the First Amendment.”
- Harvard Law Professor Rebecca Tushnet agrees with the ACLU’s argument, as the DC Metro Authority is a government agency with “no clear policy” on what is and is not an acceptable advertisement. Tushnet told the Washington Post that the ACLU has an “extremely strong” case.
“They [the DC Metro Authority] do seem to be acting pretty inconsistently, and they seem to not have a clear policy. For a government institution that decides to have advertising, for better or for worse, you can’t have your standards for what is allowable based on the identity of the person in the advertisement…
You could write a better policy that accomplishes much of the same goal.”
Critics of the ACLU Lawsuit
- Sherri Ly, spokesperson for the transit authority, told The Whim:
“In 2015, WMATA’s Board of Directors changed its advertising forum to a nonpublic forum and adopted commercial advertising guidelines that prohibit issue-oriented ads, including political, religious and advocacy ads. WMATA intends to vigorously defend its commercial advertising guidelines, which are reasonable and view-point neutral.”
- ACLU attorney Chase Strangio tweeted a statement on Wednesday, criticizing the ACLU for defending Milo Yiannopoulos.
“Not only do I not condone Milo’s actions, I find him to be a reprehensible person whose contributions to this particular historical moment, in this particular social and historical context, exacerbate the many harms that transgender people, people of color, Muslim people, immigrants, and others regularly experience, including harms that lead to the premature death of so many…
Though his ability to speak is protected by the First Amendment, I don’t believe in protecting principle for the sake of principle in all cases. His actions have consequences for people that I care about and for me…
The ACLU has a long history of representing despicable people in the service of protecting the valuable First Amendment principles and in some cases I support the decisions that have been made and in other cases I do not. Here I do not. Milo’s actions may not meet the legal definition of indictment, but he acts in a world in which people already feel authorized to demean, attack, and dispose of the bodies and lives of so many… He is vile. And I am sorry for any platform and validation that he receives.”
Seamus Anderson contributed to this report.