Judge Prods Washington Metro for Barring ACLU Ads

WASHINGTON (CN) - With two weeks to go before its membership conference, the American Civil Liberties Union pushed a federal judge to get its advertising campaign going on Washington-area public transit.

During a roughly hour-long hearing late Tuesday afternoon, ACLU attorney Arthur Spitzer said his organization’s strong views on certain issues shouldn't interfere with its need to advertise.

"And I do think that's what's happening here," Spitzer said, later calling the transit authority’s advertising policy arbitrary and discriminatory.

U.S. District Judge Tanya Chutkan echoed Spitzer's concern that the ACLU has been effectively barred from advertising on the Washington Metro because the transit authority's advertising guidelines prohibit issue-oriented and policy advocacy ads.

"What I am concerned [about] here is that you are moving into viewpoint discrimination," Chutkan said, after an attorney for the Washington Metropolitan Area Transit Authority would not answer Chutkan’s hypothetical question about whether the agency would ever run any ACLU ad.

Since May 10, the ACLU has submitted three versions of its proposed ad. Each proposal includes the text "you belong here,” as well as details about the national membership conference it is hosting in Washington from June 8 to June 10.

In addition to the URL of a website where supporters can register, the ads list six conference speakers including civil rights icon Rep. John Lewis, a Democrat from Georgia, and Democratic Sen. Elizabeth Warren of Massachusetts.

During Tuesday's hearing, WMATA attorney Anthony Pierce said the agency objected to the picture in the background of the ad, which portrays people demonstrating and holding signs that say things like "refugees welcome" and "stop profiling Muslims."

An attorney with the firm Akin Gump, Pierce argued that you can't divorce the ACLU's advocacy work from the advertisement.

"This ad is intended to influence public policy," Pierce said.

In 2015, the transit authority banned issue-oriented advertisements, including those pertaining to religion or policy advocacy, after anti-Muslim ads raised security concerns. The transit system now says all ads must be limited to the promotion of commercial products and services.

But ACLU attorney Spitzer noted that the transit authority’s policy has not stopped it from running ads from other groups that have strong religious or political views.

Chutkan raised that issue with Pierce, saying she was "hard pressed" to find a clear line or principle in WMATA's advertising policy.

"It really does seem like, very random," Chutkan said. "And I don't really understand the application."

Before the transit authority relegated the ACLU’s conference promos to limbo, it inspired a federal complaint by the group a year ago for refusing to run ads by three incongruous sources: right-wing provocateur Milo Yiannopoulos, the abortion provider Carafem and People for the Ethical Treatment of Animals.

Judge Chutkan denied injunctive relief to Yiannopoulos back in March after finding that his book ads “deliberately incorporated other aspects of [his] political advocacy.”

ACLU attorney Sptizer meanwhile emphasized Tuesday that the latest version of his group’s ad does not contain the protest picture that Pierce called out as objectionable.

Metro officials have not responded to the revised request, but attorney Pierce said in court that the transit authority has problems with the revised ad as well.

When Chutkan said the ad on its face appears "content neutral,” Pierce urged her to look beyond the advertisement.

The deeper you go into the link provided on the ACLU's ad, he said, the more clear it becomes that it's promoting civil liberties and civil rights advocacy.

Chutkan conceded this point during the hearing, noting that the ACLU doesn't invite members to celebrate the Constitution generally.

"It talks about mobilizing against the Trump administration," she said. "It talks about taking a political stance."

Chutkan had made the latter point earlier when she ruled against the book ads pushed by Yiannopoulos.

Attorney Pierce meanwhile said that allowing the ACLU ad would "open the flood gates" and require the transit authority to allow groups like the Ku Klux Klan to run advertisements. He also argued that forcing the Metro to run the ACLU's ad would cause greater harm to the transit authority than to the advocacy organization by forcing it to remove other ads for which it has contracts.

During rebuttal ACLU attorney Spitzer said no evidence exists that the transit authority would have to take down other paid advertisements, noting that the Metro is full of its own public-service ads.

Chutkan noted the time-sensitive nature of the issue, and said she would issue a ruling as quickly as possible.

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