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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Samya

Dough, I think you have a point and I agree with you. I find Milo a disgusting fraud and I find that his discourse in some rallies was actually dangerous and inflammatory. The add, however, was simply an add. It is up to the public to buy the book or not. Unfortunately, an add for Obama's new book might be just as nauseating for some as Milo's is for me.

Am I ready to give up the right to see adds for that book too? Or give somebody else the authority to determine what is OK or not for me to see? Definitely not. I rather to have the choice to disagree and voice my disagreement or just look the other way, not buy, change the channel, not attend, etc... My choice! My discernment! I can't take it away without giving it away too.

That being said, I do worry with this trend we are seeing lately, where the flag of “free speech” is being used to protect fighting words and dangerous speech (not the case in this specific lawsuit); speech inciting violence, dehumanizing vulnerable people and spreading hate. I know it is such a fine line and it has not been drawn yet, however pressure is mounting and we will need to find a way to protect against this kind of speech without compromising the first amendment.

Anonymousity

In my opinion, we should all be helping each other out, not despising or judging. Everyone should be watching each other's back like we're family. That's what I'd like. But the world isn't so, and not everyone is good or out to help others. Some people really suck. So why do you think you should be allowed to stop someone from hating shitty people? Why am I not allowed to hate or to talk about my feelings of hatred? Thought police much? Why do you think you can decide hatred or judgement is always bad and should be illegal?

Anonymous

Political-speech bans on public transit rely on a decades-old Supreme Court case, Lehman v. City of Shaker Heights. In 1974, a candidate for the Ohio House of Representatives sued Shaker Heights over its designation of its transit system as a limited public forum, arguing that forbidding free speech on a public train was akin to doing so on a street corner or in a meeting hall.

The justices ruled in a 5–4 decision that it was not. Forcing political ads on a “captive audience” inside a train car was not within the candidate’s “constitutional right.”

Anonymous

It seems strange that there should be no limits on advertisements. Should the DC Metro also post advertisements for porn sites? When their customers are offended, decide not to ride, and cost them money, they should be forced to continue the advertisements? Doesn't seem right.

Anonymous

Is any of this gonna matter if he OBLITERATES us in a nuclear attack on Korea? After THEY obliterate US seconds later?
My first husband was a nuclear physicist. He said "the worst thing scientists ever did was split the atom & create the A-bomb," which he said they called Fat Boy. No idea why.
He said they'll know if we send off warheads and they'll send them off too & that'll be the end, although not right away. At least that's how it was in the early 90's. Now the energy contained in nuclear weapons can be released in less than a second, using more energy than all the bombs used in WWII.
We have a government full of idiots now, who don't even understand the concept that "nobody will win a nuclear war." He said that too.
I'm way more concerned about being obliterated than I am about First Amendment interests.
This "president" is driving me crazy & I'm Republican. The GOP never should've accepted his ass. John McCain should've run again, or Romney. Anyone BUT Trump. He has no experience for god's sake.

Puzzled

I mean, they are called the ACLU, kinda a specific scope and focus there...

Alexander David...

1st, 4th, 5th, 9th, 13th amendments are being violated. Want the P.O box to the CIA in D.C. just incase the internet blacks out because of the FBI?

Hello my name is Alexander David Hooper. SS- 594-02-9813. SFPD, FBI offices of San Francisco - Oakland - Sacramento, DEA of 450 Golden Gate, and Secret of San Francsico continue their illegal pedophile slave ring operations which stand against the U.S.A. They have attempted manslaughter on Presidents Barack Obama and current President Donald Trump. I do not work for the police or these federal agencies. I do have security clearence with the Department of Defense, which these heretics attack and illegally question for personal gain and illegal espionage against the U.S.A. I'm very good at defending, although the conflict has persisted for 5 years. AIRFORCE ONE parts compromised. Attacks have been made on the USCG (they've lied to them during their operations concerning FORT MASON,) USAF by attacking the grid of the City of Fairfield, CA and personnel using wave propagations, as well blocking communications and eavesdropping on SPECIAL INVESTIGATIONS with the OIG and illegally recording/monitering TRAVIS AFB. They also are illegally broadcasting military/NSA operations to many that are not members of law enforcement, but members of the pedophile slave ring. The heretics of San Francisco have proved their mentally ill and remain instable making additional threats and lethal attacks on the public, members of the US ARMED FORCES ( ALL BRANCHES INCLUDED, PRESENCE IS ACROSS THE U.S.A.), and they continue to make verbal threats on the life of President Donald Trump. I continue to communicate with Secret Service when attempts and threats come up that are committed by the heretics of San Francisco. I defend the U.S.A. This conflict is internationally known with threats made by the heretics on non-citizens present in the U.S.A. as well foreign nations and their respected governments. Many correlations show with these heretic's activity dating back to 9/11 and flight Malaysia by there verbal claims with decoders and the underground electromagnetic facility FORT MASON, and continue with UK espionage agreements with SFPD & FBI w/ Russian presence among the FBI office of San Francisco by word of US Marshal of 450 Golden Gate. I am a witness to their treason, and request legal aid against these heretics of the U.S.A. I have worked aside Secret Service for many years, and it saddens me to see them among other pedophiles.

Cheers,
Alexander David Hooper

Anonymous

The First Amendment doesn't entitle you to a platform. I obviously disagree with banning ACLU, Carafem and PETA ads (and I don't like PETA at all), but WMATA has a right to do so.
By defending Milo you're siding with someone who would silence you if he had a change to do so. Milo is a white supremacist who advocates for sex between adults and preteens and who incites to violence and doxes women and minorities.
You surely have women, religious and ethnic minorities, LGBT people, victims of child abuse, etc. donating to you. By suing on behalf of someone who hates all those people, you're disrespecting your own donors. I could still accept that if Milo was a poor person who had no other means. That is not the case. Despite being unemployed, Milo has plenty of money to pay for a lawyer. Let him use his money.
I have a question for ACLU: will you defend the right of women, LGBT people and ethnic minorities to spread their opinions both online and in person without fearing being doxed and receiving death threats?

Anonymous

Free speech does not mean you get to force people to platform and spread your message for you....

This case is ludicrous at best...

Can someone say whatever they want or hold posters up while riding on a bus? Sure can...

Can someone force a metro company to put their signs up on their busses? Ummm nope....

This group is delusional...

If were concerned about free speech start with YouTube, Google, Twitter and Facebook censoring in VAST numbers
public social media platforms setup to express real free speech....

Good lord...

Mike

I will no longer be donating. In this instance I believe the ACLU cares more about high profile names than the message they are sending about by associating with Milo.

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