Advertisements promoting the American Civil Liberties Union’s upcoming national conference will not appear at Metro stations or on buses, after a federal judge refused Wednesday to force the transit agency to accept the ads.
The decision from U.S. District Judge Tanya S. Chutkan upholds Metro’s rejection of the ACLU’s planned ads, which the agency said violated its ban on issue advocacy.
Metro “reasonably concluded” the ACLU’s proposed ads “violated its prohibition on advertisements intended to influence public policy,” Chutkan wrote in a nine-page order.
The ACLU’s case is one of several challenges to Metro’s policy that also prohibits political and religious advertisements. The U.S. Court of Appeals for the D.C. Circuit is considering whether Metro’s policy goes too far in keeping out religious messages in a lawsuit brought by the Archdiocese of Washington.
At a hearing Tuesday, Chutkan had expressed concern that Metro’s rules are applied inconsistently and called the agency’s approach to accepting and rejecting proposed ads “very random.”
In her ruling, Chutkan said there “appears to be room for improvement in the transparency and consistency of WMATA’s decision-making process. Nevertheless, the court cannot conclude that the guidelines were applied arbitrarily or inconsistently in this case.”
The regional transit agency funded by the District, Maryland, Virginia and the federal government is legally permitted to ban certain content from ads on Metro buses and trains as long as its rules are reasonable and do not discriminate against particular points of view.
ACLU attorney Arthur Spitzer called the decision disappointing, but said the organization would not appeal because of time constraints. The conference begins June 10.
Metro officials declined to comment through a spokesman.
In mid-May, the transit agency rejected the ACLU’s proposed display featuring a background photo of a rally with people holding signs opposed to President Trump’s ban on travelers from certain Muslim-majority countries. The ACLU submitted a revised design, keeping only the text “You Belong Here,” a list of conference speakers and the Web address for the event.
Spitzer said in court Tuesday that the ads were an invitation — not advocacy — and that Metro’s review should be limited to the display itself.
The new version of the ad was also rejected.
Chutkan questioned Metro’s lawyer in court about why the agency had rejected the ACLU ads, but signed off on an ad campaign from the University of the District of Columbia’s law school featuring students holding signs with the message “Black Lives Matter.”
Attorney Anthony Pierce, Metro’s outside counsel, said the law school’s ads were approved by the private media company Metro contracts with to handle logistics and not reviewed by Metro officials.
Of the ACLU proposal, Pierce said the agency could not “divorce the advocacy from the conference” hosted by the civil rights organization.
“If we allow this ad,” he said, “then tomorrow the KKK could advertise.”
Chutkan agreed in her ruling Wednesday that Metro was entitled to consider the substance of the conference based on the website, which lists sessions on topics such as “The Rule of Law in the Age of Trump” and “The Boomerang Effect: How U.S. Militarism Abroad Undermines Civil Liberties at Home.”
“The advertisement promotes an event that constitutes political advocacy and includes a website detailing that advocacy,” the judge wrote.
After years of allowing advertisements with a range of messages, Metro banned issue-oriented displays in 2015, and those related to politics and religion. The change was prompted by security concerns over anti-Muslim-themed ads and intended to curb community and employee opposition.
The ACLU’s latest challenge to Metro’s policy is unlikely to be the last to go before the court. Chutkan cautioned Tuesday that it would be difficult for Metro to avoid offending at least some riders.
“If you’re trying to make people in Washington, D.C., not offended, you’re going to have a very hard time,” she said. “Everyone is offended about something.”