This was the latest challenge to an advertising policy that a wide spectrum of groups, from the American Civil Liberties Union to the Archdiocese of Washington, have decried as unfair and overly broad since it was adopted in 2015.
The agency’s board of directors implemented the blanket ban after an anti-Muslim group tried to rent space for an ad campaign depicting a cartoon image of the prophet Muhammad, prompting security concerns over potential terrorist threats and violence.
Since then, activists and advocacy groups have sounded off at a regular clip after seeing ads for their nonprofit organizations, human rights-centered campaigns and product launches rejected by Metro, holding them up against commercial advertising they say is equally — if not more — provocative than their promotions.
Critics point to Metro’s acceptance of ads for defense contractors that show sophisticated military equipment, alcohol and casino advertisements, and promotions for a gay hookup website as examples. They say they do not object to the content of the advertisements themselves but to what they say is Metro’s inconsistent application of its policy.
“There’s some subtext here that Metro doesn’t want ads that upset people, but people can get equally upset by commercial ads as they can by social or political messages,” said Rep. Jamie B. Raskin (D-Md.). “It’s very hard for me to explain to my constituents why they can’t run ads favoring inclusion of the disabled, but you can run liquor ads.”
Despite those objections, the transit agency’s board has no plans to change the policy.
“We made a determination — we at the board — that we don’t want to spend the time and the energy and everything trying to figure out what ads we should run and what we shouldn’t,” said Jack Evans, the Metro board chairman and also a D.C. Council member. “We have no intention of revisiting this at all. It’s where it is and whatever decision [the staff members makes] I stand by.”
But Mortimer L. Downey, who was board chairman when the policy was approved, said it was never meant as a long-term solution.
“My understanding was — and I voted for it — this was the quickest way we could assure that the offensive anti-Muslim ads would not go on the buses,” Downey said. “But as far as I know, nothing has happened but some pretty embarrassing discussion as to what constitutes forbidden advertising.”
Downey said recent cases raise the question of whether the policy needs to be reexamined.
“Things like the [Humanity & Inclusion ad] or the Archdiocese strike me as a pretty extreme view,” Downey said. “What I’m guessing is the lawyers are saying ‘if you let anybody in, [you] have to let everybody in.’ ”
Humanity & Inclusion, formerly known as Handicap International, attempted to buy $16,000 worth of ads in January to promote its new brand, but Metro turned down the promotional campaign, Executive Director Jeff Meer said. He said the organization spent about two years overhauling its brand, including conversations with donors, staff members and others closely associated with it, resulting in a new identity that everybody “really loved.”
“There was no advocacy ask,” Meer said. “There was no petition to sign. It’s really meant to introduce our new brand, about which we feel very good. And that’s why we were so surprised.”
The group’s advocacy work included a push behind a worldwide campaign to ban the use of land mines, culminating in the signing of the international Mine Ban Treaty and a share of the Nobel Peace Prize in 1997, according to the Humanity & Inclusion website. Its human rights efforts include fighting poverty and discrimination, providing disaster-relief assistance and aiding vulnerable populations around the world.
In rejecting the campaign, Metro cited provisions in its policy against ads intended to influence public sentiment on issues “on which there are varying opinions,” and against ads intended to influence public policy.
Metro, through a statement, declined last week to elaborate on its decision.
“Due to ongoing litigation on this subject, we are unable to comment further,” Metro spokeswoman Sherri Ly said.
Humanity & Inclusion sent Metro two mock-ups of ads for the campaign: one showed a tiny amputee cartoon figure hiking up a hill to school with the aid of crutches, superimposed over the palm of a large hand. The text reads: “Be a lifeline to those who confront barriers at every turn. In the face of conflict and disaster, poverty and exclusion, we work alongside people with disabilities and vulnerable populations to change their lives for the better.”
The other featured a boy the group had provided with artificial limbs and read “humanity & inclusion: the new name of handicap international” and featured the new URL of the nonprofit group’s website.
In his view, Meer said that, because the ads did not advocate a specific political message or position, Metro’s response raised questions as to whether nonprofit advocacy groups such as his could advertise in the system at all.
The human rights group Amnesty International criticized Metro’s decision last month to turn down an ad campaign illustrating “hateful rhetoric” from global leaders with depictions of President Trump, Russian President Vladimir Putin and North Korean leader Kim Jong Un. The ACLU is suing Metro on grounds that the policy violates the First Amendment, citing four ads that were rejected: abortion provider and women’s clinic Carafem, PETA, a then-upcoming book by right-wing provocateur Milo Yiannopoulos and a campaign the ACLU had submitted of its own.
The ACLU featured the text of the First Amendment in three languages — English, Spanish and Arabic. Metro rejected it on grounds it violated the advocacy ban.
In legal briefs filed in the ACLU case, Metro disputed the argument that the approval of some potentially polarizing commercial ads went against its policy.
“Ads encouraging viewers to go to a casino, have a beer, visit a dating site, or attend a comedic movie are not advocating any political or policy positions,” the transit agency said in the filings. “The same is true of an ad promoting the products of defense contractor. . . . No person of ordinary intelligence would fail to see the difference between what the Guidelines prohibit and the nonpolitical commercial speech of the accepted advertisements.”
Meanwhile, after Metro rejected Christmas-themed ads submitted by the Archdiocese of Washington last year, the Justice Department sided with a legal challenge the church filed in court. Oral arguments in the case are scheduled for March 26, and amicus briefs supporting the church have been filed by the Justice Department and Sen. Jeff Flake (R-Ariz.), along with other groups.
Despite the lawsuits, Metro board member Christian Dorsey cited the desire not to see the transit agency embroiled in constant legal battles in an argument supporting the policy.
“I think we’ve taken the approach that by closing the forum to all issue-oriented advertising, you really protect your agency from being constantly brought into litigious circumstances,” he said.
Pressed on how circumstances were any different under the ban, he said while groups will continue to bring lawsuits, Metro is confident in its argument against them. In the case of the Catholic ads, a U.S. District Court judge sided with Metro in an initial ruling in December, which the church is appealing.
First Amendment experts say that transit agencies run risks by selectively banning certain advocacy ads. Two cases previously reported by The Washington Post highlight the quandary. In 2012, the American Freedom Defense Initiative — the same group that would later seek to display the offensive anti-Muslim cartoons in Metro — bought ad space in four Metro stations for a message reading, “In Any War Between the Civilized Man and the Savage, Support the Civilized Man. Support Israel. Defeat Jihad.”
When Metro sought to delay posting the ads because of conflicts in the Middle East, AFDI sued and a judge ordered Metro to display the campaign. The same group later bought ad space on buses for advertisements linking Islam to Nazism, which Metro accepted. When AFDI attempted to place the same ads in the Philadelphia transit system, that agency rejected them. When the group successfully sued the Philadelphia transit over the campaign, the agency banned advocacy ads outright.
Raskin, a constitutional law professor at American University, suggested a possible solution: Examine whether Metro can object to certain speech on the grounds that it is harmful to the thousands of schoolchildren who ride the system every day. Metro provides free public transit for D.C. Public Schools students.
“I think that Metro could be a leader here in coming up with a new way of thinking about the problem,” Raskin said.
Dorsey, who is also an Arlington County Board member, said he was interested in Raskin’s idea.
“That is a novel approach that I’ve never heard of before and I’m intrigued by it,” Dorsey said. “I for one would be very open to having [Raskin] round up that argument and finding a way for us to consider that as a board — it’s definitely worthy of serious consideration.”