The American Civil Liberties Union (ACLU) has filed a lawsuit against Washington Metropolitan Transportation Authority’s (WMTA) advertising policy alleging it has violated the First Amendment by restricting “issues-oriented” advertising on Metro trains and buses. The suit was filed on behalf of four plaintiffs — PETA, writer Mlio Yiannopolous, Carafem and the ACLU itself.
“In its zeal to avoid hosting offensive and hateful speech, the government has eliminated speech that makes us think, including the text of the First Amendment itself,” ACLU’s senior staff attorney Lee Rowland said, referencing an ACLU ad which was banned that referred to specific text in the First Amendment in several different languages. Other examples cited in the lawsuit include the nonprofit health care initiative Carafem’s ad for its FDA-approved “10-week-after pill. For abortion up to 10 weeks. $450. Fast. Private” and PETA’s ad which includes an image of a pig with the text “I’m ME, Not MEAT. See the Individual. Go Vegan.” At the same time it rejected PETA’s add, the WMTA approved an ad from a restaurant showing a meat-laden meal labeled “PORKADISE FOUND.”
There was also an ad removed shortly after being approved because of rider complaints. It was for Yiannopoulos’s controversial book Dangerous. The ad included quotes from publications, including “The Kayne West of Journalism” and “The most hated man on the internet.” During this time, the WMTA allowed for promotion of a movie with four women at a male strip club.
In 2015, the WMTA developed new guidelines for what would be included in its advertising after a pro-Israel group, American Freedom Defense Initiative, wanted to post ads with a prophet Muhammad caricature. Soon after, two men opened fire outside of an event displaying this cartoon. The lawsuit argues that the Metro system’s revisions are only for ads “intended to influence members of the public regarding an issue on which there are varying opinions.”
“This case highlights the consequences of the government’s attempt to suppress all controversial speech on public transit property,” said Arthur Spitzer, legal director of the ACLU-DC and lead counsel in the case. “The First Amendment protects the speech of everyone from discriminatory government censorship, whether you agree with the message or not.”
Rebecca Tushnet, a Harvard Law School professor, said that WMTA officials “seem to be acting pretty inconsistently, and they seem to not have a clear policy,” adding, “you can’t have your standards for what is allowable based on the identity of the person in the advertisement.” What’s needed, she insists, is a more consistent and clear policy, which the lawsuit hopes to establish.
WMTA ads are noticed by at least 90 percent of the population residing in and working around the metro area. This year, advertising is expected to bring in $34 million and officials are hoping to increase this number. Metro is standing behind the 2015 reforms and “intends to vigorously defend its commercial advertising guidelines, which are reasonable and viewpoint neutral,” says spokeswoman Sherri Ly.