DC Circuit Upholds Transit Authority’s Right to Reject Religious Ad

WASHINGTON (CN) – The D.C. Circuit ruled Tuesday that the District’s transit system can continue to limit advertisements if they violate the organization’s policy against advocating religious or political beliefs.

In a 44-page opinion, U.S. Circuit Judge Judith W. Rogers upheld the lower court’s decision that the Washington Metropolitan Area Transit Authority was not violating the freedom of speech rights of the Archdiocese of Washington when it refused to accept an advertisement in 2017 encouraging people to attend Catholic mass during the Christmas season.

Rodgers said the Archdiocese effectively doomed its argument when it conceded advertising spaces on buses are not a public forum. With that, Supreme Court precedent further weighed against it.

“The Archdiocese’s position would eliminate the government’s prerogative to exclude religion as a subject matter in any non-public forum,” she wrote. “Not only is this position contrary to the Supreme Court’s recognition that governments retain the prerogative to exclude religion as a subject matter … it would also undermine the forum doctrine because the Archdiocese offers no principled reason for excepting religion from the general proposition that governments may exclude subjects in their non-public forums.”

The Archdiocese had designed an advertisement for the metro bus system encouraging viewers to “find the perfect gift this season” with a URL that sents them to a web portal designed to find a local Catholic church.

The ad was rejected under the transit authority’s 2015 policy which bans religious and political advocacy messages. Other cities – from New York to Richmond and beyond – have since enacted similar policies after such ads lead to vandalism or rider complaints.

The transit authority’s arguments relied heavily on 1974’s Lehman v. City of Shaker Heights which involved a local politician trying to buy ads on the Ohio city’s bus system. It found then, as Rogers found now, that bus systems are not public forums because they are designed mainly for public transit and not as public spaces where such messaging would have the same level of constitutional protection.

In a concurring opinion, U.S. Circuit Judge Robert Wilkins pointed to this as the more persuasive argument.

“Both record evidence and common sense show a ‘sensible basis’ for [the transit authority’s] conclusion that prohibiting religious or anti-religious advocacy advertisements avoids risks of vandalism, violence, passenger discomfort, and administrative burdens in a manner that serves the forum’s stated purpose of providing “safe, equitable, and reliable transportation services,” he wrote.

The decision was a blow not just for the Archdiocese, but also for the Justice Department, which had filed an amicus brief supporting the church.

“When the government creates a forum for expressive activity — regardless whether it opens that forum to all members of the public or only some — it may not restrict a speaker’s access to the forum based solely on the speaker’s point of view,” wrote Nicolas Riley of the Justice Department’s civil appellate staff.

In an email to Courthouse News, Ed McFadden, a spokesman for the Arcchdiocese, said, “The Archdiocese of Washington is disappointed by today’s federal appeals court ruling, and we are reviewing the decision and opinions to determine our next steps. Today, however, is a reminder that freedom of religions and expression in the public square should never be taken for granted, and we will continue defend those rights at every opportunity.”

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