RICHMOND, Va. (CN) - A Washington, D.C.-based taxpayer watchdog group claims in court that Richmond's municipal bus service wrongly rejected its proposed advertisement on political grounds, a prohibition the organization says is discriminatory on its face.
The federal lawsuit filed in Richmond on Oct. 26 is one of a growing number of complaints filed across the nation challenging the legality of municipal rules keeping political ads off buses and other transit system infrastructure.
Many of these lawsuits argue that such bans discriminate against potential advertisers based on their identity, known or presumed viewpoints, message or line of business. White Coat Waste Project, an organization trying to end taxpayer-funded animal experiments, is no exception.
As recounted in the complaint, White Coat Waste Project wanted to run a series of ads depicting sad-faced dogs claiming they were “Prisoners of Waste.” The campaign was intended to spread awareness of taxpayer-funded medical studies done on animals at Hunter Holmes McGuire VA Medical Center in Richmond.
Earlier this year, the taxpayer group released a report claiming “McGuire VAMC researchers failed to comply with federal humane care regulations under the Animal Welfare Act, resulting in the deaths of numerous dogs during experiments.”
The group says poor treatment included inducing heart attacks among other inhumane practices on otherwise healthy animals. The group said they obtained this information through Freedom of Information requests.
Virginia Congressman Dave Brat responded to the report by authoring the “Preventing Unkind and Painful Procedures and Experiments on Respected Species Act,” which would prohibit the VA from breeding or maintaining dogs “as part of the conduct of any study that causes significant pain or distress.”
The bill, which was introduced in July, has yet to make it before committee.
The White Coat Waste Project said it first tried to the buy ad space from the defendant Greater Richmond Transit Company in March, but was denied the opportunity under a transit system policy denying "all political ads."
The group challenged the ruling, explaining that it was nonpartisan in nature and that the campaign “was a public education advertisement.”
According to the complaint, the transit system admitted it does run public education campaigns, but that the group's add nevertheless fell under the no-political-ads policy.
The White Coat Waste Project complains that is because the defendant doesn't do enough to define what a political ad is under its policy.
“Because the policy does not define this term, it fails to enable a reasonable member of the public to know which advertisements are permitted or prohibited under the policy, and it vest GTRC officials with the unfettered discretion to decide which advertisements to permit or reject,” the complaint says.
Transit system spokeswoman Carrie Rose Pace said the policy banning political ads has been in place since 1973. In 2013, when guidelines around acceptable ads were last updated, that policy remained in place and was approved by the company’s board of directors.
“GRTC reserves the right to reject or remove any advertising which it deems not to be in compliance with these guidelines,” Pace said in a statement.
While bus advertisements have existed since the dawn of public transit, the history of city-owned bus systems denying political ads dates back more than 40 years to Lehman v. City of Shaker Heights.
In that case, an Ohio House representative sued a local bus system after they denied his campaign access to city-owned train advertising. The case made it to the U.S. Supreme Court where justices sided with the transit system.
While Lehman had argued the advertising space, created by the city, should be protected by the First Amendment because of its public access, the Supreme Court said transit ads forced their “message upon a captive audience which uses public transit vehicles not as a place for discussion, but only as a means of transport.”
“The city consciously has limited access to its transit system advertising space in order to minimize chances of abuse, the appearance of favoritism, and the risk of imposing upon a captive audience,” Justice Harry Blackmun, a Nixon appointee, wrote in the Lehman decision. “These are reasonable legislative objectives advanced by the city in a proprietary capacity. In these circumstances, there is no First or Fourteenth Amendment violation.
That hasn’t stopped advocacy groups from trying to overturn the ruling.
In 2012, American Freedom Defense Initiative won the right to place controversial pro-Israel ads on advertising spaces owned by the New York City Metropolitan Transit Authority after a prolonged legal battle. The city ran into hot water with the initiative again when the group tried to run another series of controversial ads, but this time the MTA board voted to deny all political ads, a policy legal experts have shown support for as it applies equally to all political causes.
MTA has since banned other ads based on specific topics, including alcohol.
Other cities have taken similar steps. Fresno, Calif., turned down an ad highlighting local income inequality in 2015 claiming the banner in question was too political in nature. San Francisco updated its policy earlier this year to ban all political ads, telling CBS News such ads had, in the past, lead to complaints.
The American Civil Liberties Union is currently challenging a Washington Metropolitan Area Transit Authority ban on political ads. The case involves the group’s own pro-immigration ads as well as proposals by former Breitbart editor Milo Yiannopoulos, who wished to advertise his new book, "PETA," which hoped to personify pigs in a series of images, and a second group that hoped to advertise a 10-week abortion pill.
“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, in a statement when the suit was filed in August. “The First Amendment protects the speech of everyone from discriminatory government censorship, whether you agree with the message or not.”
The ACLU case, filed in federal court in Washington, is pending.
A representative of the Greater Richmond Transit Authority said it has yet to be served with the White Coat Waste Project lawsuit and could not comment beyond its written statement at this time.
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