First Amendment banned from DC Metro literally! – Washington Post

Posted: August 16, 2017 at 5:53 pm

In November 2015, the Washington Metropolitan Area Transportation Authority (WMATA), operator of the Washington public transit (bus and Metro) system, amendedguidelines regarding commercial advertisements that it would accept for Metro cars and Metro stations. The guidelines contain 14 numbered restrictions, including these four:

Ostensibly applying these guidelines, WMATA made some rather peculiar decisions, refusing, for example, to accept advertisements from:

And, rather astonishingly, WMATA rejected an ACLU ad consisting of nothing but the text of the First Amendment (in English, Spanish and Arabic) alongside the ACLU logo (Guideline 9: intended to influence the public regarding an issue on which there are varying opinions (!!))

[The rejected ads can all be seen here.]

The ACLU recently filed suit on behalf of itself, Yiannopoulos, Carafem and PETA in D.C. federal district court arguing that the WMATA policy is a violation of the First Amendment both on its face and as applied to the plaintiffs. [The complaint is posted here.]*

Note * Apparently, the ACLU has taken some heat from its supporters for including Yiannopoulos as a co-plaintiff. That is unfortunate; the ACLUs habit of taking the position that speech even speech we might regard as offensive, from people we might regard as offensive is worthy of protection may be maddening at times, but it is a highly principled one, and is itself worthy of support and protection.

The plaintiffs, surely, have a strong case. On what possible grounds can WMATA defend rejecting an advertisement consisting of the text of the First Amendment? Who decides whether any particular issue is one on which there are varying opinions, and on what basis is that decision made? Why should PETAs non-commercial message (Dont eat meat) be prohibited while Burger Kings commercial message (Eat more meat)is allowed?

WMATA will undoubtedly rely heavily on Lehman v. City of Shaker Heights (1974), a case in which the Supreme Court upheld (5 to 4) a ban on all political advertising in the Shaker Heights transit system. The court there rejected the notion that the rail and bus cars constitute a public forum protected by the First Amendment with a guarantee of nondiscriminatory access to such publicly owned and controlled areas of communication.

The streetcar audience is a captive audience. It is there as a matter of necessity, not of choice. Here, we have no open spaces, no meeting hall, park, street corner, or other public thoroughfare. Instead, the city is engaged in commerce. It must provide rapid, convenient, pleasant, and inexpensive service to the commuters of Shaker Heights. The car [advertising] space, although incidental to the provision of public transportation, is a part of the commercial venture. In much the same way that a newspaper or periodical, or even a radio or television station, need not accept every proffer of advertising from the general public, a city transit system has discretion to develop and make reasonable choices concerning the type of advertising that may be displayed in its vehicles.

The level of scrutiny such governmental action would receive would be low: the choices must simply be reasonable, and the policies and practices governing access to the transit systems advertising space must not be arbitrary, capricious, or invidious.

The ACLUs complaint argues that the guidelines constitute viewpoint discrimination of a kind that was not present in Lehmanallowing messages that reflect the AMAs (or the governments) views on health-related matters, or those that reflectcommercialpositions on industry goals, while rejecting advertisements reflecting other viewpoints requires the court to engage in a more exacting First Amendment analysis.

They may well succeed in that argument. Even if they dont, though, its hard to see a a court upholding WMATAs decision here even under the relaxed reasonableness standard. To my eye, these certainly do look like the kind of arbitrary, capricious, or invidious decisions that, even under a generous reading of Lehman,WMATA, as a state actor, has to steer clear of.

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First Amendment banned from DC Metro literally! - Washington Post

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