Can the government ban the text of the First Amendment itself on municipal transit ads because free speech is too political for public display?
If this sounds like some ridiculous brain teaser, it should. But unfortunately its not. Its a core claim in a lawsuit we filed today challenging the Washington Metropolitan Area Transit Authoritys (WMATA) restrictions on controversial advertising.
The ACLU, ACLU of D.C., and ACLU of Virginia are teaming up to represent a diverse group of plaintiffs whose ads were all branded as too hot for transit: the ACLU itself; Carafem, a health care network that specializes in getting women access to birth control and medication abortion; People for the Ethical Treatment of Animals (PETA); and Milo Worldwide LLC the corporate entity of provocateur Milo Yiannopoulos.
To put it mildly, these plaintiffs have nothing in common politically. But together, they powerfully illustrate the indivisibility of the First Amendment. Our free speech rights rise and fall together whether left, right, pro-choice, anti-choice, vegan, carnivore, or none of the above.
Lets start with the ACLU. Earlier this year, following President Trumps repeated commentary denigrating journalists and Muslims, the ACLU decided to remind everyone about that very first promise in the Bill of Rights: that Congress shall make no law interfering with our freedoms of speech and religion. As part of a broad advertising campaign, the ACLU erected ads in numerous places, featuring the text of the First Amendment. Not only in English, but in Spanish and Arabic, too to remind people that the Constitution is for everyone.
The ACLU inquired about placing our ads with WMATA, envisioning an inspirational reminder of our founding texts, with a trilingual twist, in the transit system of the nations capital. But it was not to be: Our ad was rejected because WMATAs advertising policies forbid, among many other things, advertisements intended to influence members of the public regarding an issue on which there are varying opinions or intended to influence public policy.
You dont have to be a First Amendment scholar to know that something about that stinks.
Our free speech rights rise and falltogether whether left, right, pro-choice, anti-choice, vegan, carnivore, or none of the above.
Lets start with the philosophical argument. WMATAs view is apparently that the litany of commercial advertisements it routinely displays involve no issues on which there are varying opinions. Beyond the obvious Coke-or-Pepsi jokes, theres a dark assumption in that rule: that we all buy commercial products thoughtlessly. Buy beer! (Dont think about alcoholism.) Buy a mink coat! (Dont think about the mink.) That is, WMATA sees varying opinions only when they relate to something it recognizes as controversial. And as the Supreme Court recently reminded us, the government violates the First Amendment when it allows only happy-talk.
And now to the practical. This is a policy so broad and vague that it permits WMATA to justify the ad hoc exclusion of just about anyone. And the broad set of plaintiffs in this case confirms that.
Despite the fact that Carafem provides only FDA-approved medications, its ad was deemed too controversial because it touched the third rail of abortion. Carafems proposed ad read simply: 10-week-after pill. For abortion up to 10 weeks. $450. Fast. Private. As we at the ACLU know all too well, as states continue to erect draconian barriers to the right to choose, information about and access to abortion care is more critical than ever. Yet Carafems ad was apparently rejected simply because some people think otherwise.
One of PETAs intended advertisements depicted a pig with accompanying text reading, Im ME, Not MEAT. See the Individual. Go Vegan. Despite the fact that WMATA routinely displays advertisements that encourage riders to eat animal-based foods, wear clothing made from animals, and attend circus performances, PETAs side of this public debate was the only one silenced by the government.
WMATAs advertising agency suggested that with some changes, ACLU and PETA might be able to get their advertisements accepted. Perhaps PETA could remove the Go Vegan slogan from its advertisement? But for the ACLU, Youll have to dramatically change your creative. In other words, as long as we dont try to make anyone think, we might get the right to speak.
That brings us to our final client: Milo Worldwide LLC. Its founder, Milo Yiannopoulos, trades on outrage: He brands feminism a cancer, he believes that transgender individuals have psychological problems, and he has compared Black Lives Matter activists to the KKK. The ACLU condemns many of the values he espouses (and he, of course, condemns many of the values the ACLU espouses).
Milo Worldwide submitted ads that displayed only Mr. Yiannopouloss face, an invitation to pre-order his new book, Dangerous, and one of four short quotations from different publications: The most hated man on the Internet from The Nation; The ultimate troll from Fusion; The Kanye West of Journalism from Red Alert Politics; and Internet Supervillain from Out Magazine. Unlike Mr. Yiannopoulos stock-in-trade, the ads themselves were innocuous, and self-evidently not an attempt to influence any opinion other than which book to buy.
WMATA appeared to be okay with that. It accepted the ads and displayed them in Metro stations and subway cars until riders began to complain about Mr. Yiannopoulos being allowed to advertise his book. Just 10 days after the ads went up, WMATA directed its agents to take them all down and issue a refund suddenly claiming that the ads violated the same policies it relied on to reject the ads from the ACLU, Carafem, and PETA.
The ideas espoused by each of these four plaintiffs are anathema to someone as is pretty much every human idea. By rejecting these ads and accepting ads from gambling casinos, military contractors, and internet sex apps, WMATA showed just how subjective its ban is. Even more frightening, however, WMATAs policy is an attempt to silence anyone who triestomakeyou think. Any one of these advertisements, had it passed WMATAs censor, would have been the subject of someones outraged call to WMATA.
So, to anyone whod be outraged to see Mr. Yiannopoulos advertisement please recognize that if he comes down, so do we all. The First Amendment doesnt, and shouldnt, tolerate that kind of impoverishment of our public conversation. Not even in the subway.
At the end of the day, its a real shame that WMATA didnt accept the ACLUs advertisement the agency could really have used that refresher on the First Amendment.
The First Amendment (Literally) Banned in DC - ACLU (blog)
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