Joining as plaintiffs are FemHealth dba Carafem, of Washington, D.C.; Milo Worldwide, an alter ego of Milo Yiannopoulos; and People for the Ethical Treatment of Animals.
The defendant Washington Metropolitan Area Transit Authority sells ad space on its trains and buses, which constitute one of the nation’s largest transit systems. It expects to make $23 million from ad space this year, according to the Wednesday federal complaint.
Washington Metro changed its ad guidelines in late 2015 “and now seeks to sanitize its advertising spaces from messages that might give offense,” according to the complaint.
But “giving offense is a viewpoint,” the ACLU says, citing this year’s U.S. Supreme Court ruling in Matal v. Tam, in which the Supreme Court affirmed a Federal Circuit ruling that the U.S. Patent and Trademark Office unconstitutionally refused to issue a trademark to Simon Tam for his rock group “The Slants.” The Federal Circuit found, and the Supreme Court affirmed, that the disparagement clause of the Lanham Act was facially unconstitutional.
The ACLU, which refers to the transit agency as WMATA, calls it a case of overreaction. On May 28, 2015, after rejecting an unspecified ad, WMATA closed its ad space to “all issue-oriented advertising … until the end of the year,” the complaint states. The agency issued new ad guidelines on Nov. 19, 2015, with 14 restrictions on the “nature and content” of ads. Quoting from the guidelines, the ACLU says four of them are unconstitutional:
No. 4: “Medical and health-related messages will be accepted only from government health organizations, or if the substance of the message is currently accepted by the American Medical Association and/or the Food and Drug Administration.”
No. 9: “Advertisements intended to influence members of the public regarding an issue on which there are varying opinions are prohibited.”
No. 13: “Advertisements that support or oppose an industry position or industry goal without any direct commercial benefit to the advertiser are prohibited.”
No. 14: “Advertisements that are intended to influence public policy are prohibited.”
Nos. 4 and 13 are “explicitly viewpoint-discriminatory,” the ACLU says.
No. 9 and 14 are “implicitly viewpoint-discriminatory. They vest WMATA with unbridled discretion to determine what is or is not ‘an issue on which there are varying opinions,’ and what is or is not ‘intended to influence public policy.’ That unguided discretion authorizes and encourages discriminatory enforcement against controversial or unpopular viewpoints, and has resulted in discriminatory enforcement against controversial or unpopular viewpoints.”
All of them violate the First and Fourteenth Amendments, the ACLU says.
It points out the WMATA accepts paid ads for alcoholic drinks, though some Metro riders disapprove of alcohol, and even if they do not, they may object to ads for it.
WMATA accepts ads for Squirt.org, an online service for gay and bisexual men looking for casual sex, the ACLU says, though “some Metro riders disapprove of that activity.”
WMATA also accepts ads for casinos “new military aircraft,” issues about which the public has varying opinions.
“By rejecting these [plaintiffs’] ads and accepting ads from gambling casinos, military contractors, and internet sex apps, WMATA showed just how subjective its ban is,” the ACLU states on its website.
“Even more frightening, however, is the Transit Authority’s policy is an attempt to silence anyone who tries to make you think.”
As is its wont, the ACLU in this lawsuit represents co-plaintiffs across the political spectrum, all of whom, it says, have equal rights to speech, and all of whom suffer injury when WMATA rejects their ads.
The Washington Metropolitan Area Transit Authority did not respond to requests for comment.
The plaintiffs seek declaratory judgment that the guidelines at issue are unconstitutional, WMATA ordered to accept the ads already submitted, and enjoined from rejecting other ads for unconstitutional reasons.
Their lead attorney is Arthur Spitzer with the ACLU of the District of Columbia.