Metro was sued last week over its advertising policy on the grounds that its rejection of certain ads violates the First Amendment. But, these kinds of lawsuits are not new.
The agency was sued on similar grounds back in 2012. And in 2004. And in 1984.
And Metro is not the only transit agency to face such challenges. Those in New York, Boston, Philadelphia and other major cities frequently face litigation over their ad guidelines.
Faced with costly lawsuits, many transit agencies have grown increasingly conservative in their approach to subway advertising, banning political and advocacy advertising altogether to stave off litigation or public relations headaches.
Here’s a look at some of the ads that have caused problems for Metro over the years:
1983 — Metro attempts to ban anti-Reagan ‘Jellybean Republic’ satirical ad
In the early 1980s, New York artist Michael Lebron sought to buy space on Metro for posters criticizing President Ronald Reagan.
The poster read, “Tired of the Jellybean Republic?” and the artistic rendering gave the appearance that Reagan was pointing his finger and laughing at a group of poor people and racial minorities.
Metro rejected the ad and Lebron took legal action. And he won.
From a Washington Post recap: “Mr. Lebron had to sue to overcome Metro’s decision that the poster was ‘deceptive.’ But a unanimous panel of the U.S. Court of Appeals — Judge Robert Bork wrote the opinion — ruled in his favor. No political branch of the government, the judges held, can impose prior restraint on the publication of a political message.”
1988 — Outcry follows ads alleging Israeli human rights violations
A few years later, the American Arab Anti-Discrimination Committee paid Metro $10,250 to display 296 advertisements that criticized Israeli policy actions toward Palestinians, and featured an Agence France-Presse photo purporting to show Palestinian women cowering in front of Israeli soldiers.
The caption on one version of the poster: “Israel Putting Your Tax Dollars to Work . . . Only Congress Can Stop the Madness.”
The United Jewish Appeal Federation of Greater Washington and the Jewish Community Council of Greater Washington called the ads “inflammatory and misleading.”
But Metro officials decided to allow them — in part because of concerns over litigation if they rejected the ads. From a 1988 story in The Washington Post:
Metro board member Richard J. Castaldi said yesterday that he had received 20 to 30 calls protesting the ads, and he proposed to the full Metro board that it ask the anti-discrimination committee to wait one week before running the ads. Castaldi said the delay would allow the board to discuss whether the transit system should stop accepting all political ads.
Metro General Manager Carmen E. Turner said there could be “legal consequences” to delaying the ads.
1995 — Metro posts antiabortion ads: ‘If we terminated the ads, they would sue.’
Many Washingtonians were displeased when ads appeared in subway stations making tenuous medical claims about abortions. The ads had been submitted by the McLean-based Christ’s Bride Ministries and an affiliated antiabortion activist group known as the American Rights Coalition.
The posters told riders that women who have abortions “suffer more and deadlier breast cancer!”
The American Cancer Society, the National Breast Cancer Coalition and other medical organizations and researchers declared the ads false and demanded that they be removed.
But the Metro board said it had no choice but to accept the ads. D.C. Council member Jack Evans, who served on the Metro board back then — and is the current board chairman— said at the time that the ads could not be removed ahead of schedule because “the antiabortion groups are well funded, and I’m convinced that if we terminated the ads, they would sue.”
“The board was quite concerned,” Evans said. “Because of the First Amendment, there was nothing we could do.”
In Philadelphia, the Southeastern Pennsylvania Transportation Authority took a different tack. When asked to run the same ads, the agency rejected the request and the antiabortion groups sued. A court ruled in favor of the activists, and the ads eventually appeared in SEPTA stations.
2001: Archdiocese of Washington decries ads lambasting Catholic bishops for anti-condom stance
When a liberal religious advocacy group used bus and subway ads to criticize the Catholic Church on World AIDS Day in 2001, the Archdiocese of Washington did not stay quiet.
The ads were provocative. “Because the bishops ban condoms, innocent people die,” read one. Another: “Catholic people care. Do our bishops?”
The archdiocese called the ads “false and misleading.” From The Washington Post:
Catholic bishops oppose the use of condoms because they present a barrier to the “full openness to life and unity between [married] couples,” said archdiocese spokeswoman Susan Gibbs. But, Gibbs said, “the fact is the bishops do not have the authority to ‘ban’ condoms.”
The backlash from riders was also significant. Years later, Metro officials called it the “single largest negative response” to any advertisement on the system ever, with hundreds of angry letters and phone calls from incensed riders.
But Metro said it did not have a legal justification to reject the ads.
Metro spokesman Ray Feldmann said the transit authority’s legal office, after reviewing the ads, “essentially determined that people may disagree with the content and portrayal of bishops” but that there was “nothing obscene, pornographic, lewd or offensive” to prevent them from running.
“To us, it came down to a First Amendment issue,” Feldmann said. “We’re simply providing a vehicle, literally and figuratively, for the group to present its point of view.” Those who oppose that view “have the same right” to take out an ad, he said.
“We’re not the referees making sure these ads are 100 percent accurate,” he added.
2003 — ACLU sues the U.S. Department of Transportation over ads to legalize marijuana
When the ACLU and other organizations sought to post ads on Metro advocating for the decriminalization of marijuana, Metro banned them — but not because of the transit agency’s own policies.
Months earlier, Congress had passed a federal spending bill that threatened to slash billions of dollars in federal funding to any local transit agency that accepted advertisements criticizing laws on marijuana or other drugs. The law was inspired by Rep. Ernest J. Istook Jr. (R-Okla.), who spotted ads on Metro he didn’t like: “Enjoy better sex!” read one of the captions. “Legalize and Tax Marijuana.”
Istook rallied Congress to include language in the 2004 federal omnibus that vowed to defund transit authorities that posted such ads. Metro and other agencies took note.
“Ads promoting the government’s position on marijuana are all over the Washington Metropolitan Area Transit Authority and other public transit systems around the country,” said Steve Fox of the Marijuana Policy Project, one of the nonprofits that partnered with the ACLU. “For the government to advertise one view while banning ads expressing differing opinions in the same forum is viewpoint discrimination and a clear violation of the First Amendment.”
The ACLU sued the federal government and won.
A federal judge struck down the law prohibiting pro-marijuana policy ads, calling the attempted censorship “illegitimate and constitutionally impermissible.” Metro and other transit agencies were forced to post the ads.
2012-2015 — Anti-Muslim ads inspire sweeping changes to Metro ad guidelines
In recent years, much of the drama over subway ads has been sparked by a pro-Israel group known as the American Freedom Defense Initiative and its leader, Pamela Geller.
The group has fought to post ads with incendiary anti-Muslim messages in transit systems in Washington, Boston, New York, Philadelphia and Chicago. Those battles often have ended in lawsuits. The group sued Metro in 2012 and won.
Then, in 2015, the group tried to run another set of anti-Muslim ads in the system — ads that featured an offensive cartoon of the prophet Muhammad. Transit officials feared the ads could spark violence. Weeks before, two gunmen had opened fire with semiautomatic rifles in a deadly shooting outside an event in Texas where the same cartoon was on display.
The Metro board scrambled to put a new policy in place that would allow them to keep the cartoon off the agency’s trains and buses. The new guidelines banned all “issues-oriented ads,” including ads “intended to influence public policy” or “intended to influence members of the public regarding an issue on which there are varying opinions.”
The new policy was intentionally vague and broad — in part because it was meant to serve as a stopgap measure, before the board could develop a more fine-tuned set of guidelines.
“My view is, you put that ad up on the side of a bus, you turn that bus into a terrorism target,” a top Metro official told The Washington Post at the time, speaking on the condition of anonymity because the agency anticipated being sued over the ban. “I think it’s a very bad outcome for everybody. But it’s a risk we don’t want to put our passengers under.”
2016 — Metro pulls back on PETA ads
People for the Ethical Treatment of Animals has been advertising on Metro for years. But starting in 2016, Metro began rejecting the organization’s ads, arguing that the pro-vegan PSAs did not comport with the agency’s new ban on issues-oriented ads.
“WMATA has accepted and displayed many advertisements that are intended to influence riders to buy, do, and believe things that are at odds with PETA’s viewpoint on humans’ proper relationship with animals,” the ACLU said in its recent lawsuit against Metro, “such as eating animal-based foods, wearing clothing made from animals, and attending circus performances at which animals are made to perform in unnatural ways.”
“Those viewpoints are accepted,” the ACLU added, “but PETA’s opposing viewpoints on these issues are censored.”
2017 — Abortion care provider Carafem gets bumped from Metro, too
Carafem, a health center in Chevy Chase that provides abortions, got the same treatment as PETA.
In 2015, Metro allowed Carafem’s ads to appear in the system, with a caption that read: “Abortions. Yeah we do that. Birth Control. Yeah we do that too.”
Early this year, Carafem tried to post similar ads. They were rejected.
2017 — An unusual workaround from a former Egyptian political prisoner
Mohamed Soltan, a former political prisoner in Egypt, sought to post advertisements on Metro in advance of a visit by Egyptian President Abdel Fatah al-Sissi.
The ads outlined facts about humans right abuses in Egypt, attributed to organizations such as Human Rights Watch and the Committee to Protect Journalists. Metro rejected them.
Soltan protested Metro’s decision, but Metro officials didn’t budge. Ultimately, Soltan took a different approach: He hired a truck with an LED screen to drive around downtown Washington, displaying the ad, along with a new tagline: “These ads were rejected by D.C. Metro.”
2017 — In an act of ‘irony,’ Metro bans ACLU’s First Amendment ads
Earlier this year — and prompted in part by the 2016 presidential election — the ACLU launched a campaign of PSAs intended to reach people around the country at bus stations, on subway trains, and via billboards from coast to coast.
The message was simple: the First Amendment of the U.S. Constitution. The ads recited the words of the Founding Fathers, in English, Spanish and Arabic.
Metro banned the ad, calling it a violation of their ban on advocacy. New York City’s subway rejected the ad, too, according to Arthur Spitzer of the ACLU.
“I think the word that comes to mind is ‘ironic,'” Spitzer said last week, describing his reaction when he learned that the Metro ad was prohibited. “How ironic is it that Metro, a government agency subject to the First Amendment, won’t allow the First Amendment to be posted on its property?”
2017 — Milo Yiannopoulos’s ad gets pulled, sparking a joint lawsuit
And then there’s Milo Yiannopoulos, the controversial alt-right writer. The posters promoting his new book were not visually outrageous — simply a picture of his face, first name, and the title of his book, “Dangerous” — and the ads initially appeared in stations throughout the system.
But riders complained, due to Yiannopoulos’ reputation for making racist, xenophobic, transphobic and sexist comments.
Metro quickly pulled down the ads. And that, it seems, was the final straw for the ACLU. Attorneys with the organization contacted Yiannopoulos, PETA and Carafem to partner on a lawsuit challenging Metro’s ad guidelines and alleging that their First Amendment rights had been violated.
Yiannopoulos’s reaction to Metro’s decision to remove the ads was characteristically flippant and dismissive:
Is my face a hate crime? The Washington D.C. Metro — the public transportation system of the swamp itself — has banned ads for my book. You already knew the mainstream media doesn’t want you to read DANGEROUS. Now you can add the government to that list. What leftists fail to realize is that every banned ad, every negative review, and every nasty article about me is a ringing endorsement to the people that really matter — real Americans.
But Metro is holding its ground. After the ACLU’s lawsuit was filed, a Metro spokeswoman offered a brief statement in response: “WMATA intends to vigorously defend its commercial advertising guidelines, which are reasonable and view-point neutral.”