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Archdiocese Argues Transit Authority Ban on Christmas Ad Unreasonable

A federal judge heard oral arguments Tuesday from the Archdiocese of Washington about whether the court should force the Washington Metropolitan Area Transit Authority to run its Christmas-themed advertisements on public buses.

WASHINGTON (CN) - A federal judge heard oral arguments Tuesday from the Archdiocese of Washington about whether the court should force the Washington Metropolitan Area Transit Authority to run its Christmas-themed advertisements on public buses.

The archdiocese wants the transit authority to display an advertisement that depicts a starry night with a nativity-like scene, and encourages individuals to return to church during the Christmas season to "find the perfect gift."

The advertisement contains a link to a website with information about Mass schedules and religious holiday traditions, which WMATA says violates its prohibition on religious, political and advocacy advertising.

The archdiocese has asked the court for a temporary restraining order and preliminary injunction to prevent the transit authority from rejecting the advertisements.

U.S. District Judge Amy Berman Jackson lobbed volley after volley of questions Tuesday morning at attorney Michael Williams, of Kirkland & Ellis, who argued on behalf of the archdiocese.

Jackson repeatedly asked Williams to explain why the Washington Metropolitan Area Transit Authority's policy governing speech in a limited public forum is unreasonable.

"There has to be some reason for it," Williams explained to Jackson. "It's unreasonable how they've applied this."

Williams focused much of his reasoning on the fact the transit authority allows secular Christmas-themed advertisements that address the commercial aspects of the holiday season, but not religious views of Christmas, an argument the Archdiocese presented in its motion for a temporary restraining order and preliminary injunction.

"While WMATA welcomes paid advertising emphasizing the commercial nature of the season, it prevents the Archdiocese from running paid advertisements emphasizing the religious nature of the seasons," the motion states, abbreviating the Washington Metropolitan Area Transit Authority. "And by enforcing its no-religious-speech policy arbitrarily, WMATA picks and chooses among religious messages it will allow on buses permitting yoga advertisements, while deeming shepherds impermissibly evocative of a religious scene."

Here Williams said the transit authority had favored secular viewpoints, disallowing the archdiocese's advertisement simply for promoting a religious perspective.

Jackson, however, needed more convincing.

"I don't think the Core Yoga ad has anything to do with spirituality," she said, referencing advertisements from Core Power Yoga.

In its brief opposing the temporary restraining order, the Washington Metropolitan Area Transit Authority denied engaging in viewpoint discrimination.

"Plaintiff mistakenly contends that any restriction limiting religious speech automatically is viewpoint discrimination, but that argument is unsupported by any precedent," the brief states. "And, if adopted, it would effectively nullify the nonpublic forum doctrine by making religious content-based restrictions, which are constitutional in a nonpublic forum, unconstitutional viewpoint discrimination."

In 2015, the transit authority closed its advertising space to "issue-oriented" advertisements.

One of the advertising guidelines for the Washington Metropolitan Area Transit Authority states: "Advertisements that promote or oppose any religion, religious practice or belief are prohibited."

The transit authority said it changed its policy in response to concerns about public safety, in addition to adverse publicity that arose from the controversy generated by divisive advertisements.

In its brief, the transit authority claimed that external world events could incite violence.

"For example, a proposed ad featuring a cartoon depiction of the Prophet Mohammad raised concerns because of violent reactions to such depictions in the past," the opposition brief states.

The Washington Metropolitan Transit Authority said vandalism of divisive advertisements and the additional administrative burden caused by time spent reviewing proposed ads also factored into its decision to prohibit them.

Arguing on behalf of the Washington Metropolitan Area Transit Authority, Rex Heinke, of Akin Gump Strauss, reiterated those concerns in court Tuesday morning, saying that they provide a reasonable basis by which the transit authority is authorized by Supreme Court precedent to restrict certain speech.

Heinke rejected Williams' argument that the transit authority engages in viewpoint discrimination by prohibiting religiously-themed Christmas advertisements. In its opposition brief, the transit authority  argued that secular and religious Christmas advertisements are separate subjects.

"Here, WMATA has simply prohibited advertisements related to the subject of the religious half of Christmas, but not the secular half," the brief states.

After the hearing, Williams pointed to this argument as evidence that the transit authority's policy is unreasonable.

"The hearing made clear that WMATA has no reasonable justification for its arbitrary ban on the Archdiocese of Washington’s ‘Find the Perfect Gift’ advertising campaign.  WMATA acknowledges it willingly allows speech about Christmas in advertising on its buses but, at the same time, intentionally excludes the Archdiocese perspective from the conversation," Williams said in an email. "Also notable and yet unexplained, WMATA freely continues to allow advertising by other religious speakers, such as the Salvation Army and Christian radio stations.  At its foundation, the First Amendment is supposed to prevent precisely this kind of arbitrary and discriminatory government regulation on speech.”

The archdiocese has also argued that that transit authority's policy violates the free exercise clause of the First Amendment, which Heinke also rejected during oral arguments.

"There's simply no free exercise issue in this case," he said. "We're not trying to restrict their practices or tell them what to do."

The archdiocese is free to advertise elsewhere, he said.

Heinke declined to comment on Tuesday's proceedings, but said over the phone that the Washington Metropolitan Area Transit Authority looks forward to Jackson's ruling on the matter.

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