The First Amendment (Literally) Banned in DC

Four ads rejected by WMATA.

Can the government ban the text of the First Amendment itself on municipal transit ads because free speech is too “political” for public display?

If this sounds like some ridiculous brain teaser, it should. But unfortunately it’s not. It’s a core claim in a lawsuit we filed today challenging the Washington Metropolitan Area Transit Authority’s (WMATA) restrictions on controversial advertising.

The ACLU, ACLU of D.C., and ACLU of Virginia are teaming up to represent a diverse group of plaintiffs whose ads were all branded as too hot for transit: the ACLU itself; Carafem, a health care network that specializes in getting women access to birth control and medication abortion; People for the Ethical Treatment of Animals (PETA); and Milo Worldwide LLC — the corporate entity of provocateur Milo Yiannopoulos.

To put it mildly, these plaintiffs have nothing in common politically. But together, they powerfully illustrate the indivisibility of the First Amendment. Our free speech rights rise and fall together — whether left, right, pro-choice, anti-choice, vegan, carnivore, or none of the above.

Let’s start with the ACLU. Earlier this year, following President Trump’s repeated commentary denigrating journalists and Muslims, the ACLU decided to remind everyone about that very first promise in the Bill of Rights: that Congress shall make no law interfering with our freedoms of speech and religion. As part of a broad advertising campaign, the ACLU erected ads in numerous places, featuring the text of the First Amendment. Not only in English, but in Spanish and Arabic, too — to remind people that the Constitution is for everyone.

ACLU Advertisement

The ACLU inquired about placing our ads with WMATA, envisioning an inspirational reminder of our founding texts, with a trilingual twist, in the transit system of the nation’s capital. But it was not to be: Our ad was rejected because WMATA’s advertising policies forbid, among many other things, advertisements “intended to influence members of the public regarding an issue on which there are varying opinions” or “intended to influence public policy.”

You don’t have to be a First Amendment scholar to know that something about that stinks.

Our free speech rights rise and fall together — whether left, right, pro-choice, anti-choice, vegan, carnivore, or none of the above.

Let’s start with the philosophical argument. WMATA’s view is apparently that the litany of commercial advertisements it routinely displays involve no “issues on which there are varying opinions.” Beyond the obvious Coke-or-Pepsi jokes, there’s a dark assumption in that rule: that we all buy commercial products thoughtlessly. Buy beer! (Don’t think about alcoholism.) Buy a mink coat! (Don’t think about the mink.) That is, WMATA sees “varying opinions” only when they relate to something it recognizes as controversial. And as the Supreme Court recently reminded us, the government violates the First Amendment when it allows only “happy-talk.”

And now to the practical. This is a policy so broad and vague that it permits WMATA to justify the ad hoc exclusion of just about anyone. And the broad set of plaintiffs in this case confirms that.

Despite the fact that Carafem provides only FDA-approved medications, its ad was deemed too controversial because it touched the third rail of abortion. Carafem’s proposed ad read simply: “10-week-after pill. For abortion up to 10 weeks. $450. Fast. Private.” As we at the ACLU know all too well, as states continue to erect draconian barriers to the right to choose, information about and access to abortion care is more critical than ever. Yet Carafem’s ad was apparently rejected simply because some people think otherwise.

Carafem Ad

One of PETA’s intended advertisements depicted a pig with accompanying text reading, “I’m ME, Not MEAT. See the Individual. Go Vegan.” Despite the fact that WMATA routinely displays advertisements that encourage riders to eat animal-based foods, wear clothing made from animals, and attend circus performances, PETA’s side of this public debate was the only one silenced by the government.

Peta ad

WMATA’s advertising agency suggested that with some changes, ACLU and PETA might be able to get their advertisements accepted. Perhaps PETA could remove the “Go Vegan” slogan from its advertisement? But for the ACLU, “You’ll have to dramatically change your creative.” In other words, as long as we don’t try to make anyone think, we might get the right to speak.

That brings us to our final client: Milo Worldwide LLC. Its founder, Milo Yiannopoulos, trades on outrage: He brands feminism a cancer, he believes that transgender individuals have psychological problems, and he has compared Black Lives Matter activists to the KKK. The ACLU condemns many of the values he espouses (and he, of course, condemns many of the values the ACLU espouses).

Milo Worldwide submitted ads that displayed only Mr. Yiannopoulos’s face, an invitation to pre-order his new book, “Dangerous,” and one of four short quotations from different publications: “The most hated man on the Internet” from The Nation; “The ultimate troll” from Fusion; “The Kanye West of Journalism” from Red Alert Politics; and “Internet Supervillain” from Out Magazine. Unlike Mr. Yiannopoulos’ stock-in-trade, the ads themselves were innocuous, and self-evidently not an attempt to influence any opinion other than which book to buy.

Milo Advertisment

WMATA appeared to be okay with that. It accepted the ads and displayed them in Metro stations and subway cars — until riders began to complain about Mr. Yiannopoulos being allowed to advertise his book. Just 10 days after the ads went up, WMATA directed its agents to take them all down and issue a refund — suddenly claiming that the ads violated the same policies it relied on to reject the ads from the ACLU, Carafem, and PETA.

The ideas espoused by each of these four plaintiffs are anathema to someone — as is pretty much every human idea. By rejecting these ads and accepting ads from gambling casinos, military contractors, and internet sex apps, WMATA showed just how subjective its ban is. Even more frightening, however, WMATA’s policy is an attempt to silence anyone who tries to make you think. Any one of these advertisements, had it passed WMATA’s censor, would have been the subject of someone’s outraged call to WMATA.

So, to anyone who’d be outraged to see Mr. Yiannopoulos’ advertisement — please recognize that if he comes down, so do we all. The First Amendment doesn’t, and shouldn’t, tolerate that kind of impoverishment of our public conversation. Not even in the subway.

At the end of the day, it’s a real shame that WMATA didn’t accept the ACLU’s advertisement — the agency could really have used that refresher on the First Amendment.

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Anonymous

[screeching]

Anonymous

In your list of people who need free speech, you state "pro-choice and anti-choice". Really? That group is typically called "pro-life" and you seem to have added a deliberate negative spin to the name of the group. That is beneath you, even if you don't agree with the positions of that group.. Most of them believe in choice, but believe the choice should happen before the conception (or before 13 weeks, or before some late term date, etc.).

SFW

Getting off in the weeds, eh?

The list of what offends you is endless...

Your trolling is tedious.

Anonymous4

I will have to agree with you on this one. Free speech matters because words matter.

M

I know, right? "Pro-choice and anti-choice" sounds about as biased as "pro-life and anti-life." I'm glad the ACLU is taking these cases, but could they make it more obvious that they feel the need to hold their noses around the free speech rights of pro-lifers?

REG

If they can ban the 2nd amendment why can't they ban the 1st amendment?

SFW

270 million guns in the US (minimum). You need to re examine the core of your argument.
I find it somehow weak and ill informed...

Anonymous4

Because if they did, REG, you probably would have to shut up!

Doug Cowdrick

Whatever happened to "I disapprove of what you say, but I will defend to the death your right to say it"? Or just "Everyone is entitled to their own opinion, no matter how Stupid it is"?
I may dislike PETA, or not approve of abortion, or think Yiannopoulos is an idiot, or a genius.
Suppressing those statements or a product or a lifestyle is wrong. Just because you disagree with someone doesn't make them the minions of Satan or Earth or the new reincarnation of Adolf Hitler or his Nazi (Nationals Socialists, NOT right wing) Party.
We should encourage people to speak up. That way we can decide to listen to, condemn or patronize or not a business. We are degenerating into a thought police now.
It used to be the Right conspired to suppress people on their "morals", often with laws or public policies. Now the Left patrols with it's "banned words" or unleashes their Black Clad and masked anonymous shock troops to shut people up. No Supreme Court decision is going to let the air out of the "Antifa"'s tires by removing their legal authority because they have no legal authority to surround a building where someone is going to TALK about an idea, no matter how much you despise it. Burning and destroying property isn't the answer.
If someone is passing a law or using public authority to inflict their power on people because it's their idea of what"s "Right" then protest. Even up to violently if worse comes to worse.
Milo or PETA mocking other people may be not polite or even fair but it's an OPINION, not a law.
Let people speak. If the person is an idiot try to record it and put it up publicly so people can judge for themselves. I know everyone wants the "short, 6 second version" but ALSO post the entire version of the their ideas or speeches for the interested to judge for themselves.
Often by your idiotic behavior you attract 10,0000 more attention or validity to someone than ignoring or locally jeering them would.
I don't care what you call yourself, including "anti-fascists", or whatever. Unless there are some sort of death squads or secret police rounding you up there is no excuse for showing up in masks and black clothing and threatening, spraying people with pepper spray for wearing a hat or T-shirt with words on it, smashing property and burning cars YOU are a cure being worse than the disease.
Quite a few "Antifa" have been unmasked and ID'd publicly. If they didn't commit a crime and get arrested nothing but public bad feelings have followed. No death squad or secret police "Unpersoned" them or they didn't turn up outside of town face down in a ditch tortured and killed.
So take off the masks and be proud of your activism. If you can't be proud of it, maybe you need to think hard about what you are doing. Just because you are against "Fascists" doesn't make doing worse things justified.
Just because you can whip up an internet mob and run people out of jobs or even out of business doesn't make you right.
Remember that there are a lot more actual combat vets on the right than on the left. You actually think your "mob rule" is going to scare them? You can also end up being the one reviled for your tactics. Then people will invalidate EVERYTHING you stand for because other people committed crimes in your name.
We can agree to disagree as long as no one is using law or official power to discriminate or suppress people. Mouth sounds are NOT physical assaults or committing a crime.

Anonymous

No David. The Nazis were not socialists, even though the called themselves that. The first thing they did when they took power was to ban labor unions. Real socialists LIKE labor unions. Fascists
and other plutocrats hate labor unions. Hitler was as 'right-wing' as it gets.

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