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

This might be an obvious question, but this is something I would really appreciate some help from you folks at ACLU to understand:
As a public entity - not private, does the WMATA have to abide by the First Amendment? Is it fair to say that since it is a government agency, the choice of limitations of WMATA's own advertising policy is already unconstitutional?

MLS

I don't think this is an issue of speech. Metro's advertisement is not platform which is governed by the first amendment. Metro is under no obligation to sell advertising to anyone. While many advertisers use their ad to make speech, I don't think the first amendment would support advertisement as an extension of one's personal right to free speech. Metro is not stopping him from spewing his hate, they have just chosen not to do business with him by selling him advertisement space, and I'm perfectly okay with that. Metro is not a "government agency" they are a quasi-governmental compact that answers to the jurisdictional governments that represent it's service area. I don't think you can make a logical argument for its advertising to be considered "free speech".

SFW

Why should a government institution have to obey the Constitution?

Are you for real?

http://www.firstamendmentcenter.org/advertising-first-amendment-overview/

Advertising is speech and it is protected.

Anonymous

>>Metro is not a "government agency" they are a quasi-governmental compact that answers to the jurisdictional governments that represent it's service area.<<

Setting aside your misunderstanding of how interstate compacts function, it's a bit strange for an entity supposedly "not a 'government agency'" to regularly and successfully invoke sovereign immunity in court, isn't it? See, e.g., Burkhart v. Washington Metro. Area Transit Auth., 112 F.3d 1207, 1216 (D.C. Cir. 1997).

MLS

I am disgusted at the ACLU's over-reach into Metro's advertising policies under the guise of "free speech". No. I do not accept your argument or premise. This *IS NOT* a free speech issue. Advertising is a business transaction and Metro ought to be able to do business as it needs to.
You can take issue with the fairness of their application of their advertisement policy, that's fine. But to call this a "free speech" issue, is ludicrous, at best! I will not have the ACLU going around forcing public entities to do business with, and promote the speech of, vile trolls like this! You've pretty much assured that you will not receive further gifts from me.

Anonymous

Whether or not you choose to bake a cake for a customer is a business issue. Baking cakes is a business transaction and bakeries ought to be able to do business as they need to. I will not have the ACLU going around forcing public entities to do business with, and promote the beliefs of, people i don't like!

Sounds pretty absurd, doesn't it? Oh wait, no. businesses ARE forced to bake cakes for people they don't agree with, and not allowed to cite "free speech" by not doing something they don't agree with ideologically. They dont have the right to discriminate based on subject matter. Businesses are forced into situations like this all the time. Every single one of the three examples given here are discrimination, pure and simple. You can dislike any of the three groups, and i do, but to deny them what they purchased, especially on grounds as shaky as the ones being used, is absurd.

Anonymous

Yup, the real issue here is not speech or no speech, but whether Metro is "government".

I think any commercial entity is permitted to control what speech they allow to be presented through advertising on their premises. Question is, is Metro a commercial entity, or a governmental entity. Interesting question to adjudicate.

SFW

Advertising IS speech. The issue is NOT if the Metro is Private or Public; Free Speech is protected.

http://www.firstamendmentcenter.org/advertising-first-amendment-overview/

This smoke and mirrors argument over who owns the Metro is bunk.

Hanonymous

Other businesses have been forced into specific business transactions, least they pay the consequences of exercising free speech. Free speech doesn't mean freedom from consequences of said speech.
Also, 'hate speech' does not exist in a definitive sense, is not legally recognized & is entirely an emotionally-charged guise. Please bring a stronger argument to the table.

SFW

Eliminating someone's right to free speech IS NOT an exercise of Free Speech.

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