(CN) – The Archdiocese of Washington claims in court that it will suffer irreparable harm if the city’s public-transportation system is allowed to reject advertisements the church wants to purchase on D.C.-area buses.
In a federal complaint filed in the District of Columbia on Tuesday, the archdiocese says that in anticipation of the upcoming advent and Christmas season, it prepared a number of advertisements to be displayed in different settings between Dec. 3 and Dec. 25.
The campaign is called “Find the Perfect Gift,” and all of the advertisements depict a starry night, with silhouettes of a small group of shepherds and sheep standing on a hill. They also refer the viewer to an Internet site, on which anyone interested can find links to Mass schedules, opportunities for charitable service, and information on religious holiday traditions.
The archdiocese says it had no problem purchasing advertising space from Clear Channel Outdoor, which maintains bus shelters throughout the DC metro area, but when it came to buying space from the Washington Metro Area Transit Authority, the church says its “message of hope” was flatly rejected, based on a three-year-old prohibition on “issued-oriented advertising, including all political, advocacy and religious advertising.”
The archdiocese says it exchanged several email messages and phone calls with transportation system personnel, but that a request for a face-to-face meeting was rejected. Instead, it says, it received a letter telling it the ads were rejected because they “promote religion.”
“Bus Advertising offers a unique and powerful format for the ‘Find the Perfect Gift’ campaign. Advertising on public buses offers high visibility with consistent daily views,” says the complaint filed on the archdiocese’s behalf by Paul Clement of Kirkland & Ellis of Washington, D.C. “Bus advertising offers a prominent way to reach both drivers and pedestrians on public sidewalks and thoroughfares throughout the metropolitan area.
“It is ubiquitous without being obtrusive. Moreover, public buses travel to many areas of the metropolitan region that are otherwise underserved and that other, more static advertising might miss,” the complaint continues. “In terms of visibility, reach and frequency, no other media type provides a substitute for bus advertising in the metropolitans area, especially with regard to the audience the Archdiocese most wants to reach.”
Kim Fiorentino, general counsel for the Archdiocese of Washington, told Courthouse News the church believes the transportation authority is arbitrarily — and unlawfully — selecting the kind of speech that can be displayed on its buses.
And the archdiocese says the authority’s position has come at a cost. According to the complaint, the system has lost about $1.6 million in revenue since the policy went into effect, including refunds to advocacy groups who had contracts in place when the change in policy was made.
But in a written statement, the Washington Metro Area Transit Authority said he advertisement in question simply violates its longstanding advertising policy because the message the ad conveys advocates for a specific religion.
The authority isn’t alone in adopting such a policy. Transit systems in New York, Chicago and elsewhere have similar policies, and many have been subject to legal challenges.
The transit system has good reason to believe legal precedent on its side. In 1974, Harry Lehman filed suit against the city of Shaker Heights, Ohio, after it refused to run ads supporting the state house candidate’s political campaign. Lehman’s case made it to the Supreme Court where Justice Harry Blackmun, a Nixon appointee, supported the city’s ad denial saying bus advertising is unique because the audience it serves is “captive” and they’re using the bus system for transit, not discussion.
“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,” Blackmun wrote. “These are reasonable legislative objectives advanced by the city in a proprietary capacity. In these circumstances, there is no First or Fourteenth Amendment violation.”
The Washington Metro Area Transit Authority is already facing another suit over its advertising policy.
In August it was sued by the American Civil Liberties Union for rejecting advertisements from a women’s health care collective specializing in family planning and abortion care; the animal rights nonprofit People for the Ethical Treatment of Animals ; and Milo Worldwide LLC, the company of conservative commentator and writer Milo Yiannopoulos.
Arthur Spitzer, legal director of the Washington, D.C. chapter of the ACLU, said in a statement when the lawsuit was filed that the transit authority’s advertising policies highlight the “consequences of the government’s attempt to suppress all controversial speech on public transit property.
“The First Amendment protects the speech of everyone from discriminatory government censorship, whether you agree with the message or not,” Spitzer said.