A federal judge in Washington said Tuesday that Metro’s rules for reviewing proposed advertisements for its buses and subway stations are applied inconsistently, and she called the transit agency’s approach “very random.”
In court filings, the ACLU said its planned posters are not “issue ads” banned by Metro but invitations designed to attract the attention of commuters and encourage attendance at the conference that begins June 10.
“The First Amendment does not permit WMATA to exclude certain speakers because of who they are,” ACLU attorney Arthur Spitzer said, using the initialism for the Washington Metropolitan Area Transit Authority. “If Ringling Bros. can advertise for people to come to their circus, the ACLU should be able to advertise for people to come to its conference.”
Attorneys for Metro said officials reviewing the planned $90,000 ad buy should not have to ignore the ACLU’s long history of political advocacy.
“You can’t divorce the advocacy from the conference,” said WMATA attorney Anthony Pierce. The conference website linked in the ads “screams advocacy,” he said.
Chutkan is being asked to rule on the ACLU’s request for a preliminary injunction to force the agency to accept the ads. The challenge comes as the U.S. Court of Appeals for the D.C. Circuit is already weighing whether Metro’s ad policy goes too far in keeping out all religious messages in a case brought by the Archdiocese of Washington.
“This is a close case, a very difficult case,” Chutkan said at the outset before voicing concern the agency had not applied its guidelines consistently. “It really does seem like it’s very random.”
The judge asked Metro’s lawyer whether there were any circumstances under which the agency would accept an ad campaign from the ACLU. Pierce, the attorney, said he could not answer that question.
For years, the transit system allowed a range of messages, including political satire and criticism of the Catholic Church. But in 2015, prompted by security concerns over anti-Muslim-themed ads, Metro banned issue-oriented messages as well as any related to religion or politics.
The change in policy limited ads to those promoting commercial products and services, which bring in more than $20 million for the regional transit system that relies on funding from the District, Maryland, Virginia and the federal government.
At issue for the court is the ACLU’s media blitz with the message: “You Belong Here.” The display lists conference speakers, including civil rights leader and congressman John Lewis (D-Ga.), Sen. Elizabeth Warren (D-Mass.) and actress Kerry Washington.
Metro rejected the initial version in mid-May that featured a dark blue 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 that removed the photo and was displayed in the courtroom on Tuesday.
Metro officials did not immediately respond to the submission of the revised version, prompting the filing from ACLU officials concerned about missing the time window to promote its conference being held at the Walter E. Washington Convention Center.
In filings over the weekend, the agency said it rejected the new version because of the organization’s political work and the conference sessions advertised on the Web, with titles such as “Voting Rights for the Resistance” and “The Rule of Law in the Age of Trump.”
Approving the ACLU ads would “open WMATA’s advertising space to advertisements for conferences or rallies by groups ranging from the Democratic National Convention to National Right to Life to the Ku Klux Klan,” Metro said in court filings.
Spitzer, of the ACLU, said the policy is arbitrary and discriminates against particular points of view. The organization’s filing is part of an existing First Amendment case that is on hold pending a ruling from the D.C. Circuit.
The case before Chutkan cites four ads that were rejected by Metro: abortion provider and women’s health clinic Carafem, PETA, a then-upcoming book by conservative writer Milo Yiannopoulos and a separate ACLU campaign. In March, Chutkan refused to grant Yiannopoulos’s request for an injunction after Metro blocked ads for his book. Chutkan said the book itself was a “work of political advocacy — and therefore an attempt to influence public policy.”
Metro officials say in court filings that the agency is within its rights to put certain subject areas off limits as long as the restrictions are reasonable.
“Undoubtedly, restrictions on political or religious speech are more likely to apply to political or religious advocacy organizations,” the agency said, “but that does not make the restrictions unconstitutional.”
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